FEDERAL COURT OF AUSTRALIA

CYD17 v Minister for Home Affairs [2019] FCA 869

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The appellant is a citizen of Afghanistan. He is an adherent of the Shia branch of the Islamic faith and a member of the Hazara ethnic group. He came to Australia by boat in December 2012. He did not then hold a valid visa under the Migration Act 1958 (Cth) (the Act), authorising his entry to Australia. He was thus what the Act terms an “unauthorised maritime arrival”.

2    On 29 March 2016, the then Minister for Immigration and Border Protection, now the Minister for Home Affairs (Minister), gave notice to the appellant under s 46A(2) of the Act. That notice entitled him to apply for a Protection visa or a Safe Haven Enterprise visa. On 26 May 2016, the appellant applied for a Safe Haven Enterprise visa. That application was refused by a delegate of the Minister on 25 November 2016.

3    As the Act required, the application was then referred by Minister to the Immigration Assessment Authority (Authority). On 15 June 2017, the Authority affirmed the Minister’s delegate’s decision not to grant to the appellant the Safe Haven Enterprise visa for which he had applied.

4    The appellant then sought the judicial review by the Federal Circuit Court on the Authority’s decision. In that application he was successful: see CYD17 v Minister for Immigration & Anor [2018] FCCA 217. The matter was then referred back to the Authority for reconsideration according to law. On 29 March 2018, for reasons given that day, the Authority again decided to affirm the Minister’s delegate’s decision.

5    Once again, the appellant sought the judicial review of the Authority’s decision. On this occasion he was not successful. On 14 January 2019, for reasons given that day, the Federal Circuit Court dismissed, with costs, that second judicial review application as it had come to be amended. The appellant now appeals to this Court against those orders.

6    The grounds of appeal are:

1.    The Court Below erred (at [34]-[37]) in treating the finding of the second respondent, that the appellant could safely gain access to his home area of Daykundi in Afghanistan by flying to Bamyan and from there by road to Daykundi, as determinative of the question of whether he could return to Daykundi by those means.

2.    The Court Below should have found that the second respondent had failed to comply with s.473DB(1) of the Migration Act by failing to consider review material provided to the Authority under section 473CB of that Act, and that the second respondent’s decision was thus affected by jurisdictional error.

Particulars

(a)    Failure to consider material cited in the delegate’s decision to the effect that the applicant’s home area of Daykundi is cut off by snow, and thus inaccessible by road for “months at a time”.

3.    The Court Below erred in finding (at [38]) that no matter how long the appellant may have to stay in Kabul or Bamyan on his way to his home area of Daykundi, relocation did not have to be considered because any stopover would be temporary in an area that, “the IAA deemed as safe.”

4.    The Court Below erred (at [47]-[48]) in finding that the appellant should have understood or realised that it was incumbent upon him in the circumstances of his case to address the question of whether he had characteristics or mannerisms which would identify him as having spent time in western country.

5.    The Court Below erred (at [45]-[49]) in failing to find that the IAA’s decision was affected by legal unreasonableness.

Particulars

(a)    The second respondent unreasonably failed to consider whether it should use the discretion given to it by s. 473DC of the Migration Act to obtain information from the applicant as to whether he had mannerisms, behaviour, dress style or other indicia that may identify him as having spent time in a western country.

7    The case for the appellant, and for that matter, the case for the Minister, (the only active party respondent, the Authority having quite properly signified that it filed a submitting appearance), was argued, with respect, with commendable focus and brevity by counsel.

