FEDERAL COURT OF AUSTRALIA

CPE15 v Minister for Immigration and Border Protection [2017] FCA 591

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to rely on ground 1 of the proposed amended notice of appeal filed 5 April 2017 be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the application for leave, and of the appeal, to be fixed in a lump sum by order of the Court.

THE COURT DIRECTS THAT:

1.    On or before 4 pm on 9 June 2017, the first respondent 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.

2.    On or before 4 pm on 23 June 2017, the appellant 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    The appellant is a national of Afghanistan. He is a Hazara by ethnicity. He is a Shia Muslim. At the time of the Tribunal’s decision he was 22 years old, having been born in Kabul, Afghanistan in 1993, and having lived there until 2007, when he moved, illegally, to Pakistan, where he remained until 2012. His claims to protection revolved around his ethnicity as a Hazara and his religion as a Shia Muslim. He also had a claim to fear harm from family members due to a land dispute in his family’s home province. However, by the time his case reached the Tribunal on review, the issue for determination was whether it was reasonable for the appellant to “relocate” within Afghanistan, away from his family’s home province, and in particular whether it was reasonable for the appellant to “relocate” to Kabul. I consider below whether “relocation” is an appropriate term to describe the appellant’s circumstances.

2    The Tribunal determined that it was reasonable to expect the appellant to relocate to Kabul. Accordingly it affirmed the decision under review.

3    The appellant sought judicial review in the Federal Circuit Court and that Court dismissed his application for judicial review on 28 September 2016: CPE15 v Minister for Immigration & Anor [2016] FCCA 2388.

4    For the reasons I set out below, the appeal to this Court will be dismissed, and the appellant will be refused leave to rely on his proposed new ground of appeal.

The framing of the appeal

5    Before the Federal Circuit Court, the appellant was legally represented and pursued two grounds of judicial review. They are summarised in the decision of the Federal Circuit Court (at [2]):

There are two grounds of review. The first is that the Tribunal made a jurisdictional error by failing to consider and apply legal principles relating to the identification of a home region or safe area for the applicant in Afghanistan. The second asserted error is a failure to consider the applicant’s claim or integer of claim that he would be persecuted by reason of his membership of a particular social group constituted by failed Hazara asylum seekers with no family network to fall back on.

6    In a detailed set of reasons, the Federal Circuit Court determined that neither ground of review was made out.

7    The notice of appeal from the Federal Circuit Court to this Court contained two alleged errors by the Federal Circuit Court. They were described in the notice of appeal in the following terms:

1.    The primary judge erred in failing to find jurisdictional error in the Tribunal’s decision as it failed to apply legal principles relating to the identification of a ‘home region’ or ‘safe area’;

2.    The primary judge erred in failing to find jurisdictional error in the Tribunal’s decision in that it failed to consider a relevant consideration in that it failed to consider the applicant’s claim or integer of claim that he would be persecuted by reason of his membership of a particular social group, constituted by failed Hazara asylum seekers with no family network to fall back on.

8    Broadly, those two grounds of appeal followed the two grounds of judicial review which were pressed before the Federal Circuit Court.

9    The appellant’s legal representation, both as to the solicitors and counsel, changed between the hearing in the Federal Circuit Court and the appeal in this Court. Neither of the grounds of appeal contained in the notice of appeal is now pursued. Instead, in a document filed with the Court on 5 April 2017, four new grounds of appeal were substituted. The appellant’s counsel appropriately concedes that these four grounds have no connection with the two grounds of review before the Federal Circuit Court and the two grounds of appeal in the notice of appeal to this Court.

10    The four new grounds of appeal on which leave was sought for the purposes of the appeal are:

1.    The Tribunal failed to consider a substantive argument that the situation in Kabul would descend into even greater instability when the international military forces then present in Afghanistan departed.

2.    The Tribunal fail to comply with the second sentence of s 420(1) of the Act and/or Direction No. 56 in that it misunderstood the relevant DFAT report.

3.    The Tribunal failed to consider whether this individual appellant faced a real risk of significant harm in that it relied on a numerical or statistical analysis without making any, or adequate, findings to support the utility of the numerical or statistical analysis.

4.    The Tribunal misconstrued s 36(2B)(c) of the Migration Act 1958 (Cth) in that it treated ‘Kabul’ (which is not a country) as though it was the relevant ‘country’.

