FEDERAL COURT OF AUSTRALIA

BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The appellant is a national of Afghanistan who has been in Australia since 2013. He applied for a safe haven enterprise visa, which is a kind of protection visa. A delegate of the first respondent (Minister) refused the visa, and the Immigration Assessment Authority affirmed that decision. The Federal Circuit Court of Australia dismissed an application for judicial review of the Authority's decision. The appellant appeals from that judgment.

2    The Authority accepted that the appellant faced a real chance of being abducted and killed by reason of his being a Shia Hazara. That chance would arise in the course of travelling overland from his return airport in a major city in Afghanistan to his home district. But the Authority found that he was not a refugee because he did not face a real chance of persecution in the capital, Kabul. The Authority similarly found that the appellant faced a real risk of significant harm for the purposes of the complementary protection criterion in s 36(2A) of the Migration Act 1958 (Cth), but not in Kabul. The Authority found that it would be reasonable for the appellant to relocate to Kabul.

3    The sole ground of appeal raises the issue of whether the Authority failed to perform its statutory task of review in reaching that last conclusion, by failing to engage sufficiently with the specific circumstances of the appellant. For the following reasons, the appeal will be dismissed.

Statutory framework and principles

4    Under s 36 of the Act, a person may satisfy the criteria for a protection visa if he or she is a refugee (s 36(2)(a)), or the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm (s 36(2)(aa)).

5    A person only satisfies the first of these criteria if the real chance of persecution on which the claim to refugee status is based relates to all areas of a receiving country (s 5J(1)(c)). This has been taken not to give rise to the question of whether it would be reasonable for the person to relocate to an area where there is no real chance of persecution: see Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at [95]. But in relation to the second, complementary protection, criterion, the question does arise. That is because s 36(2B)(a) provides that there is taken not to be a real risk that a visa applicant will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he or she will suffer significant harm.

6    In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [23], Gummow, Hayne and Crennan JJ (Callinan J agreeing) accepted a formulation of the relevant question as being whether 'whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution'. However at [24] their Honours held that '[w]hat 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': see also Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 at [27].

7    The question of reasonableness is one that requires a factual inquiry to be undertaken and an evaluative judgment to be made: Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 at [110]. The practical realities facing a person who claims to be a refugee must be carefully considered: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 442. In SZATV at [81] Kirby J observed (citations omitted):

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 support 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.

8    One way of assessing whether it is reasonable for an applicant to relocate to an area is to compare the conditions he or she will encounter there to the reasonable expectations of the local community in which he or she is expected to live: see MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [61], relying on Lord Hope in Januzi v Secretary of State for the Home Department [2006] UKHL 5; (2006) 2 AC 426 at [47].

9    It is also important to bear in mind that a finding that a person does not face a real risk of significant harm in an area does not mean that a risk of harm which does not rise to that level may be disregarded in the assessment of whether it is reasonable for the person to relocate to the area: see MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 161 ALD 73 at [35] (Kenny J); and DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177; (2018) 265 FCR 57 at [27]-[29] (Reeves, Rangiah and Colvin JJ).

10    The answer to the question of reasonableness of relocation depends upon the framework set by the particular objections raised to relocation: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [124], citing Randhawa at 442-443. While the process is inquisitorial, not adversarial, the decision-maker is not obliged to deal with claims that are not articulated or do not arise clearly from the materials before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [60]-[61]. In AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106; (2018) 161 ALD 457 at [27] the Full Court quoted with approval the following observations of Mortimer J in MZANX at [58]:

… it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker's experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia's protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.

11    To this it may be added that the need to consider a claim arising clearly on the materials extends to the need to consider a claim clearly arising on the decision-maker's own findings: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [26].

12    Many of the authorities cited above come from a time when determining whether a person was a refugee for the purposes of the Act involved the application of the Refugees Convention, (the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967). However there is no reason to suppose that the approach should differ when the decision concerns the application of the statutory standard now imposed in s 36(2B)(a) of the Act. Mortimer J proceeded on that basis in MZANX.

13    Both parties accepted the authority of MZANX as explaining the level of detail into which the decision-maker must go in assessing the reasonableness of relocation. The appellant relied on the following passage at [55]:

In the context of relocation, detailed consideration of the circumstances 'on the ground' in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to restart her or his life in a new place, without undue hardship ... Likewise, the circumstances of that individual - her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed.

