FEDERAL COURT OF AUSTRALIA

MZANX v Minister for Immigration and Border Protection [2017] FCA 307

ORDERS

THE COURT ORDERS THAT:

1.    Compliance with r 36.05(3)(d) of the Federal Court Rules 2011 (Cth) is dispensed with.

2.    The time in which to file a notice of appeal from the decision of the Federal Circuit Court made on 6 October 2016 be extended to 4 November 2016.

3.    The appellant have leave to rely on the notice of appeal filed on 16 February 2017.

4.    The appeal be allowed.

5.    The orders of the Federal Circuit Court made on 6 October 2016 be set aside.

6.    In lieu thereof order that the decision and recommendation of the Independent Protection Assessor dated 19 October 2012 be set aside, and the matter be remitted for further assessment by a different reviewer.

7.    The first respondent pay the appellant’s costs of the appeal and of the proceedings in the Federal Circuit Court, to be fixed in a lump sum by order of the Court.

THE COURT DIRECTS THAT:

8.    On or before 4 pm on 11 April 2017, the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

9.    On or before 4 pm on 26 April 2017, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This proceeding began as an application for an extension of time in which to appeal from a decision of the Federal Circuit Court made on 6 October 2016: MZANX v Minister for Immigration and Anor [2016] FCCA 2564.

2    The applicant was eight days out of time. Properly, prior to the hearing, the Minister accepted that in light of the short period of delay, and the single issue raised in the judicial review, an extension of time should be granted and the appeal should be dealt with on its merits.

3    I shall therefore refer to the applicant as the appellant. He is a national of Afghanistan. He is married, and has a young child who was born in January 2011 in Iran. His application for protection was dealt with first by a delegate under what is called a “Protection Obligation Evaluation” and after a negative evaluation, on review by an “Independent Protection Assessment Reviewer”, who is the second respondent to this judicial review application and who filed a submitting notice.

4    This appeal concerns the reviewer’s finding that the appellant could relocate to Kabul to avoid the risk of significant harm that the reviewer found he faced in his home district of Afghanistan.

5    Although the Minister submitted the challenge to the reviewer’s relocation finding was differently expressed before the Federal Circuit Court, again quite properly the Minister did not object to the appellant’s reliance on an amended notice of appeal.

The material about relocation

6    Given the scope of the challenge to the reviewer’s decision, and to the decision of the Federal Circuit Court, in these reasons I focus on the evidence and material before the delegate, and then before the reviewer, concerning whether the appellant could relocate to Kabul.

7    The appellant had arrived in Australia on 9 September 2011 and made an application for protection shortly thereafter. He received a negative “Protection Obligations Evaluation” on 18 January 2012. A few days later his application was referred for review by an Independent Protection Assessment Reviewer.

8    The appellant was 24 years old when he applied for protection in late 2011. He is of Hazara ethnicity, a Shia Muslim and comes from Ghazni province in Afghanistan. He had left Afghanistan for Iran in 2009 when he was 22, and secured work there in a bag factory. As I have noted, his wife moved with him to Iran, and gave birth to their child there in January 2011. The appellant’s son was therefore just under two years old at the time of the reviewer’s decision.

9    The appellant’s claims for protection related to two matters: a violent vendetta from his uncle, which had claimed the life of his father; and his fear of harm from the Taliban, who controlled much of Ghazni province. The two issues were connected by the appellant’s claim that his uncle collaborated with the Taliban, and informed for them.

10    On the appellant’s account, which the reviewer appeared to accept, the appellant and his family fled to Iran very shortly after his uncle had killed his father. They did so by first fleeing to Herat, where the appellant contacted a people smuggler, who smuggled them into Tehran. His evidence was that within two days of entering Iran, “we had rented a home and I began working as a bag maker”.

11    The appellant gave an account to the reviewer of life in Iran which involved fairly regular violent and threatening conduct by Iranian police against him, although his evidence suggested his situation was no different to many other Hazaras illegally in Iran. As I noted, his wife gave birth to their son in Tehran in January 2011. The appellant stated that he was deported twice back to Herat, and he “stole back into Iran”. He stated that he decided to leave Iran because he was in peril of being deported again and because of the contempt with which Afghan immigrants were treated in Iran.

12    On leaving Iran, the appellant made his way to Indonesia, and from there to Australia. Other members of his family continued to live in Tehran at the time of the reviewer’s decision.

