FEDERAL COURT OF AUSTRALIA

CQI16 v Minister for Immigration and Border Protection [2019] FCA 718

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellant is a national of Afghanistan of Hazara ethnicity and a Shia Muslim. He arrived at Christmas Island on 23 September 2012 as an unauthorised maritime arrival.

2    On 19 August 2013, the appellant applied for a Protection (Class XA) visa but, by reason of the circumstances of his arrival, this application was invalid.

3    On 21 September 2015, the appellant was invited to apply for a Temporary Protection (Class XD Subclass 785) visa or a Safe Haven Enterprise (Class XE Subclass 790) visa (a SHEV). The appellant made an application for the latter form of visa on 19 October 2015. On 20 June 2016, a delegate of the Minister refused the appellant’s application for a SHEV.

4    By reason of s 473BB of the Migration Act 1958 (Cth) (the Act), the decision of the delegate refusing the grant of a Protection visa to the appellant was a “fast track reviewable decision”. It was referred by the Minister to the Immigration Assessment Authority (IAA), pursuant to s 473CA of the Act. By s 473CC(1), the IAA was required to review the delegate’s decision. On 19 August 2016, the IAA affirmed the decision of the delegate.

5    The appellant then sought judicial review of the decision of the IAA in the Federal Circuit Court (the FCC) on two grounds. That application failed: CQI16 v Minister for Immigration & Anor [2018] FCCA 3178.

6    The appellant now appeals to this Court. His Notice of Appeal raises the same two grounds advanced in the FCC. At the hearing, the appellant sought and, by consent was granted, leave to argue a third ground not advanced in the FCC.

7    In order to address the grounds of appeal, it is necessary to set out some of the factual circumstances relating to the decision of the IAA.

Factual setting

8    The IAA accepted that the appellant was born in the Jaghori district in Ghazni Province in Afghanistan in 1982 and that, between about September 2000 and September 2005, he had worked in the area of his home village in the Jaghori district.

9    At the beginning of 2005, a dispute concerning land ownership had arisen between the appellant’s father and a distant relative with whom he had, jointly, purchased a block of farm land. The dispute concerned the amount of that land to which each was entitled. The distant relative refused to recognise the share of the appellant’s father, who had died later in 2005 without the dispute being resolved. The appellant had then maintained his family’s entitlement but had been rebuffed by the distant relative. This person was a powerful local identity with close ties to the Taliban and with the Afghani authorities. The distant relative had succeeded in Court proceedings concerning the dispute by reason of his deployment of a forged property title. He had subsequently threatened the appellant with harm including death if he persisted with the claim. It was those threats which caused the appellant to flee to Iran where he remained for some years before being deported to Pakistan.

10    Both before the Minister’s delegate and the IAA, the appellant made the claim that he feared harm on three bases:

(a)    the land dispute;

(b)    his race and religion as a Hazara and a Shia Muslim; and

(c)    an imputed political opinion by reason that, he would be a returnee from the west.

11    The IAA accepted many of the matters on which the appellant relied. In relation to the land dispute, the IAA accepted the appellant’s account of the circumstances; that it was those matters which led to his departure from Afghanistan; that the land dispute continues to be unresolved; that the appellant fears serious harm from the distant relative because of the outstanding land dispute should he return to Afghanistan; that, should the appellant return to Jaghori, there is a real chance that he would suffer serious harm from the family members of the distant relative even if he did not attempt to reclaim his land; and that the distant relative and his family would continue to use their considerable local influence to sway any resolution of the dispute in their favour, including by harming the appellant.

12    In relation to the appellant’s Hazara ethnicity and his religion as a Shia Muslim, the IAA accepted that there is a real chance that the appellant would be persecuted as a Shia Hazara in Ghazni and on surrounding roads leading to Jaghori.

13    In relation to the risks for the appellant as a returnee from a western country, the IAA accepted that there is a real chance of him being harmed because of his imputed political opinions if he attempts to return to Ghazni.

