FEDERAL COURT OF AUSTRALIA

ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court on 28 March 2018 be set aside and in lieu thereof:

(a)    the decision of the second respondent dated 6 September 2017 is set aside and the matter is remitted to the second respondent for determination according to law; and

(b)    the first respondent is to pay the applicant’s costs in the proceedings in the Federal Circuit Court.

3.    The first respondent is to pay the appellant’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The appellant appeals a decision of the Federal Circuit Court of Australia (the FCC). The primary judge dismissed an application for judicial review of a decision by the second respondent, the Immigration Assessment Authority (the IAA). By that decision, the IAA affirmed the decision by a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a protection visa. The appellant claimed to fear harm if returned to his country of nationality, Afghanistan, by reason of his Shia religion and Hazara ethnicity.

2    The principal issue raised by the appeal is whether the primary judge correctly held that the IAA did not fail to consider the claim that the fact that the appellant or his family may attempt to travel to see each other was an impediment to relocation within Afghanistan. This issue turns upon the proper construction of the IAA’s reasons in a context where the IAA accepted that there was a real risk of harm to Hazaras travelling on the road between Kabul (where it found that the appellant could reasonably relocate) and the village where his family lived.

2.    BACKGROUND

2.1    The application for a protection visa and decision of the delegate

3    The appellant is a citizen of Afghanistan who arrived in Australia by boat in early 2013. His wife and minor children remained in their village. The country information before the IAA indicated that the appellant’s home district is predominately Hazara and part of the traditional area of Afghanistan known as the “Hazarajat” (IAA decision at [17]).

4    The appellant applied for a subclass XE-790 Safe Haven Enterprise Visa (protection visa) on 24 June 2016. He claimed relevantly to fear harm from the Taliban, Daesh or other insurgency groups if returned to Afghanistan by reason, among other things, of his Shia religion and Hazara ethnicity.

5    The appellant claimed that while he lived in Afghanistan he was abducted, beaten and detained on two occasions by the Taliban. He also said that he had spent a number of years before his arrival in Australia working illegally abroad in the Middle East to earn money for his family.

6    Following an interview with the delegate on 12 January 2017, the appellant provided the delegate with further written claims responding to issues arising from the interview including whether the appellant could relocate to Kabul and the effect that relocation would have on his relationship with his family.

7    On 25 January 2017, the delegate refused the application for a protection visa. While the delegate accepted the appellant’s account of his encounters with the Taliban, he concluded that the applicant specifically is of no further interest to the Taliban. Nonetheless, the delegate implicitly accepted that there was a real chance that the appellant would be persecuted if he were to return to his home province by reason of being a Hazara Shia. However, the delegate also found that the real chance of persecution did not relate to all areas of Afghanistan and further that on return it would be reasonable for the appellant to relocate to Kabul to avoid the real risk of significant harm.

2.2    The decision of the IAA

8    The IAA affirmed the delegate’s decision on 6 September 2017. It summarised the appellant’s claims at [9] of its reasons.

9    The IAA first considered whether the appellant had a well-founded fear of persecution as defined in s 5J of the Migration Act 1958 (Cth) (the Act) so as to meet the criterion in subs 36(2)(a), namely, that the Minister is satisfied that Australia owes protection obligations to the person because she or he is a refugee (the Refugees Convention criterion). Section 5J relevantly provides that:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

(emphasis added)

10    The IAA accepted the appellant’s claims in relation to his interactions with the Taliban (at [16]). However, on the evidence the IAA was not satisfied that the appellant faced a real chance of serious harm in his home district on account of his previous interactions with the Taliban or, given the lack of Taliban penetration into his home district, that there was a real chance that the appellant would face serious harm from the Taliban there by reason of his ethnicity, religion, or for any other reason (IAA decision at [17]). Nonetheless, the Authority was satisfied that:

…the applicant faces a small but real chance of serious harm if he attempted to return to his home [district]… Country information indicates [the province within which the appellant’s home district is located] is one of the most volatile provinces in Afghanistan in terms of attacks on defence forces, international forces and civilians due to the activities of the Taliban and other insurgent groups present in Pashtun majority districts, which therefore have high levels of insecurity and are unsafe.

