FEDERAL COURT OF AUSTRALIA

CAF17 v Minister for Home Affairs [2019] FCA 2203

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Orders 1 and 2 of the orders of the Federal Circuit Court of Australia made on 21 May 2018 be set aside and, in place of those orders, the constitutional writs of certiorari, mandamus and prohibition issue quashing the decision of the Immigration Assessment Authority (“IAA”) of 7 April 2017, remitting the matter to the IAA to be decided according to law and prohibiting the Minister and his delegates from acting upon the decision of the IAA of 7 April 2017; and an order that the first respondent pay the costs of the applicant as agreed or taxed.

3.    The first respondent pay the appellant’s costs of the appeal as agreed or taxed.

4.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    The questions in issue in this appeal from the orders of the Federal Circuit Court of Australia made on 21 May 2018 dismissing the appellant’s amended application for the grant of the constitutional writs concerning a decision of the Immigration Assessment Authority (the “Authority” or “IAA”) which affirmed a decision of the Minister’s delegate to refuse the appellant’s application for a Safe Haven Enterprise Visa (the “Safe Haven visa”), raises a reasonably short point.

2    The essential questions are these:

(1)    Did the Federal Circuit Court fall into error in holding that the appellant’s personal circumstances were not raised by the appellant as matters agitated as relevant to the question of whether the appellant could reasonably relocate to Kabul, for the purposes of s 36(2)(aa) read in conjunction with s 36(2B)(a) of the Migration Act 1958 (Cth) (the “Act”)? The appellant’s personal circumstances were said to include the murder of his two brothers by the Taliban; the disappearance of a third brother; the appellant having fled the Taliban twice; and the appellant having been beaten and threatened by the Taliban over a period of years – factors said to be the appellant’s “traumatic experiences”.

(2)    Did the appellant raise or agitate those personal circumstances, that is, the traumatic experiences, with the Authority in relation to the question of whether it was reasonable for the appellant to relocate to Kabul?

3    Judgment in this matter has been held over pending the pronouncement of judgment by the seven member High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196. Judgment was pronounced in that matter on 9 October 2019. The judgment of the High Court was thought to be relevant to this appeal on the question of the scope of the obligations of the Authority under the Act in discharging its statutory function. The observations of the High Court have been taken into account to the extent they touch upon the issues in this appeal.

4    Many of the underlying factual matters in relation to the appellant’s circumstances are not in issue.

5    The appellant is a citizen of Afghanistan.

6    The appellant arrived in Australia as an unauthorised maritime arrival on 1 November 2012. On 23 December 2015, the Minister’s Department advised the appellant that the Minister had determined that the prohibition in s 46A(1) of the Act would not apply. The appellant was invited to apply for a Safe Haven visa and he did so on 2 February 2016. The application was supported by a statutory declaration made on 18 January 2016. On 9 August 2016, the appellant attended an interview with the Minister’s delegate. On 16 August 2016, the appellant’s representative, Latif Jawadi, provided post-interview submissions, country information and other documents in support of the claims including another statutory declaration dated 15 August 2016, to the Department.

7    On 22 September 2016, the Minister’s delegate rejected the appellant’s application.

8    On 28 September 2016, the matter was referred to the Authority for review. In the course of that review, the appellant put further material before the Authority including a submission dated 15 October 2016 and a further submission dated 3 December 2016. A further submission was made to the Authority dated 23 March 2017. I will return to aspects of those submissions later in these reasons.

9    On 7 April 2017, the Authority affirmed the decision of the delegate.

10    In the course of its reasons, the Authority accepted the following matters.

11    The appellant is a Shia Hazara from the Shaikh Ali District in Parwan Province. He worked briefly as a truck driver in 1998 for a political party in Afghanistan described as Hezb-e-Wahdat delivering food supplies within the Shaikh-Ali District of Parwan Province. In this period, a dispute arose with members of the Taliban over the appellant’s truck and in the course of that dispute the appellant’s brother was killed.

12    The appellant and his family resided in Mazar-e-Sharif. In 1998, the Taliban captured that city. The appellant’s younger brother went missing. The appellant and his family then established themselves in Pol-e-Khomri until early 2000 during which time the appellant was detained several times by representatives of the Taliban and sometimes beaten. The Taliban at this time accused him of having weapons. They demanded that he either provide the weapons or pay money: para 16, IAA reasons.

13    In 2000, the appellant and his family moved to Peshawar in Pakistan and after about six years he returned to his village in the Shaikh-Ali District. He purchased two trucks and operated these with his brother delivering goods between Kabul and the Shaikh-Ali District and other places. In 2009, the Taliban set up a base in the Ghorband area that seemed to bring the Taliban into closer connection with the appellant.