13    The appellant insisted in his statement that there was nowhere safe for him in Afghanistan.

14    Three comprehensive and detailed submissions were filed on the appellant’s behalf with the reviewer by the Refugee Advice and Casework Service (RACS). Amongst the matters they dealt with were State protection in rural areas (where the appellant came from) and in Kabul (as a possible relocation site); the effectiveness of the justice and security systems in Afghanistan; the volatility and unpredictability of circumstances in Afghanistan; Taliban violence generally and specifically in the region from which the appellant came. However it was the first written submission which was emphasised by counsel for both parties on the appeal.

15    The first, general, submission made about relocation to Kabul, in terms of the risk of harm and the reasonableness of relocation was this:

•    there is evidence of sectarian violence in Kabul given the targeted bomb attacks against Shi’as and Hazaras at a Shi’a mosque in Kabul in December 2011.

However, even if a finding were to be made that the feared persecution is localised, we submit that [the appellant] is not excluded from refugee status as it would not be reasonable to expect him to relocate to another area in Afghanistan. The High Court has endorsed this proposition, explaining that what is reasonable, in the sense practicable, must depend upon the particular circumstances of the applicant and the impact of relocating within their country.

(Footnotes omitted.)

16    RACS then listed the following concerns:

Similarly, we submit that it would not be reasonable for [the appellant] to relocate to Kabul on the basis of security concerns, economic hardship, inadequate infrastructure and the absence of familial networks in which [the appellant] could derive support and protection.

17    This was followed by references to country information said to support the proposition that the situation in Kabul is “highly unstable and volatile”. This part of the submission concluded:

It would not be reasonable to expect [the appellant] to relocate with his family to an area subject to such a high levels of insurgency violence and civilian causalities.

18    Aside from safety concerns, RACS also submitted:

We submit that it is not reasonable for [the appellant] to relocate as he would experience serious hardship living in Kabul which is not only unsafe, but has high levels of unemployment, limited health infrastructure and inadequate housing.

(Footnote omitted.)

19    The submissions continued:

Despite country information concerning improvements to the social position of Hazaras in Kabul since the end of the Taliban rule in 2001, this has largely eluded the majority of Hazaras. Mr Saikal recognised that the ‘majority of Hazaras still live in poverty’ in context of a country where a ‘third of the population live in poverty.’

(Footnotes omitted.)

20    Focusing on the appellant, RACS submitted

As noted above, [the appellant] is uneducated having only received a religious education for a couple of years at his local mosque. He has no qualifications or skills having been a farmer most of his life. His brief time working as a factory worker in Iran is not a skill that would be transferable to Kabul. It is highly probable that he will face the same severe hardships experienced by many Hazaras, urban poor, internally displaced persons and returning refugees in Kabul thereby making relocation to Kabul unreasonable.

21    As to family support, the submissions stated:

The hardship [the appellant] will face is exacerbated by the absence of family or community networks that could support him in Kabul. [The appellant] has instructed us that while his wife’s father-in-law lives in Kabul, his father-in-law does not [have] sufficient funds to support [the appellant] and his family in Kabul.

THE REVIEWER’S DECISION

22    Prior to making her decision and recommendation, the reviewer held an interview with the appellant. On the basis of the reviewer’s reasons, which the Minister accepted were the best evidence before the Court of what had occurred at the review hearing, it does not appear that the reviewer put any detailed matters to the appellant about the reasonableness and practicality of him relocating to Kabul. It is clear from [52] of the reasons that the reviewer did raise with the appellant the general issue of relocation. That paragraph of the reasons states:

I noted to [the appellant] independent information that in Kabul there is a cohesive Hazara community and an Hazara human rights informant has assessed it would be relatively easy for new arrivals to integrate into the city where they can move about freely. [The appellant] responded that as soon as his uncle learns of his return he will appoint someone to kill him and his dependent family, as soon as possible. His uncle murdered his father because of the land, as soon as he returns he will think he ([the appellant]) wants to reclaim the land.

(Identifying information removed.)

23    In substance, the reviewer accepted much of the appellant’s account of the threats from his uncle, and accepted at least one account of what had happened to the appellant at the hands of the Taliban when the appellant was stopped on a road and asked if he had a taskera. However the reviewer did not accept that the appellant had a well-founded fear of persecution for a Convention reason on return to his province. The reviewer found that any harm which might befall him would not be because he was Hazara or a Shia Muslim, or because of any political opinion imputed to him that he was opposed to the Taliban. Rather, the reviewer found he may be at risk from the general lawlessness and criminality existing in his home province, especially on the roads. While the reviewer was “willing to accept it is possible [the appellant’s] uncle has on occasion communicated with Taliban/insurgents who operate in the local area”, the reviewer did not accept his uncle was a paid Taliban informant, and so did not accept the connection between harm faced from the uncle’s attitudes and action against the appellant by the Taliban. The appellant’s claims under the Refugees Convention (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) were rejected.