11    The Minister opposed leave being granted to the appellant to rely on these four grounds. He submitted the appellant was legally represented in the Federal Circuit Court and, based on that proposition, the Minister submitted that “the arguments were available at that point”. Relying on Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at [7] and MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [53] (White J), which adopted what the High Court said in Coulton, the Minister submitted that the conduct of the appeal on four new grounds amounted to treating the proceedings in the Federal Circuit Court as “no more than a preliminary skirmish”.

12    While the appellant accepted there was no evidence by way of an explanation for why the grounds now relied on were not raised below, he submitted that the arguments sought to be advanced are confined to questions of law based on the settled and undisputed record before the Tribunal. He submitted that the argument would take no longer than it would have taken had the grounds in the notice of appeal been adhered to, that there is no relevant prejudice to the Minister but that there would be significant prejudice to the appellant if he were denied leave to advance the grounds that his counsel now considered gave him the best prospects of success in the appeal.

13    In my opinion, in the circumstances of this case it would be in the interests of the administration of justice that the appellant be granted leave to rely on the new grounds of appeals, insofar as the Court assesses that they are arguable. I deal below with whether any or all of the four grounds of appeal are arguable.

14    The approach I take in circumstances of this nature relies in part on what I said in ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279 at [30], although some of those observations were, as the Minister pointed out in his written submissions on this appeal, directed at circumstances where a person was self-represented. However in [30] I also said:

Ultimately, this Court’s function on appeal from a decision involving the supervisory jurisdiction of this Court and of the Federal Circuit Court is to ensure that an administrative decision affecting the rights and interests of an individual (including her or his liberty) is made in accordance with Australian law and by a fair process.

15    When they are challenged, administrative decisions which may provide the foundation for the detention of an individual in Australia and her or his involuntary removal from Australia are, rightly, carefully scrutinised by courts to ensure they meet these fundamental criteria. It would be inimical to the rule of law for administrative decisions that do not meet those criteria to affect a person’s liberty, and her or his opportunity to seek or retain executive permission to remain in Australia.

16    I accept that considerations of prejudice to any other party, and the effect changes in the course of litigation can have on the resources of this Court and its capacity to discharge its obligations under the Federal Court of Australia Act 1976 (Cth) (see in particular the overarching objective set out in section 37M of that Act) are matters which must be taken into account in exercising the discretion to grant leave to rely on new grounds of appeal. However in the judicial review of migration decisions in this Court’s jurisdiction, including its appellate jurisdiction, it seems to me those considerations may be of less significance unless adjournments are sought or the Minister is caught by surprise by a new ground.

17    Counsel for the Minister quite properly recognised that grounds of appeal that alter the identification and characterisation of a jurisdictional error are not likely to cause the conduct of the Minister’s case in this Court any substantive prejudice, subject to proper allowance being made for time for the Minister to present his response comprehensively and in the matter that advances the Minister’s interests. Where, as here, the amount of time taken to deal with the matters by the Court is substantially the same, there has been proper notice to the Minister of the proposed new grounds, they have been developed in written submissions and the Minister has had time to respond, there is (as the Minister properly recognised) no unfairness to the Minister as a contradicting party. There is also no prejudice, or adverse effects, by way of delay in the Court’s own processes or use of resources, and therefore no effect on other litigants waiting to have their cases heard and determined in this Court.

18    It should be borne in mind that the principles outlined by the High Court in Coulton v Holcombe arose in the context of private law litigation. Litigation conducted between private parties on private law subject matter where each is equally armed and represented, and the adversarial system operates at its fullest, are quite different circumstances from the circumstances prevailing in the supervisory jurisdiction of this Court over exercises of federal executive or administrative power which has, as the High Court has now regularly emphasised, a constitutional dimension.

19    The Minister relied on three decisions of single judges of this Court in support of his submissions that in circumstances such as the present, leave should be refused in the absence of any adequate explanation beyond a change of legal representation. The first was AYJ15 v Minister for Immigration and Border Protection [2016] FCA 863. In that case, at [17], Reeves J relied on Coulton v Holcombe to reject as an adequate explanation the explanation that the appellant had changed his legal representation and his new lawyers took a different view of the appeal. His Honour said:

It subverts the deliberate intention of the Legislature expressed in the Migration Litigation Reform Act 2005 (Cth) to remove this Court’s original judicial review jurisdiction in migration matters and confer that role on the Federal Magistrates Court (now Federal Circuit Court) confining the role of this Court, in such matters, to that of an appellant court (ss 476 and 476A of the Act). It is therefore inimical to the due administration of justice in migration appeals.