14    However, the IAA did not accept that the appellant’s fear of harm arising from the land dispute amounted to a “well-founded fear of persecution” as defined in s 5J of the Act. The IAA held instead that the motivation of the distant relative was of a “personal nature”. The IAA also considered that the appellant did not face a risk of harm from the distant relative if he resided in Kabul. This was because the appellant had indicated that he would not pursue the land dispute on return to Afghanistan and the fact that it was unlikely that the distant relative would pursue the appellant now given his absence from Afghanistan for over 10 years.

15    In relation to the appellant’s Hazaran ethnicity, his Shia Muslim religion and his status as a returnee from a Western country, the IAA found that the appellant did not face a real chance of serious harm on account of these matters, if he resided in Kabul. It also noted that the appellant could access Kabul through its international airport without having to access roads or locations in which Shia Hazaras do face a real chance of serious harm by reason of their ethnicity and religion.

16    In relation to the appellant’s claim for complementary protection under s 36(2)(aa) of the Act, the IAA member was not satisfied that there is a real risk of him facing significant harm on the basis of the general security situation in Kabul and that it was reasonable for the appellant to relocate to Kabul.

17    As the first two grounds of appeal replicate the grounds of the appellant’s application for judicial review in the FCC, it is convenient to identify those when addressing the grounds of appeal.

Statutory provisions

18    Section 36(2)(a) and (aa) contain two of the criteria for the ground of a Protection visa. They provide:

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

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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; or

19    The term “refugee” appearing in s 36(2)(a) is defined in s 5H of the Act relevantly as follows:

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

…

…

20    Section 5J elaborates the meaning of the term “well-founded fear of persecution”. It provides (relevantly):

(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.

Note:    For membership of a particular social group, see sections 5K and 5L.

(2)    A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:    For effective protection measures, see section 5LA.

…

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)    the persecution must involve serious harm to the person; and

   (c)    the persecution must involve systematic and discriminatory conduct.

(5)    Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)    a threat to the person’s life or liberty;

   (b)    significant physical harassment of the person;

   (c)    significant physical ill-treatment of the person;

   (d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

…

21    Section 36(2A) elaborates the term will “suffer significant harm” appearing in subs (2)(aa). It provides:

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

Ground 1 – mis-construal of the law and asking the wrong question

22    By Ground 1 in the Notice of Appeal, the appellant contends that the IAA misconstrued the law and asked itself the wrong question when considering whether, for the purpose of s 36(2)(a), there was a real chance that he would suffer serious harm and whether, for the purpose of s 36(2)(aa), there was “a real risk” that he would suffer “significant harm”. The error had occurred, the appellant submitted, because when considering these issues, the IAA had asked itself whether there had been a change in the security situation between some unknown time in the past, on the one hand, and the time of the decision, on the other, rather than assessing the risk the appellant would face in all the circumstances.

23    The contention was put in alternate ways:

    instead of considering whether there had been a change or an increase in the risk, the IAA had been required to consider whether, in all of the circumstances, there was a real chance of the appellant suffering serious harm, or a real risk of him suffering significant harm; and

    the IAA had not considered whether the prospect of infrequent attacks occurring again in Kabul may present a real chance that the appellant would be harmed, if he returned to Kabul.

24    The appellant relied for these contentions on [39] and [40] of the IAA’s reasons:

[39]    After consideration of the above, I accept that there have been targeted attacks on Shias in Kabul in the past and the recent attack appears to have been directed specifically against Hazara Shias, with the expressed intention of possible further attacks. I also accept that ISKP/ISIS have demonstrated the potential to undertake occasional further high profile attacks in Kabul against Shias despite having limited influence. However the information before me still raises the question of whether the bombing is indicative of a change in Kabul’s security situation to an extent that there is a real chance of serious harm for Shia Hazaras, such as the applicant, living in Kabul.

[40]    I accept country information which indicates that insurgent groups continue to target high profile groups and places in Kabul, including government institutions, political figures, ANDSF, personnel associated with coalition forces, other security services, international organisations and diplomatic representatives of some countries. However the applicant does not have any profile or association with these groups which is likely to bring him to the attention of insurgents. Although the recent attack was on a high profile protest, and demonstrates the capacity of ISKP/ISIS to undertake high profile attacks in isolated circumstances, it is not indicative of an increased risk to an ordinary Shia Hazara living in Kabul. While I accept that there continue to be security issues in Kabul, I am not satisfied of the likelihood of ISIS or any other group, being able to perpetrate further attacks against the Shia Hazara community such as to establish that the applicant as a Shia Hazara, not engaged in such activities, will face a real chance of serious harm in Kabul. I therefore find that the applicant does not face a real chance of persecution as a Shia Hazara upon return to Kabul in the reasonably foreseeable future.

