Federal Court of Australia

BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant is a national of Afghanistan who arrived in Australia by boat on 2 August 2012. His application for a Safe Haven Enterprise Visa was refused by a delegate of the Minister in October 2016, and that refusal was affirmed by the Immigration Assessment Authority (the IAA) on review under Pt 7AA of the Migration Act 1958 (Cth) (the Act) in March 2017.

2    The appellant sought judicial review of the IAA’s decision in the Federal Circuit Court (the FCC), but was unsuccessful. See BYX17 v Minister for Immigration [2020] FCCA 1749.

3    There are two issues on the appeal from the FCC. The first (ground 1 of the notice of appeal) is whether the FCC should have found that the decision of the IAA was affected by a reasonable apprehension of bias because it had been provided with, and had referred to, material which was both irrelevant and prejudicial (despite the IAA’s disavowal of reliance on that material). The second (ground 3 of the notice of appeal) is whether the FCC should have found that the decision of the IAA was affected by jurisdictional error by reason of a misapplication of the internal relocation principle.

4    The appellant did not pursue ground 2 in his notice of appeal.

5    For the reasons which follow, the appeal must be dismissed, with costs.

The appellant’s claims

6    The appellant is a Shia Muslim of Hazara ethnicity. In Afghanistan he was the owner of a truck used to transport construction material from Herat to Kabul. He said that approximately one year before his arrival in Australia he had received a threatening call from the Taliban in which he had been told that, if he did not stop supplying materials to the government, he would be captured and killed. He said that he had received a second call to similar effect approximately three or four months later. He said that he had told the driver of his truck about these calls and had indicated that he should not continue accepting business from the government. About four months after the second call, the appellant said that his truck was destroyed and the driver killed. He said that he had been told by people in the area that the Taliban had targeted the truck. He said that, at that point, he decided to leave his home.

7    The appellant claimed protection on the basis that he was a target of the Taliban and because of his religion and ethnicity. In particular, he claimed that he would be a target of the Taliban or other Sunni extremists because he is a Hazara Shia, and that there was nowhere in Afghanistan where it would be safe for him to go. He also sought protection on the basis that, if he does go back to Afghanistan, the Taliban are likely to think that he has changed his religion (because he would be returning from a western country), and will think that he is “pro-west”.

8    The IAA accepted the appellant’s claims about his ownership of the truck, the threats made to him, the destruction of his truck and the death of his driver. It also accepted that there was “a more than remote chance of the [appellant] being identified by the Taliban and again targeted for harm if he returns to his home area”. There were some aspects of the appellant’s claims which the IAA did not accept, but it is not necessary to refer to them.

9    Relevantly for present purposes, the IAA was not satisfied that the appellant faced a real chance of being seriously harmed in generalised violence, or for reasons associated with his past transport business, his ethnicity, his religion or his return from a western country throughout Afghanistan. It accepted that there was a real chance he would be seriously harmed for reasons associated with his past transport business in his home area in Ghazni, but was “not satisfied that this real chance of persecution relate[d] to all areas of [Afghanistan]”.

10    Similarly, on the question of complementary protection, the IAA accepted that “[f]or the same reasons … the [appellant] will face a real risk of significant harm if he returns to and lives in his home area”, but said that “this risk is confined to his home area, and there is no real risk of him facing significant harm outside of this area, such as in Mazar-e-Sharif”.

Ground 1 – apprehended bias

11    The background circumstances giving rise to the appellant’s claim that the IAA’s decision was affected by a reasonable apprehension of bias were as follows.

12    On 20 April 2016, the appellant was interviewed by the Minister’s delegate. Before the interview, the delegate had received information from Victoria Police that the appellant had been arrested on 12 March 2015 in relation to the rape and sexual penetration of three children and that possible charges were pending. The delegate raised this issue with the appellant in the interview, as recorded in the delegate’s reasons (at [14]):

… I put it to the applicant that he had not disclosed serious allegations put against him by Victoria Police. I stated that the allegations against him were serious and asked him to explain the nature of the allegations. Firstly the applicant tried to deny the allegations, stating that the incident was due to the theft of a car. After more questions were asked, the applicant outlined the allegation briefly. He explained that due to [the] seriousness of the allegation he felt ashamed in front of his female lawyer and the Hazara interpreter.

13    Later, in a section of the reasons headed “Applicant is currently being investigated by Police”, the delegate recalled those matters and concluded (at [55]):

I have accepted the applicant’s clarification in relation to the matter and have not made a finding due to the investigation still pending. I accept that cultural norms in Afghanistan would have caused the applicant to falsify his response at the interview due to his legal representative being a female.

14    Later, however, (at [65]) the delegate recorded a finding that “[t]he applicant’s description of events leading him to be investigated by the Victorian Police” was not credible.