20    His Honour considered the lack of adequate explanation would be sufficient, by itself, to dispose of the application to amend the grounds of appeal in the matter before him.

21    The second authority was a decision of Flick J in NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [31] to [33]. In those paragraphs his Honour expressed the view that for a “different mind” to devise a new basis for challenge is not sufficient to warrant granting leave to an appellant to depart from the manner from which their case was presented to the (then) Federal Magistrates Court.

22    Thirdly, the Minister relied on the decision of Jessup J in MZABO v Minister for Immigration and Border Protection [2016] FCA 980. That was a case about an extension of time, rather than an application to amend the grounds of appeal in an appeal brought within time. In other words, the applicant’s jurisdictional entitlements were rather more fragile. At [15] of his Honour’s reasons, his Honour said:

From what appears, the course proposed by the applicant would have this court proceeding as a court of first instance. Neither is it as though the point sought to be raised for the first time on appeal would complement, or sit alongside, other legitimate points of appeal related to the reasons actually given by the primary Judge. Rather, the points now sought to be raised for the first time would, it is proposed, constitute the entirety of the applicant’s case on appeal. An applicant who seeks to proceed in this way, and to do so without any satisfactory explanation for why the points were not relied on at first instance would, in my view, need to have a case of very conspicuous apparent strength before the court would exercise its discretion favourably to him or her.

23    Several observations may be made about these authorities. The first is that, while each single judge did consider the merits of the new grounds of appeal, in none of them did their Honours conclude that those new grounds were meritorious. Therefore in none of these cases was the Court faced, in exercising its discretion, with balancing a meritorious new ground of appeal against some of the other considerations to which their Honours referred.

24    Speaking for myself, it would be an extraordinary situation where an appellant raised a meritorious ground of appeal suggesting the existence of jurisdictional error on the part of an administrative decision-maker and yet considerations such as the absence of a reasonable explanation, or the absence of an explanation other than change of legal representative, were found to preclude or prevent the raising of that ground of appeal. After all, the function of this Court on judicial review (including on appeal in judicial review) is to ensure that exercises of administrative power occur lawfully and by a fair process. In my opinion, if a court were faced with a strongly arguable case of jurisdictional error but nevertheless refused the application on the basis of a change in legal representation and the fact of the error being identified for the first time on appeal, the proper performance of this Court’s supervisory function in judicial review (which inheres in this particular appellate jurisdiction) would be at risk. In other words, where interests of the kind I have set out at [15] are at stake, the consideration of most weight is the merit of the legal argument on jurisdictional error. It seems to me that was the point Jessup J was making in MZABO. Not dissimilar observations can be found in AYJ15 at [18], and in NBMB at [32] and [42].

25    Of course, the exercise of discretion to grant leave will be highly fact and context dependant. Considerations such as an adequate explanation are but one factor. In some cases there may be real prejudice to the Minister, even in a migration jurisdiction, if a new ground is raised late requiring the adjournment of an appeal. In those sorts of circumstances, the effective use of resources on the part of the Minister and the part of the Court will naturally have greater prominence. The required level of merit in a proposed new ground of appeal for a favourable exercise of discretion may vary upwards or downwards, depending on the other circumstances of the particular case.

26    This is not a case where there are persuasive countervailing factors against the grant of leave. In this case, as I set out below, when the matter was called on for the hearing of the appeal, counsel for the appellant abandoned three of the four proposed new grounds of appeal and pressed only one. The Minister had been on notice of this ground from the filing of the appellant’s submissions and had dealt with it in his written submissions. The Minister’s counsel came prepared to deal with it comprehensively in oral submissions. The Court’s time was, as it turned out, used more efficiently than might have been expected on the original notice of appeal. One ground of appeal was pressed rather than two.

27    Though I take the point made by Reeves J in AYJ15 that Parliament has chosen to give the principal original judicial review jurisdiction to the Federal Circuit Court, rather than this Court, I do not consider that legislative policy is necessarily undermined by granting leave to raise a new ground of judicial review for the first time on appeal. Allowing a new point to be raised on appeal in this jurisdiction necessarily still involves the submission that the Federal Circuit Court erred in not identifying a jurisdictional error in the Tribunal’s decision. The nature of the error changes, so much can be accepted, but ultimately this Court is still engaged in the task of correcting error by the Federal Circuit Court in the performance of its judicial review function, which derives from s 39B of the Judiciary Act 1903 (Cth), which in turn is linked to the supervisory function in s 75(v) of the Constitution.