(Footnote omitted and emphasis added)

25    The appellant submitted that the emphasised passages in these paragraphs, in particular the last sentence in [39], indicated that the IAA had considered whether the appellant’s fear of harm was well-founded by asking whether there had been a change in the security situation in Kabul to such an extent that there was now a real chance that Shia Hazaras, such as the appellant, who lived in Kabul may suffer serious harm.

26    The FCC Judge rejected this ground, at [31]-[32]. His Honour held that the IAA had referred to a possible change in the security situation in Kabul when considering the implications of new information received pursuant to s 473DD of the Act, namely, information concerning a suicide bombing targeting Hazaras which had occurred in Kabul on 23 July 2016. The Judge said that, when the IAA’s reasons are read in context, it could be seen that the IAA had concluded, on the basis of country information, that the security situation before the 23 July 2016 bombing had not posed such a risk that it could be said that the appellant had faced a real chance of persecution, so that it had been pertinent for the IAA to enquire whether the suicide bombing reflected a change in the security situation and, if so, whether there was an increased risk to ordinary Shia Hazaras.

27    The submissions of the appellant did not identify any particular error or shortcoming in the reasons of the FCC Judge. Instead, the appellant invited the Court to make its own examination of the reasons of the IAA and to come to a conclusion as to their effect which differed from that of the FCC Judge.

28    It is appropriate to note the structure of the IAA’s reasons. The IAA considered first the appellant’s claims for protection pursuant to s 36(2)(a). It addressed, and made findings concerning, each of the three bases upon which the appellant claimed protection. As noted above, the IAA accepted many of the appellant’s claims in that respect. It then considered separately the appellant’s claim that his fear of harm related to the whole of Afghanistan, including Kabul. Paragraphs [39] and [40] appear in that section of the IAA’s reasons.

29    In [36], the IAA accepted that the appellant would face the same difficulty in accessing the Hazara-majority provinces of Bamiyan and Daykundi as he would if returned to Ghazni. The IAA then considered in [37] the risk of harm which the appellant would face if he resided in Kabul. It commenced by noting the content of reports from the Department of Foreign Affairs and Trade (DFAT) and recorded:

    Shia Hazaras comprise 40-50% of Kabul’s total population of approximately 4 million people;

    the Afghan Government maintains effective control over Kabul, although insurgent and criminal violence is common;

    the primary targets for insurgent attacks are Government institutions, political figures, Afghan National Defence and Security Forces (ANDSF), personnel associated with coalition forces, other security services, international organisations and diplomatic representatives of some countries; and

    there have been a number of attacks against Shias in Kabul since 2001, including a suicide bombing in December 2011 and three “small” attacks (in September 2013, February 2014 and October 2015).

30    In [38], the IAA considered the information concerning the incident on 23 July 2016 when two bombs had exploded in the midst of a large protest by Shia Hazaras in Kabul, for which ISIS had claimed responsibility. It referred to the reports of various analysts concerning the implications of the July 2016 bombing. The IAA concluded [38] by referring to reports of analysts that “there is the likelihood of occasional further infrequent “one off” attacks being undertaken by ISIS within Kabul against targets which include religious minorities (mainly Shia Hazaras)” and which could result in mass casualties. It recorded that the analysts’ reports did “not indicate that [ISIS] will conduct regular, sustained attacks in Kabul”.

31    In my opinion, [39] and [40] understood in context tend to confirm that the IAA did address its attention to the correct question arising under s 5J of the Act. Earlier, in [11], the IAA had identified the elements of a “well-founded fear of persecution” for the purposes of s 5J which were relevant in the appellant’s circumstances. These were:

•    the person fears persecution and there is a real chance that the person would be persecuted

•    the real chance of persecution relates to all areas of the receiving country

•    the persecution involves serious harm and systematic and discriminatory conduct

•    the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion

•    the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and

•    the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.