14    The Minister referred to Mortimer J's observation at [51] that there 'must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe locations'.

15    I respectfully agree with each of the passages relied upon. But in my view it is important not to take the emphasis they place on the level of detail required out of the context of Mortimer J's careful consideration of the principles, so as to conclude that jurisdictional error will result unless there is a minute examination of every circumstance of the proposed relocation. There are no mandatory relevant considerations applicable to the question, and to require a decision-maker to elaborate on every aspect of the practical application of the so-called 'relocation test' would be to descend to a greater level of particularity than the Act requires: SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 at [22] (Allsop J, as his Honour then was); and DZU16 at [110].

16    In truth, a statement that the information relied on must be sufficiently detailed does not, and cannot, provide guidance as to the precise level of detail that is required in any particular case before the court. As Lord Bingham said in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; (2008) 1 AC 678 at 683, 'the difficulty lies in applying the test, not in expressing it'. As is recognised in the first passage from MZANX quoted above (from [58]), ultimately the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him. Both under s 65(1)(a) and s 36(2B) the question is whether the Minister is satisfied as to the relevant matters, and that is also the state which the Authority must reach (or not reach as the case may be) in the course of performing its statutory task of review: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [16]-[17].

17    A failure to consider a relevant matter going to the reasonableness of relocation can be jurisdictional error: see MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 at [19]-[20] (Flick and Jagot JJ), [38] (Yates J). I respectfully agree with Yates J's characterisation in MZYPW of the nature of the jurisdictional error as a failure to engage with the substance of an issue for determination and a failure to take a matter into account.

18    It follows, in my view, that the level of detail to be attained by the decision-maker in considering the reasonableness of relocation is informed by the requirement that the task of review has not been performed if the requisite state of satisfaction is found to have been reached, or found not to have been reached, without an active intellectual engagement with the question. As recently confirmed in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 at [36(b)] to [36(d)], the requirement for active intellectual engagement can apply even in cases where there is no express statutory requirement to 'consider' a matter that is relevant to the formation of the necessary state of satisfaction. A court may find that the standard has not been met, even when the decision-maker has said he or she has given full consideration to the relevant matters: see Omar at [36(f)], relying on Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352.

19    In this case, the question with which the Authority needed to engage, in the way I have outlined, was whether in the particular circumstances of the appellant, and in view of the impact upon him of relocation to Kabul, it would be reasonable for him to relocate to that city.

Relevant aspects of the Authority's decision

20    I have mentioned that the appellant is a Shia Muslim and a Hazara. The appellant claimed to have been affected by persecution inflicted on Hazaras by neighbouring Pashtuns, and the murder of his father and an uncle by the Taliban. He and his mother fled to Iran in around 1993 or 1994. He was only three or four at the time. Growing up in Iran he did not maintain Muslim rules and customs; for example he sometimes drank alcohol. This continued after he came to Australia in 2013. He has learned some English and has become accustomed to life here. He has developed views which he said would cause him problems in Afghanistan, because he no longer identifies as Muslim. He has embraced Western dress and has never worn Afghan dress. He claimed this would make him a target for the Taliban and insurgent groups, who would view him as an infidel. He also claimed that Afghans who grew up in Iran are recognisable and targeted. He also claimed that return to Afghanistan would render him destitute, because he would have no real community support or income.

21    The Authority found that the appellant would face a real chance of being abducted or killed by an insurgent or criminal group for reason of his being a Shia Hazara. As I have said, the risk would arise when he was travelling through rural areas on his way from his return airport to his home district. But at the interview with the delegate of the Minister it was put to the appellant that he could live in Kabul without facing a real chance of harm. His response was that the Taliban and Islamic State were killing people every week all over Afghanistan, and nowhere was safe.

22    In its reasons for decision dated 24 February 2017 ('IAA') at paragraph 22, the Authority said 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,' although major cities have seen occasional mass casualty attacks perpetrated against gatherings of Shias or Hazaras by other groups. The Authority listed a number of attacks that had taken place between 2011 and 2016. After considering views expressed in reports of certain interest groups and by an expert commentator, the Authority found that the emergence in Afghanistan of groups pledging support to Islamic State and conducting occasional mass casualty attacks in Kabul and elsewhere has raised the overall level of risk faced by Shia Hazaras, and within the foreseeable future there may be further 'occasional mass casualty attacks' (IAA para 24).