28    If, contrary to the view I express below, I have been persuaded that the single remaining new ground of appeal had substantial merit, I would have granted leave to the appellant to amend his grounds of appeal to rely on that new ground. However, I have concluded that the appellant’s new ground does not have substantial merit, and in the circumstances where it is plainly a new ground raised for the first time on appeal, the correct course is to refuse leave to raise it. I turn now to explain why that is so.

29    The new ground was fully argued, as it would have been if leave were granted. The presence of full argument on both sides means the consideration I set out below is necessarily more detailed than might otherwise be expected on an application for leave. The procedure of dealing with leave in the course of the appeal cannot however, of itself, increase or improve an appellant’s chances of being granted leave, even if (as here) judicial consideration of the proposed ground in such a situation tends to be more detailed. In some circumstances, it will be appropriate to leave this detailed consideration of the strength of any new proposed ground of appeal to full consideration in the final disposition of an appeal, rather than at the leave stage. There is some artificiality in these distinctions when, as a matter of practice and for good reason, the application for leave and the hearing on the appeal occur at the same time. Nevertheless, the distinction is one that is important to maintain.

Federal Circuit Court decision

30    The Federal Circuit Court’s reasons for judgment set out comprehensively and clearly the background to the appellant’s claim for protection and the judicial review application and I need not repeat them here. If I might say so, with respect, the Federal Circuit Court’s reasons on the two grounds of judicial review advanced before it also deal comprehensively with those two grounds. Since neither of them is advanced on the appeal, there is no point in setting out those parts of the Court’s reasons in this judgment.

Resolution

31    On the hearing of the appeal, counsel for the appellant indicated to the Court that new grounds 2, 3 and 4 of the proposed amended notice of appeal would not be pressed. He indicated to the Court that only proposed new ground 1 of the amended notice of appeal would be pressed and leave would be sought only in relation to that ground.

32    The appellant contended that the Tribunal had failed to deal with an argument put on his behalf by his migration agent, both to the delegate and to the Tribunal on review, to the effect that the situation in Kabul would descend into even greater instability when the international military forces then present in Afghanistan departed. In other words, as counsel for the appellant accepted during oral argument, the contention made on behalf of the appellant was that there would be a change of circumstances in the security situation in Kabul as a result of the departure of the international military forces that had been stationed there.

33    The appellant contended this was a substantial and clearly articulated argument in both the submissions before the delegate and the submissions to the Tribunal. It was more than the identification of country information in a submission, but rather was a positive argument put on behalf of the appellant.

34    The appellant submitted that the Tribunal did not mention this argument at any stage in its reasons and the Court should infer the Tribunal did not consider it.

35    Authority for the proposition that the failure of the Tribunal on merits review under the Migration Act 1958 (Cth) to deal with a substantial argument put to it on behalf of an applicant constituted jurisdictional error can be found in the reasons for judgment of Griffiths J in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365.

36    At [75] to [82], Griffiths J set out in detail many of the authorities dealing with this species of jurisdictional error that is at times characterised as a denial of procedural fairness (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24], Gummow and Callinan JJ); or is sometimes identified as a constructive failure to exercise the jurisdiction to “review” the delegate’s decision (see, for example, Dranichnikov at [25] (per Gummow and Callinan JJ) and [95] (per Hayne J)).

37    In SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; 314 ALR 146 at [11], Siopis, Perram and Davies JJ identified an error of this kind as a denial of procedural fairness. As Griffiths J pointed out in SZSSC at [76], an error of a similar kind was described by a Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [38] in a way which characterises the excess of jurisdiction by the Tribunal as a failure to carry out its task on review. In MZYTS at [38], the Full Court said:

That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there.

38    MZYTS was a case concerning the failure of the Tribunal to consider updated country information put before it by an applicant, and it was for that reason that the Full Court, in my opinion, characterised the error as a failure by the Tribunal to perform its task on review. The consideration of the most up-to-date country information available to it was, the Court found (at [73]), a core part of the Tribunal’s function on merits review. The Tribunal’s duty to review may, or may not, give rise in any particular case, to a need to act in particular ways (such as making inquiries), but that is not because of any freestanding and uniform subset of obligations implied into the statutory task (such as a “duty” to make inquiries) but rather because of the nature of the core merits review function in undertaking a review of the primary decision. The distinction is adverted to by French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [23]:

In Minister for Immigration & Citizenship v SZIAI the Court considered the implications of its designation, in earlier decisions, of Tribunal proceedings as ‘inquisitorial’. As was pointed out in that case, the term ‘inquisitorial’ has been applied to tribunal proceedings to distinguish them from adversarial proceedings and to characterise the Tribunal’s statutory functions. As the plurality judgment stated:

‘The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.’