14    In 2010, the appellant received a telephone call from a Taliban based in the Ghorband area. The Authority describes the events this way at para 17 of the decision.

The man said they knew of the applicant very well and that he had been supporting the Wahdat political party in the past delivering food. He said they knew the applicant had money and requested he give them two million Afghani (approximately AUD 20,000) as an ushr (a religious tax or donation). The applicant did not have money to give them. He twice sought assistance from the local governor who rang the unknown number but it was switched off and the governor said, after consulting with one of his commanders on the second occasion, that they could provide no assistance because they did not know who to chase. Within three to four months the applicant received the same telephone calls several times. One afternoon he received one of these calls and when he answered he was told to talk to his brother followed by the sound of several gunshots. He attempted to call back but the telephone was switched off. He went to the governor and told him of the incident but the governor said it was too late that day and to come back the next day. The next morning a truck dropped his brother’s body in front of his house. After ten days he received another telephone call and was told that he should pay the money or they would kill him in his house. Then his village started to have night guards with no guns to protect themselves from the Taliban. After about two to three weeks he decided that nothing was going to stop the Taliban capturing him so he [and] his family took some basic belongings and escaped to Kabul. At the SHEV interview he indicated that his brother’s body and burnt out truck had been found in the vicinity of Joydokhtar in the Ghorband [which may be Ghurband] valley area, and that his brother had last spoken to his brother as he began to depart from Kabul.

15    At para 18, the Authority describes the ascendency of the Taliban by about 2011 especially operating out of the Ghorband region. At para 19 the Authority finds that “it is not implausible that from around mid-2010 the applicant was the target of repeated Taliban demands for payment of an ushr Islamic tax, and that his brother was killed by Taliban operating out of the Ghorband area in approximately October 2010 after the applicant did not pay the amount demanded”.

16    At para 23, the Authority says this: “I accept that to access his home area the applicant faces a real chance of being abducted and ransomed and/or killed by the Taliban or some other AGE [armed anti-government elements] for reason of his being a Shia Hazara, and that this would amount to a real chance of serious harm for reason of the applicant’s religion and race”.

17    At para 24, the Authority observed that by reason of s 5J of the Act, the real chance of persecution contemplated by s 5J(1)(a) and (b) must be one that “relates to all areas of a receiving country”: s 5J(1)(c) of the Act. The Authority observes that at the SHEV interview it was put to the appellant that Kabul may be a place where he could reside without facing a real chance of harm and that his family had been living safely in Kabul since late 2010. The Authority at para 24 notes these matters:

The applicant said that he would face harm in Kabul. He indicated that his family had moved suburbs on a number of occasions and that they rarely went out in public and wore burqas when they did so, and that he was more at risk because the Taliban do not usually target women and children and it was him that the Taliban were after and that he will be endangered by the fact that truck drivers and local people will know that he has sought asylum and been in Australia for more than three years and that this will put him at risk because he will be suspected of being a spy from the west and also of being a rich man from his work in Australia. He said that his mother’s uncle’s son was working with Americans and was kidnapped from his home in Kabul and killed, and that this occurred in the Kabul suburb of Wazir Abad where his family are currently residing. The applicant also submitted that he faced harm in Kabul as a Shia Hazara from the Taliban and also from Islamic State.

18    At para 26, the Authority observes that credible sources do not suspect the Taliban of having perpetrated attacks against the Shia Hazara community in major cities like Kabul “in recent years”. The Authority notes, however, that major cities have seen “occasional mass casualty attacks perpetrated against Shia Muslim and/or Hazara gatherings by other groups”. The Authority then notes a range of attacks which occurred in the period December 2011 to 21 November 2016. They included the December 2011 bomb attack upon Kabul’s Abu Fazl Mosque during the Shia Muslim Ashura commemorations; the February 2014 attack on a Shia Cultural Centre in Kabul; an attack in March 2015 at the Sufi Mosque in a Kabul suburb killing 11 worshippers; an attack in October 2015 at a Shia place of worship in Chandawal; two explosions in Central Kabul on 23 July 2016 targeting Hazaras and killing at least 85 people and wounding over 400 others (the “single most deadly incident in Kabul since the fall of the Taliban in 2001 and the largest single attack on Hazaras since the Ashura Day attack in 2011”: para 26); the attack on Shia Muslims on 11 October 2016 at the “Kabul Kart-e Sakhi Shia shrine” which killed 18 Shia Muslims and wounded over 50; a bomb attack on 21 November 2016 at the Shia Mosque in West Kabul in the Darulaman area, killing 30 worshippers and wounding more than 80 others. The Authority notes at para 26 that no further attacks upon Shia Muslims or Hazaras have been perpetrated in Kabul since the 21 November 2016 attack.