23    However the Authority was not satisfied that this overall level of risk would mean that the appellant would face a real chance of harm within the foreseeable future in Kabul because he was a Shia Hazara. He did not claim to have ever been politically active and there was no evidence that he would be interested in attending a public demonstration like one that was attacked in central Kabul in July 2016. Given the large Shia population in Kabul and the way it was dispersed in the city, and the lack of any interest in the appellant on the part of insurgent groups, the Authority was not satisfied that the prospect of the appellant suffering harm in Kabul at the hands of an insurgent group by reason of his being a Shia Hazara reached the level of a real chance. Nor did the Authority consider that the relatively rare outbreaks of inter-ethnic or sectarian violence in Kabul, or varieties of persecution which Shia Hazaras sometimes experience outside that city, meant that the appellant would face a real chance of harm by reason of being a Shia Hazara in Kabul.

24    The Authority considered evidence of discrimination against Shia Hazaras, referring to Department of Foreign Affairs and Trade (DFAT) assessment that discrimination is more likely to arise as a result of preference for members of one's own family, tribe or ethnic or religious group rather than negative discrimination against other groups. The Authority preferred the views of bodies such as DFAT and the United Nations High Commissioner for Refugees, who considered that single men in Kabul do not need social connections, to a contrary view expressed by one expert that such discrimination would be likely to render a Hazara with no social connections destitute or vulnerable to gross exploitation.

25    The Authority nevertheless accepted that in Kabul there was a real chance that the appellant would face disadvantage, for example the employment market, by reason of being a Shia Hazara. But it did not accept that this would rise to the level of the appellant becoming destitute or threatening his capacity to subsist.

26    The Authority accepted that the appellant had lived most of his life in Iran, and some four years in Australia, and that he preferred to wear Western style clothes rather than traditional Afghan clothes. The appellant disagrees with certain traditional Muslim views and is not strictly observant, but he still identified as Shia Muslim. One of the respects in which he had not been observant was the consumption of alcohol, but the Authority was satisfied that he would not drink alcohol in Afghanistan, and did not consider that to involve an innate, immutable or fundamental characteristic that the appellant could not be expected to change. And while the way the appellant speaks and his Iranian accent were characteristics of that kind, the Authority relied on studies indicating that Hazara men like the appellant have not suffered death, violence or harassment in urban centres like Kabul by reason of having lived outside Afghanistan in Iran.

27    In relation to discrimination in the employment market, the Authority found (IAA para 32):

… I accept that there is a real chance that the applicant may also suffer some disadvantage in the employment market where others are advantaged because of their family/tribal/ethnic/religious connections with a given employer or service provider. Nevertheless, on evidence I am not satisfied that the applicant would, on the basis of being a Shia Hazara and who has lived most of life in Iran and outside of Afghanistan, face a real chance of suffering discrimination of a level that would result in his becoming destitute or that would threaten his capacity to subsist (such as through a denial of a capacity to earn a livelihood of any kind or to access basic services), or that he would face a real chance of suffering mockery so pervasive and malicious that it would amount to serious harm for the applicant. …

28    Similarly, in relation to broader discrimination by reason of the appellant's history of having lived outside Afghanistan and his non-observance of some Islamic practices and views, the Authority found it would not threaten his capacity to subsist or, considered cumulatively, amount to serious harm. The fact that the appellant was not a journalist or activist meant that even if he encountered discrimination or argument by reason of broaching his relatively liberal and non-Muslim views in day-to-day life in Kabul, that would not amount to serious harm and the discrimination that might result would not be of a level that would result in his becoming destitute or that would threaten his capacity to subsist.

29    The Authority also considered the possibility that the appellant would experience harm or discrimination as a result of his Westernised mode of dress and hairstyle, his way of talking, his non-observance of some aspects of Islam or perceived links with a Western country. The Authority concluded that none of those things would give rise to a real chance of harm in Kabul, or discrimination that would result in the appellant being destitute or that would threaten his capacity to subsist, such as through denial of capacity to earn a living or to access basic services.