32    It was not suggested that this identification of the elements contained error.

33    Having found that the appellant did have a well-founded fear of persecution in relation to some areas of Afghanistan, the IAA then considered whether that fear existed in relation to all of Afghanistan. It found that that was so in relation to certain areas. It then considered more specifically whether the appellant’s fear was well-founded in relation to Kabul.

34    Commencing with [37], the IAA referred to DFAT reports before considering the implications of the suicide bombing which had occurred in Kabul on 23 July 2016. It is unsurprising that the IAA considered whether the information concerning that bombing indicated a change in the position revealed by the DFAT reports. That is because the appellant’s then representative had submitted that the 23 July 2016 bombing indicated two matters: first, that the security situation in Kabul was deteriorating; and, secondly, that the DFAT reports which pre-dated it should not be relied upon, at [7]. In that context, it was natural for the IAA to consider whether the bombing on 23 July 2016 was indicative of a change in the security situation.

35    In my view, reasonably and fairly understood, the reasons of the IAA indicate that, as serious as the incident of 23 July 2016 was, it did not indicate that the risk to “an ordinary Shia Hazara living in Kabul” was increased beyond that disclosed in the DFAT reports. The IAA then made its assessment on the basis of the information contained in the DFAT reports, but taking account of the information concerning the 23 July 2016 bombing.

36    In short, the IAA accepted that insurgent groups were continuing to target high profile groups and places in Kabul and that the bombing on 23 July 2016 indicated the capacity of particular groups to undertake high profile attacks in isolated circumstances. Nevertheless, because the appellant did not have any profile or association with the likely targets, the IAA concluded that he would not face a real chance of serious harm in Kabul. It did not reach that conclusion by considering only the effect of the change.

37    Accordingly, I do not consider that the reasons of the IAA reveal the error alleged in Ground 1. That ground is dismissed.

Ground 2 – legal unreasonableness

38    Ground 2 in the Notice of Appeal repeated the substance of Ground 2 of the application in the FCC. The appellant contended that the FCC Judge should have found that the conclusions of the IAA that:

(i)    he did not face a real chance of serious harm in Kabul (as a Shia Hazara); and

(ii)    he did not face a real risk of significant harm in Kabul;

were not rationally open to the IAA on the basis of the material which it had accepted.

39    The appellant also contended that the FCC Judge had been in error in concluding that a decision-maker could reasonably have come to the conclusions reached by the IAA. He submitted, in particular, that the FCC Judge had overlooked a “serious inconsistency” between the IAA’s factual findings in [39] and [40] and its ultimate conclusion that the appellant did not face a real chance of serious harm (or a real risk of significant harm) in Kabul.

40    The appellant sought to bolster these contentions by submitting that the FCC Judge had overlooked “the implicit conclusion” in the IAA’s reasons that “[there] was no reasonable possibility [that the appellant] would suffer serious or significant harm in Kabul”.

41    With respect to this ground, the FCC Judge held:

[34]    … The reasoning complained of at paragraphs 39 and 40 of the decision cannot be said to lack an apparent and intelligible justification. On the country information before the [IAA], I take the view that a logical or rational decision-maker could have come to the same conclusion as the [IAA].

[35]    I accept that on the country information, reasonable minds might have differed on the conclusion to be drawn. That is not sufficient to establish unreasonableness or illogicality. As Allsop CJ held in Minister for Immigration and Border Protection v Stretton:

“The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].”

(Citations omitted)

42    The FCC Judge also referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 in which Crennan and Bell JJ said:

[135]    On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. …

[136]    There is no sense in which the decision that the first respondent did not fear persecution, or the findings upon which that decision was based, could be said to be “clearly unjust”, “arbitrary”, “capricious”, “not bona fide” or “Wednesbury unreasonable”. Whilst these analogous categories were not relied on, they serve to confirm the want of jurisdictional error by reference to the closely related complaints of illogicality and irrationality. Neither the decision that the Tribunal was not satisfied that the first respondent feared persecution nor the findings on the way to that conclusion were “irrational” or “illogical” in the sense explained in these reasons. The Tribunal’s decision did not show any jurisdictional error.