(Footnote omitted.)

39    As a matter of principle, in a case such as the present one, I prefer the characterisation of an error of this kind as a denial of procedural fairness. That is because what has occurred, on the appellant’s contention, is that he put an argument in submissions, which was not considered. Subject to exceptions not presently relevant, part of an applicant’s entitlements on merits review before the Tribunal is to have an opportunity to give evidence and present arguments: see s 425(1) of the Migration Act and see generally, Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; 238 CLR 489 at [36], [49]-[51] (French CJ, Heydon, Crennan, Kiefel and Bell JJ); SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152. Whether those arguments be as to established facts, or as to law (see [41] below), the opportunity in s 425(1) is a component of the Tribunal’s procedural fairness obligations.

40    The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as “a substantial and clearly articulated argument”. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by section 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument.

41    As Griffiths J pointed out at [81] of his Honour’s reasons in SZSSC, the argument need not be one about “established fact”, but could be one raising a question of law. Whether the argument is as to fact or as to law, or as to a combination of both, the justification for identifying failure to deal with such an argument as a jurisdictional one is that which I have just given.

42    Ultimately, assessments by a reviewing court of whether the identified argument was “substantial and clearly articulated”, and what the Tribunal did or did not do in its reasons in terms of considering it, will be highly fact dependant and will need to be considered against the background of each individual case.

43    Therefore I turn to the circumstances before the Tribunal in the appellant’s review.

44    For the purposes of advancing his contention, the appellant relied, as I have noted, on submissions made to the delegate and then again to the Tribunal. There appeared to be some confusion throughout the appellant’s claim, apparently initially on behalf of the appellant’s migration agent, whether the appellant’s circumstances gave rise to an issue of relocation as that term is used in refugee law. The appellant had initially lived in Kabul and then had moved to Pakistan with relatives so that he would be returning to a place he had lived in the past, albeit as a child. However, on the appeal it was common ground the appellant’s circumstances did not give rise to any issue of relocation as that term has come to be understood in the operation of Art 1A of 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). I have set out my views about the applicable principles in relocation recently in MZANX v Minister for Immigration and Border Protection [2017] FCA 307.

Country Circumstances

45    In the submission to the delegate, the agent submitted that “[t]he general security situation in Kabul renders relocation to the region unreasonable”. The submission went through the rising casualties and incident rates which the agent submitted were apparent from the country information, and then made the following submissions:

Little speculation is required to appreciate the Taliban’s current strategy. According to the UN Director for Human Rights in Afghanistan, ‘[t]he stepped-up transition of security responsibilities from international military forces to Afghan forces and closure of international forces’ bases was met with increased attacks by anti-government elements’. Further, the Taliban have made these intentions plain, publically declaring that following the US withdrawal from Afghanistan they intend to retake Kabul ‘in a week’.

Renowned experts on US military affairs Federick and Kimberly Kagen [sic] have flagged this exit strategy from Afghanistan as a ‘dangerous mirage’':

Moving toward this long-term posture in 2013 will likely ensure its failure. As [the US] fall below 68,000 troops, [the US] will have to withdraw from important terrain and lose the ability to maneuver. [The US] forces won’t be able to operate in most of southern Afghanistan, conduct offensive operations or help the ANSF consolidate and mature.

(Footnotes omitted.)

46    On review to the Tribunal and approximately a week before the Tribunal’s decision, the appellant’s agent filed a set of written submissions with the Tribunal. Those submissions went through the appellant’s personal history, his tragic family history, and the necessary movement of the appellant and his brother to Pakistan to live with their maternal uncle following the death of his mother and the earlier disappearance of his father. The submissions then dealt with the way the appellant left Pakistan, arrived in Australia and what he has done since he arrived in Australia, none of which is necessary to set out in detail. Having identified the first issue as whether the appellant had a well-founded fear of persecution on account of his race (Hazara) and or his religion (Shia), the submission then dealt with the position put on behalf of the appellant on that issue. The submissions contained a heading “Current Security Situation of Afghanistan” and under that heading a series of propositions based on country information some of which was footnoted and some of which was quoted in the submission. For example at paragraph [35] of the submission, it is said on behalf of the appellant:

DFAT has recognized the deteriorating security situation:

The significant rise in casualties in 2014 reflects an increase in the frequency and intensity of ground engagements across Afghanistan. Casualties from ground engagements increased by 52 per cent in 2014, coinciding with the withdrawal of international military forces and combat air support... The security situation across the country deteriorated significantly over the last 12-18 months, as anti-government groups intensified their efforts and the international military contingent gradually withdrew.