15    In the period between the interview on 20 April 2016 and the delegate’s decision, the Department continued to seek, and received, information concerning the appellant’s matter with Victoria Police. On 28 April 2016, the delegate was told that Victoria Police had informed the Department that no charges had yet been laid, that Victoria Police had not yet finalised their investigation, and that a “brief of evidence” was still being considered. That state of affairs was confirmed in an email provided to the delegate on 9 May 2016.

16    On 12 August 2016, the appellant’s then representative provided the delegate with a copy of a letter from Victoria Police dated 30 June 2016, which stated (relevantly):

A brief of evidence has been prepare[d] and reviewed. A decision was made that the brief of evidence would not be authorised at this time.

If further information comes to light at a later date it will be investigated.

The decision has been made after careful consideration of the available evidence and in consultation with Detective Senior Sergeant [name omitted].

17    On 12 October 2016, the delegate refused the appellant’s visa application. Twelve days later, that decision was referred to the IAA for review.

18    In a submission to the IAA on 7 November 2016, the appellant’s representative contended that the section of the delegate’s reasons under the heading “Applicant is currently being investigated by Police” was irrelevant to the assessment of his claim. Her submission included another copy of the letter from Victoria Police dated 30 June 2016, and stated that Victoria Police had confirmed on 27 October 2016 that “due to lack of evidence, [the appellant] was not being charged [with] any offence and his case was closed at the Victoria Police office end”.

19    The submission, relevantly, was as follows:

I am writing in relation to the DIBP’s decision to refuse SHEV [Safe Haven Enterprise Visa] application of [the appellant] in October 2016. The purpose of this submission is to provide reasons why we do not agree with the decision of the DIBP to refuse grant of a SHEV to [him] based on his claims to seek the protection of the Australian government.

Discussion

In paragraph 55 of the decision record the delegate of the DIBP states:

55.    I have accepted the applicant’s clarification in relation to the matter and have not made a finding due to the investigation still pending. I accept that cultural norms in Afghanistan would have caused the applicant to falsify his response at the interview due to his legal representative being a female.

Subsequently, the fact that [the appellant] did not acknowledged [sic] his Police matter when it was initially asked of him should not cause the assessor to doubt credibility of his claims. It is unclear why the delegate of the DIBP made below findings as in para 65 of the Decision Record.

65.    ... For the reasons outlined above, I find the following claims to not be credible:

... The applicant’s description of events leading him to be investigated by the Victorian Police.

We submit that the sub-heading of the subsection (para 52-55) which reads ‘Applicant is currently being investigated by Police’ was not relevant to our client at the time of decision.

We forwarded a letter from Victoria Police, issued on 12th August 2016, to [the appellant’s] Departmental case officer, email enclosed and marked as Annex D. The letter clearly reads that the brief of evidence in relation to the investigation of [his] case would not be authorised.

I contacted responsible member of the police … on 27th October 2016 and she confirmed to me that due to lack of evidence, [the appellant] was not being charged of any offence and his case was closed at the Victoria Police office end.

[The responsible member of the police] agreed to happily respond to any queries related to [the appellant’s] matter and she can be contacted on …

(Citations omitted.)

The IAA considered the material concerning the Victoria Police matter

20    The material referred to above (other than the submission of 7 November 2016) was included in the material provided by the Secretary to the IAA pursuant to s 473CB(1) of the Act, which provides that the Secretary must give to the IAA in respect of each fast track reviewable decision referred to it (among other things) “(b) material provided by the referred applicant to the person making the decision before the decision was made” and “(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the [IAA]) to be relevant to the review”.

21    In [2] of its reasons, the IAA said that it had “had regard to the material referred by the Secretary under s 473CB of [the Act]”.

22    The IAA then considered whether, having regard to the terms of s 473DD of the Act (which gives the IAA power to consider new information in exceptional circumstances), it could consider the submission of 7 November 2016, and determined that it could. The IAA said:

3.    The applicant provide[d] a submission to the IAA on 7 November 2016. The submission contains a four-page document responding to the delegate’s concerns and clarifying aspects of the applicant’s existing claims. I am satisfied this is not new information and I have had regard to those submissions.

4.    The submission also includes new information. The first is a letter from Victoria Police, dated 30 June 2016, indicating that the applicant was arrested in April 2015. It states that a brief of evidence was prepared and reviewed, however a decision was made that the brief of evidence would not be authorised at this time. The written submission also indicates that the representative contacted Victoria Police on 27 October 2016, and the responsible sergeant confirmed the contents of that letter were still accurate, stating that due to a lack of evidence the applicant would not be charged with any offence. The submission also includes reference to a Washington Post article from 7 November 2016. The article relates specifically to the current humanitarian situation in Afghanistan.