24    However, in relation to the complementary protection claim, the reviewer did accept the appellant had a real chance of suffering serious harm at the hands of his uncle should he return to his home province. The reviewer found (at [80] of her reasons) that:

As I have accepted [the appellant's] oral evidence that his father was killed by his uncle [redacted] and it is possible [the appellant’s] uncle [redacted] has on occasion communicated with Taliban/insurgents who operate in the local area, I accept [the appellant’s] uncle [redacted] may (himself or through others acting at his behest) intentionally inflict upon [the appellant] severe physical pain and mental suffering such as making and/or carrying out threats of not insignificant violence towards him and/or his wife and young child if they return to [the appellant’s] birth area in [redacted] District.

(Identifying information removed.)

25    As counsel for the appellant submitted, it is important to note that this finding extends to possible harm to the appellant’s wife and child, thus meaning that none of them could safely return to the appellant’s home district. However the reviewer found the appellant (and his family) could relocate to Kabul. At [82] of the reasons, the reviewer said:

I do not accept [the appellant’s] claim (made at the POE interview) that deriving from the circumstance of his uncle in [redacted] providing local Taliban with intelligence, any such connection his uncle has extends to or incorporates influence beyond the local geographic area of [redacted] District and/or that the threat from his uncle is present throughout Afghanistan. I find the risk of [the appellant’s] uncle [redacted] (or others acting on his behalf) intentionally inflicting upon [the appellant] severe physical pain and mental suffering is limited to (and does not extend beyond) his birth area in [redacted] District

(Identifying information removed.)

26    At [84], the reviewer considered RACS’ submission about the levels of insecurity, political instability and economic and social problems in Kabul. In this paragraph however, the reviewer is dealing with the risk of harm to the appellant. This is clear from the last sentence of [84]:

I do not accept that in Kabul there is a real risk [the appellant] will suffer any of the significant harms listed in subsection 36(2A) of the Act, either due to infrastructure shortcomings or from [the appellant’s] uncle [redacted] (including all those acting at his behest).

(Identifying information removed.)

27    In the middle of [84], the reviewer indicated her acceptance, at a general level, of a part of the RACS submission:

I accept the independent information provided by the advisor that in urban centres there are increased pressures being put on labour markets and resources and widespread unemployment limit the ability of a large number of people to meet their basic needs, with the limited availability of humanitarian assistance generally not improving the situation in a meaningful way (UNHCR, 2010).

28    The reviewer found (at [85]) there was a “cohesive Hazara community in Kabul”. She also found that a “human rights informant” had “assessed it would be relatively easy for new arrivals to integrate into the city where they can move freely”. She found that the appellant had shown an ability to relocate when he moved to Tehran with his family in 2009, including with his wife and son.

29    The reviewer concluded (at [85]):

I find in Kabul [the appellant] has familial support (his wife’s family) and an ethnic Hazara community network at his disposal which, in addition to his experiences of being able to adapt to unfamiliar and differing social contexts as evidenced by his international travel since leaving Iran, will enable him to re-establish his and his family’s residence there. I am satisfied it would be reasonable for [the appellant] to relocate to Kabul where there would not be a real risk that he would suffer significant harm, as set out in subparagraph s 36(2B)(a) of the Act.

30    On that basis, the reviewer concluded that the appellant was not a person to whom Australia has complementary protection obligations for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth). She found the appellant did not meet the criteria for a Protection (Class XA) visa set out in s 36(2) and recommended he “not be recognised as a person to whom Australia has protection obligations”.

31    The appellant sought judicial review of this decision and recommendation in the Federal Circuit Court.

THE FEDERAL CIRCUIT COURT DECISION

32    There were three grounds of review raised before the Federal Circuit Court. Two concerned an alleged failure by the reviewer to consider what were contended to be three “integers” of the appellant’s claim. The details of those two grounds need not be set out here: the Federal Circuit Court rejected those grounds and they are not the subject of any appeal.

33    It was the third ground of review which challenged the relocation finding made by the reviewer. This ground was also rejected by the Federal Circuit Court. After setting out some of the relevant authorities, the Federal Circuit Court noted (at [75]) that what was required was an assessment of “the impact on the applicant from [sic] refugee status of relocation to the [prospective] place of residence within the country of nationality”.

34    The Federal Circuit Court also noted at [80] that:

Reasonableness of relocation imports a question of practicability, as Kenny J pointed out in SZQPY v Minister for Immigration and Border Protection [[2013] FCA 1133 at [74]]

35    At [83], the Federal Circuit Court noted the submission of counsel for the appellant that the reviewer had failed to consider whether relocation was reasonable for the appellant in his particular circumstances.

