FEDERAL COURT OF AUSTRALIA

AZACC v Minister for Immigration and Border Protection [2013] FCA 1448

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court made on 31 July 2013 are set aside.

3.    There be a declaration that the recommendation of the second respondent of 4 January 2011 was not made in accordance with the law.

4.    An injunction is hereby granted restraining the Minister, by himself or by his department, officers, delegates or agents from relying upon the recommendation of the second respondent of 4 January 2011.

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

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1    Following an Independent Merits Review (IMR), the Reviewer recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

2    The appellant, who is an Afghanistani national, then applied to the Federal Circuit Court (the FCC) under s 476 of the Migration Act 1958 (Cth) seeking (relevantly) a declaration that the Reviewer’s recommendation had not been made in accordance with law and an injunction restraining the first respondent (the Minister) from relying on that recommendation. The FCC dismissed that application: AZACC v Minister for Immigration and Citizenship [2013] FCCA 927.

3    The appellant now appeals against that dismissal on four grounds, giving rise to three substantive contentions. Each contention relates to the FCC’s rejection of complaints about the Reviewer’s conclusion that it was possible for him to relocate to Kabul in Afghanistan and thereby to avoid the fear of being persecuted for reasons of his race, religion and ethnicity.

4    The Minister opposed the appeal. The Reviewer, who is the second respondent, filed a “submitting” appearance and took no part in the hearing of the appeal.

Background

5    The appellant is a person of Hazara ethnicity and a Shia Muslim by religion. He arrived at Christmas Island by boat on 14 April 2010, without a valid visa.

6    In the terms of the Migration Act as then in force, the appellant was on his arrival an “offshore entry person”. This meant that, absent an appropriate determination by the Minister, he could not make a valid application for a visa (s 46A(1)).

7    In Plaintiff M61/2010E v The Commonwealth [2010] HCA 41 at [8], [78]; (2010) 243 CLR 319 at 334, 353-4, the High Court held that the process for IMR put in place by the Minister to inform the exercise of the powers under s 46A had to be procedurally fair and to proceed in accordance with correct legal principles.

8    When an IMR is affected by an error of law or a denial of procedural fairness, relief is available under s 476 of the Migration Act in the form of a declaration and, in appropriate cases, an injunction: Plaintiff M61/2010E v The Commonwealth [2010] HCA 41 at [8], [101]-[104]; (2012) 243 CLR 319 at 334, 359-60; SZQDZ v Minister for Immigration [2012] FCAFC 26 at [44]; (2012) 200 FCR 207 at 219; SZQGA v Minister for Immigration and Citizenship [2012] FCA 593 at [63], [161]; (2012) 204 FCR 557 at 574, 592.

9    The appellant claims to have been born in December 1993. If that date is correct, it meant that he was less than 18 years old at the time of his arrival and at the time of the IMR.

10    The Reviewer had serious doubts about the appellant’s claimed age, thinking that he may well have understated his true age. One passage of his reasons indicates that he did not make a finding as to the appellant’s age, concluding instead that the significant matter to be considered was the degree to which the appellant was a particularly vulnerable person, by virtue of his youth and inexperience, and whether his status as a young male in Afghanistan could contribute to a real chance of his being persecuted in that country. In a later passage, however, the Reviewer accepted that the appellant was yet to turn 18.

11    The Reviewer accepted that the appellant was from a village in the Jaghori District of Ghazni Province; that he had not been to school; that he had left his village in about 2005 or 2006; and that after a few weeks living in Kandahar he had then moved to Kabul where he had lived and worked in a bakery for the period of about four years until shortly before embarking on his journey to Australia.

12    The Reviewer accepted that the appellant’s father had been killed while driving on the Jaghori to Ghazni road some 11 years before the appellant arrived in Australia and that his elder brother had gone missing in the same area some six to seven years previously. He seemed to doubt the appellant’s attribution of the death of his father and the disappearance of his brother to activities of the Taliban, and also doubted that their Hazara ethnicity and their Shi’ite religion had played a part in their fate.