8    Grounds 1, 2 and 3 in the appeal may conveniently be considered together, for that is the way they were argued. In one way or another the contention raised is that the Authority did not discharge the statutory function of review as specified in s 473CC and, more particularly, s 473DB of the Act. These provide:

473CC    Review of decision

(1)    The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

 (2)    The Immigration Assessment Authority may:

   (a)    affirm the fast track reviewable decision; or

(b)    remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

473DB    Immigration Assessment Authority to review decisions on the papers

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

Note:     Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

9    At the forefront of the appellant’s argument were observations made by the Full Court in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [76] – [82]:

76    The Authority knew or must be taken to have known that the question of relocation had not been considered by the delegate. The Authority must also have been taken to have known that the question of relocation depended on the particular circumstances of the respondent. As found by the primary judge, there was nothing in the interview with the delegate that concerned the question of relocation. The transcript of that interview is before the Court and we agree with that finding.

77    The analysis of legal unreasonableness in respect of statutory powers and discretions must be founded in the terms in which both powers and discretions are conferred.

78    We have identified the powers available to the Authority. It is also necessary to consider the broader statutory context.

79    It is necessary to give full weight to the requirements of s 473DB which, subject to Pt 7AA, require the Authority to review a fast track reviewable decision referred to it under s 473CA by considering the review material, as defined in s 473CB, without accepting or requesting new information and without interviewing the referred applicant. However it is clear that s 473DB is “[s]ubject to this Part” and the Part includes s 473DC.

80    Another part of the context is the obligation on the Authority under s 473CC(1) to review a fast track reviewable decision referred it under s 473CA. Its powers under s 473CC(2) are also to be noted. The Authority may affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation. Under reg 4.43 of the Migration Regulations 1994 (Cth):

(2)    It is a permissible direction that:

(a)    the referred applicant must be taken to have satisfied the criteria for the visa that are specified in the direction; or

(b)    the referred applicant is a refugee within the meaning of subsection 5H(1) of the Act; or

(c)    subsection 36(3) of the Act does not apply to the referred applicant; or

(d)    the referred applicant satisfies each matter, specified in the direction, that relates to establishing whether the referred applicant is a person to whom Australia has protection obligations because the criterion mentioned in paragraph 36(2)(aa) of the Act is satisfied in relation to the applicant.

(3)    However, it is not a permissible direction that:

(a)    subsection 5H(1) of the Act applies to the referred applicant; or

(b)    subsection 5H(1) does not apply to the referred applicant because of subsection 5H(2); or

(c)    the referred applicant satisfies, or does not satisfy, the criterion in subsection 36(1C) of the Act; or

(d)    the referred applicant satisfies a matter that relates to establishing whether there are serious reasons for considering that:

(i)    the referred applicant has committed a crime against peace, a war crime or a crime against humanity, as defined by an international instrument mentioned in regulation 2.03B; or

(ii)    the referred applicant committed a serious non-political crime before entering Australia; or

(iii)    the referred applicant has been guilty of acts contrary to the purposes and principles of the United Nations; or

(e)    the referred applicant satisfies a matter that relates to establishing whether there are reasonable grounds that:

(i)    the referred applicant is a danger to Australia’s security; or

(ii)    the referred applicant, having been convicted by a final judgment of a particularly serious crime, including a crime that consists of the commission of a serious Australian offence or serious foreign offence, is a danger to the Australian community.

(4)    It is a permissible direction that the grant of the visa is not prevented by section 91W, 91WA or 91WB of the Act.

81    We do not accept the Minister’s submission that where there is a new situation in the referred applicant’s country of nationality, or if new information were obtained that meant there was a complete change of circumstances in the referred applicant’s country of nationality after the delegate’s decision, there was no obligation on the Authority to consider whether to bring it to the referred applicant’s attention. We understood this submission to mean that those circumstances could not give rise to legal unreasonableness.

82    Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

10    To understand how these grounds were developed by reference to such observations, it is necessary to set out particular passages both from the second Authority’s reasons and submissions which had earlier been made on behalf of the appellant by a migration agent, as well as to describe what had formed, initially, the foundation for the appellant’s claim.

11    As to the latter, the appellant had stated in his claim interview:

90    What do you think will happen to you if you return to that country (or countries)?

I am a Hazara by race and a Shia Muslim by religion. The Taliban has a historical enmity with people of my race and religious sect.