36    After setting out the contentions of each of the parties on this ground, the Federal Circuit Court’s reasoning on its conclusion was as follows (at [87]):

The reasonableness of relocation must be determined in the context of the practicability of the relocation. The High Court so held in SZATV as did Kenny J in SZQPY. In the context of this case, the issue is whether the IPAR addressed that proposition. While the IPAR did not specifically refer to those authorities (yet curiously the IPAR did refer to Khawar) it seems to me that the IPAR did in fact address the practicability of relocation to Kabul. In my view, the reply submissions in relation to ground three were an ambitious expression of the obligations upon the IPAR. In my view, the IPAR made no jurisdictional error in relation to ground three.

37    The appellant submits that there was “no dispute” before the Federal Circuit Court that the approach, in relation to relocation for the purposes of complementary protection under s 36(2)(aa), is the same as for claims under the Refugees Convention. The appellant relied on generally MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [37] and [39]; MSSAD v Minister for Immigration and Citizenship [2013] FCA 879 at [65] (which relies on MZYXS).

38    On the appeal the Minister accepted this was the case. An acceptance of that proposition by the Federal Circuit Court might be inferred from [87] of its reasons, and I proceed on that basis.

GROUNDS OF APPEAL

39    Following the filing of an amended notice of appeal, there is only one ground of appeal, namely:

The Federal Circuit Court erred by failing to conclude that the Second Respondent was in error by failing to:

(a)    ask the right question, namely whether the Appellant could reasonably relocate;

or

(b)    consider each integer of the Appellant’s objection to relocation

to Kabul in the particular circumstance, where the Appellant objected to relocation there because he would be exposed to:

(c)    insecurity, political instability and social problems; and

(d)    unemployment such as to impact his ability to meet his basic needs.

RESOLUTION

40    In AZAEF v Minister for Immigration and Border Protection [2016] FCAFC 3; 240 FCR 198 (AZAEF) at [8]-[9], Besanko J described the independent reviewer process and the legal obligations which regulate it:

In 2008, the Minister announced a non-statutory scheme by which the exercise of the respective powers in ss 46A and 195A of the Act in relation to “offshore entry persons” would be determined. These provisions were considered by the High Court in Plaintiff M61/2010E v Commonwealth (Offshore Processing Case) (2010) 243 CLR 319. On 7 January 2011, the Minister announced a modified non-statutory scheme described as the “Protections Obligations Determination Framework” (“the Framework”). The appellant’s claims were assessed under the Framework.

It was common ground between the parties that the appellant could only be removed from Australia where she had been the subject of a determination of her refugee status and that determination (and any review) had been made in a process that accorded her procedural fairness and addressed the question by reference to Australian law: Offshore Processing Case at [8], [88]; Plaintiff M70/2011 v Minister for Immigration and Citizenship (Malaysian Declaration Case) (2011) 244 CLR 144 at [54] per French CJ; at [95]-[98] per Gummow, Hayne, Crennan and Bell JJ; at [237]-[239] per Kiefel J.

41    In Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145; 229 FCR 197, Buchanan J described the role of the independent merits reviewer (a role which was subsequently replaced by the independent protection assessor) (at [86]):

In that regard, the nature of the role of the [Independent Merits Reviewer] must be borne in mind. The IMR is an appointee of the Minister. He [sic] performs no direct statutory role but he does provide a foundation for the exercise of Ministerial discretion under the Migration Act. It is consonant with that function (and would otherwise be contrary to the purposes of the Migration Act) that neither the recommendation of the IMR, nor any subsequent decision of the Minister be based on an error of law.

42    Similarly, the Full Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; 219 FCR 287 said (at [35]):

The title of IMR is somewhat misleading. The Reviewer, properly understood, is not independent of the Minister. He or she is carrying out a review under administrative arrangements put in place by the Minister for the assistance of the Minister in connection with the Minister’s statutory power. Their function includes reporting their assessment and recommendation to the Minister for his consideration. The Minister is not obliged to take a reviewer’s assessment or recommendation into account by virtue of s 46A(7). It may well be, in this case, that the IMR was employed by an ‘independent’ contractor as was the case in Plaintiff M61/2010E: [50]. It is an open question whether such an independent contractor is or is not “an officer of the Commonwealth” as found in the Constitution of the Commonwealth, s 75(v).

43    The Court went further to say, at [60]:

The IMR was part of the departmental administrative structure established to provide recommendations to the [Minister] in aid of the [Minister’s] consideration whether to exercise power under s 46A or s 195A of the Act, and the Reviewer’s task was to be performed in accordance with accepted legal principles because of the underlying statutory foundations. As a departmental construct, it had available to it the Guidance Note.