19    At para 31, the Authority says this:

I consider that the emergence in Afghanistan of groups pledging support to Islamic State and conducting occasional mass casualty attacks against the Shia Hazaras in Kabul and elsewhere has raised the overall level of risk faced by Shia Hazaras in Afghanistan. … However, I am not satisfied that the overall increased level of risk will mean that the applicant will face a real chance of harm within the foreseeable future for reason of his being a Shia Hazara. … I accept that the applicant is a Shia Muslim and that upon return to Kabul he likely would, like most Afghan Shia Muslims, attend communal worship and religious festivals. Nevertheless, given the current and foreseeable extent of the attacks perpetrated against Shia Muslims and Shia Hazaras in Kabul, given the size of Kabul’s Shia Hazara population (estimates of the Hazara population in Kabul vary between around 1.6 million to 2 million or 40-50 per cent of Kabul’s population), and the dispersal of this community and its places of worship across many suburbs in western Kabul, and given that I do not accept that the applicant is currently of specific interest to Islamic State as an individual, I am not satisfied on the evidence that, for the foreseeable future, the prospect of the applicant suffering harm in Kabul from an insurgent group, like Islamic State or the Taliban, for reason of his being a Shia Hazara, reaches that of a real chance.

20    At para 32, the Authority records that the evidence does not indicate that the appellant would face a real chance of suffering serious harm from any other actor in Kabul by reason of his being a Shia Muslim and/or a Hazara.

21    After having extensively considered a range of country information at paras 25 to 33, the Authority took up at para 34 the findings made at para 19 and said this at para 34:

I accept that in 2010 Taliban insurgents operating out of the Ghorband region demanded two million Afghani from the applicant. I also accept that after the applicant failed to pay this money these Taliban insurgents killed the applicant’s brother when he was travelling through the Ghorband region, and that the applicant then received another threatening telephone call and was told that he should pay the money or they would kill him in his house. The applicant claims that his family in Kabul are so fearful that they restrict themselves to home much of the time and that the women of the house wear burqas when they go out in public so as not to be seen. The applicant also claims that his mother’s uncle’s son was working with the Americans and was kidnapped from his home in Kabul and killed, and that this occurred in the Kabul suburb where his family are currently residing. While the applicant’s family may hold fears of this kind, and while a relative may have been killed for working with Americans, the weight of evidence indicates that it continues to be the case that low profile persons who have been threatened by Taliban networks in rural areas, and who are not currently working for the Afghan government or for international actors, will not be pursued in Kabul by the Taliban.

22    The Authority then considered whether the appellant would face a real chance of persecution due to a number of factors such as generalised violence which might result in the appellant being killed or injured as a bystander to an attack perpetrated by an insurgent group and whether the appellant might experience discrimination in employment by reason of his religion, ethnicity and/or membership or not of a particular family or central group. At para 41, the Authority said this:

I accept that in Kabul the applicant may experience some discrimination in the employment market for reason of being a Shia Hazara and/or as a consequence of not being a member of a particular family or tribal group. However, on the evidence, I am not satisfied that in Kabul the applicant would, on this basis, face a real chance of being denied the capacity to subsist or of suffering serious harm of any kind. Other than the real chance of perhaps experiencing discrimination in the employment market, and having regard to the totality of the circumstances, I am not satisfied that the applicant would face a real chance of suffering harm of any other kind in Kabul. I am therefore not satisfied that the applicant would face a real chance of serious harm in Kabul.

23    Accordingly the Authority concluded that the appellant does not meet the requirements of the definition of refugee in s 5H of the Act and thus the Authority could not be satisfied that the appellant is a person to whom Australia has protection obligations for the purposes of s 36(2)(a).

24    I have mentioned the circumstances addressed by the Authority in the context of the appellant’s claims based upon s 36(2)(a) because the Authority had regard to these factual circumstances in addressing the claims based upon s 36(2)(aa).

25    As to those claims, the Authority accepted at para 45 that the appellant would face a real chance and therefore a real risk of being abducted and/or killed on the roads if he were to attempt, within the foreseeable future, to return to his home area. The Authority accepted that such harm would amount to significant harm: s 36(2A) of the Act.

26    Although these provisions are well known, it should be noted that s 36(2)(aa) is in these terms:

Protection visas – criteria provided for by this Act

36 …

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

…

(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.

27    However, even though the Authority was satisfied that substantial grounds existed for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to his home area of Afghanistan, presented a real risk that the appellant would suffer significant harm, the Authority was nevertheless required to address the statutory construct that there is taken not to be a real risk that the appellant will suffer significant harm, in Afghanistan, if any of the elements of s  36(2B) are found to exist.

28    Section 36(2B) is in these terms:

(2B)    However, 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; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

29    The Authority then considered the question of whether it would be reasonable for the appellant to relocate to an area of Afghanistan where there would not be a real risk that he would suffer significant harm.