5.    I am satisfied that both the police advice and the news article postdate the delegate’s decision. I am satisfied the new information provided by the applicant was not and could not have been provided to the delegate before the decision was made under s.65 of the Act. They were recent developments and highly relevant to his claims, specifically the volatile situation in Afghanistan and the current status of the police investigation into the applicant. I am satisfied there are exceptional circumstances to justify considering this information.

(Citation omitted, emphasis added.)

23    As is apparent from [5] of the IAA’s reasons, it decided that it could consider “the police advice” because “the current status of the police investigation into the [appellant]” was “highly relevant to his claims”. It seems that in this context, the IAA used the term “police advice” to encompass both the letter from Victoria Police dated 30 June 2016, and the statement of the “responsible sergeant” on 27 October 2016, but not the information provided by Victoria Police to the Department between March and May 2016 concerning the appellant’s arrest.

24    That is to say, the IAA was satisfied that the criteria specified in s 473DD to permit its consideration of the information provided on 7 November 2016 were satisfied in relation to the “new information”.

25    Later, when considering the appellant’s claims, the IAA said:

15.    During the visa interview, the applicant was asked whether he was under investigation for any crimes in Australia. He stated there was a boy in his room and there was an investigation or interview about that. He claimed the boy’s car was stolen and there was an interview. He was asked if there was any other crime or matter under investigation, he confirmed there was not.

16.    The delegate put to him that this was not true. He then clarified that there was an allegation. He claimed that something happened between the boy and his girlfriend, and then things got worse between them. Then the police wanted an interview. He was asked by the delegate what happened after the interview. He said that since then nothing has happened, and he was told he may need to go to court. He said that he received a letter about the possible charges.

17.    The delegate placed some adverse weight in relation to the applicant’s evidence about the potential police charges and the seriousness of those charges, although the relevance of those charges to the applicant’s individual claims is not apparent. Whatever the case, the applicant has since provided documentation that indicates the charges are not currently being pursued by Victoria Police. I accept his explanations why he was initially not forthcoming about these matters until the latter part of the interview, and I have given no weight to these matters in my assessment of his evidence or his credibility.

(Emphasis added.)

26    It was common ground that the delegate’s finding that the appellant’s description of events leading him to be investigated by Victoria Police was not credible was irrelevant to the IAA’s task, which did not involve any consideration of the character test applicable in other contexts. As Nettle and Gordon JJ explained in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140 at 154 [61] (CNY17):

Part 7AA [of the Act] applies only to a ‘fast track applicant’ and a decision to refuse the applicant’s visa application must not have been made because of the character test in s 501 of the [Act], or on the basis of s 5H(2), 36(1C), or 36(2C)(a) or (b) of the [Act]. Those latter provisions are concerned primarily with excluding people who the Minister has serious reasons for considering have committed certain international crimes, a ‘serious non-political crime’ before entering Australia, or acts contrary to the purposes and principles of the United Nations or who the Minister considers, on reasonable grounds, would be a danger to Australia’s security, or a danger to the Australian community having been convicted of a ‘particularly serious crime’. Where those provisions are relied upon in making a decision to refuse a visa, the decision will be reviewed by the Administrative Appeals Tribunal, rather than by the IAA. Those provisions were not relied upon in refusing the appellant’s protection visa.

(Citations omitted.)

27    The IAA was wrong to say that the letter from Victoria Police of 30 June 2016 was part of the “new information” to which ss 473DC and 473DD of the Act refer, because that letter had been before the delegate, having been provided by the appellant’s representative on 12 August 2016. However, it was not suggested that anything turned on that error.

The appellant’s submissions

28    In his written submissions, counsel for the appellant put his bias case as follows:

(a)    the material concerning the investigation by Victoria Police was both irrelevant and prejudicial;

(b)    the IAA had recorded that it regarded the “police advice” as “highly relevant to [the appellant’s] claims”;

(c)    a decision is affected by jurisdictional error when a reasonable observer might apprehend that the decision-maker might have been influenced by something other than the merits of the case and the relevant evidence. In particular, where there was information before a decision-maker which was irrelevant to its task, a reasonable observer may apprehend bias if the observer might consider that the decision may have been affected by it;

(d)    it was not necessary for the appellant to satisfy the court that the irrelevant and prejudicial police material had affected the IAA’s decision, because the “double might” test established in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) does not require that;

(e)    a reasonable apprehension of bias may arise from the possibility that irrelevant and prejudicial material has had a purely subconscious effect on the decision-maker (citing CNY17 at 152 [51], 158 [92], 159 [97] (Nettle and Gordon JJ), 166 [142] (Edelman J));

(f)    the IAA’s disavowal of reliance on the irrelevant and prejudicial material (see [25] above) was insufficient to remove a reasonable apprehension of bias; and

(g)    although the point at which the apprehension of the reasonable observer is to be assessed will depend on the manner in which the decision-making process may be perceived to have deviated from its proper course, in the context of Pt 7AA of the Act, in which there is a statutory obligation to consider material that is provided by the Secretary under s 473CB, “that deviation occurs as soon as irrelevant and prejudicial material is provided by the Secretary and received by the IAA”.