44    As Besanko J noted in AZAEF, and Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 established, an assessment function pursuant to administrative arrangements for the purpose of informing the Minister of matters relevant to his consideration whether to permit an application for a protection visa must be performed in accordance with Australian law and by a fair process (albeit the process is amenable to statutory modification).

Issues presented by the appeal

45    The single issue, crystallised in the appellant’s submissions, is whether in addition to considering and assessing the chance of harm to the appellant if he were to relocate to Kabul (on both the refugee and complementary protection bases), the reviewer was obliged, but failed, to consider and determine the reasonableness and practicability of the appellant relocating to Kabul, in terms of his individual circumstances and by reference to the relocation objections he expressly raised.

46    The appellant contends the reviewer did not examine this issue separately, and the Federal Circuit Court failed to identify this error. The appellant’s main point is that the reviewer did not consider and determine all of the objections to relocation proffered by the appellant. As I understood the appellant’s submissions, this failure is said to be illustrative of the reviewer’s error in not examining the “practical realities” of the appellant relocating to Kabul.

47    The Minister’s response is that [84] and [85] of the reviewer’s reasons, read fairly and in context, disclose that the reviewer did deal with the objections raised by the appellant to relocation, and considered cumulatively whether the relocation was reasonable and practicable in accordance with the applicable authorities.

48    The difference between the parties is one of emphasis, and concerns the level of particularity or individuality at which a decision-maker must approach these issues. That difference is nuanced, and not without its difficulties in terms of resolution.

49    In my opinion the contention made on behalf of the appellant is correct. The appellant’s objections to relocation were not dealt with in a way that enabled the Tribunal to assess reasonableness and practicality for the appellant, as an individual. The assessment of whether a person who has been found to have a well-founded fear of persecution in one part of her or his country of nationality, can relocate to another region or part of that country of nationality is not to be approached only by reference to the risk of harm, whether assessed under the Refugees Convention or in accordance with complementary protection obligations.

50    It is also to be assessed by reference to the individual circumstances of the person concerned, and what is practicable and reasonable for that person, taking into account what it is really like to live in the place said to be safe. In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 (SZATV) at [24] the plurality said:

What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

51    In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.

52     In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 52 FCR 437 (Randhawa), Black CJ emphasised (at 442) that in an assessment about relocation:

the practical realities facing a person who claims to be a refugee must be carefully considered.

53    The Chief Justice then referred to the summary given by Professor Hathaway of the correct approach. His Honour relied on, and quoted at several places from Professor Hathaway’s text The Law of Refugee Status (Toronto: Butterworths, 1991). In particular in Randhawa at 442, Black CJ extracted with approval a passage from Professor Hathaway’s text at p 134. That passage read:

‘The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.’

(Emphasis in original.)

54    Professor Hathaway’s well-respected text developed from a piece of single scholarship to a piece of dual scholarship with Professor Michelle Foster: The Law of Refugee Status (2nd ed, Cambridge University Press, 2014). The summary and introduction to the authors’ discussion of the relocation principle still includes a passage almost identical to this passage in a footnote, where the authors note that the passage at 134 of the first edition has been endorsed by courts. They refer to Randhawa amongst several other Australian decisions, as well as to a New Zealand Refugee Status Authority appeal. However, in my opinion long though it is, it is instructive to set out a substantial part of the authors’ authoritative and concise summary and introduction to the concept of internal protection alternatives, at pp 332 to 335. I have omitted the footnotes, although they repay reading.

Even where there is evidence of a risk of being persecuted – in that the home state is unable or unwilling to protect against the risk of serious harm in the applicant’s place of origin – the existence of state protection in some other part of the home state may still obviate the need for international protection. Simply put, a person cannot be said to be ‘unable or, owing to such fear…unwilling to avail himself of the protection of [the home] country,’ if she has access to the protection of that state, albeit in some other part of the home country. As observed by the US Court of Appeals for the Eleventh Circuit:

The [refugee definition] speak[s] consistently in terms of the geopolitical unit ‘country’…[A] government may expect that an asylum seeker be unable to obtain protection anywhere in his own country before he seeks the protection of another country.

Not only does the logic of denying refugee status on the grounds of internal protection find any easy home in this language of the Convention, but – if carefully applied – consideration of internal protection aligns comfortably with the overarching object and purpose of the Refugee Convention, that being to provide surrogate international protection only where the national protection of one’s own country is not available. In other words, since primary recourse should always be to one’s own state, refugee status is appropriately denied where internal protection is available within the applicant’s own state.