30    At para 47, the Authority accepts that the appellant may face some discrimination in employment as earlier described but that the appellant would not face a real risk of suffering discrimination at a level which would deprive him of “the capacity to subsist or that would otherwise arbitrarily deprive him of his life” nor would the appellant experience treatment which would amount to cruel or inhuman treatment or punishment or treatment amounting to extreme humiliation or torture.

31    As to the position in Kabul, the Authority observes at para 48 that other than experiencing discrimination in the employment market in Kabul, the Authority was not satisfied that the appellant would face a real risk of suffering “harm of any other kind in Kabul”: para 48.

32    At para 48, the Authority notes that the appellant claimed that if he returned to live in Kabul, he would find work as truck driver and that this work would require him to travel outside the city and thus expose him to harm. Although the Authority accepted that the appellant may obtain work as a truck driver upon return to Kabul, it did not accept that the appellant would “take on employment that would require him to drive outside the capital”. That finding seems to have been predicated upon an acceptance of the appellant’s contention that he had “travelled to another country, and moved his family to Kabul, in order to remove himself and his family from the threats he fears outside the capital”. Thus, the Authority did not accept that the appellant would take on employment taking him outside Kabul.

33    The Authority also did not accept “that there are not jobs available in the trucking and transport industry whose tasks are confined to Kabul”.

34    The Authority also observed at para 48 that it was not satisfied that work of this kind (trucking and transport work within Kabul) would expose the appellant to a real risk of significant harm or that restricting himself to Kabul “would otherwise amount to significant harm in itself” [emphasis added]: para 48.

35    Thus, the Authority was not satisfied that the appellant would face a real risk of suffering significant harm in Kabul: para 48.

36    Therefore the first question required to be answered by the Authority of whether there is an area of Afghanistan where there would not be a real risk that the appellant will suffer significant was answered on the footing that Kabul is such an area.

37    That being so, the next question the Authority was required to answer was: can the Authority be satisfied that it would be reasonable for the appellant to relocate to Kabul as a place or area in the country where there would not be a real risk that the appellant will suffer significant harm?

38    As to the question of whether it is reasonable for the appellant to relocate to Kabul, the Authority made these observations:

(1)    All sources examined by the Authority were thought to affirm that social connections are a “significant factor” when considering relocation in Afghanistan: para 49.

(2)    Views differ about whether social connections are a necessity or just an advantage: para 49.

(3)    The UNHCR has given advice that relocation may be a reasonable alternative only where the individual can expect to benefit from the meaningful support of his or her own (extended) family, community or tribe in the area of relocation: para 49.

(4)    However, the position of single able-bodied men and married couples without vulnerabilities may be an exception to the principle at (3): para 49.

(5)    DFAT observes that the lack of family networks for single men can impact upon their ability to reintegrate into the Afghan community: para 49.

(6)    The appellant has his mother, his wife, three children and brothers of the wife of his deceased brother, living in Kabul: para 50.

(7)    Should the appellant relocate to Kabul, he would be arriving to live with a family established in a Hazara suburb rather than being a person returning to a capital city without lodgings or connections: para 50.

(8)    Although the appellant resided in Kabul only as a child (1984 to 1989), he has extensive knowledge of Kabul having made deliveries to and from the city between 2006 and 2010: para 50.

(9)    The appellant has said that he is well-known to many Kabul locals and truck drivers working in the city: para 50.

(10)    The appellant told the delegate that he had savings held in Kabul (in part possibly due to the sale of his truck before leaving Afghanistan): para 50.

(11)    However, according to the appellant’s October declaration, the situation of having some money in Kabul has changed and now he sends money to his family from Australia. The savings of the family are said to have run out by the end of September 2016: para 50.

(12)    The Authority rejected that claim as to the changed financial circumstances and considered that a money transfer by the appellant to Afghanistan on 29 September 2016 was made solely for the purpose of enhancing the appellant’s protection claims: para 51.

(13)    Having regard to the circumstance that the appellant’s adult relatives work in Kabul and the appellant’s knowledge of many locals and truck drivers, the Authority was satisfied that the appellant would be able to find employment and earn a livelihood in Kabul to support himself and his dependents: para 52.

(14)    Although the appellant’s daughter suffers from a skin disorder and the appellant’s wife suffers from mental problems, basic public health services are nevertheless available to the appellant in Kabul and to his family: para 53.

(15)    Although most established residents have access to electricity services, up to 84% of internally displaced persons lack any access to electricity. Many people who live in Kabul have no option but to live in informal settlements: para 54.

(16)    The appellant, however, is in a favourable position financially and his family are already living in an established suburb of Kabul where he can join them should he relocate to Kabul.