29    In oral argument, counsel retreated somewhat from that final proposition (summarised in [28(g)] above), submitting instead that “the better answer might be that … having received the information and then having to decide what to do with that information … that’s the point at which the reasonable observer can apprehend whether the IAA is being diverted from its proper statutory task or not”.

30    In oral argument, counsel also contended that his “primary proposition” was that “in an IAA context, the decision-making process is compartmentalised by the statute and it’s legitimate to read the reasons for that preliminary section [principally [3]-[5] of the IAA’s reasons] as a whole without reference to the later material [[15]-[17] of the IAA’s reasons], because that can, in and of itself, demonstrate that the IAA has gone awry and … diverted itself from the task that it’s supposed to conduct”, namely to conduct an “objective evaluation of whether the appellant had a well-founded fear of persecution on return to Afghanistan”.

31    Counsel for the appellant also submitted that, when the IAA said at [5] that “the police advice” was a “recent development” and “highly relevant” to the appellant’s claims:

… claims means the claims that an applicant makes to fear persecution or significant harm if returned to the home country, and so the IAA here is saying that the police investigation into the applicant is relevant to his claim, and that this rebuttal information is highly relevant to that claim.

Now, that, in my submission, indicates that the IAA has, in fact, diverted from the task that it’s supposed to be doing. This material is, on any view, plainly irrelevant to the IAAs task. It shouldn’t be taken into account.

The reasons of the FCC

32    The primary judge dealt with the bias point below as follows (BYX17 v Minister for Immigration [2020] FCCA 1749 at [45]-[48]):

The Authority was required to have regard to the material that was before the delegate including the information about investigation into crimes that he may have committed in Australia. The Authority also had regard to the new information which included the Police Letter which advised that a decision had been made that the brief of evidence would not be authorised. The Authority has expressly stated that it [has] given no weight to the matters that were referred to by the delegate relating to any police investigation. The letter from the police that the Authority refers to was provided to it by a submission made by the applicant. Clearly the applicant considered that information to be relevant.

There was no need for the decision-maker to comment on the information regarding the police investigation because it was clear that the investigation was not proceeding. Contrary to the position that pertained in CNY17 at [141] per Edelman J, the Authority expressly stated that no weight had been placed on the material relating to police investigations and in the answers that the applicant had given regarding those matters before the delegate: decision at [17]. This is not a case where there was a large volume of irrelevant prejudicial material (as was the case in CNY17).

I do not find that a fair-minded observer (with some knowledge of the nature of the decision and the circumstances which led to this decision and the context in which it was made) might reasonably apprehend that the Authority might not bring an impartial mind of the resolution of the question that it is required to decide. It is also reasonable to accept the Authority’s disavowal of any reliance on that material given the terms of the letter from the police.

This case can be distinguished from the situation that arising in Applicant VEAL principally because the applicant knew about, was able to, and did, comment on the Police Information before the Authority.

Consideration

33    The principles relating to the effect of apprehended bias by administrative decision-makers are settled. Nettle and Gordon JJ explained as follows in CNY17 at 153-154 [56]-[59]:

The test for apprehended bias is whether ‘a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide’. A finding of apprehended bias is not to be reached lightly. The determination of whether an apprehension of bias is ‘reasonable’ is not assisted by philosophical conceptions of the varieties of seriousness or materiality.

The test has two steps. First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits. What is said to affect a decision-maker’s impartiality? Partiality can take many forms, including disqualification by direct or indirect interest in the proceedings, pecuniary or otherwise; disqualification by conduct; disqualification by association; and disqualification by extraneous information. As Deane J said in Webb v The Queen, in relation to disqualification by extraneous information, ‘knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias’. Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits. How will the claimed interest, influence or extraneous information have the suggested effect?

In applying the test, ‘it is necessary to consider ... the legal, statutory and factual contexts in which the decision is made’. It is also necessary to consider ‘what is involved in making the decision and the identity of the decision-maker’. This draws attention to the fact that the test must recognise ‘differences between court proceedings and other kinds of decision-making’. The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has ‘a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]’.

Where, however, as here, the statutory context is complex, the fair-minded lay observer at least must have knowledge of the key elements of that scheme. In this case, those key elements, summarised below, are not themselves overly complex. It is necessary to consider the statutory regime.

(Citations omitted.)