13    The Reviewer accepted that the appellant’s mother had remarried and had moved to another family, but seemed to doubt the appellant’s claim that he had no continuing contact with her. He considered that, in any event, the appellant still had adult relations in Jaghori who were capable of providing him with social and other support. These were an adult married sister and an uncle who treated the appellant and his siblings as close relatives.

14    The Reviewer rejected the appellant’s claim that, by reason of the death of his father and brother, he had been forced at a young age to obtain paid work, concluding that he could, had he wished, have remained in Jaghori. He considered that it was the appellant’s interest in earning “good money” in Kabul and accruing savings which was the significant reason for his having left Jaghori.

15    The Reviewer concluded that the appellant did not in the reasonably foreseeable future face a real chance of Convention-related persecution in the Jaghori District and nor did he face persecution for reasons such as his perceived support of the Government in Afghanistan, groups related with it, foreign agencies or coalition forces. On the contrary, he considered that it would be “safe and viable” for the appellant to live and work in the Jaghori District.

16    However, the Reviewer accepted that travel to and from Jaghori was another matter. He referred to “independent evidence” which confirmed that the Jaghori-Ghazni road (which is a principal route from Jaghori to Kabul) is “currently … highly vulnerable to interference, extortion, robbery and even murder, much of it reportedly committed for one reason or another by the Taliban”.

17    The appellant told the Reviewer (and earlier interviewers) of an incident on the Jaghori-Ghazni road some eight or nine months before he left Afghanistan. He said that a car in which he had been travelling with others had been stopped and searched by members of the Taliban. In addition, the occupants were questioned about any affiliations they had with the Afghanistani Government. When the appellant told his questioner that he did not know anything about such affiliations, that person put a gun to his neck saying “we only need a drop of blood; it does not mean anything to us”.

18    Although the Reviewer considered that the appellant had given an embellished account of this incident, he did accept that its essential elements had occurred. In particular, the Reviewer accepted that the Taliban member had brandished a gun and had put it to the appellant’s neck with a warning to all present, and that this had been frightening and unsettling.

19    The Reviewer also accepted that travellers on the Kabul-Ghazni-Jaghori road could encounter insurgents and bandits in the reasonably foreseeable future, and that the appellant may not, on a future occasion, be as “lucky” as he had been during the incident which he described. He accepted that the evidence indicated that travellers on those roads were monitored periodically by the Taliban for evidence of support for the Government.

20    Noting that the appellant had lived and worked in Kabul for approximately four years, rather than in the Jaghori District, the Reviewer said that he would consider whether it would be reasonable for the appellant to relocate there. He referred in this respect to evidence concerning the treatment of Hazaras in Kabul, the activities of the Taliban, the activities of criminal gangs, and to the prospect of the appellant reintegrating into that society. I will refer to the Reviewer’s reasons on these matters in more detail shortly.

21    In the judicial review proceeding in the FCC, the appellant made several complaints about the Reviewer’s reasons and recommendation. They were rejected by the FCC Judge. On the appeal to this Court, the appellant raised three contentions only.

Relocation: Did the Reviewer apply the wrong test?

22    The circumstance that persons claiming refugee status on the basis of a well-founded fear of being persecuted for a Convention reason may be able to avoid that fear by relocating to another area within their own country has been considered in a number of authorities. In SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [19]; (2007) 233 CLR 18 at 25-6, Gummow, Hayne and Crennan JJ quoted the following passage from the reasons of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440:

The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.

Gummow, Hayne and Crennan JJ also quoted with approval Lord Bingham’s statement that “a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country” (at [22], 26). Their Honours noted that 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 relocating their place of residence within the country of nationality. Those circumstances, in general, do not include matters such as differential living standards, whether attributable to climatic, economic or political conditions (at [25], [27]) and do not ordinarily involve a consideration of whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights (ibid.).