…

In the analysis below, we first set out the relative advantages of an approach to internal protection grounded in the ‘state protection’ language of the refugee definition, and then adumbrate our understanding of a lawful approach to internal protection comprising four questions. First, is the proposed site of internal protection in fact accessible to the applicant? Second, does it provide an antidote to the well-founded fear of being persecuted identified in the applicant’s place of origin? Third, is the quality of the internal protection available such that the applicant would not face a new risk of being persecuted or of being effectively forced back to her place of origin? Fourth, is the home country able to provide affirmative state protection in line with international standards to the applicant in the proposed place of internal protection?

Where each of these requirements is satisfied, it can fairly be said that the protection of the applicant’s own country is available to her such that the need for the surrogate international protection of refugee law does not arise. In a manner akin to a cessation clause, the Refugee Convention’s requirement that a relative at-risk person be denied refugee status unless able to show that she ‘is unable, or owing to such fear, is unwilling to avail [herself] of the protection of that country’ operates to ensure that only those persons who cannot realistically turn to their own country for protection – even if in a region other than that from which they originate – are deemed refugees at international law.

While this concept is described in various ways, including ‘internal flight’ and ‘internal relocation,’ we adopt the language of ‘internal protection’ – the formulation endorsed in the EU Qualification Directive – as we believe it most accurately captures the essence of the concept. The use of the phrase ‘internal flight’ is misleading because it implies that the application of the test involves a retrospective assessment of whether an applicant ‘could have sought refuge in another part of the same country,’ despite the fact that it is now widely accepted that an assessment of internal protection is always a prospective one, based on conditions prevailing at the time the application for refugee status is considered. As the German Federal Administrative Court has explained, a claim ‘cannot be refused because of an internal alternative for protection that existed formerly, but only because of an internal alternative for protection that exists at the time of the decision. Nor do we view the phrase ‘internal relocation’ as appropriate, as it unduly emphasizes ability to move rather than availability or affirmative protection, and can lead to rejection of claims based on superficial reasoning and vague assertions such as that ‘people do relocate within Nigeria.’ Since the legally relevant question is whether ‘a person liable to persecution in one part of the country would be adequately protected by the state if relocated in another part to which he would in practice be returned,’ the language of ‘internal protection’ appropriately focuses on and emphasizes the centrality of the concept of protection in this analysis.

(Emphasis in original.)

55    In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship (see [60] to [61] below). Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. A similar point is made by Professors Hathaway and Foster at pp 358 and 359:

In practical terms, a decision-maker ought to examine the conditions on the ground in order to assess (a) whether there is access there to the kinds of rights and entitlements which constitute the endogenous meaning of “protection” in the Refugee Convention and (b) whether the applicant would have access on a non-discriminatory basis to those rights and entitlements. Critically, this analysis does not involve a comparison between conditions in the proposed site of internal protections and any other place. The fact that life in the alternative site of protection is not perfect, and indeed may be considerably worse than the level of rights and entitlements which would be enjoyed in an asylum state, is irrelevant to this analysis. Conversely, the fact that conditions in the site of internal protection are not as dire as those pertaining in other regions of the applicant’s home country is not a reason for concluding that it is a place to which an applicant can be legally removed if protection – in line with the standards of the Refugee Convention – is not available there. As Baroness Hale emphasized in AH (Sudan), it is not appropriate to find that internal protection exists on the basis that the conditions pertaining there are no worse than those experienced by the most disadvantaged – ‘the poorest of the poor’ – within the applicant’s home country. It may be true that the Refugee Convention is not designed to produce a ‘general levelling-up of living standards around the world,’ but neither should internal protection analysis operate as an invitation to decision-makers to ‘compare the asylum seeker’s situation with others in the country of origin, resulting in an inexorable downward spiral where almost anything is acceptable.’

(Footnotes omitted.)

56    Otherwise, the risk is that the assessment becomes formulaic, and removed from any real factual basis relevant to an individual person arriving in a place such as Kabul: in this case, to live with a partner and young child. That is, in fact, what will occur and there must be a considered attempt to assess what, in a real and practical sense, will happen to that individual and her or his family in those circumstances.

57    How these inquiries are to be made will be informed, of course, by the nature of the claims made by an applicant, and what he or she says about the practicalities of relocation. This includes what has come to be described as “objections” to relocation. Recently, Markovic J in SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 said at [18]:

Whether a claimant can reasonably be expected to relocate depends upon the framework set by an applicant’s particular objection to relocation.