As I am the only male child to my parents, I stand a high risk of persecution at the hands of Taliban. This is because in the Afghan cultural tradition, when the eldest son reaches maturity he is considered to be the family head after the death of the older male member (that is, the death of my father who was the earlier family head).

For further details please read the submission made by my migration agent on my behalf.

91    Did you experience harm in that country (or countries)? Yes

My family has been individually targeted in the past by the Taliban. My house was bombed and I suffered and sustained injuries …

My father was killed by the Taliban by way of decapitation when I was between three and four years old. The land belonging to my family has been seized and taken by Taliban by coercion.

12    In the course of making submissions in respect of the claim as the appellant had formulated it, his migration agent raised (in a way in which the appellant himself had not) as a basis of fearing persecution, that persons returning from the West were, for that reason, also targeted or persecuted in Afghanistan. More particularly, it was raised that this occurred in respect of “many asylum seekers of Hazara Shia ethnicity in Australia who had their protection claims refused and deported to Afghanistan ended up being killed or persecuted”.

13    In the course of assessing the claim and the related submission by the agent, one item noted by the delegate on the basis of country information as to the situation in the appellant’s home province of Daykundi was this:

According to country information, Dayikundi is a mountainous province situated 460 kilometres west of Kabul and it is a Hazara majority province. Due to heavy snowfall in the winter, the roads remain blocked for months, cutting off communication with the rest of the country. Daykundi Province, created in 2004 from the Hazara-majority districts of neighbouring Uruzgan province, has a population of around 400,000 and is around 75 per cent Hazara, with Tajik and Pashtun minorities.

[Emphasis added, footnotes omitted]

14    The emphasis which I have given to the extract of the delegate’s reasons quoted informed my summary of the errors alleged in grounds 1, 2 and 3. The learned primary judge found that there were no such errors. Whether or not that conclusion is itself attended with error requires that these parts of the Authority’s reasons be set out:

42.    The information before me does not indicate whether there are civilian flights between Kabul and Daykundi, but it does note that there are direct civilian flights between Kabul and Bamiyan province, which borders Daykundi to the north. As noted above, Bamiyan is a Hazara-majority province and forms part of the Hazarajat. It is assessed to be one of the more peaceful provinces and like Daykundi, it is assessed as relatively safe for Hazaras. I also note that the northern areas of Daykundi and the southern areas of Bamiyan, which border each other, are also considered to be the safest parts of the two provinces. Further, I have noted above that there is no information in the material indicating that Hazaras and Hazara Shi’as face a real chance of harm travelling by road within the Hazarajat.

43.    At the interview the delegate asked the applicant if he had any savings and the applicant confirmed that he has about $2,000 AUD. Having regarding to this and to the information noted above, and in the absence of any further information to the contrary, I am satisfied that the applicant could safely access Kabul, purchase an air ticket and travel to Bamiyan, and then safely access Daykundi by road. I am satisfied that he does not face a real chance of harm accessing Daykundi.

44.    The applicant claims to fear harm as a returned asylum-seeker who has spent time in the West. In 2016, DFAT assessed that Hazara returnees who are not directly associated with the government or the international community currently do not face a higher level of risk upon return than do returnees to Afghanistan from other ethnic groups. The applicant has not claimed to have had any association, direct or indirect, with the Afghan government, or to have had any association with the international community in Afghanistan.

45.    According to its most recent report, DFAT is aware of occasional reports alleging that returnees from western countries have been kidnapped or otherwise targeted based on their having spent time in a western country. DFAT also notes that people who identified as having international associations face a high risk of being targeted by AGE and this may possibly include returnees from western countries; however most returnees take measures to conceal their association with the country from which they have returned and keep a low profile on return. DFAT assesses that people in this situation do not face a “significantly higher” risk of violence or discrimination than other Afghans with similar profiles. I note that the relevant question is not whether the applicant faces a “significantly higher risk” but rather, whether he faces a real chance or a real risk of relevant harm.