23    In his separate reasons in SZATV, Kirby J identified a number of considerations which may bear upon whether relocation within an applicant’s country of origin would be reasonable and practical (at [80]-[81], 42-3). These included the existence of any logistical or safety impediments to gaining access to the separate part of the national territory which is suggested as a safe haven; the existence of other and different risks in the propounded place of internal relocation; whether safety could be procured only by going underground or into hiding; whether the place of relocation would not be accessible on the basis of the applicant’s travel documents or the requirements imposed for internal relocation; any inability or unwillingness on the part of the national authorities to provide protection in the place of relocation; and whether, having regard to the age of the applicant, there is an absence of family networks or other local support.

24    Other authorities indicate that considerations personal to a particular applicant such as an applicant’s marital status, medical needs, psychiatric health and need of care may be pertinent (NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22]; MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032 at [70]-[79]; (2006) 206 FCR 191 at 203-4).

25    In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442, Black CJ observed that the question of possible relocation in the country of origin is not to be approached in a narrow way. The inquiry is not only whether an applicant for refugee status could relocate to another area in the country of origin, but also whether the applicant could reasonably be expected to do so. Black CJ continued:

This further question is an important one because, notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law, the practical realities facing a person who claims to be a refugee must be carefully considered.

26    These authorities indicate that the inquiry is not confined to whether an applicant may face persecution for a Convention-based reason in the proposed area of relocation, or whether the applicant may suffer some detriment for a Convention reason. The question is, instead, whether it is reasonable or practical in the particular circumstances of the applicant for refugee status for that person to relocate to another area in the country of nationality.

27    The appellant’s complaint was that the Reviewer had considered whether it was reasonable for him to relocate to Kabul by reference only to whether he “could re-enter and reside in Kabul without facing a real chance of Convention-related persecution”. He contended that a finding that he would not face persecution for a Convention reason in Kabul was relevant to a finding that it was reasonable for him to relocate there, but that it was not conclusive of that position. All of the matters bearing on the reasonableness of relocation to Kabul should have been considered. The submission in short was that the Reviewer had erred in law in the test which he had applied on the issue of relocation.

28    The complaints about the manner in which the Reviewer had dealt with the issue of relocation were contained in Grounds 5 to 10 inclusive of the appellant’s application for judicial review. Ground 7 raised squarely a complaint that the Reviewer had not applied the correct test:

7.    The decision of the second respondent contained an error going to jurisdiction by determining the question of reasonableness of living in another part of the country by reference only to whether the applicant would have a well-founded Convention fear of persecution within that place.

The other grounds on this topic raised complaints that the Reviewer had failed to consider particular matters bearing upon a possible relocation within Afghanistan.

29    The appellant’s complaint on appeal is that the FCC Judge did not address and determine Ground 7.

30    The FCC Judge dealt with Grounds 5 to 9 of the application in a compendious way (AZACC v Minister for Immigration and Citizenship [2013] FCCA 927 at [115]-[131]. He summarised those grounds in [115]:

These grounds relate to a contention that the reviewer has failed to consider each of the applicant’s grounds for asylum in the context of his possible relocation within Afghanistan and has further applied an incorrect test to the question of such a relocation by failing to consider whether it was reasonable or practicable for him to live in Kabul, given his personal circumstances.

31    In my respectful opinion, the second half of this sentence was not an accurate summary of the appellant’s complaint raised by Ground 7 and indicates a misunderstanding by the FCC Judge of the nature of that complaint. The appellant’s complaint was not simply that the Reviewer had failed to consider whether it was reasonable or practical for him to live in Kabul, but that the Reviewer had determined that question by reference only to whether he could have a well-founded fear of persecution on Convention grounds in Kabul.

32    In the paragraphs which followed [115], the FCC Judge did not redress this mistake. Instead, after referring to Randhawa, SZATV and to SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415, the Judge addressed the appellant’s complaints that identified factual matters had not been considered by the Reviewer. I will refer to some aspects of his reasons concerning those matters in relation to the second and third issues raised on appeal. For present purposes, it is sufficient to note that the Judge rejected the appellant’s complaints.