30    The Authority went on to consider whether the appellant would face a real chance of harm due to generalised violence in Kabul, such as being killed or injured as a bystander to an attack. It reviewed information indicating that there had been a high number of casualties from insurgent attacks in Kabul in 2015 and 2016. But it went on to say that DFAT observed that Kabul nevertheless has a higher level of government control and a greater level of security than other parts of Afghanistan. Kabul's high population meant that it had a lower number of civilian casualties per head of population. The Authority also considered that the parts of Kabul most heavily populated by Hazaras were generally outside the areas which were most at risk of attack due to the presence of government and security institutions. There had been occasional attacks in Hazara suburbs but the overwhelming number of attacks took place in the centre of the city. Given that the appellant could live in one of the Hazara dominated suburbs, the Authority was not satisfied that he would face a real chance of harm on the basis of generalised violence from insurgent attacks in Kabul. Based on the country information it was also not satisfied he would face a real chance of harm in Kabul as a result of broader criminal activity. It also considered all of the above matters cumulatively and concluded he would not face a real chance of harm in Kabul.

31    All of that was part of the Authority's consideration of whether the appellant met the definition of a refugee in s 5H(1) of the Act. The Authority concluded that he did not. It then went on to consider the complementary protection obligations reflected in s 36(2)(aa), s 36(2A) and s 36(2B). Concerning relocation to Kabul, the Authority repeated its findings about discrimination against the appellant because of his having lived most of his life in Iran, his non-observance of certain Islamic practices and views, and his having returned from the West with some Western behaviours. It once again concluded that while he may experience such discrimination, that would not amount to significant harm of the kind required by s 36(2B). It also repeated its findings that, considered cumulatively, the appellant's circumstances would not lead to a real risk of significant harm. I accept counsel for the Minister's submission that despite mention of reasonableness of relocation at the beginning of this passage, the Authority was dealing at this point in its reasons with whether there was a real risk that the appellant would suffer significant harm if he relocated to Kabul.

32    It was after this that the Authority turned to consider the question of whether it was reasonable for the appellant to relocate. It referred to DFAT advice that Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan, with greater access to livelihood opportunities and essential services than most other locations in that country. It then considered certain sources of country information about whether a person going to Kabul without social connections or the support of a family, community or tribe would successfully locate and integrate into the 'Afghan community', rather than end up destitute or be exposed to gross exploitation. Different pieces of information pointed in different directions, but the Authority considered that (IAA para 56):

… the greater weight of evidence supports the view that it is possible for a single able bodied mean [sic] to relocate in Afghanistan, even without social connections, though this may not always be the case and must be determined based on the specific circumstances of the individual and the proposed area of relocation.

33    The Authority then went on to consider the employment market in Kabul. It noted that unemployment was widespread and underemployment was common. The influx of returnees to the city had put pressure on the labour market. It noted that DFAT has observed that those who have foreign language and computer skills tend to be best placed to find well paid employment in Kabul, with new arrivals from rural areas at a disadvantage due to their lack of relevant skills. It acknowledged DFAT advice that new arrivals who lack a network can find themselves with irregular and insecure employment, with some required to beg or work as street sellers. It referred to a 2009 study about returnees who had lived most of their lives in Iran, which found that some achieved a satisfactory life while others considered leaving due to corruption, isolation and limited work opportunities.

34    The Authority then considered conditions in areas of Kabul where a returnee might live. It had been reported that there was a 'huge Hazara underclass' living in neighbourhoods considered to be ghettoes (IAA para 58). Other more recent reports indicated that one of those neighbourhoods was very poor and lacked sewerage and electricity although some 'educational centres' had emerged in the area more recently. Generally, DFAT reported, the rapid growth of Kabul had put pressure on its infrastructure. There were 'informal settlements' where access to roads, water, sanitation and electricity was 'unreliable', and 'illegal settlements' where it was non-existent (IAA para 58). The cost of living was relatively high in Kabul, with rents expensive compared to other parts of Afghanistan. Many people therefore have no option but to live in the informal settlements. Poorer residents are forced to borrow money to survive, 'entering a cycle of poverty and indebtedness' (IAA para 58).