39    At para 55 of the Authority’s reasons, the Authority said this:

Having regard to the applicant’s overall circumstances and the livelihood and security situation in Kabul more broadly (including the overall situation regarding generalised violence in Kabul), I am satisfied that it would be reasonable for the applicant to relocate to, and remain in, Kabul, an area of the country where there would not be a real risk that the applicant will suffer significant harm.

[emphasis added]

40    At para 56, the Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to the receiving country of Afghanistan, there is a real risk that the appellant will suffer significant harm and thus the elements of s 36(2)(aa) were not met.

41    The criticism which is made of the Authority’s reasoning on the question of whether it would be reasonable for the appellant to relocate to the area of Kabul in Afghanistan is that the Authority failed to consider whether, given the appellant’s personal circumstances, the danger to him in Kabul made relocation to Kabul unreasonable notwithstanding that he did not face a real chance of serious harm in that place: ground 1, amended application before the primary judge. The second proposition is that the Authority erred in treating serious harm as the only level or kind of harm which could affect the reasonableness of relocation on the part of the appellant: ground 2.

42    Counsel for the appellant, Ms Marr, observes that the focus of the amended application and the written and oral submissions before the primary judge was the failure by the Authority to consider the appellant’s traumatic experiences when considering the question of reasonableness of relocation. As mentioned earlier, the reference in ground 1 before the primary judge to the appellant’s “personal circumstances” and the reference to the appellant’s “traumatic experiences” is a reference to factors including the murder of the appellant’s two brothers by the Taliban; the disappearance of a third brother (which may have been at the hands of the Taliban); the appellant having to flee the Taliban on two occasions; and the appellant having been beaten and threatened by the Taliban over a period of years.

43    The propositions of law put by the appellant are these.

44    The question of what is “reasonable” in the sense of “practicable” depends necessarily upon the particular circumstances of the person claiming refugee status and the impact upon that individual of relocation to another place of residence within the country of his or her nationality. That principle is said to derive from the observations of Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (“SZATV”) at [24].

45    In SZATV, the claimant, a Ukrainian journalist who had suffered persecution for his political opinions, asserted that he held a well-founded fear of persecution for a Convention reason (Art 1A(2) of the Convention relating to the Status of Refugees adopted into the Municipal Law by s 36(2) of the Act as the criterion for the grant of a protection visa). The question considered by the High Court was whether the claimant could be described as falling within the “critical portion” of Art 1A(2) (as the plurality described it), and thus a “refugee” if he could “reasonably be expected to relocate” to a place within his own country where he could have no well-founded fear of persecution. The notion of “reasonable relocation” was to be found in the construction and interpretation of the critical language of Art 1A(2). In that context, the plurality said this at [24]:

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

[emphasis added]

46    In the result in SZATV, the Tribunal failed to consider what might reasonably be expected of the applicant with respect to relocation, which the High Court held at [32] was an error of law. It is “the question of what may reasonably be expected of the respondent which must be addressed”: Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317, French CJ, Hayne, Kiefel and Keane JJ affirming at [21] to [27] the analysis of the plurality in SZATV at [12] and [15] to [24].

47    The appellant also emphasises the observations of Kirby J in SZATV at [81]:

An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another part of that country. In some circumstances, having regard to the age of the applicant, the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant; the viability of the propounded place of internal relocation; and the subsequent mechanisms available if an applicant has already been traumatised by actual or feared persecution, will need to be weighed in judging the realism of the hypothesis of internal relocation.

[emphasis added]

48    The reference by Kirby J to the identified factors to be weighed in judging the realism of the hypothesis of internal relocation should be understood as factors to be weighed in judging the reasonableness of the hypothesis of internal relocation.

49    The appellant also relies upon the observations of Kenny J in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 161 ALD 73 at [35] where her Honour makes the following observations about the “possibility of relocation” in the context of s 36(2B) of the Act. At [35], her Honour said this:

In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of feared persecution in another part of the country. If there is an appreciable risk [in that other part], then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry, as MZYQU 206 FCR 191 and MZZJY [2014] FCA 1394 illustrate.

[emphasis added]

50    In MZYQU v Minister for Immigration and Citizenship [2012 FCA 1032; (2012) 206 FCR 191, Dodds-Streeton J held at [55] that, consistently with SZATV, factors such as “other and different” risks in the place of relocation may be relevant when determining the reasonableness of a proposed relocation, that is, what may reasonably be expected of the claimant (SZSCA at [21] to [27]), and at [61], her Honour observed that the error of the administrative decision-maker in question (the “Reviewer”) lay in treating “serious harm” (as defined by s 91R(1)(b) of the Act) as the “only level or kind of harm which could affect the reasonableness of relocation” [emphasis added]. At [60], Dodds-Streeton J held, in the circumstances of that appellant, that the risk of harm in the form of generalised violence due to the “personal circumstances” of the appellant needed to be considered on the question of “the reasonableness of the appellant’s relocation”.