33    However, the FCC Judge did not address and determine the appellant’s complaint that the Reviewer had determined the question of reasonableness by reference only to whether he would have a well-founded fear of persecution on Convention grounds if he did relocate to Kabul.

34    In relation to the Reviewer’s reasons, the appellant acknowledged that the Reviewer had commenced his consideration of the relocation issue with an appropriate statement of the test to be applied:

Nevertheless, not least in view of the risks of travelling on Afghan roads, I must consider whether it would be reasonable for [the appellant] to reside in locations alternate to Jaghori and, in the course of this consideration, I must on the evidence consider Kabul.

The appellant contrasted that statement with the Reviewer’s conclusion after addressing the submissions and materials that he could re-enter and reside in Kabul “without facing a real chance of Convention-related persecution” and that such limitation as there may be in Kabul on his activity would not “amount to persecution”. In addition, the appellant pointed to four passages in the intervening reasons in which, in addressing submissions made on his behalf, the Reviewer made reference to consideration of “Convention-related reasons” or like expressions.

35    In order to assess the merit of the appellant’s submission, it is necessary to review the Reviewer’s reasons in some detail.

36    The Reviewer commenced his consideration of the relocation issue with a reference to the circumstances in which the appellant had, for a period of four years, already lived in Kabul:

I accept that [the appellant] moved to Kabul in or around 2005 to work in [FG’s] bakery. I accept that the bakery is in … a district in Western Kabul, near the start of the Ghazni road. I note that Western Kabul is predominantly but not entirely Hazara. I accept that [the appellant] usually worked in the company of two other Hazara bakers and one Pashtun baker. … [The appellant’s] evidence indicates to me that he lived and worked harmoniously with the small number of Pashtuns he knew in [the district]. His evidence leads me to the view that he has [a] viable, if small, overlapping Pashtun and Hazara support network in Kabul.

The Reviewer then referred to and accepted evidence indicating that the appellant knew that Western Kabul had a sizeable Hazara population and that Pashtuns were in the minority. He rejected some evidence of the appellant which he regarded as having minimised his knowledge of those matters.

37    The Reviewer then said that given the claims that Hazaras are a targeted minority in Afghanistan and that Western Kabul is a place with a high concentration of Hazaras, he would consider whether it is safe for Hazaras, like the applicant, to reside there. The balance of his reasons concerns the issue of safety. It is this section of the reasons which contains the references to “Convention-related reasons” or like expressions, on which the appellant relied. I have numbered these paragraphs for ease of later reference:

[1]    Since Western Kabul is a place with a high concentration of Hazaras, and since [the appellant] claims that Hazaras are a targeted minority in Afghanistan, I must consider if it is safe for Hazaras like [the appellant] to reside there.

[2]    I have regard to [the appellant] having claimed no incidents having affected his security during his years of living and working in Kabul. However, I also note [the appellant’s] claims about the self-restricting conditions under which he has lived, which he claims have greatly but unreasonably diminished his freedom of movement whilst preventing him to date from being exposed to serious harm in Kabul so far. …

[3]    I do not accept that the occurrence of insurgent activity including suicide bombings in or around Kabul is indicative of a real chance of [the appellant] facing Convention-related persecution there. [The appellant’s] evidence does not persuade me that such events have been other than isolated and infrequent, or that they are tacitly or actively condoned by the authorities in Kabul. I note that Afghans including Hazaras are returning to Afghanistan in large numbers from countries like the UK … every month and, as I put to [the appellant] it is not independently suggested that it is unsafe for Convention-related reasons for them to return to and reside in that city.

[4]    I do not accept that [the appellant] restricted his movements in Kabul to the boundaries of the premises on which the bakery stands, let alone to 30 minutes or less on infrequent occasions in the company of others in the middle of the day or afternoon. … I find that [the appellant] revised the evidence he presented to me to reverse the impression he was conveying of a fairly safe and secure life in the neighbourhood in which he lived. I also find that the picture he tried to paint of a person who never went out of the bakery or its grounds inconsistent with the behaviour of a person who took the risks he claims to have taken on the road between Kabul and Jaghori.