35    After considering all these matters the Authority addressed the specific circumstances of the appellant in a paragraph at the end of its reasons (IAA para 59). It did so as follows:

… Insofar as I am aware, the applicant has no family connections in Kabul. Nevertheless, and although he has no connections of this kind and although he may face some discrimination on the basis of his having lived outside Afghanistan and some of his views about Islam and traditional practices, he is nonetheless a single able-bodied man with no vulnerabilities. While living in Iran the applicant worked in welding and construction, and he has also worked part time in his brother's fruit market. DFAT has advised that those best placed to find well paid employment are returnees with foreign language skills, and at the SHEV interview the applicant demonstrated a good command of the English language and that he is familiar with using computers and the Internet. I therefore consider that the applicant's circumstances are sufficiently favourable to offset the challenges of establishing himself in Kabul, and that he would be able to find himself employment sufficient for him to reside in one the [sic] informal western Hazara neighbourhoods, if not an established neighbourhoods [sic], and that there is not a real risk that he would be destitute and/or forced to reside in an illegal settlement or on the street. While it continues to be the case that Kabul's informal neighbourhoods are dependent upon delivered water, and well water, and have unreliable electricity infrastructure and limited sanitation services, such neighbourhoods are nevertheless locations where the applicant could reasonably live. Having regard to the applicant's overall circumstances and the city's livelihood and security situation 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 Kabul, an area of the country where there would not be a real risk that the applicant will suffer significant harm.

The primary judge's reasons

36    There was a single ground of review before the Federal Circuit Court, which corresponded with the ground of appeal in this court. The primary judge's reasons for dismissing the application for judicial review (BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCCA 1249) consisted largely of a summary of the Authority's reasons, on both the refugee and the complementary protection criteria. Then, after setting out the ground of review and particulars and briefly summarising the arguments put on behalf of the appellant, the primary judge held (at [49]) that it was apparent from the Authority's reasons, as summarised by him, that each of the matters which the appellant said were not considered in adequate detail were the subject of detailed consideration. His Honour held that there was no proper basis to infer that the Authority did not take into account the whole of the circumstances in its determination of whether it was reasonable for the applicant to relocate to Kabul. He said that the Authority's reasons reflect a real and meaningful engagement with all the applicant's circumstances in considering whether it was reasonable for the applicant to relocate.

37    The primary judge then (at [50]) referred to a submission that the Authority's findings in relation to employment and capacity to subsist did not identify whether it was reasonable for the applicant to relocate. He held that 'on the face of the Authority's reasons, the Authority expressly took into account all of the applicant's claims and evidence in its detailed consideration as to whether it was reasonable for the applicant to relocate'. It was not necessary for the Authority to repeat each of its findings in its discussion of the reasonableness of relocation and the reasons must be read fairly and as a whole. His Honour considered that there was no basis to infer that the Authority did not take into account the whole of its findings in determining whether it was reasonable for the applicant to relocate.

Did the Authority adequately consider reasonableness of relocation?

38    The sole ground of appeal asserts that the Federal Circuit Court erred in failing to find that the Authority erred in concluding that it was reasonable for the appellant to relocate to Kabul, because it failed to undertake the task required by s 36(2B)(a) of the Act.

39    The submissions for the Minister criticise this ground on the basis that it does not identify any appealable error in the primary judge's reasons, and it invites the court to form its own view of the Authority's reasons. It is certainly correct that the primary function of an appellate court is to consider whether there is error in the decision appealed from, not to review the decision of the Authority (or other decision-maker of which judicial review was sought). Nevertheless the submission, which the Minister often makes in cases of this sort, is not always helpful. The dispositive reasoning of the primary judge here was so briefly expressed that it is not exposed to the identification of any possible error that is independent of the reasoning process of the Authority. In those circumstances, it is hardly fair to criticise an appellant for failing to identify an error by the primary judge other than by reference to the errors that the Authority is said to have made. In any event, no application to strike out the ground of appeal was made, so the point of making the submission was not clear.

40    In conducting the analysis which follows, I have borne in mind that whether or not the Authority engaged in an active intellectual process in relation to the relevant question requires the court to undertake an evaluative judgment, taking into account the available evidence and reasonable inferences as to all the relevant facts and circumstances: Carrascalao at [47]. A finding that the decision-maker has not engaged in an active intellectual process will not be made lightly and must be supported by clear evidence, bearing in mind that the applicant for judicial review bears the onus of proof: Carrascalao at [48].

41    Here, the relevant question before the Authority was the reasonableness of the appellant relocating to Kabul, given his particular personal characteristics and circumstances.

42    The appellant criticised the approach of the Authority in making a number of findings 'in the abstract'. The submission appeared to refer to the findings I have summarised at [31]-[32] above. The appellant submitted that the Authority did not identify how the findings bore on the assessment of reasonableness of relocation. But I do not accept that criticism. There was nothing wrong with the Authority making findings in the abstract, provided it then did apply them to the particular circumstances of the appellant. And bearing in mind the well-known caution against construing the reasons of an administrative decision-maker minutely and finely with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), I do not consider than any omission to explicitly cross reference the earlier 'abstract' findings to the later particular ones means that the Authority did not apply the former to the latter. Even in the absence of such cross reference, the court will not readily find that a matter that is considered in a part of the reasons about complementary protection has not been applied to the conclusion, made soon after, about reasonableness of relocation.