(IAA decision at [18])

11    The danger to which the IAA referred in this passage is explained at [19]. In particular, the IAA accepted that in order for the appellant to return to his home district, he would be required to travel by road after arriving at an airport in one of Afghanistan’s major cities such as Kabul and that “[t]he roads linking the Hazara dominated areas… with Kabul suffer from a high level of insecurity and while no ethnic group is immune from kidnappings, DFAT assess that Hazaras travelling by road between Kabul and the Hazarajat face a greater risk than other ethnic groups …” (IAA decision at [19]). The IAA was therefore satisfied that, “as a Hazara, the applicant faces a small but real chance of serious harm if he travels on the roads leading [to his home district] if he were to attempt to return there. I am satisfied that his ethnicity would be an essential and significant reason for the harm.” (IAA decision at [19]).

12    However, the IAA found at [21] that:

Given I have found that the applicant does not face a real chance of serious harm in [his home district] from the Taliban for any reason, including his religion or ethnicity, I do not accept that the Taliban would pursue the applicant personally outside of his home area. Nevertheless, I have considered whether he would otherwise be at risk of serious harm on the basis of ethnicity, religion, imputed political opinion, or other profile elsewhere in Afghanistan…

13    By virtue of subs 5J(1)(c) of the Act, a person has a well-founded fear of persecution if (relevantly) the real chance of persecution relates to all areas of the receiving country. As such, upon finding that there was no real risk that the appellant would suffer serious harm in his home district, it was strictly unnecessary for the IAA to consider whether he would be at risk of serious harm elsewhere in Afghanistan in the context of considering the Refugee Convention criterion. In this regard, the enactment of s 5J by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) had the effect of rendering the question of whether a visa applicant could reasonably relocate irrelevant to a consideration of the Refugee Convention criterion. However, the IAA concluded that it was not satisfied that the appellant had a well-founded fear of persecution in any event in Kabul. In reaching that conclusion, the IAA found that the appellant would be able to earn a livelihood if returned to Kabul and there was no real chance of him being seriously harmed were he to relocate to Kabul by reason of his religion or ethnicity or for any other reason (IAA at [32]-[33]).

14    For these reasons, the IAA concluded that it was not satisfied that the appellant had a well-founded fear of persecution within the meaning of s 5J of the Act so as to satisfy the definition of a refugee (IAA at [34]-[35]).

15    The IAA also found that the appellant did not meet the alternative criterion for complementary protection under subs 36(2)(aa) of the Act (the complementary protection criterion). That section provides that:

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

…

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

16    In this regard, the IAA found at [38] for the reasons earlier given that the appellant would “face a real chance of being seriously harmed in accessing his home region”. While I note the incorrectness of the test applied by the IAA in the complementary protection context (serious harm, as opposed to “significant harm”), I do not view it as material given the IAA goes on to apply the correct test in its remaining reasons. Accordingly, the IAA found that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Afghanistan, the appellant would face a real risk of significant harm if he returns to his home district (at [38]). Having so found, it was necessary for the IAA then to consider whether he could reasonably relocate to another part of Afghanistan for the purposes of subs 36(2B) of the Act. That subsection provides that:

… there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm;…

17    For reasons I later explain, the IAA found at [48] that it was satisfied that it was reasonable for the appellant to relocate to, and remain in, Kabul and concluded that the appellant did not, therefore, meet the complementary protection criterion in subs 36(2)(aa) of the Act.

3.    CONSIDERATION

3.1    Relevant Principles

18    It will be apparent from the explanation above that the question of whether it is reasonable for a person to relocate for the purposes of subs 36(2B) arises only in the context of the IAA’s assessment of whether the complementary protection criterion in subs 36(2)(aa) is met: contrast subs 5J(1)(c) defining a “well-founded fear of persecution” for the purposes of the Refugees Convention criterion in subs 36(2)(a). The relevant principles for determining the reasonableness of relocating were not in issue between the parties and may be summarised as follows.