(Emphasis added.)

47    There then followed another subheading – “Security in the foreseeable future”. Again, a number of extracts from country information are then reproduced. The principle part of the submissions on which the appellant relies in relation to the new ground of appeal appear at [44]-[48] of those submissions:

Despite these concerns, the United States had committed to reducing the number of troops remaining in Afghanistan from 9,800 to 5,500 by the end of the year. Barak Obama has very recently announced that he will leave 5,500 forces in Afghanistan beyond his departure from office in January 2017, stating that:

The bottom line is in key areas of the country, the security situation is still very fragile and in some places there is risk of deterioration.

Given the dramatic increase in civilian casualties since Western troops started to withdraw last year, it is likely that the casualty rate will continue to soar when the present force of 9,800 troops is reduced to 5,500 and again when the troops are withdrawn altogether. The real likelihood that the Taliban or other AGEs will regain effective control of larger areas of Afghanistan in the near future is of particular concern to the Shia Hazara community who have been historically persecuted by the Taliban and Pashtun majority in Afghanistan.

Abdul Khaliq Azad from the Afghan Strategic and Peace Studies in Kabul is recorded as stating that: ‘If the Taliban come back they would annihilate the Hazara because of their staunch support for the foreign presence in Afghanistan.’

UNHCR considers that the withdrawal of international security forces, as well as a complex economic transition, is ‘likely to affect peace, security and development in Afghanistan’.

In light of the above, the Tribunal should find that the there is a real chance the Applicant would be subjected to serious harm in the reasonably foreseeable future for reasons of his race and religion.

(Footnotes omitted.)

48    The appellant’s counsel submitted that the clearest articulation of the argument to be identified appears in [44] and [45] of these submissions.

49    It is clear, as counsel for the Minister submitted, the Tribunal paid general regard to both the submissions made to the delegate and the submissions made to the Tribunal: so much is apparent from [20] of the Tribunal’s reasons. After dealing with the appellant’s claim based on some of his family circumstances, which I need not set out in detail as they are not material to the proposed ground of appeal, the Tribunal turned to consider what it described by the subheading in its reasons as “Hazara Shia claims”. It was common ground that in this part of its reasons, the Tribunal, as it was entitled to, placed considerable weight on reports produced by the Australian Department of Foreign Affairs and Trade and in particular the recent (at the time of the Tribunal’s decision) report, produced in September 2015 concerning the situation for Hazara Shia people in Afghanistan and in Kabul in particular. The Tribunal reproduced in its reasons a number of passages from this report and from other recent country information.

50    At [34] of its reasons, the Tribunal reproduced the following parts of the September 2015 Department of Foreign Affairs and Trade report:

DFAT also specifically reported in relation to Kabul in September 2015:

2.29 Insurgents regularly conduct high-profile attacks in Kabul. DFAT assesses that the primary targets for insurgent attacks are government institutions, political figures, Afghan National Defence and Security Forces (ANDSF), personnel from the Resolute Support mission (the NATO-led mission that replaced the International Security Assistance Force or ISAF on 1 January 2015), other security services, and international organisations. Such attacks often cause significant casualties amongst civilian bystanders in addition to those being targeted. Kabul has seen a marked increase in the number of incidents in 2015 compared to the corresponding period in 2014. According to a Resolute Support mission report for January-April 2015, insurgent attacks in Kabul have increased by around 60 per cent compared with the same period in 2014.

2.30 Representative examples include the series of bombings against employees (including prosecutors and judges) of the Ministry of Justice in May 2015, which killed at least 11 people and injured dozens more; an attack on the Park Palace guesthouse in May 2015 that killed five people, including foreigners; and a car bomb attack near the Ministry of Finance in Kabul which killed eight people and wounded 37 more. Kabul International Airport has been attacked on a number of occasions, with a rocket attack in 2014 landing on the runway apron. Attacks also occur in the vicinity of the airport, including in May 2015 when a European Union vehicle was hit by a vehicle-borne improvised explosive device, killing at least three people and injuring 18 others. On 22 June 2015, the National Parliament building in Kabul was attacked by the Taliban. A suicide vehicle detonated outside the building, followed by gunfire. Twelve people were reportedly killed, including six Taliban gunmen and the suicide bomber, with at least 21 more people injured in the attack. In August 2015, a series of attacks resulted in an estimated 355 civilian casualties (deaths and injuries), the largest number of civilian casualties in a single day since data collection started in 2009.