43    The submissions of the appellant in support of this ground were wide ranging:

(a)    first, a repetition of the substance of the contention made in support of Ground 1, namely, that the IAA had considered only whether the security risk against Shia Hazaras in Kabul had changed so as to pose a risk of serious harm. The appellant submitted that, having accepted that the bombings on 23 July 2016 were deliberately perpetrated against Shia Hazaras and that the perpetrators intended to continue to target Shia Hazaras, it had not been logically probative for the IAA to hold that the appellant did not have a well-founded fear of persecution merely because the attacks were not indicative of a change to the security situation in Kabul;

(b)    the IAA had not made a finding as to the level of risk of the appellant being targeted in an infrequent “one-off” attack;

(c)    the IAA had failed to analyse the risk in the light of information before it concerning the prospect of attacks in urban areas by insurgents and, in particular, had not characterised the risk as “remote or fanciful”;

(d)    the IAA did not explain how it had come to the conclusion that the appellant was not engaged in activities of the kind being targeted by insurgents, nor the evidence on which that finding was based. The circumstance that the finding was “based on no evidence” was further evidence that the decision was legally unreasonable, especially given that the finding was a crucial step towards the IAA’s ultimate conclusion;

(e)    it was inappropriate for the FCC Judge to have found that the conclusions to be drawn from the country information before the IAA were matters on which reasonable minds may differ;

(f)    given the IAA’s acceptance that insurgent groups had undertaken attacks in Kabul specifically aimed at Shia Hazaras and intended continuing such attacks in the future, it was illogical to conclude that there was no real chance or risk of the appellant being harmed in Kabul by such insurgent groups in the future; and

(g)    the reasons of the IAA were inadequate.

44    The term “real chance” in s 5J(1)(b) and (c) may be taken to be used with the same meaning discussed in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62, (1989) 169 CLR 379; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, (1996) 185 CLR 259 at 275; and Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22, (1997) 191 CLR 559 at 571-2. It conveys the notion of a substantial, as distinct from a remote chance of persecution occurring (Chan at 389 (Mason CJ)), and a chance that is not remote (Chan at 398 (Dawson J), at 407 (Toohey J)). The existence or otherwise of the chance is to be assessed objectively. As Toohey J noted in Chan at 407, the real chance test is not always easy to apply and it is inevitable that difficult judgments will have to be made concerning its application from time to time.

45    Several of the appellant’s complaints have no proper basis. The complaint which repeats the submission in Ground 1 fails for the reasons given in relation to that ground.

46    The appellant had not claimed in any of the extensive material placed before the Minister’s delegate or the IAA that he had any profile or association with the targets of insurgent groups, identified by the IAA as including “government institutions, political figures, ANDSF, personnel associated with coalition forces, other security services, international organisations and diplomatic representatives of some countries”. There was no proper basis upon which the IAA could have reached the conclusion that he did have such a profile or association.

47    The IAA accepted that there was evidence indicating “a likelihood of occasional further infrequent “one off” attacks being undertaken by ISIS within Kabul against targets which include religious minorities (mainly Shia Hazaras)” and which would cause mass casualties. It concluded, however, that the evidence did not indicate that ISIS would conduct “regular, sustained attacks in Kabul”. Further, the IAA did make an assessment of the prospect of the appellant suffering harm by reason of a targeted attack by an insurgent group on a high profile group. It is implicit that the member found that chance to be slight. More particularly, the IAA concluded that the evidence did not indicate that the appellant would face a real chance of serious harm in Kabul by reason of the prospect of attacks by ISIS or any other group.

48    Contrary to the submission of the appellant, it was not necessary for the IAA to find that the risk of harm to him was “remote or fanciful” in order to exclude a chance of serious harm as being real. It is not the case that all chances other than those which are remote or fanciful are to be regarded as real.

49    Although making a bald submission that the IAA’s reasons were inadequate, the appellant did not submit that the IAA had not discharged the obligation imposed on it by s 473EA of the Act to include in a written statement “the reasons” for the decision. Nor did the appellant particularise the respects in which the reasons were said to be inadequate.