46.    I have found above that the applicant does not now or or in the reasonably foreseeable future face a real chance of being harmed because of any adverse profile with the Taliban or Pashtun. He has not claimed that he will need to carry or display any documentation in relation to his asylum claims or his time in the West, or that he will need to disclose this to any person. He has not claimed to have any physical characteristic, speech, mannerism, carriage or dress style which would identify him as a returned asylum-seeker or someone who has spent time in the West. He has not claimed that he has, or exhibits, any behaviour which he would need to modify if he is to avoid being so identified. While I accept that he is readily identifiable as a Hazara, there is nothing in the material to indicate that he is otherwise identifiable as a returned asylum-seeker or one who has spent time in the West.

47.    Having regard to all of the above, I am satisfied that the applicant will not be identified as a returned asylum-seeker or one who has spent time win the West. I am satisfied that he does not face a real chance of harm for this reason.

48.    The applicant said at the interview that he did not want to say in Daykundi because it was a like a prison that you cannot get into or out of. He said that he is a young man who wants to study and improve his life. I have noted above that there are schools and a small university in or near Daykundi which he would be to safely access and further, I have found that he could save access Kabul via Bamiyan province and the airport, which he could do should he wish to enter university in Kabul. I also take into account that he has family support in his home province.

49.    The applicant has claimed to fear harm because he will not be able to find work if he is relocated, as he will be in an unfamiliar area. I am satisfied that the applicant can return to his home province and does not need to relocate. I have found above that he will have family support in Daykundi and I am satisfied that as he lived in Daykundi, and more particularly his home village, from the age of about five until the age of 19 or 20, it is not an unfamiliar area. I take into account that the applicant has work skills obtained in Australia (painting and partly completed dental assistant qualification) and that he has good spoken English, demonstrated by his participation in the interview without an interpreter. Information in the material indicates that those who have foreign language skills (or computer skills) tend to be the best placed to find well-paid employment. Although that report refers specifically to Kabul, I consider that the applicant’s skills would benefit him in obtaining employment in Daykundi.

50.    While I accept that the applicant may not wish to return to Daykundi and may consider it limiting, I am not satisfied that he will unable to find employment or unable to subsist. I am not satisfied that he faces a real chance of harm arising from his ability to find employment.

51.    Having regard to all of the information and evidence considered above, I am satisfied that the applicant does not face a real chance of harm: at the hands of the Taliban or any other group arising from his family’s displacement, the death of his father and the dispossession of the family land; as a Hazara and a Hazara Shi’a; arising from his ability to find employment; or as a returned asylum-seeker who has been in the West. I am also satisfied that he does not face a real chance of serious harm as a student, a Hazara student, or a Hazara seeking to further his education. I have further considered the applicant’s cumulative profile and I am also satisfied that he does not have a well-founded fear of persecution on that basis.

[Footnotes omitted]

15    Also necessary to be set out is s 473CB of the Act:

473CB    Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    the following details:

(i)    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)    if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)    if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)    The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

16    The reference to impassability as a result of snow to the particular province was a subject never raised by the appellant at any stage, from claim onwards. Indeed, as is recorded in relation to what is termed the “SHEV” interview with an officer of the Minister’s department, it is stated:

The applicant asserted that during the SHEV interview that he wanted to continue his education. I acknowledge there may be limited opportunities for further education in Daykundi Province, although further education for the applicant does not effect my assessment of the applicant’s ability to subsist. I note however that the applicant has family connections in Kabul (his uncle [’s]… brother), and friends who he stayed with previously on three occasions for periods up to one month in 2011/2012, which provides him with the opportunity to relocate to further his education … The applicant would also have access to reintegration assistance, including possible vocational training and other assistance, in line with the 2011 Memorandum of Understanding between the Australian and Afghan governments and the UNHCR. Whilst this opportunity is open for the applicant to explore, I have not undertaken an assessment about his ability to relocate to Kabul because I have found that the applicant does not face a real risk of significant harm if he returns to his home village of …, in the foreseeable future.