2.31 The ANDSF and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within Kabul. These provide a deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. ANDSF are quick to respond to insurgent attacks when they occur. Nonetheless, violent attacks within the city are common.

(Footnotes omitted.)

51    The appellant relied in particular on the fact that the Tribunal’s reasons extracted paragraph 2.31 of this report, which noted that “ANDSF are quick to respond to insurgent attacks when they occur”. The appellant submitted this indicated the Tribunal had been put on notice by the country information that the presence of international forces in Kabul was one of the mechanisms by which risks to Hazara Shias were kept in check. Nevertheless, the appellant submitted, the Tribunal failed to deal with the argument made on his behalf about what would happen when international forces withdrew. The appellant also relied on some earlier descriptions in this section of the Tribunal reasons about the security situation as the “current security situation”.

52    Having referred to this country information the Tribunal concluded (at [36] and [37]):

I have taken into account the reports of regular insurgency attacks on Kabul taken place but these need to be seen in the context that Kabul has a population of four million and that the government maintains effective control of Kabul and has a range of counter-measures in place to prevent and respond to insurgent attacks. I have taken into account that the primary targets for insurgent attacks are government institutions, political figures, military, other security services and international organisations and that such attacks often cause significant casualties amongst civilian bystanders. I am of the view that the available country information considered as a whole indicates that the chance or risk of the applicant being seriously or significantly harmed in such a circumstance would be best described as remote, and not a real chance or real risk. Furthermore, on the available country information, I consider the risk of getting harmed in an attack by insurgents is one faced by the population generally and not the applicant personally: s.36(2B)(c) of the Act.

I accept that there have been some incidents where Hazara Shias have been targeted, and where ethnicity and religion would appear to be a factor and that ISIS have started operating in Afghanistan. However, I do not accept that all Hazara Shias in Kabul face a real chance of persecution or significant harm now or in the reasonably foreseeable future from these Sunni groups or anyone else. I accept that the applicant is a Shia and will attend mosque and religious events; however, given the country information viewed overall, I find that the chance or risk he will be seriously harmed or significantly harmed is remote.

(Footnotes omitted.)

53    The appellant submitted these passages disclosed the error he identified: namely that the Tribunal was in effect looking at the short term situation for Hazara Shia in Kabul and was not at all turning its mind to what would happen to the security situation once the international forces left, the appellant’s submission being that the security situation would rapidly deteriorate for that community.

54    The remainder of the Tribunal’s reasoning, which follows these passages, deals with a number of factual matters particular to the appellant, which I need not set out as they are not material to the proposed new ground of appeal.

55    At the end of this section of its reasons, the Tribunal summarised its conclusions in the following way (at [44] and [45]):

Having regard to the country information concerning the overall situation for Hazara Shias and failed returned asylum seekers from western countries and the country information that indicates that the Government maintains effective control of Kabul and the applicant's individual circumstances, I do not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future in Kabul on account of being a Hazara Shia or an imputed political opinion or for membership of a particular social groups consisting of ‘failed Hazara asylum seekers who have fled to the West’ or ‘Shia Hazaras with no family or tribal connections in Afghanistan’ at the hands of the Taliban, ISIS, other insurgent groups, the state or anybody else.

Having regard to the country information concerning the overall situation for Hazara Shias and failed returned asylum seekers from western countries and the country information that indicates that the Government maintains effective control of Kabul and the applicant’s individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm in Kabul on these bases.

56    The Minister made two submissions, in the alternative, in answer to the merits of the proposed new ground of appeal. The first was that the appellant’s argument concerning what was likely to occur on withdrawal of international forces was dealt with by the Tribunal in its reasons in the sense that it was subsumed in the Tribunal’s reasoning about the overall security situation in Kabul including the Tribunal’s preference in terms of weight for what was said by the Department of Foreign Affairs and Trade in its September 2015 report. In making this submission, the Minister relied on the Full Court’s decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [45]–[47] (French, Sackville and Hely JJ):

45. In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:

… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;

(s 36(2)(a) read with s 415(1))

The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.