51    As to the question, in the context of s 36(2)(aa) and s 36(2B), of whether the appellant is exposed to risks of harm that are “different or lower risks” of harm than the “significant harm” (as that term is understood), as referred to in those sections, Davies J observed in MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 at [21] that the fact that the risk of harm in the place of relocation may be remote does not necessarily answer the question of whether it is reasonable, having regard to the personal circumstances of the relevant applicant, to expect that person to “face that risk”. Her Honour also observed at [21] that the Tribunal (in in that case) was obliged to consider the “practical realities for the applicant” in determining whether it is reasonable to expect him to relocate to the nominated area within the country (in this case, Kabul). These principles are entirely uncontroversial: DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177; (2018) 265 FCR 57, Reeves, Rangiah and Colvin JJ at [29]; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526, Robertson, Murphy and Kerr JJ at [134] to [138].

52    The appellant says that in deciding whether it was reasonable for him to relocate to Kabul, the Authority failed to take into account his “personal circumstances” that is, his “traumatic experiences”. It can be seen from the observations at [38] that the Authority did not weigh in the balance on reasonableness of relocation to Kabul, the specific matter of the history of the appellant’s traumatic experiences in engaging over time with the Taliban.

53    The primary judge at [39] of his Honour’s reasons identifies the point of principle in the reasons of Gummow, Hayne and Crennan JJ in SZATV at [24] (see [45] of these reasons) and says this at [40] to [45] in framing the contention on relocation and then reaching his initial conclusion at [45] and then his affirmed conclusion at [50] and [51]:

40    In effect, what has been submitted here is that, whilst the IAA may have been extremely thorough in looking at all of those matters that I have previously enumerated, it did not look at the personal circumstances of the Applicant. Those circumstances are, that the Applicant must have been affected by the fact that over the past 18 years he has had one brother murdered; another brother go missing; a need to flee Afghanistan and go to Pakistan; a return to Afghanistan; systematic beatings by the Taliban; extortion by the Taliban; having another brother murdered by the Taliban; and a need to flee again from the Taliban and relocate to Kabul which then led to the Applicant himself fleeing and coming to Australia as an unauthorised maritime arrival.

41    Because the IAA has found that there is truth to all of that history, the submission is that it was incumbent upon the IAA to consider whether it was still reasonable for the Applicant to relocate to Kabul given everything that he has endured and suffered.

42    In effect, it was submitted that there must have been some psychological trauma meted out to him because of those experiences. The submission continued that, whilst the IAA has looked at all of the risks in physical terms, it has not turned its mind to whether there were risks in mental terms when assessing whether it was reasonable for the Applicant to relocate. It has been submitted that this issue is raised and therefore it had to be considered.

43    It was put to me that practicalities, as the IAA needed to assess, must also depend upon a state of mind.

44    When it was that I asked the Applicant how this was raised, I was told that it was a matter of common sense that no person could have endured what the Applicant had endured over the last 18 years without there being some measure of trauma to the psyche. It was because it was so obvious, the IAA should have considered the matter.

45    I am not convinced that this issue was, in fact, raised.

[emphasis added]

54    At [50] and [51], the primary judge said this:

50    Not once was it said to the IAA that the Applicant himself had mental health issues or that there would be anything that would mean that he was at risk of serious harm in a psychological manner, which would make it unreasonable for him to relocate to Kabul.

51    Whilst it has been submitted that such matters are simply common sense and are obviously raised because the IAA has already gone through all of those matters, I do not believe that such is the case.

[emphasis added]

55    The point of principle on this topic is this. In SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415, Tracey and Foster JJ note at [124] the relevant test for relocation set out in the High Court decisions of SZATV and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51 and observe that the answer to the question of whether it is practicable in the particular circumstances of the particular applicant to relocate, “in turn depends upon the framework set by the particular objections raised to relocation”, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) at 442-443 and especially at 443C-D, Black CJ; Whitlam J agreeing at 453; Beaumont J at 443-453 referring to the “generalised character of the appellant’s own material”. At 443C-D, Black CJ said this in Randhawa:

I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider these but having regard to the issues raised by the appellant and to the material that was before the decision-maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India.

[emphasis added]

56    That general principle received greater elaboration in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, Black CJ, French and Selway JJ at [58] to [63].