43    I do not make that finding here. It is clear enough that the Authority did take its view that it is possible for a single able-bodied man to relocate in Afghanistan without social connections, abstract as it may have been, and apply it to the finding that the appellant was a single able-bodied man. It is also clear from the Authority's reference to the need to determine the outcome based on the specific circumstances of the individual and the proposed area of relocation that the Authority both understood the level of detail to which it needed to descend, and understood that a finding about relocation 'in Afghanistan' was not enough. That last point is confirmed by the fact that the Authority then turned to look more closely at conditions in Kabul.

44    But the main thrust of the appellant's attack on the Authority's decision was that there were a number of specific findings the Authority made which were not addressed when the Authority came to consider the reasonableness of relocation. The appellant's written submissions enumerated twelve in all, each of which had its own defined term. I prefer not to address the argument by reference to the taxonomy the appellant's counsel has thus employed. In my respectful view, to dissect the reasons into twelve defined findings, and then examine whether each of them has been specifically addressed later on, is to approach the reasons with the kind of minute attention against which Wu Shan Liang warns. Nevertheless, there are several substantive points the appellant thus made which require consideration.

45    The security situation in Kabul is one aspect of the issue to which the Authority might be said to have given little thought in the context of reasonableness of relocation. It gave a great deal of attention to that subject in the course of assessing a real chance of serious harm in the course of determining whether the appellant was a refugee, but on the basis of the authorities I have cited, that does not answer the question of how the risk of violence, injury and death impacts the reasonableness of relocating to Kabul.

46    On balance, however, I consider that the Authority's reasons, read as a whole, reveal adequate consideration of the latter question. It found (during its consideration of the refugee criterion) that Shia Hazaras in Kabul are able to freely practise their faith and to go about their daily lives alongside significant numbers of Tajiks, Pashtuns and minority ethnic groups (IAA para 25). It found instances of inter-ethnic and sectarian violence between Kabul's various communities to have been rare (IAA para 25). It noted that studies had not indicated that Hazara men like the appellant had been killed or had suffered violence as a consequence of having lived outside Afghanistan in Iran (IAA para 30). Those who settled in urban areas like Kabul were not being targeted by insurgent groups or subject to any violence or physical harassment from their own ethnic or other ethnic communities (IAA para 31). DFAT (to whose reports the Authority gave significant weight) considered that returnees were unlikely to be discriminated against or subjected to violence on the basis of ethnicity or religion, and that low profile Hazaras (such as the appellant) faced a low risk of violence as a result of their international links (IAA para 38). DFAT also concluded that violent crime levels in Kabul were not such a problem as to be a significant concern for Afghan nationals returning from Western countries like Australia or that Kabul's Shia Hazara population faced any significant risks in that regard.

47    The appellant's submissions also focussed on a finding that 'the foreseeable future may see some further deterioration of security in Kabul' (IAA para 49) and says that the Authority did not adequately consider that in relation to reasonableness of relocation. But the asserted finding is a passage taken out of context. When placed in its proper context, it is clear that the Authority did not consider that there was any grave risk of the security situation in Kabul collapsing and, while allowing for the possibility, did not think it a serious concern.

48    Counsel for the appellant submitted, apparently as an example of an adequate line of reasoning, that the Authority could have concluded that risks arising from its findings about the security situation were lower in specific parts of Kabul where the appellant might relocate. The difficulty with that submission is that it can be inferred that the Authority did reach that conclusion. It thought it significant that militant attacks were concentrated in areas different to the 'suburbs' in which the Hazara community were concentrated (IAA para 44), and it found that the appellant would be able to live in such a suburb (IAA paras 45, 59).

49    The appellant's submissions also attacked the adequacy of the Authority's engagement with various findings which concerned the likely economic circumstances the appellant would face in Kabul, including his ability to find a neighbourhood in which he could reasonably live and the linked question of his ability to find reasonably paid employment. The appellant submitted that the finding reproduced above from paragraph 59 of the Authority's reasons, that the appellant would be able to meet the challenges of establishing himself in Kabul and to find employment to reside in an informal Hazara neighbourhood, did not engage with its earlier findings about unemployment and underemployment, about the difficulties facing those without family contacts, and about the cost of rent in Kabul.