During the SHEV interview the applicant asserted he wanted to continue his education in Kabul. The applicant stated that he has family connections in Kabul (his uncle [’s]… brother), and friends who he stayed with previously on three occasions for periods up to one month in 2011/2012. Should the applicant choose to relocate to Kabul it is open to his own volition to do so.

17    It may readily be accepted that there is, in certain circumstances, an obligation at least to consider the making of a particular inquiry in relation to a subject which is, at least, potentially determinative and which had not hitherto been raised in the course of public administration with the appellant. This includes making a particular inquiry of an applicant by the Authority about such a subject. The subject of impassability never had that status as such a subject. Of course, if it were the case that there was but one part of, in this case, Afghanistan to which the appellant might return with safety or to which he might relocate, and that particular part were impassable in terms of access for months at a time, then to base a decision on an ability to relocate without addressing the consequence of impassability may be indicative – fatally indicative – of a failure to consider or to discharge the statutory function of review and thus to transgress s 473CC and s 473DB. But these cases are inherently specific not just to the facts but also to the continuum of decision making administratively, including the reasons given and the claims and submissions to which they are responsive.

18    So, while it is true that the reasons do not, in terms, make reference to impassability as a result of snow, it needs to be remembered that the appellant himself in his interview aspirationally wished to continue his education in Kabul. The Authority has addressed circumstances applicable both to Kabul and to Daykundi province in its reasons. It has found, for reasons which are open on the material before it, an absence of any real chance of persecution for any of the reasons specified in the Act. In these circumstances, it seems to me that, even accepting the case at its highest, there is just no failure to discharge the statutory function of review or considering the material furnished. In that regard, it needs to be remembered that the reasons of administrative decision makers are not to be construed narrowly and with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang). Further, as to an approach to the subject of the consideration of an administrator’s reasons, I am attracted to an analysis offered by Lee J in DVB16 v Minister for Immigration and Border Protection [2018] FCA 1682 at [24] – [30]:

24.    It is, with respect, a little difficult to follow the argument as refined. Doing my best, it seems to amount to a contention that because the legislative scheme involves a review on the papers (and is characterised by the appellant as being “severe”) that these circumstances inform or mandate some form of heightened duty on the part of the IAA to consider material before it.

25.    As Mr Kay-Hoyle, who appeared on behalf of the Minister pointed out:

The first thing to note is that this formulation says little, if anything, beyond the position established by the state of the current authorities. It is not in dispute, at a conceptual level, that the IAA may fall into jurisdictional error if it fails to engage with, or give active consideration to, a material aspect of an applicant’s case. However, to state the problem in these terms is to say little about whether there was such an error. As the Full Court of this Court has explained recently in Minister for Home Affairs v Buadromo [2018] FCAFC 151 (“Buadromo”) a failure to engage with material in a way that leads to error may be described in a number of different ways with different connotations, of which the description “active intellectual exercise” is merely one: at [42]-[45]. What is required is a proper analysis, within the applicable statutory setting, of what the decision-maker did.

26.    The IAA undertakes a de novo merits review (see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at 606 [17] (per Gageler, Keane and Nettle J), 620 [85] (per Gordon J) and 621-622 [92] per (Edelman J)). The review material is before it and it is necessary, in order for it to discharge its statutory function, to consider that material. The fact that certain material is not expressly referred to in the decision, does not lead, as the appellant suggests, to an inference of a failure of the IAA to discharge properly its task of review: see WAEE at 604-605 [46]-[47]. Indeed, as Perram J noted in SZMTD v Minister for Immigration and Border Protection [2015] FCA 150 at [17] - [19], the absence of reference may simply mean that the correct inference is that the decision-maker considered the matter to be irrelevant.