34    See also FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 at 465 [32] (Bromberg, Davies and O’Bryan JJ) (FSG17); MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [32]-[52] (O’Callaghan and Colvin JJ).

35    The question of apprehended bias is, of course, a question of fact to be assessed in light of all the circumstances. See, by way of example only, FSG17 at 467 [36] (Bromberg, Davies and O’Bryan JJ). In our view, on the facts in this case, the contention that a fair-minded lay observer might reasonably apprehend that the IAA might not have brought an impartial mind to the question whether the appellant had a well-founded fear of persecution on return to Afghanistan must be rejected, in circumstances where (as counsel for the Minister submitted):

(a)    the appellant knew that the material concerning the fact that Victoria Police had been investigating whether he had committed a serious sexual offence was before the IAA (see [18] and [19] above);

(b)    the IAA afforded the appellant an opportunity to address the allegations;

(c)    the appellant’s representative proffered, and the IAA accepted, “new information” within the meaning of s 473DC of the Act, to the effect that no charges would be laid (see [18]-[24] above);

(d)    the IAA was well aware that the allegations were in any event irrelevant to the resolution of the question before it, something that is obvious from its reference to the fact that it was “not apparent” why the delegate thought the potential charges were relevant in the first place (see [25] above);

(e)    the IAA expressly said that it accordingly had given no weight to any potential police charges in its assessment of the appellant’s evidence or his credibility (see [25] above); and

(f)    in any event, there is, to use the words of Nettle and Gordon JJ in CNY17, no “logical connection” between the “identified thing” (here, the material about the possibility of police charges) and “the feared deviation” from deciding on the merits whether the appellant had a well-founded fear of persecution on return to Afghanistan.

36    We do not accept the appellant’s contention with respect to [5] of the IAA’s reasons (where the IAA said that the “police advice” was a “recent development” and “highly relevant” to the appellant’s claims). The appellant’s contention was that, in that context, “claims means the claims that an applicant makes to fear persecution or significant harm if returned to the home country, and so the IAA here is saying that the police investigation into the applicant is relevant to his claim, and that this rebuttal information is highly relevant to that claim”. That is, with respect, to misread what the IAA said. The reference to “police advice” is obviously a reference to the recent advice that charges were not to be pressed. The IAA was saying no more than that the new information in substance put paid to the finding of the delegate that the appellant’s description of events leading him to be investigated by Victoria Police was not credible (see [14] above). So much is confirmed by [17] of the IAA’s reasons (see [25] above), viz:

The delegate placed some adverse weight in relation to the applicant’s evidence about the potential police charges and the seriousness of those charges, although the relevance of those charges to the applicant’s individual claims is not apparent. Whatever the case, the applicant has since provided documentation that indicates the charges are not currently being pursued by Victoria Police. I accept his explanations why he was initially not forthcoming about these matters until the latter part of the interview, and I have given no weight to these matters in my assessment of his evidence or his credibility.

37    We do not accept the appellant’s contention (set out at [30] above) that it is necessary to read [5] of the IAA’s reasons “without reference” to [15]-[17], or any other passages in the lengthy reasons that follow. Quite apart from anything else, the submission flies in the face of the sometimes ignored, but axiomatic, proposition that reasons, including reasons of the IAA, must be read as a whole.

38    It also follows from what we have said above that we do not accept the proposition (set out at [29]) that, in this case, a fair-minded lay observer might reasonably apprehend that the IAA might not bring an impartial mind to the resolution of the question it was required to decide at “the point” at which it received “the information”.

Ground 3 – the IAA applied a test of “relative safety” in assessing whether it was reasonable for the appellant to relocate

39    The appellant contends that the primary judge erred by failing to find that the IAA erroneously applied a relative rather than objective approach to the question of the safety of the city of Mazar-e-Sharif, and the reasonableness of relocating there. In support of that contention, the appellant homes in on the words “relative safety”, used in reference to Mazar-e-Sharif in a finding contained in a single paragraph ([70]) of the IAA’s reasons, without any regard to the context of the discussion and findings that go before and after it.

40    When the issue of internal relocation arises, two questions must be addressed:

(1)    whether there is a place (or places) in the country of nationality where the applicant for refugee status would not have a well-founded fear of persecution on a Convention ground; and

(2)    whether it would be reasonable in the circumstances for the person to relocate to that place (or one of those places).

See, eg, Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at 326-329 [21]-[30] (French CJ, Hayne, Kiefel and Keane JJ), 331-333 [39]-[44] (Gageler J); CID15 v Minister for Immigration and Border Protection [2017] FCA 780 (Moshinsky J).