19    First, in determining whether it is reasonable for a person to relocate to another area for the purposes of subs 36(2B) of the Act, the decision maker must not confine itself to whether the person faces a real risk of significant harm. It must also consider the practical realities for, or impact on, the visa applicant of relocation from her or his place of residence to an area of the receiving country where she or he would not face a risk of significant harm: see e.g. SZSSY Minister for Immigration and Border Protection [2014] FCA 1144 at [26]-[28] (Jagot J); NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22]-[23] (Branson J (North J agreeing at [73])); SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (SZATV) at [24] (Gummow, Hayne and Crennan JJ). While I note that these authorities considered the principles applicable to relocation in the context of the Refugees Convention criterion under the Act as it then stood, it seems uncontroversial that the same principles apply equally to a consideration of relocation under the complementary protection framework: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 at [53] (the Court); see by analogy CRI026 v The Republic of Nauru [2018] HCA 19; (2018) 92 ALR 529 at [49] (the Court). In this regard, the rationale underpinning the relocation principle in the context of the Refugees Convention was explained by Professor Hathaway in The Law of Refugee Status (Toronto: Butterworth, 1991) at 134, (in a passage approved by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (Randhawa) at 442):

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 recognised.

(Emphasis in the original)

20    The same logic is equally applicable to those seeking to engage Australia’s complementary protection obligations.

21    Secondly, the scope of the enquiry which the IAA must undertake into the practical realities of relocation is not free-ranging but will be determined by reference to the issues raised by an applicant with respect to the question of relocation and on the material before it: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [124] (Tracey and Foster JJ) (citing with approval Randhawa at 442–443 (Black CJ)); MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 at [34] (Kenny J). In other words, the IAA has a statutory duty by reason of its review obligation to consider a visa applicant’s claims and their component integers which are expressly stated or squarely arise on the face of the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [58] and [61] (the Court). Such claims will not, as the Court explained in NABE, depend for their exposure on “constructive or creative activity” by the IAA: NABE at [58].

3.2    Did the IAA fall into jurisdictional error

22    The appellant submitted that he raised as an impediment to relocation the fact that his family were at risk of harm in his home district where they lived and may attempt to travel to see him if he were returned, or that he may travel to see them. Specifically, the delegate’s reasons record that the appellant’s registered migration agent made an oral submission after the interview which included the following claims:

•    His wife and children are in danger of being harmed by the Taliban.

•    The applicant could be similarly harmed if he returns to his home village…

•    If the applicant were to return to Afghanistan and relocate to Kabul, then either he would have to travel to [his home region] to see his family or they would have to travel to see him. The journey is dangerous due to roadblocks set up by insurgent groups.

(emphasis added)

23    The migration agent also sent the delegate a written submission on 19 January 2017 which alleged, among other things, that it was not feasible for the appellant to go to his home village or for his family members to travel to Kabul, and the appellant “would be unreasonably expected to avoid travelling to his home village...”

24    The appellant submitted that two risks of harm arose squarely from these submissions if the appellant’s family attempted the journey from their home region to Kabul, as the appellant contended “would occur”, or were harmed in undertaking that journey:

16.    First, the IAA needed to consider and assess the risk that the appellant would leave Kabul to assist his family should they make the journey, or should they come to any harm where they lived or on the road. That would require the appellant to travel on the road where the real risk of harm existed.

17.    Secondly, if the appellant’s family came to harm or attempted the dangerous journey, the IAA needed to consider whether harm to the family counted as persecution against the appellant. As Tamberlin J said in NBCY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 992; (2004) 83 ALD 518 at [25]:

“severe harm to a member of an applicant’s family can amount to persecution of an applicant and is clearly relevant to the question of whether an applicant can be said to be in danger of persecution. Threats and harm to family members, as a matter of common sense, may cause considerable injury and harm to close members of that family.”

18.    The IAA failed to consider either of these impediments to the appellant’s relocation to Kabul. It therefore failed to consider matters that it was legally obliged to take into account, and so made a jurisdictional error.

(emphasis in the original)

25    In support of this submission, the appellant pointed to the fact that the IAA accepted that the appellant’s family reside within his home region and accepted country information that there are significant risks of harm to Hazaras travelling by road between many areas of Afghanistan, with the roads linking his home region and Kabul in particular suffering from a high level of insecurity. The IAA also accepted that the appellant would be required to travel on roads throughout his region at least once in order to return to his home area and that he faced a real chance of serious harm if he did so (IAA reasons at [19]). These findings by the IAA did not foreclose the risk of harm to the appellant or his family if they travelled between his home district and Kabul in an attempt to see each other. Rather, the Minister submitted the IAA implicitly rejected the claim that the appellant or his family “would” travel these roads in order to meet up if he relocated to Kabul, as the primary judge held below.