57    Their Honours noted the following matters based on the authorities. The review process is inquisitorial and the decision-maker is required to deal with the case “raised by the material or evidence before it”. The tribunal (decision-maker) is not to limit its determination to the case articulated by the applicant if evidence and material, which it accepts, raise a case not articulated. For example, a claim based on membership of a particular social group may raise a “group definition open on the facts but not expressly addressed by the applicant”. Although it has been said that an “unarticulated claim” must be raised “squarely” on the material available to the decision-maker before the statutory duty to consider the claim is engaged, the use of the adverb “squarely” does not convey a “precise standard” but merely “indicates” that a claim “not expressly advanced” will nevertheless attract a review obligation “when it is apparent on the face of the material before the [decision-maker]”, and such a claim is not reliant for its exposure on “constructive or creative activity by the decision-maker”. Although it is, of course, true that the function of the decision-maker is to respond to the case that the applicant advances and the decision-maker is not required to consider claims that have not been made, the application is not to be “treated as an exercise in 19th Century pleading”. The question ultimately is whether the case put by the appellant before the review tribunal has “sufficiently raised the relevant issue that the tribunal should have dealt with”. It follows that the review tribunal is “not obliged to deal with claims which are not articulated” and which “do not clearly arise from the material before it” [emphasis added]: NABE at [60]. At [61], their Honours say this: “We are of the view … that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it” [emphasis added].

58    If a claim (or objection to relocation) is expressly made or arises clearly on the materials before the Authority, the failure to address it constitutes a failure to conduct the review required by the Act and thereby jurisdictional error.

59    On this topic, Allsop J (as the Chief Justice then was) said this in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]:

… the unarticulated claim … must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to every day decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been [made], and then subjecting them to further analysis to assess their legitimacy.

[emphasis added]

60    Having addressed the matters at [40] to [45] and the matters at [50] and [51] of the reasons, the primary judge said this at [52] to [59] about the effect upon the appellant of his personal circumstances described at [40] of the reasons (which were accepted by the Authority as true), should he return to Kabul:

52.    What is being submitted here is an almost patronising or paternalistic assessment. It pre-supposes that the mental trauma that would be suffered by a person in the position of the Applicant, should be judged upon the mental trauma that one would think would occur to someone who had lived in a country, such as Australia, if both suffered through the same events.

53.    I am not of the view that that is logical.

54.    I have no doubt that, if someone in Australia had been subjected to the sorts of things that the Applicant has been subjected [to], there would be all sorts of trauma suffered. And there would also be lots of evidence as to counselling or psychological/psychiatric intervention.

55.    But that is because such a conclusion is based on common experience or “common sense” of someone who has been brought up in a country where such situations do not occur and are absolutely abhorred by the general population.

56.    To transpose those feelings, and infer that they apply to all other countries from which refugee applicants come, is making a very grave assumption that may not actually be the case. In fact, it reeks of the myth of Western or Colonial superiority; “if those events would affect me, then they must affect you”. That myth was shattered a long time ago.

57.    I reject the argument that the issues of mental health of the Applicant were raised on the evidence.

58.    It seems to me, then, when one looks at everything that was put before the IAA, that the IAA has considered and looked at all circumstances. It seems to me that when one looks at all of the material before the IAA, any reasonable inference that can be drawn as to what serious harm or what is reasonable in terms of the practicalities when looking at whether the Applicant could relocate to Kabul, have been considered.

59.    It is clear to me that the matters that had been submitted to this Court as having not been considered by the IAA were matters that were raised fairly and squarely on the evidence.

61    The appellant says that this reasoning mischaracterises the contention put to the primary judge as the notion of an impact upon the “mental health” of the appellant was not something put to the primary judge. The appellant says that the focus of the challenge before the primary judge both in the written and oral submissions was that the appellant’s traumatic experiences as described by the primary judge at [40] ought to have been considered on the question of whether it was reasonable to expect him to relocate to Kabul. The appellant says that the “inescapable conclusion” to be drawn from the Authority’s findings is that there had been “considerable fear and violence” in the appellant’s life circumstances caused by Sunni extremists and especially by the Taliban who had targeted him and his family specifically and Shia Hazaras in general.

62    The appellant also says that the Authority accepted that there had been “mass casualty” attacks carried out by the Taliban in Kabul, the place of relocation, and that these attacks had been directed against Shia and Hazara processions and places of worship: [18] of these reasons.

63    The appellant says that it cannot be assumed, as the primary judge seemed to assume, that Afghans in the position of the appellant would not be traumatised by such circumstances, and to expect the appellant to be traumatised by such events is neither patronising nor paternalistic as suggested at [52] of the primary judge’s reasons. The appellant says that the question of whether his personal experiences could affect the reasonableness of his relocation to Kabul, that is, whether his relocation to Kabul is practicable (SZATV at [24]; see [45] of these reasons), was raised by the material put to the Authority. It is said to have arisen inescapably out of the accepted facts going to the basis of the appellant’s life experience of “considerable fear and violence” at the hands of the Taliban and Sunni extremists. The appellant says that the personal and familial circumstances were required to be considered by the Tribunal.