50    In my view, while the finding may be open to criticism, it does not follow that the Authority did not engage in an active intellectual process in relation to those issues. One may disagree with the conclusion, but for the court to give effect to such disagreement would be impermissible merits review. The Authority did give consideration to employment conditions, and noted DFAT's view, which it plainly accepted, that those who had foreign language skills and computer skills tended to be best placed to find well paid employment in Kabul (IAA para 57). It found that the appellant had those skills, and that he had also worked in welding and construction. Whether the court agrees that these advantages will be enough is not the point. The Authority put those general findings together with specific circumstances of the appellant and thus engaged in suitably detailed consideration of his position.

51    Further, while the Authority did not refer specifically to the cost of rent, its finding that the appellant would have access to employment, and that he would be able to live in at least an 'informal' neighbourhood, show that it had considered the question. It is apparent on a fair reading of the Authority's discussion of conditions in different areas of Kabul, which I have described above, that it drew a distinction between 'informal settlements', with conditions it described in paragraph 59, and the 'illegal settlements' or 'ghettoes' that are inhabited by a 'huge Hazara underclass' without electricity or clean water (IAA para 58). It considered that it was reasonable for the appellant to live in an informal neighbourhood. Whether one agrees with that or not, in view of the Authority's detailed consideration of conditions in the informal Hazara neighbourhoods, I am not persuaded that it had insufficient regard to the question of whether it was reasonable for the appellant to live in one.

52    Relying on Januzi the appellant submitted that in order to be able to reach, without jurisdictional error, the conclusion that it was reasonable for the appellant to relocate to such a neighbourhood, the Tribunal needed to make findings about the standards that prevailed in Afghanistan generally. Counsel relied in particular on a passage in Lord Hope's judgment in Januzi at [47]:

The words 'unduly harsh' set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.

(The emphasis in this quote was added by Mortimer J when she also set it out in MZANX, at [61].)

53    It is necessary to exercise caution before applying a principle stated by a court applying a differently expressed standard ('unduly harsh') in the context of a different legal system. I would respectfully prefer Mortimer J's description in MZANX at [61] of what needs to be compared with the conditions the applicant is likely to encounter, namely '[s]tandards commensurate with reasonable expectations of the local community in which an applicant is expected to live'. Whatever the formulation, I doubt that the usefulness of making that comparison, while real, elevates it to a mandatory consideration that must be addressed in all cases. The statutory standard remains whether it would be reasonable for the non-citizen to relocate to the relevant area.

54    In any event, I consider that in substance the Authority did reach the view that the conditions in the sorts of informal Hazara neighbourhoods in which the appellant could be expected to live were commensurate with reasonable expectations in Kabul. At paragraph 58 it discussed conditions in different parts of Kabul in detail, and concluded that many who live in Kabul live in informal settlements. It drew a comparison between electricity supply in those places and electricity in 'formal areas of the city' which was not unfavourable and it clearly considered that conditions in the informal settlements were significantly better than in the illegal settlements or ghettoes. The finding, in the next paragraph, that it would be nevertheless be reasonable for the appellant to relocate to an informal settlement must be read in that context. I do not accept the submission that the finding was rolled up and conclusionary. Read together with paragraph 58 of the reasons, the finding reflects an assessment of the living conditions the appellant was likely to encounter, and the reasonableness of exposing him to those conditions. That included an assessment of those conditions against conditions prevailing widely in Kabul.

55    Of more concern is the brief reference in paragraph 59 of the Authority's reasons to the fact that the appellant 'may face some discrimination'. It is possible that discrimination which does not rise to the level of serious harm or significant harm is still sufficiently grievous, whether by itself or in combination with other factors, to make it unreasonable to relocate to a place in which the discrimination is experienced.