58    There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.

59    In AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 AC 678, reiterating the approach his Lordship took in Januzi v Secretary of State for the Home Department [2006] UKHL 5; 2 AC 426 (Januzi) (to which I refer below), Lord Bingham emphasised (at 683) both the particularity required, and the inappropriateness of insisting on living standards which met any kind of equality based norm:

It is, or should be, evident that the inquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant. There is no warrant for excluding, or giving priority to, consideration of the applicant’s way of life in the place of persecution. There is no warrant for excluding, or giving priority to, consideration of conditions generally prevailing in the home country. I do not underestimate the difficulty of making decisions in some cases. But the difficulty lies in applying the test, not in expressing it. The humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution in their home country or some part of it; it is not to procure a general levelling-up of living standards around the world, desirable though of course that is.

60    Thus, while lesser living standards, and indeed living standards that are far below that experienced in a Western country, will not render relocation unreasonable, it is unreasonable to expect a person to relocate to a place where she or he must exist “below at least an adequate level of subsistence”: see UNHCR Guidelines on International Protection: “‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees”, HCR/GIP/03/04, 23 July 2003, quoted with approval by Lord Bingham in Januzi at [20]; and see also the High Court’s endorsement of this approach in SZATV at [25].

61    One of the measures, to which Professors Hathaway and Foster point at p 357 of their text, is that the Refugees Convention itself contains a set of standards that must be observed by states granting protection. These are standards dealing with health, housing, education, employment, liberty, and freedom of speech – the civil and political, social and economic rights that are common, and fundamental, to all people. It is to those kinds of matters that a decision-maker must look in considering whether relocation is reasonable and practicable – these are the kinds of measures which give content to the concepts of reasonableness and practicability. That is not to say that any utopian aspirations, or Westernised standards are to be imposed, as the decisions in Januzi and SZATV make clear. Standards commensurate with reasonable expectations of the local community in which an applicant is expected to live would be appropriate. In Januzi at [47], Lord Hope expressed the standard (there, that relocation was not “unduly harsh”) in this way:

The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.

(Emphasis added.)

62    As I have noted above, the factual context which arose for the reviewer’s consideration was the reasonableness and practicability of the appellant, his wife and, at the time, almost two year old child relocating to Kabul. Issues concerning the availability of health care, the general situation of security, what kinds of housing might be available all fell to be considered by the reviewer in the context of the appellant and his wife having a young child. What might be “reasonable” or “practicable” for a resourceful young man with no family is not the same, at a factual level, as what might be reasonable and practicable for a young man, his wife and young child. To take two obvious examples: the kind of housing or accommodation required would be quite different; the need to have access to health care would be quite different.

63    Some factual matters may be of less significance because the assessment relates to a husband and wife and young child. For example, the reviewer’s reference at [85] to the observations of the “human rights informant” that it would be “relatively easy” for newly arrived Hazara to move “freely” around Kabul may assume greater significance if the case in issue concerned a young single man. The capacity of a man and woman with a young child to move around is, on any view, a different capacity. In order to take the “human rights informant’s” observation and apply it to the appellant’s circumstances, the reviewer would have needed to know more about what the informant meant about moving freely and whether it would be as easy for a man, woman and almost two year old child to do so. Perhaps it would; perhaps it would not: the factual inquiry was simply not made.

64    The reviewer’s finding (in [85]) that the appellant will have “familial support” from his wife’s family in Kabul is an example of the failure to address the practical realities for the appellant and his family. What does “support” mean? On the evidence, the only information about the appellant’s in-laws was that (a) they did in fact reside in Kabul (somewhere) and (b) they were, according to the adviser’s submissions, unable to provide any financial support to the appellant and his family. What then did the reviewer have in mind when she made a positive finding that the appellant would have familial support? If she meant emotional support (as the Minister submitted), this was not what she said. In any event, the state of relationships between the appellant and his wife’s family was unknown. These are not insignificant matters: it is an everyday aspect of human experience that whether one can look to one’s family for “support” very much depends on the nature of the relationship one has with that family.

65    It is revealing, in my opinion, that at the hearing the reviewer did not seek any additional information from the appellant about what he anticipated life would be like for him and his family in Kabul. Nor did the reviewer present him with any specific information about life for young Hazara families in Kabul. I make those observations not to identify any separate legal error, but merely as illustrative of the lack of particularity in the reviewer’s approach.