50    More generally, the existence and characterisation of a chance of harm to the appellant from an attack by ISIS or some other insurgent group in Kabul were matters of evaluation. It was for the IAA, and not the FCC Judge, to undertake that evaluation. That the appellant would face some risk of harm in Kabul could not be excluded. The question of whether that was a real risk was a matter for the IAA to assess objectively. On the evidence in this case, it was a matter on which reasonable minds could differ.

51    For the FCC Judge to have upheld the appellant’s application, he would have to have been satisfied that only one conclusion was rationally open on the material evaluated by the IAA. In my view, it is not possible to reach that conclusion. Even though Shia Hazaras as a class may be the subject of attacks by ISIS and other insurgents, it does not follow that the appellant as an individual Shia Hazara is subject to the same risk. As the IAA found, those Shia Hazaras with a high profile or with associations to one or other of the identified groups, are at higher risk than “an ordinary Shia Hazara living in Kabul”.

52    In my view, it was rationally open to the IAA to conclude that the appellant, as a person not engaged in activities “likely to bring him to the attention of insurgents” would not face a real chance of serious harm in Kabul. Put slightly differently, it was open to the IAA to conclude that certain activities or associations are likely to make a Shia Hazara vulnerable to insurgent attacks in Kabul and to conclude that the appellant, not engaging in those activities and not having those associations, would not face a real chance of serious harm. There was no error by the FCC Judge in so holding.

53    Accordingly, Ground 2 is not established.

Ground 3 – internal relocation

54    By Ground 3, the appellant contends that the IAA committed jurisdictional error by not applying the correct test for internal relocation. The appellant makes this contention with respect to the second and third bases on which he claimed to have a well-founded fear of persecution.

55    The appellant’s submission turned on s 5J(1)(c). He submitted that, properly construed and applied, it did not have the effect of excluding the requirement for the IAA to consider whether it was reasonable, in the sense of practicable, to expect him to relocate to another area of Afghanistan. This was so, it was submitted, because, if it is not reasonable for a person who has a well-founded fear of persecution in relation to a part of a country from which he has fled, to relocate to another part of the same country, his fear of persecution in relation to the entire country is well-founded. The effect, counsel submitted, is that it is necessary for the IAA to apply the internal relocation principle discussed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535; (1994) 52 FCR 437. In that case, Black CJ said, at 443:

If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of a country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded.

56    In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18, Gummow, Hayne and Crennan JJ referred with apparent approval to the reference by Lord Bingham in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440 to the statement in the United Nations High Commissioner for Refugees (UNHCR) Handbook:

The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.

57    Gummow, Hayne and Crennan JJ also referred with apparent approval to Lord Bingham’s statement that the corollary of the proposition contained in the UNHCR Handbook is that a person will be excluded from refugee status if, under all the circumstances, it will be reasonable to expect the person to seek refuge in another part of the same country.

58    Sections 5H and 5J were introduced into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment). Counsel for the appellant accepted that the legislative intention in enacting s 5J(1)(c) had been to confine the common law position stated in SZATV and Randhawa. He submitted, however, that the amendment had not achieved that effect and that it remained necessary for a decision-maker considering whether a visa applicant has a well-founded fear of persecution to consider whether it was reasonable to expect the applicant to relocate within the receiving country.

59    I confess to some difficulty in following counsel’s argument. He called in aid the object contained in s 4(1) of the Act, namely, that the object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. Counsel submitted that it is in the national interest for Australia “to meet its obligations towards persons who are able to demonstrate to the required standard that they are in need of protection”. Counsel’s submissions did not, however, indicate how, rationally, that object and that interest supported the construction of s 5J(1)(c) for which he contended. In particular, the submission did not indicate how the object in s 4(1) assisted in identifying the “standard” to be met.