[5]    I do not accept that Kabul’s security situation or infrastructural capacity makes it unreasonable, impractical or, from any Convention-related perspective, unsafe for [the appellant] to live there. Whilst I understand that individuals make their own potentially imperfect assessments of the dangers they might face, [the appellant’s] evidence about his Hazara colleagues continuing to work in the bakery at the time he left Afghanistan adds to the impression that it would have been safe for him to remain there. No evidence suggests to me that [the appellant] could not again access the social and economic contacts in Kabul like the ones he maintained there over the four years before he left.

[6]    I note Amnesty International’s concerns about “sending other young men back to the country with no family or tribal connection will make them soft targets for the Taliban and other criminal gangs recruiting in Kabul and other urban centres”. I gave [the appellant] an opportunity to argue whether or not he feared being recruited by criminal gangs in Kabul. He said he faced a risk of being recruited by the Taliban in Kabul and forced to act as a suicide bomber. He said the Taliban, who disguised themselves in Kabul, abduct Hazaras and make them “take orders or die”. … I find that [the appellant] improvised when I questioned the reliability of what he was suggesting. Whereas it is well-reported that the Taliban recruit Pashtuns and other Sunnis into their ranks in various parts of Afghanistan, I find [the appellant’s] claims that they do the same to Shi’ite Hazaras in Kabul unreliable and far fetched.

[7]    I find … the chance of [the appellant] being kidnapped or killed by Taliban gangs in Kabul to be remote.

[8]    [The appellant’s] adviser provided additional evidence about the presence of criminal youth gangs in Kabul and the vulnerability of young people, particularly internally displaced youths, in Kabul to being recruited into criminal gangs. It is appropriate to consider the prospect of this happening to [the appellant]. On the evidence he has presented me, I do not regard him as being at all impressionable, and I do not accept that he would be in any way vulnerable to co-option by criminal gangs, even though, as I discussed with him and his adviser, I do accept that the co-option of youths into such gangs in Kabul does occur. On consideration of his evidence, I believe there is only a very remote chance of this happening to [the appellant], who, though still young, has lived and worked a stable life in Kabul and who, I believe, could easily reintegrate into such a life. In the remote event that it were to happen, I cannot see on the information before me that co-option into a criminal gang or the ensuing existence of a gang-member would amount as such to, or give rise to a real chance of, [the appellant] suffering serious harm amounting to persecution for a Convention-related reason.

[9]    Overall, I find that [the appellant] could re-enter and reside in Kabul without facing a real chance of Convention-related persecution. I do not regard his potential limitation to living and working in Kabul in the foreseeable future so restricting as to amount to persecution. In coming to all my conclusions in this matter, I have weighed and considered [the appellant’s] status as a young male yet to turn 18.

(Emphasis added.)

The words “Convention-related” in the last line of the paragraph numbered [8] are also italicised in the Reviewer’s reasons. That italicisation appears to reflect an emphasis intended by the Reviewer.

38    These reasons of the Reviewer are to be construed beneficially and not minutely or with an eye keenly attuned to the perception of error. The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2; MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [13]-[14]; (2012) 289 ALR 541 at 546). The appellant’s critique of the Reviewer’s reasons is to be assessed with these principles in mind.

39    The Reviewer’s repeated references to “Convention-related reasons” and like expressions and, in particular, the terms of his conclusion in the paragraph numbered [9] do, prima facie, suggest that he considered whether it would be reasonable for the appellant to relocate to Kabul by considering whether the difficulties he might face in so doing would amount to Convention-related persecution. The impression that this is so is confirmed by the fact that the quoted paragraphs commenced with the Reviewer’s statement that he should consider whether “it is safe for Hazaras like [the appellant] to reside [in Western Kabul]”. That indicates that the focus of the Reviewer’s inquiry was directed to whether it was safe for people of Hazaran ethnicity, and perhaps Shia religion, to reside in Western Kabul as opposed to the practical considerations more generally for this particular applicant.