66    The reviewer’s assessment of the appellant’s employment prospects provides another example of the failure of the reviewer to discharge the task concerning relocation. The reviewer accepted that the appellant was uneducated, save for a short time in a religious school, and had a farming background. In satisfying herself on reasonableness of the relocation to Kabul, she took into account the fact that the appellant had moved, with his family, to Tehran and found employment there making bags. That is in the circumstances a permissible and obvious aspect of the evidence for a decision-maker to consider. However, the reviewer moves from that fact immediately to a conclusion (in [85]) that the appellant will be able to re-establish his and his family’s residence in Kabul. It is true that employment was but one factor in such re-establishment, but it is also clear on the reviewer’s reasons that it was a factor of some weight. The difficulty is that the reviewer referred to no evidence about how the appellant might find employment in Kabul. She referred to no evidence about what kinds of jobs were available for uneducated Hazara. Could the appellant secure a similar kind of job to the one he had in Tehran? Perhaps, perhaps not: the factual investigation was not undertaken. Whether there was any similarity between the employment opportunities for Hazara in Tehran and those in Kabul was not the subject of any consideration. What the reviewer did know, and accepted, was that in Kabul there were “increased pressures being put on labour markets and resources and widespread unemployment” which limited the “ability of a large number of people to meet their basic needs” (see [84] of the reasons). It may well have been that despite this general finding, the reviewer would have been able, having examined the factual material more closely, to nevertheless conclude that the appellant was likely to secure employment. However, she did not undertake any such assessment.

67    A final example is the treatment by the reviewer of the country information about the Hazara community in Kabul. The information before the reviewer certainly established that there were large numbers of Hazara in Kabul. There were some general statements by an unidentified “human rights informant”, or “Hazara human rights contact”, as the individual is described elsewhere in the country information reproduced by the reviewer. The reliability of the person’s observations or opinions was on the evidence completely unknown and unknowable without further inquiries. At [85] the reviewer relied on the existence, for the appellant, of an “ethnic Hazara community network at his disposal” as a factor of some weight, in satisfying the reviewer that relocation was practicable and reasonable. The source of information to this effect was, as the Minister’s counsel pointed out, country information reproduced earlier in the reviewer’s decision at [62]. This is what the passage quoted by the reviewer states:

R.3-R.4. Conditions facing Hazara returnees vary according to circumstance. Returning to their areas of origin is more difficult if they have been out of Afghanistan for years and have no networks there. But interlocutors did not believe Hazaras would be targeted because they had sought asylum in the west. Whether returnees would have a social network in Kabul if they moved there would depend on which province and district they came from, and the part of Kabul they were located in. But there is a cohesive Hazara community in Kabul, and a Hazara human rights contact assessed that it would be relatively easy for new arrivals to integrate into the city, where they can move freely (DFAT, 2010 The Hazara, 28 September – NB: DFAT advice dated 24 September 2011 states at R1. ‘We consider the information […] remains accurate’).

68    It is apparent the information is more nuanced than the paraphrased conclusion reached by the reviewer. Whether any Hazara community support would be “at the disposal” of the appellant would depend, according to this informant, on which province and district the appellant came from, and which part of Kabul he was located in.

69    All these matters illustrate the fact intensive nature of the inquiry. What is reasonable and practicable for one Hazara person in terms of relocation to Kabul may not be for another. It may depend on whether she or he is accompanied by family members or has dependent children, on her or his level of education, her or his resourcefulness, psychological resilience, physical health, and knowledge of the Hazara community in Kabul. These are the kinds of inquiries necessary to reach a rational and reasonable conclusion on whether, as a matter of practical reality, an applicant can safely relocate. These matters are not addressed by stopping the inquiry at the level of generality evident in [85] of the reviewer’s reasons, even if read with the findings in [84] about there being no risk of significant harm to the appellant and his family.

70    In my opinion, the appellant is correct to contend that the reviewer failed to perform the task required of a decision-maker in order to determine whether a person can relocate to another part of her or his country of nationality so as not to be in need of the surrogate protection offered by the Refugees Convention, or by the complementary protection regime. The reviewer did not, as the appellant contends, deal at a factual level with the specific objections raised by the appellant, nor did she examine the material and make findings about whether the appellant as an individual with his wife and young child could, as a matter of practical reality, relocate to Kabul in a way which would allow them to meet their basic needs as individuals and as a family.

71    The reviewer’s assessment was affected by jurisdictional error, and must be set aside. The Federal Circuit Court failed to identify this error and erred in rejecting the third ground of judicial review advanced on behalf of the appellant. Orders will be made accordingly. There is no basis in the material for anything but the usual orders as to costs. The Court's practice now is to award costs by way of a lump sum wherever that is appropriate: see [3.5] and [4.1] of the Court's Costs Practice Note (GPN-COSTS) dated 25 October 2016. I consider it is appropriate for a lump sum costs order to be made in this case and I propose to give a direction to the appellant to prepare a Costs Summary in accordance with [4.10] to [4.12] of the Costs Practice Note, and (if necessary) for the first respondent to prepare a Costs Response.

Associate:

Dated:    28 March 2017