27.    As was submitted on behalf of the Minister, the logical extension of the appellant’s argument is that it would have been necessary for the IAA to provide individualised reasons as to why it accepted or rejected individual pieces of evidence and to make findings about every claim made or issue raised. This is not the law: see WAEE. To this the appellant submitted that the principle drawn from WAEE (namely, that an inference that the Tribunal has failed to consider an issue is not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point), is not readily transferable to the Court’s review of IAA decisions. It is said that a reviewing Court needs “to look closely to determine whether the [IAA] has exercised the review function imposed upon the IAA by s 473CC” of the Act.

28.    Put another way, what the appellant submits is that given the type of process engaged in by the IAA, an inference should more readily be drawn that there was a failure to consider an issue or provide appropriate scrutiny.

29.    I do not accept this argument. As the Minister submitted:

The reasons of the Full Court in Applicant WAEE at [46]-[47] are based on the approach to be adopted to administrative decision-makers generally when operating in an environment that requires “expeditious determination of a high volume of applications”. It emphasised the Tribunal (in that case, the Refugee Review Tribunal) was not a court. That description is equally true of the IAA. Critically, the Full Court noted that an inference that a tribunal has not considered an issue is not to be drawn lightly “where the reasons are otherwise comprehensive and the issue has at least been identified at some point”. There is no reason why that is not applicable equally to all decision-makers, whether they make decisions under Part 5, Part 7 or Part 7AA. Put differently, there is no reason of principle why a decision-maker undertaking a more limited form of review either enlarges or diminishes the obligation to give reasons, the scope of those reasons (by reference to the relevant authorities) and the process by which a Court assesses whether those reasons demonstrate error, in particular whether they demonstrate that there has been a failure to engage meaningfully with a claim, submission or evidence such as to give rise to jurisdictional error.

30.    The appellant does not point to any reason why the inferences that may be available to a reviewing Court (when a matter is not referred to) should be any different for the IAA than any other tribunal. In my view, the particular nature of the review under Part 7AA does not alter the nature of the inferences that can be drawn (and will be drawn in an appropriate case), either to support a conclusion that the IAA did not consider an issue relevant or that the IAA failed to give an issue proper consideration.

[Emphasis in original]

19    In the particular circumstances of this case, I do not consider that an inference should be drawn that the failure expressly to avert to the impassability is indicative of a failure to consider contrary to the requirement found in s 473CC – s 473DB(1). The position would be different, as I have indicated, if there were one place where relocation might occur without a real chance of persecution and there were impediments to accessing that place. But this is not that case, and it was never put forward by the appellant that it was such a case. As I have indicated, aspirationally, he wished to continue education for self-betterment in Kabul. As it is, in my view, the Authority has addressed a number of different scenarios and found, whether it be that the appellant relocates to his home province or to Kabul, an absence of a real chance of persecution. In the circumstances, to discharge the obligation in s 473DB it was not required to do any more than that.

20    That then leaves grounds 4 and 5. These turn, in the first instance, on language used in [46] of the Authority’s reasons. The observations which I have already made by reference to Wu Shan Liang are just as applicable in respect of these grounds. Of course, if an assertion of particular characteristics and mannerisms which would identify him as a member of a particular social group, namely those having spent time in a Western country had been part of the appellant’s claim, then a failure to consider the same would be a jurisdictional error. The position would be no different to that found in the High Court in Dranishnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. But that is not this case. In my view, all that the Authority has done, in particular at [46], is to note particular absences of characteristics, in other words, to note that it was not a feature of the appellant’s case. There was no obligation at all, in the circumstances, to raise such subjects with him. He had never raised them himself either directly or through his agent in submissions. There is just nothing in the point at all, in my view.

21    What necessarily follows from the foregoing is that the appeal must be dismissed.

Associate:

Dated:    11 June 2019