40    The Reviewer’s approach may also have reflected the implicit basis on which the appellant’s submissions were made, that is, that it was mainly his Hazara ethnicity which was relied upon for the contention that he could not reasonably be expected to reside in Western Kabul.

41    Despite these matters, there are some indications in the Reviewer’s reasons that he did consider the issue more broadly. I refer again to the fact that the Reviewer commenced his consideration of the topic of relocation with a correct statement of the principle to be applied.

42    The context in which the Reviewer was considering the question of relocation is also pertinent. An important part of that context was that the appellant had already lived in Western Kabul for a period of four years without, on his own acknowledgement, having experienced any incidents in Kabul itself affecting his security. The appellant’s explanation that that circumstance could be attributed to self-imposed restrictions on his movements and activities outside the bakery was considered and rejected by the Reviewer. Prima facie therefore, the appellant’s own experience suggested that he could reasonably be expected to live in Western Kabul. That being so, it is natural that the Reviewer focussed on those matters said to distinguish the appellant from others, namely his Hazara ethnicity and his youth.

43    The opening sentence of the paragraph numbered [5] is another possible indication. In that sentence, the Reviewer concluded that “Kabul’s security situation or infrastructural capacity” did not make it “unreasonable, impractical or, from any Convention-related perspective, unsafe for [the appellant] to live there”. The word “or”, which I have emphasised, indicates that the “Convention-related perspective” was only one of three matters which the Reviewer considered in this context. This suggests that his inquiry may not have had a single focus.

44    It can also be said that some of the intermediate findings of the Reviewer in the quoted paragraphs are expressed generally and are capable of bearing on the reasonableness of an expectation that the appellant could relocate to Kabul. For example, the Reviewer found (in [3]) that insurgent activity, including suicide bombing, in or around Kabul was infrequent; that the appellant could again gain access to the social and economic contacts in Kabul which he had had previously (in [5]); and that the chances of him being coerced into a criminal gang were remote (in [8]). However, each of these findings is closely linked to a statement concerning the prospects that the appellant would face Convention-related persecution. In that context, I doubt that they can be regarded as an indication that the Reviewer did address the correct question.

45    The matters to which I have just referred indicate that the appellant’s claim that the Reviewer determined the question of reasonableness of relocation by reference only to whether he had a well-founded fear of persecution on Convention grounds is not clear cut. However, three considerations incline me to the view that the appellant made out this claim.

46    The first is the manner in which the Reviewer expressed his conclusion in the paragraph numbered [9] quoted above. To my mind, it is reasonable to conclude that the Reviewer’s manner of expression in that paragraph reflects the manner in which he considered the issue. That is particularly so given the Reviewer’s repeated reference to “Convention-related reasons”, or like expressions, in the preceding paragraphs.

47    The second matter is the italicisation which the Reviewer himself gave to the expression “Convention-related” in the final sentence of the paragraph numbered [8]. As I indicated previously, this appears to be a deliberate statement of emphasis by the Reviewer and to indicate that he was referring only in that context to Convention-related reasons. This impression is strengthened by the Reviewer’s use of the expression “serious harm”, that being the expression used in s 91R of the Migration Act to indicate the nature of the persecution necessary for the application of the Refugee Convention.

48    The third matter is the evident care which the Reviewer has taken in the statement of his reasons. The reasons bespeak a thorough and careful identification of relevant issues and analysis of the material. In that context, the Reviewer’s repeated reference to “Convention-related reasons” and like expressions tells against a conclusion that they be regarded as a mere looseness of language or terminology. These expressions serve to indicate, in my mind, the approach which the Reviewer actually adopted. That approach was too narrow.

49    For these reasons, and with some reservations, I uphold the appellant’s complaint that the Reviewer did not apply the correct test.