41    As the Full Court explained in CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at 369-370 [22]-[23] (Murphy, Mortimer and O’Callaghan JJ):

To satisfy the refugee criterion under s 36(2)(a) of the Act the appellant was required to show that he has a ‘well-founded’ fear of persecution for a Convention reason if he returns to his country of origin. A fear of persecution will be ‘well-founded’ if there is a ‘real chance’ that the applicant will suffer the claimed persecution in the reasonably foreseeable future. A ‘real chance’ is a prospect that is not ‘remote’ or ‘far-fetched’: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J).

The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe than another place. It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place …

The reasons of the IAA

42    The detailed reasons of the IAA relevant to this ground were as follows:

43.    Beyond the serious but confined threat posed by Islamic State, there is no other indication in the country information of any escalation in other persecutory conduct against Hazara Shias in Mazar-e-Sharif or other cities such as Kabul, whether by Islamic State, the Taliban or any other AGE [anti-government element]. The groups with a risk profile in these cities, and those at threat from the Taliban and other AGEs, remain those associated with the government, the military, the media or the international community. I am satisfied the applicant has no such profile.

…

45.    While I accept the potential for future attacks against Hazara Shia[s] in urban areas like Mazar-e-Sharif and Kabul cannot be discounted entirely, I give significant weight to the information before me that indicates that Islamic State’s presence (both geographically and in terms of numbers) and capacity to orchestrate attacks in the country in the reasonably foreseeable future is limited, and that the group remains under considerable pressure from Afghan forces, US air strikes and the Taliban. I have also weighed the information before me about the strong security presences in both Mazar-e-Sharif and Kabul. I again note that there is little evidence of other systematic or persecutory conduct towards religious or ethnic minorities in these cities, and that attacks against religious and ethnic groups have been rare. Outside of my assessment of Islamic State, I am satisfied there is no real chance of the applicant being seriously harmed for reasons of his ethnicity or religion in Mazar-e-Sharif by the Taliban or any other AGE.

46.    The applicant expressed concerns about the suggestion that Mazar-e-Sharif is one of the safer cities in Afghanistan, highlighting that the same used to be said about Kabul. I accept there is insecurity in Mazar-e-Sharif, and the proximity of the Balkh attack is a concern, however the information before me does not indicate that Islamic State has orchestrated attacks against Hazara Shias in the city, or that the group yet has the presence or capacity to do so in the future. Nor does it indicate there is a real chance or real risk of sectarianism taking hold in the city or the country more broadly. I accept there is evidence of general insecurity and AGE attacks against government and international presences in the city, however this is consistent with general security situation in the country and that information does not indicate that Hazara Shias are at a real chance of being harmed with [sic] Mazar-e-Sharif.

47.    Considering all the information before me, I find that future attacks on the Hazara Shia population in Afghanistan by Islamic State are likely to be occasional or infrequent, and that Islamic State’s capacity and presence in the country is limited, and what presence it has is under threat from Afghan and international forces, as well as the Taliban. While the information before me indicates that future attacks may occur, I am not satisfied that the threat from Islamic State is at a scale or frequency where there is a real chance of the applicant being seriously harmed by the group for reasons of his religion or ethnicity. I find that the chance of the applicant being harmed for these reasons is reduced even further in the context of Mazar-e-Sharif, which remains one of the safer cities in Afghanistan and has not experienced an attack against its Hazara Shia population since 2011. I am also satisfied that the attacks are not yet an indication of a return to sectarianism in the country in the reasonably foreseeable future. Based on all the information before me, I find there is not a real chance of the applicant being seriously harmed in Mazar-e-Sharif for reasons of his ethnicity or religion, by Islamic State or any other AGE active in these areas.

…

54.    Due to the ongoing conflict in the country, I have considered the issue of generalised violence. The applicant claims he fears that the risks will increase when the foreign forces withdraw. I note that while there has been a reduction in the international military presence, the US maintains a military presence in the country and is likely to do so for some time. I accept there are indicators that the security situation in Afghanistan continues to decline, however there is no indication in that information that the government or security forces are losing control of Mazar-e-Sharif (or Kabul), or that there has been an evolution or shift in the profiles of those most at risk within urban areas – being those who work for the government and the international community. While I accept there are growing security risks within Mazar-e-Sharif, Kabul and other cities, when having regard to the size and diversity of the population in Mazar-e-Sharif, the significant security and armed presence and government control in these cities, and the applicant’s lack of any profile or proximity to those with a risk profile, I find the chance of the applicant being harmed in generalised violence within Mazar-e-Sharif is remote. Accordingly, I am satisfied there is not a real chance of him facing serious harm on this basis.