64    As to ground 2, the appellant says that the Tribunal simply failed to weigh in the balance on the question of reasonableness the lower threshold of risk which nevertheless remained relevant to whether it was reasonable to expect him to relocate.

65    The Minister says that the appellant appears to accept that the appellant’s personal circumstances were not expressly raised on the issue of reasonableness of relocation before the Authority and thus, the appellant’s contention is that it was clearly raised on the material such that the Authority ought to have appreciated the existence of the point about the appellant’s personal and familial circumstances which condition, or at least inform, the question of whether it is reasonable for the appellant to relocate to Kabul. The Minister says that the appellant’s personal circumstances were considered by the Authority when assessing the impact upon him of relocation to Kabul. The Minister says that the appellant’s past experiences can only be relevant to the question of whether it would be reasonable to expect him to relocate to Kabul if those past experiences can be said to impact upon the appellant or his potential life in Kabul.

66    The Minister says that no such claim was made before the Authority.

67    Thus, the Minister says that the framework for decision-making simply did not comprehend that which is now being asserted.

68    The Minister says that the suggestion being put is that somewhere in the framework set by the appellant’s objections to relocation, a reasonably competent Authority would have, without any constructive or creative activity, appreciated the existence of a claim that the appellant was at risk of being traumatised by his past history if he were to relocate to Kabul, and an objection is to be found that it would be unreasonable to expect him to do so in the light of that fact. The Minister says that a reasonable competent Authority would not have appreciated the existence of any such claim.

69    I am satisfied that the question upon which this appeal now turns is not a matter which was expressly put to the Authority. That is to say, the appellant did not expressly put to the Authority the proposition that in considering whether it would be reasonable for the appellant to relocate to Kabul, the Authority ought to take into account an objection that it would not be reasonable for the appellant to so relocate having regard to the personal and/or traumatic circumstances the appellant had experienced as found on the facts by the Authority. However, when the totality of the factual circumstances of the appellant are considered as raised on all the material before the Authority, it can be seen, as the primary judge observed, that the appellant must have been affected by these circumstances: over the past 18 years he has experienced the murder of one brother at the hands of the Taliban; another brother having “gone missing” and presumably murdered in circumstances reinforcing threats upon the appellant’s family; a need to flee Afghanistan to Pakistan; systematic beatings by the Taliban; extortion by the Taliban; another brother having been murdered by the Taliban; and a need in the appellant to flee from the Taliban and relocate to Kabul and then flee from Kabul to Australia. Not only were these matters raised by the material but they were the subject of findings in favour of the appellant. Having regard to the totality of those experiences, a question rationally arises about whether those matters have a role to play in deciding the question of whether it is reasonable, having regard to the practicalities judged in the light of all of the particular circumstances of the appellant, for the appellant to relocate to Kabul.

70    In determining the reasonableness of relocation to Kabul, the Authority took into account the matters set out at [38] and although the Authority has comprehensively addressed those matters, it seems to me that it remained necessary as a question of the proper approach to s 36(2)(aa) and s 36(2B) to ask the question, in the context of the relocation analysis, of whether the factual findings about the appellant’s difficult personal circumstances should be weighed in the balance in deciding whether it is reasonable to expect him to relocate to Kabul.

71    The primary judge proceeded on the basis that if someone in Australia had been subjected to analogous personal circumstances, abhorred by the general population, “there would be all sorts of trauma suffered”. But recognising those matters in the case of someone in the position of the appellant from Afghanistan “is making a very grave assumption that may not actually be the case”. However, the material before the Authority made it plain that the appellant was anxious and concerned about circumstances in Kabul. That anxiety was based upon a contention of exposure to “significant harm” and the Tribunal found that there would not be such exposure in Kabul. However, the appellant was clearly saying that there were other circumstances or a lesser level of harm or anxiety attached to his being relocated to Kabul and it seems clear enough that he was suggesting that he feared being in Kabul and thus would not want to relocate to Kabul. It seems to me that the Authority ought to have recognised, without any disrespect to the decision-maker, that a question alive before the Authority on the material before the Authority and in light of the Authority’s findings, was whether it was reasonable for the appellant to relocate to Kabul in the circumstances, that is to say, having regard to the personal circumstances of the appellant, as found.

72    Accordingly, the primary judge fell into error in failing to recognise that matter. The Authority fell into jurisdictional error by failing to address the question required in discharging the Authority’s function under the Act. The orders of the primary judge are to be set aside and in their place, the constitutional writs are to issue and the matter remitted to the Authority for determination according to law having regard to the requirement to take into account on the question of relocation, the personal circumstances of the appellant, as found.

Associate:

Dated:    24 December 2019