46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

57    The Minister relied in particular on the passage in [47] of the Full Court’s reasons where the Full Court said it may be unnecessary to make a finding on a particular matter because that matter is “subsumed in findings of greater generality”. Here the Minister submitted that the Tribunal’s choice to rely on the September 2015 Department of Foreign Affairs and Trade report, read with its conclusions at [44] and [45], gave rise to the inference that as matter of fact finding the Tribunal did not see the foreshadowed departure of international forces as something that was likely to lead to a qualitative deterioration in the security situation in Kabul and a correlative rise in the risk of significant harm to Hazara Shia such as the appellant.

58    The second response given by the Minister to the new proposed ground of appeal was that even if the Tribunal had overlooked this specific argument, it was not an argument of sufficient cogency or substance as to attract the principles set out by Griffiths J in SZSSC. The Minister submitted that the Tribunal performed its task without error by asking itself the right question: namely whether the appellant would be at risk of significant harm in the “foreseeable future” should he be compelled to return to Afghanistan. Overlooking the appellant’s argument that there would be a significant change in the security situation on the departure of the international forces was not, in the context of the very recent country material before the Tribunal and on which it placed great weight, something that was capable of affecting the discharge of its task on review. This situation was, the Minister submitted, quite different from the one with which the Full Court dealt in MZYTS at [52].

59    In my opinion, the prospects of success of the proposed new ground of appeal depend in part on the understanding of what is meant by the now well-established and orthodox approach to the determination of risk of harm to a person occurring in the future: that is, is there a real chance a person may suffer serious harm on return to her or his country and nationality: see generally Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J), 429 (McHugh J). To make that assessment, there must be speculation about the future, and the period of time throughout which that speculative task must be carried out has been expressed to include so much of the future as is “foreseeable” or “reasonably foreseeable”: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ); NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]; Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [27] (Heerey, Moore, Goldberg JJ); SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292 at [7] (Flick J).

60    The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.

61    In my opinion the Tribunal appropriately addressed its task of determining, in relation to the criteria in s 36(2)(a) and (aa) and their components drawn from their respective international treaties as interpreted by Australian courts, whether there was either a real chance of persecution or substantial grounds for believing there was a real risk of significant harm to the appellant, were he to be returned to Kabul.

62    I do not read the Tribunal’s reasons as confined in time in the way the appellant submitted. Where the Tribunal used the word “current”, in my opinion, the Tribunal should be taken to mean the situation likely to face the appellant on return to Afghanistan in the foreseeable future. To read “current” literally, as referring only to the time immediately after the appellant would be returned to Kabul, or a period even before this, would not be to read that small part of the Tribunal’s reasons in its larger, and proper, context.

63    In my opinion it is clear, particularly from [44] of the Tribunal’s reasons, that the Tribunal focused in its fact finding on the control exercised by the Afghan government over the security situation in Kabul. It did so on the basis of country information then recently available in the September 2015 Department of Foreign Affairs and Trade report, which the Tribunal clearly found persuasive, as it was entitled to. In that sense the appellant’s arguments about the impact of any reduction in the presence of international forces in Afghanistan, on the security situation in Kabul were subsumed in the Tribunal’s findings about the security situation in Kabul in the foreseeable future. I consider this was clear in the Tribunal’s reasons as expressed.

Conclusion on application for leave

64    Given the wholesale abandonment of the grounds of review before the Federal Circuit Court and the very different nature of the grounds of review sought to be advanced for the first time on appeal, consistently with the observations of Jessup J in MZABO, I consider it would not be appropriate to grant leave to the appellant to advance the new argument on appeal unless I was persuaded it had “conspicuous apparent strength”: MZABO at [15]. I am not so persuaded. While it cannot be said that the new ground was unarguable or without merit, because the Tribunal did not expressly address the identified submission put on behalf of the appellant, neither can it be said in the context of a set of reasons which are comprehensive, rational, careful and detailed, that the Tribunal’s failure to expressly advert to this particular submission meant there was any apparently strong argument of jurisdictional error.

65    Accordingly I consider the appropriate course, despite having heard the argument fully developed at the hearing as if leave had been granted, is to refuse leave to the appellant to raise the proposed ground in the proposed amended notice of appeal.

66    There is no basis in the material before the Court for anything other than an order for costs which follow the event of the refusal of leave and the dismissal of the appeal. Nevertheless it is appropriate that the quantum of the Minister’s costs be resolved expeditiously and by way of a lump sum process. In those circumstances there will be directions given in accordance with the Court’s Costs Practice Note (GPN-COSTS) so that the Court can fix a figure for the Minister’s costs by way of a lump sum.

Associate:

Dated:    26 May 2017