56    Nevertheless, on balance I consider that the Authority has given that matter adequate consideration. The fundamental proposition that its reasons must be read as a whole has a couple of consequences in relation to this issue. First, it is artificial to divide its findings about discrimination from its findings about the appellant's employment prospects, which I have found to reflect a suitable level of consideration. It is clear from the way the Authority deals with each of those questions that it considered them to be closely related. Second, earlier in its reasons the Authority did make findings about the level of discrimination which the appellant, specifically, would experience, which went further than findings that the discrimination would not amount to serious or significant harm. The Authority addressed the likelihood that the appellant would suffer discrimination because he has lived in other countries, adopted Western ways and was relatively relaxed in his observance of Islamic precepts and practices (IAA paras 27 to 33). It found that he nevertheless considers himself a believer in Shia Islam (IAA para 28). It found he would probably not drink alcohol in Afghanistan (IAA para 29). It recorded a contention the appellant made that other Afghans laugh and make fun of people who have lived in Iran because of the way they speak (IAA para 30). It found that a lot of Hazaras regularly travel to Iran for employment opportunities and such persons are not being denied employment, accommodation or essential services in Afghanistan (IAA para 31). It found that the appellant may face a real chance of 'some discrimination and mockery for reasons of his "non-Afghanness"' but the mockery would not be so pervasive or malicious as to amount to serious harm (IAA para 32). There was no evidence to indicate that less observant Muslims were being forced to pray, fast or give alms (IAA para 33). It appears that the Authority thought that the level of discrimination the appellant was likely to suffer as a result of his liberal views was that 'some persons may disagree with the applicant's views and enter into argument with him' (IAA para 34), and that 'such discrimination my [sic] include encounters with persons who disagree, argue with and/or mock the applicant, and may also result in the appellant experiencing some disadvantage in the employment market' (IAA paras 47, 54). It found that returnees were unlikely to be discriminated against on the basis of ethnicity or religion (IAA para 38).

57    There can be cases where a decision-maker's reasons indicate that something it said earlier in its reasons had left its mind by the time it came to a later part of its reasons. But the overall structure and content of the Authority's reasons in this case show that it is closely, if repetitively, reasoned. For example, the Authority highlighted as significant certain matters which clearly impacted on conclusions it reached later (see for example paragraph 44).

58    On balance, therefore, I am not persuaded that the brief reference to discrimination in paragraph 59 of the Authority's reasons means that it did not pay suitably detailed attention to how the issue impacted on the reasonableness of the appellant relocating to Kabul in his specific circumstances. The appellant submitted that the finding did not engage with the Authority's earlier findings about the discrimination in the employment context. But its reference to discrimination in paragraph 59 was followed immediately by reference to the abilities and experience the appellant had relevant to his employment prospects and then by a statement that his circumstances were sufficiently favourable to offset the challenges of establishing himself in Kabul. It is apparent from the reasons read in context as a whole that the Authority considered discrimination to be one of those challenges but the advantages the appellant had were sufficient to outweigh that and other disadvantages. Once again, whether the court agrees with that conclusion is not to the point.

59    The Authority's reasons read as a whole reveal an adequate level of consideration of the particular circumstances that would face the appellant on relocation to Kabul and how he, with his particular characteristics, would respond to those circumstances. I do not uphold the ground of appeal, and the appeal will be dismissed.

Costs

60    The appellant submitted that if the appeal was dismissed it would be appropriate for each party to bear their own costs. He relied on an order to that effect made by the Full Court in CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150; (2018) 265 FCR 572, because the appellant there had been required to prosecute an appeal in order to have his grounds of review of the Authority's reasons properly examined. However in that case, the adequacy of reasons was a ground of appeal, which was upheld. Because the Full Court also considered the substance of the judicial review of the Authority's decision and found against the appellant, it would have been futile to remit the matter to the Federal Circuit Court and the appropriate order was to dismiss the appeal: see [93].

61    The award of costs is in the discretion of the court charged with deciding the matter, and while the decision of the Full Court in CIT17 binds this court, that decision does not lay down any principle which dictates the exercise of the court's discretion in a different case: see Gladstone Park Shopping Centre Pty Ltd v Wills (1984) 6 FCR 496 at 505 (Davies J). Here, in contrast to CIT17, the alleged inadequacy of the trial judge's reasons was not a ground of appeal, let alone a successful one. In any event, while as I have said the primary judge's reasons do not expose his reasoning to the identification of possible error independently of the reasoning process of the Authority, in the end the more detailed analysis in this court's decision has shown that his Honour was correct to say that if the Authority's reasons are read fairly as a whole, it is apparent that it gave adequate consideration to the matters concerning reasonableness of relocation which, the appellant claimed, it had failed to address. Costs should follow the event.

Associate:

Dated:    14 February 2020