60    Next, counsel noted that the term “relates to” in s 5J(1)(c) is an “extremely” wide term, referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [87]. He also submitted that the use of the term “relates to” instead of the term “extends to” in s 5J(1)(c) was significant. The submission was that the former term, encompassing a wider connection between two matters, incorporated an element of reasonableness in the ability to relocate. With respect, it is not apparent how that is so. I am inclined to think that the term “relates to” is used in s 5J(1)(c) in the sense of “extends to” but even if it has a wider reach, it is not apparent how that assists the appellant’s submission.

61    Next, counsel submitted that it was anomalous that a form of the internal relocation principle remained in s 36(2B) in relation to claims of complementary protection but not in relation to claims under s 36(2)(a) by reason of the terms of s 5J(1)(c). Whether or not the anomaly which counsel claimed does exist may be open to debate, but even if it does, it would not warrant the Court not giving effect to the plain meaning of s 5J(1)(c).

62    In my opinion, the appellant’s submission faces other difficulties.

63    First, subs (1)(c) has to be construed in the context of s 5J as a whole, and in particular in the context of subs (1). As is apparent, s 5J(1) incorporates three elements: first, the applicant having, subjectively, a fear of the defined kind; secondly, there being, considered objectively, a real chance that the applicant would, if returned to the receiving country, be persecuted for one or more of the reasons mentioned in subpara (a); and, thirdly, that that real chance of persecution relate to all areas of the receiving country. The third element appears also to be objective and not to depend to any extent on the particular applicant’s subjective beliefs. Subsection (1)(c) seems on its face to raise only the question of whether the particular applicant would face a real chance of persecution in all areas of the receiving country, without regard to whether it would be practical or impractical for the applicant to relocate to a given area.

64    Secondly, the construction proposed by counsel for the appellant involves the Court reading into s 5J(1)(c) additional words along the lines of “to which the applicant could reasonably be expected to relocate”. The Court would not be justified in construing s 5J(1)(c) as containing words which the Parliament itself has chosen, seemingly deliberately, not to use.

65    Thirdly, and contrary to counsel’s submissions, the decisions in SZATV and Randhawa cannot be regarded as governing the position. Both decisions were made before s 5J was inserted into the Act. Further, the Act is not to be construed as though s 5J is not present.

66    Fourthly, any doubt about the legislative intention is removed by passages in the Explanatory Memorandum accompanying the Minister’s Second Reading Speech on the introduction of the Bill for the 2014 Amendment. The Minister said:

It is the Government’s intention that this statutory implementation of the ‘internal relocation’ principle not encompass a ‘reasonableness’ test which assesses whether it is reasonable for an asylum seeker to relocate to another area of the receiving country. Australian case law has broadened the scope of the ‘reasonableness’ test to take into account the practical realities of relocation. Decision makers are currently required to consider information that is additional to protection considerations under Article 1A(2) of the Refugees Convention such as a diminishment in quality of life or potential financial hardship. In the Government’s view, these considerations are inconsistent with the basic principle that protection ought be offered by the international community only in the absence of protection within all areas of a receiving country.

67    Fifthly, the effect of s 5J(1)(c) was considered by Rangiah J in BCH17 v Minister for Immigration and Border Protection [2018] FCA 300. His Honour held at [46] that s 5J(1)(c) represents a significant narrowing of the “internal relocation” principle and that it does not leave any room for consideration of the reasonableness of internal relocation. Generally, single Judges of this Court follow an earlier decision of another Judge unless of the view that is plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] (French J). I do not consider the decision of Rangiah J to be plainly wrong and I consider that I should follow it.

68    All these matters indicate that Ground 3 must fail.

69    Even if that conclusion be incorrect, the appellant faces a yet further difficulty. That is that the IAA did, in relation to his claim for complementary protection consider in [49]-[51], expressly and directly, whether it would be reasonable for the appellant to relocate to Kabul. After referring to circumstances in Kabul and the appellant’s personal circumstances, the IAA concluded that it was reasonable for the appellant to relocate to Kabul. It cannot be reasonably supposed that the IAA would have reached a different decision on that question under s 5J(1)(c) than it reached under s 36(2B). Accordingly, Ground 3 would fail for this additional reason.

Conclusion

70    In my view, the appellant has not made out any of the three grounds of appeal. The appeal is therefore dismissed.

Associate:

Dated:    22 May 2019