Refugee: conclusion

56.    Looking to all the circumstances, I am satisfied there is no real chance of the applicant being seriously harmed for reasons of his religion, his ethnicity, as a person returning from the west, an imputed pro-west or anti-Taliban political opinion, as an asylum seeker, or for any other related profile, or in generalised violence. I accept there is a real chance of the applicant being seriously harmed in his home area in Ghazni for reasons of his past transport business (whether that be characterised as an actual or imputed political opinion of a person against the Taliban, his membership of a particular social group of persons with and [sic] actual or imputed connection to the government or international community, or another related profile). However, I am not satisfied that this real chance of persecution relates to all areas of the receiving country. I find that s.5J(1)(a) and (c) are not met.

…

Complementary protection assessment

…

61.    I have found there is no real chance of the applicant being seriously harmed for reasons of his religion, his ethnicity, as a person returning from the west, an actual or imputed pro-west or anti-Taliban political opinion, as an asylum seeker, or for any other related profile. For the same reasons, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, I am satisfied there is not a real risk of the applicant facing significant harm if he returns to Afghanistan.

62.    I have found above that the applicant is from a village in Moqur district in Ghazni province, and there is a real chance that he would be seriously harmed if he returns to and lives in his home area for reasons related to his past transport business. For the same reasons, I am also satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Afghanistan, the applicant will face a real risk of significant harm if he returns to and lives in his home area. However, I am satisfied this risk is confined to his home area, and there is no real risk of him facing significant harm outside of this area, such as in Mazar-e-Sharif.

…

64.    I have found that there is not a real chance of the applicant being seriously harmed in generalised violence. For the same reasons, having regard to the prevailing country information on the security situation in Afghanistan, the high level of security and safety in Mazar-e-Sharif, and the applicant’s lack of a risk profile or proximity to anyone with such a profile, I am satisfied there is not a real risk of the applicant being significantly harmed on this basis if he returns to Afghanistan.

…

68.    I have found that the applicant does not have a profile with the Taliban outside of his home area. I have also found that neither his brother nor any other member of his family is currently under threat from the Taliban. Nevertheless, I accept that the security and economic situations in parts of Ghazni are difficult and that the stresses for his family are significant. I accept there are security concerns in the province, however, I have found that his family are not specifically at risk from the Taliban or any other person or group. Nevertheless, I have weighed that against the question of whether it is reasonable for him to relocate.

69.    The applicant contends that while Mazar-e-Sharif may be considered safe, he compares it to the situation of Kabul which was in the past described as a safe haven prior to recently becoming an increasing target of insurgents. He expresses concerns that if the international forces are unable to defeat Islamic State in Iraq, it is not clear how the Afghan forces and NATO [will] defeat Islamic State in Afghanistan. He fears that the situation is quiet in Afghanistan at the moment due to the winter, but the new year will bring massive attacks to all parts of Afghanistan and the Hazaras Shias community.

70.    I have found that the applicant would not face a real risk of being significantly harmed in generalised violence in Mazar-e-Sharif. While I accept the security situation in this city is serious, given my assessment above about the relative safety in the city and the applicant’s lack of profile, I am not satisfied that this factor makes the question of relocation unreasonable.

71.    I accept that relocating to Mazar-e-Sharif would be challenging, however there are a range of considerations that indicate the applicant could successfully relocate to the city and that it would be reasonable for him to do so.

72.    The applicant’s representative has highlighted the economic and humanitarian difficulties present in Afghanistan, many as a result of high numbers of IDPs and returnee populations settling in urban areas. While I accept that there are economic difficulties throughout Afghanistan, I have also noted above the range of factors that point to the strength of Mazar-e-Sharif, including its status as a commercial and financial centre, its diversity, and strong educational standards. Notwithstanding the external pressures, I am satisfied that he would be capable of finding work and shelter and accessing essential services in the city.

…

79.    Considering all the circumstances, I am satisfied it would be reasonable for the applicant to relocate to Mazar-e-Sharif where there would not be a real risk that the applicant will suffer significant harm. As I am satisfied that the applicant could reasonably relocate to Mazar-e-Sharif, it follows that under s.36(2B) there is taken not to be a real risk that the applicant will suffer significant harm in Afghanistan.

(Citations omitted, emphasis added.)

The reasons of the FCC

43    The primary judge’s reasons for dismissing this ground below were as follows (BYX17 v Minister for Immigration [2020] FCCA 1749 at [56]-[62]):

When reading the Authority’s decision as a whole I have come to the view that it did engage in an objectiv[e] assessment of the applicant[’s] safety in each place.

At [62] of its decision, the Authority found that there was a real chance that the applicant would be seriously harmed if he returned to live in his home area in the Moqur district in [Ghazni] province. The Authority considered in some detail the security situation for Hazara Shia[s] in Afghanistan and particularly in Mazar-e-Sharif. At [45] the [A]uthority made findings (excluding assessment of Islamic State) that there was ‘no real chance of the applicant being seriously harmed for reasons of his ethnicity or religion’ in that place by the Taliban and … any other Anti-Government Elements (‘AGE’).