Issue 2: Appellant a child in Kabul without family support

50    The appellant submitted that the FCC Judge had erred in rejecting his complaint that the Reviewer had failed to consider a relevant matter relating to relocation, namely, that it was unreasonable to expect him as a child to reside in Kabul away from his only family support in Jaghori.

51    The FCC Judge considered that it had not been necessary for the Reviewer to consider this issue. He held (at [131]):

In my view, these concerns were not raised by the applicant, either specifically or by necessary implication, at any stage of the review process.

The Judge went on to hold that the Reviewer had, in any event, found that while in Kabul the appellant had a “viable, if small, overlapping Pashtun and Hazara support network”.

52    Earlier, the Judge had referred to the well-known passage in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]; (2004) 144 FCR 1 at 18-19 concerning the exercise by the Refugee Review Tribunal of its jurisdiction. The Full Court said:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it … There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it … The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

(Citations omitted.)

Later (at [60], 19), the Full Court stated that the Tribunal “is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it”.

53    Although the process of IMR for the purposes of s 46A of the Migration Act is not a statutory construct, the statement in NABE has been held to be applicable to the independent merits review process (MZYOA v Minister for Immigration and Citizenship [2012] FCA 1462 at [40]-[41]). Counsel for the Minister did not suggest that any different approach should be taken in this case.

54    In concluding that the Reviewer had not been required to address a concern not raised by the appellant, the Judge also referred to SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at 438-9. At [123]-[124], Tracey and Foster JJ said:

[123]    The Tribunal considered relocation in a framework dictated by the evidence and claims advanced to it by the appellant. It was not obliged to consider all theoretical possibilities including the question of whether or not the appellant would continue to behave in a way which might attract persecution from different Islamic fundamentalists.

[124]    The test for relocation is whether it is practicable in the particular circumstances of the particular applicant … The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: …

(Citations omitted.)

The Judge attached emphasis to the expression “framework” in these passages. He held, as indicated above, that the appellant had not specifically or by necessary implication raised the issue of his lack of family support as part of the “framework” of reasons why it would be impractical for him to relocate to Kabul.

55    The FCC Judge was, with respect, wrong in concluding that the appellant’s vulnerability as an unaccompanied minor had not been raised before the Reviewer. The Reviewer himself had noted such a claim. In summarising the basis upon which the appellant had claimed refugee status in his entrance interview, the Reviewer recorded:

He also claims to be a minor unaccompanied in Australia and living for the most part away from his family in recent years in Afghanistan. He claims that this factor increases his vulnerability and may contribute to risk of facing harm for the various Convention-related reasons cited.

56    As it happens, the records of the interview do not include a claim to this effect. They recorded that he was a minor living in Kabul without his parents, but not a claim that this circumstance increased his vulnerability. This could have led to an issue as to whether the appellant did in fact make the claim which the Reviewer attributed to him. However, counsel for the Minister, quite fairly, did not make a submission to that effect. He submitted instead that the Reviewer was entitled, when considering the issue of relocation, to disregard this claim of the appellant, as the appellant himself had not relied on this circumstance in the context of an objection to relocation.

57    Counsel for the Minister is correct in his observation that the extensive written submission made on the appellant’s behalf by his then legal advisers did not include, let alone elaborate, this claim. It would have been natural for the Reviewer to have given particular regard to the considered submissions made on the appellant’s behalf for the purposes of his review. As I observed to counsel during the hearing, written submissions should, amongst other things, draw attention to the issues to be addressed, rather than distracting attention away from them.

58    However, a claim made by the appellant at the initial entrance interview, before having consulted lawyers or advisers, would seem significant. It is also to my mind quite understandable that the appellant, having made the claim at that time, would not articulate the various ways in which the claim, if accepted, might be deployed in support of his application for refugee status. It would also be quite understandable if the appellant had considered it necessary to make the claim only once.

59    Further, the written submission did incorporate the appellant’s previous claims by the statement “our client continues to rely upon all claims made to date”. In addition, the written submissions drew attention to the appellant’s status as an unaccompanied minor.