26    There are two critical passages in the IAA’s reasons. First, the IAA at [41] described the submission of the applicant’s agent on the relocation issue as being “that the applicant and his family could not travel to see each other as the roads are not safe” (emphasis added). Secondly, the IAA considered this claim at [43], finding that:

I accept that the applicant’s immediate family reside within [his home district]. I have given careful consideration to this in terms of the emotional and practical impact of a continued separation, and because I accept that his wife and children are his dependents and he would need to support them. However, the applicant has already spent years living apart from his family during two significant periods in Iran … and since leaving Afghanistan in 2012. There is no evidence before me to indicate the applicant has been previously unable to support his family in the past and I find he could establish himself in Kabul.

27    The IAA concluded at [48] that:

I have noted the applicant and his representative’s concerns about the reasonableness of relocation to Kabul. However, in considering the applicant’s personal circumstances and the country information relating to Kabul, including the social, economic and security situation, I am satisfied it is reasonable for the applicant to relocate to and remain in Kabul.

28    The Minister submitted that the IAA at [43] implicitly rejected the claim that the appellant or his family would travel on the roads to meet up, as the primary judge held.

(1)    First, the Minister submitted that the argument that the IAA mischaracterised the appellant’s claim that he or his family “would travel” as a claim that they “could not travel” was semantic. In his submission, the primary judge correctly held at [38] that the description by the IAA of the appellant’s claim “does not reflect any misunderstanding of the applicant’s claims or any misunderstanding of the applicant’s contention identified in the delegate’s reasons that either he would travel to a particular place to see his family or they would travel to see him.”

(2)    Secondly, the Minister submitted that the primary judge correctly held at [39]-[40] that, having regard to the appellant’s claims to have been separated already for significant periods from his family, the IAA implicitly “found by reference to the continued separation that the applicant and his family would not travel on the roads.” In other words, the IAA was said to have proceeded on the basis that the appellant and his family would continue to be apart because of the dangers in travelling, if the appellant relocated to Kabul.

29     Having therefore implicitly rejected the factual premise of the appellant’s claim, the Minister submitted that it was unnecessary for the IAA to go further and make additional findings as to the alternative and potential consequential risks of harm, relying upon Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (the Court). In the Minister’s submission, the IAA considered the practical effect on the applicant of the “continued separation”, consistently with the decision in SZATV at [24] (Gummow, Hayne and Crennan JJ).

30    It is important to bear in mind the oft-quoted caution emphasised by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.” As such the IAA’s reasons are “not to be construed minutely and finally with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 (the Court) (approved in Wu Shan Liang at 272).

31    However, even bearing that caution in mind, in my view fairly read the appellant has established that the IAA failed to consider his claim that either he or his family would have to travel to see each other. First, the IAA does not expressly deal with the claim. The IAA considers only the reasonableness of the appellant’s relocation to Kabul by reference to the impact of the continued separation from his family (at [43] – [44]). Secondly, I agree with the appellant that the description of his submission at [41] of the IAA’s reasons, that the appellant and his family could not travel to see each other as the roads are not safe, does not reflect an understanding of the fact that the appellant’s claim was that they would do so. This counts strongly, in my view, against inferring from [43] of the IAA’s reasons that the IAA considered but rejected this claim. Thirdly, neither the fact that the appellant has already spent years living apart from his family in different countries, nor that he has been able nonetheless to continue to support them, necessarily answer the proposition that, were they to be closer in the same country, the appellant or his family would travel to see each other despite the dangers in doing so. This also tells against drawing the inference urged by the Minister.

32    Given the conclusion which I have reached, it is unnecessary to consider the second way in which the appellant put his case, namely, whether the IAA was required to, but did not, consider whether harm to the family can amount to persecution of the appellant (see the submission quoted at [25] above). It suffices to say that the IAA failed to consider a claim or integer of the appellant’s claims as to why he could not reasonably relocate to Kabul for the purposes of considering his complementary protection claim and thereby failed to consider a mandatory relevant consideration on the review. It follows that I consider that the primary judge erred in finding to the contrary, notwithstanding the careful submissions by the Minister’s counsel.

4.    CONCLUSION

33    For these reasons, the IAA fell into jurisdictional error and the appeal should be allowed. The first respondent is to pay the appellant’s costs of the appeal and in the Court below.

Associate:

Dated:    5 September 2018