At [46] the Authority found that it accepts that there was evidence of general insecurity and AGE attacks against government and international presences in Mazar-e-Sharif but found that that was consistent with the general security situation in the country and that the information does not indicate that Hazara Shias are at a real chance of being harmed in Mazar-e-Sharif.

At [47] the Authority made the assessment regarding the risk of harm from Islamic State in that area which is set out above.

At [48]-[51] the Authority considered the particular risks to the applicant if he was to return to Afghanistan as a result of his spending time in the West, his abandonment of his Shia faith ([52]) and his illegal departure from Afghanistan ([53]).

At [54] the Authority considered the risk of generalised violence in Mazar-e-Sharif and found that the chance of the applicant being harmed from generalised violence in that area was remote.

At [74]-[79] the Authority considered the practicability of the applicant returning to Mazar-e-Sharif. In undertaking that exercise, the Authority did engage in an objective assessment of whether the applicant could return to Afghanistan and relocate to Mazar-e-Sharif and whether there is a real risk of harm if he did so. The Authority did not confine itself to assessment of the relative safety as between Mazar-e-Sharif and other locations in Afghanistan.

Consideration

44    We agree with the approach adopted by the primary judge.

45    In our view, when read in its proper context, including in particular the emphasised passages of the IAA’s reasons above, it is obvious that in [70] of those reasons (the paragraph seized on by the appellant) the IAA did not impermissibly conclude that Mazar-e-Sharif is merely “safer” than his home region of Ghazni, as the appellant contends.

46    On the contrary, the IAA makes clear at [70] by its express reference to its “assessment above” that its conclusion that the appellant would not face a real risk of being significantly harmed in generalised violence in Mazar-e-Sharif was based on its previous findings, including (at [54]) that “the chance of the applicant being harmed in generalised violence within Mazar-e-Sharif is remote”. That conclusion was also preceded by the following findings:

(1)    outside of Islamic State, there was no real chance of the appellant being seriously harmed for reasons of his ethnicity or religion in Mazar-e-Sharif, by the Taliban or any other anti-government element (AGE) (at [45]);

(2)    the information before the IAA did not indicate that Islamic State had orchestrated attacks against Hazara Shias in Mazar-e-Sharif (at [46]);

(3)    although there was evidence of general insecurity and AGE attacks against government and international presences in Mazar-e-Sharif, this was consistent with the general security situation in the country and the country information did not indicate that Hazara Shias were at a real chance of being harmed in Mazar-e-Sharif (at [46]);

(4)    based on all the information before the IAA, there was not a real chance of the appellant being seriously harmed in Mazar-e-Sharif, for reasons of his ethnicity or religion, by Islamic State or any other AGE active in these areas (at [47]);

(5)    although the appellant would face a real risk of significant harm if he returned to and lived in his home area, that risk was confined to his home area, and there was no real risk of him facing significant harm outside of this area, such as in Mazar-e-Sharif (at [62]); and

(6)    having regard to the prevailing country information on the security situation in Afghanistan, the high level of security and safety in Mazar-e-Sharif, and the appellant’s lack of a risk profile or proximity to anyone with such a profile, there was not a real risk of the appellant being significantly harmed in generalised violence if he returned to Afghanistan (at [64]).

47    In the second part of [70], having found that the appellant would not face a real risk of being significantly harmed in generalised violence in Mazar-e-Sharif, the IAA turns to the question whether it would be reasonable in the circumstances for the appellant to relocate there. It is in that context that it says that, while it accepts “the security situation in Mazar-e-Sharif is serious”, given the assessment above “about the relative safety in the city and the [appellant’s] lack of profile”, that security situation was not a “factor [that] makes the question of relocation unreasonable”.

48    The IAA then goes on to consider (at [71]-[79]) “a range of considerations that indicate the [appellant] could successfully relocate to [Mazar-e-Sharif] and that it would be reasonable for him to do so”.

49    In our view, it is quite obvious, reading the IAA’s reasons as a whole, and having regard in particular to the matters set out at [46] above, that in referring to the “relative safety” of Mazar-e-Sharif, the IAA is not to be taken as saying, and did not say, that because the appellant was safer in Mazar-e-Sharif than Ghazni he did not face a real chance of persecution or a real risk of being significantly harmed in Mazar-e-Sharif. Read in that context it is clear, in our view, that the IAA’s reference to “relative safety” in [70] of its reasons indicated nothing more than that the appellant’s safety in Mazar-e-Sharif, while sufficient, would be something less than “total safety”. It did not make a comparison of the type that was referred to in CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at 369-370 [23] (Murphy, Mortimer and O’Callaghan JJ) (see [41] above).

Disposition

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

Associate:    

Dated:    23 March 2021