60    Further still, the then legal advisers provided literature outlining the adverse experiences of some children in Afghanistan, although this was at a level of generality and did not relate specifically to minors in Kabul. A human rights paper prepared by the Department of Immigration and Citizenship itself in November 2008 identified a range of serious problems confronting children in Afghanistan. These included a surge in recruitment of child soldiers, the maiming and killing of children, child detention, sexual abuse, denial of access to education, forced marriages, child labour and child trafficking. The paper noted that the continued and sustained conflict in Afghanistan has led to young boys being recruited as soldiers and sometimes as suicide bombers.

61    In these circumstances, the FCC Judge was wrong, as I have said, in regarding the claim of increased vulnerability as an unaccompanied minor as having been raised only belatedly by the appellant and, in particular, as not having been raised before the Reviewer at all or as a matter relevant to relocation.

62    As already seen, the Reviewer did consider some aspects of the appellant’s youth. I refer to the paragraphs numbered [6], [7] and [8] quoted above. However, those paragraphs related to the appellant’s vulnerability as a target for the Taliban or for criminal gangs operating in Kabul. They did not relate to the consequences of the appellant’s lack of familial support more generally. The Reviewer also observed that the appellant had “a viable, if small, … support network in Kabul”. Again, this does not amount to a consideration of his circumstance as a minor living away from his family.

63    Accordingly, I consider that this complaint of the appellant should be upheld.

Issue 3: The possibility of forcible recruitment by criminal gangs

64    The appellant contended that the FCC Judge should not have rejected his claim that, in relation to the issue of relocation, the Reviewer had failed to consider the circumstance that, as an unaccompanied minor without family support, he was at risk of being forcibly “recruited” by criminal gangs in Kabul.

65    The FCC Judge dealt with this issue at [114]:

I do not accept that the issue of possible forced recruitment of the applicant, into a criminal gang, as opposed to the applicant joining such a gang because of his particular personal circumstances was an issue that was squarely raised on the material before the reviewer. In my view, it was an afterthought, which has been raised in this review proceeding.

(Emphasis in the original.)

66    In my respectful opinion, the FCC Judge was wrong in concluding that the issue had not been expressly raised before the Reviewer. This is evident from the Reviewer’s own reasons dealing with the issue in the paragraphs numbered [6] and [8] quoted above. Those paragraphs indicate that the issue was “squarely” raised and, in my view, “squarely” addressed by the Reviewer.

67    The appellant’s submissions in support of this ground indicate that his complaint is not to the effect that his claim had not been addressed, but as to the basis upon which it had been rejected. Counsel for the appellant referred to the Reviewer’s statement:

On the evidence he has presented me, I do not regard him as being at all impressionable, and I do not accept that he would be in any way vulnerable to co-option by criminal gangs, even though, as I discussed with him and his adviser, I do accept that the co-option of youths into such gangs in Kabul does occur.

68    Counsel submitted that it had not been open to the Reviewer to act on his own assessment that the appellant was not “impressionable”.

69    I disagree. I see no reason why the Reviewer should not take account of his observations of the appellant during the course of the interview. In any event, the Reviewer provided additional reasons in the paragraph numbered [8] for his rejection of the claim that possible risk of recruitment into criminal gangs made it unreasonable to require the appellant to relocate to Kabul. The appellant did not seek to impugn those additional reasons.

70    In my opinion, this ground of appeal fails.

Conclusion

71    For the reasons given above, I uphold the appeal on the basis of the first and second issues. Accordingly, I make the following orders:

(1)    The appeal is allowed.

(2)    The orders of the Federal Circuit Court made on 31 July 2013 are set aside.

(3)    There be a declaration that the recommendation of the second respondent of 4 January 2011 was not made in accordance with the law.

(4)    An injunction is hereby granted restraining the Minister, by himself or by his department, officers, delegates or agents from relying upon the recommendation of the second respondent of 4 January 2011.

72     I will hear from counsel as to the form of these orders and as to any other matters.

Associate:

Dated:    24 December 2013