FEDERAL COURT OF AUSTRALIA

ACE17 v Minister for Home Affairs [2020] FCA 514

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to amend the notice of appeal in terms of the proposed amended notice of appeal annexed to the affidavit of Nathan John Draper sworn 21 January 2020, and service of the amended notice of appeal is dispensed with.

2.    The appeal is allowed.

3.    The judgment of the Federal Circuit Court of Australia dated 20 May 2019 is set aside and in its place it is ordered:

(a)    The decision of the Immigration Assessment Authority dated 9 December 2016 is set aside.

(b)    The matter is remitted to the Authority for determination according to law.

4.    The parties must confer regarding the costs of the application to the Federal Circuit Court and the costs of the appeal and submit a minute of consent orders or, if consent cannot be achieved, competing minutes concerning those matters by 4.30 pm on Tuesday 28 April 2020.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia. That court dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The Authority had affirmed a decision of a delegate of the first respondent (the Minister) refusing the appellant's application for a Safe Haven Enterprise Visa (SHEV), which is a kind of protection visa.

2    The appellant is a national of Afghanistan. He claimed to have left that country because his father and brother were killed by the Taliban due to imputed links with the government. He feared that if he were to return to Afghanistan, the Taliban would kill him too. While the delegate and the Authority largely accepted that claim, they both refused the visa on the basis that the appellant would not face a real chance of serious harm or a real risk of significant harm in the capital, Kabul, and it would be reasonable for him to relocate there.

3    The appeal raises the issue of whether the Authority fell into jurisdictional error because its treatment of the question of relocation was legally unreasonable. The appellant attacks the Authority's conclusion that, despite security risks and economic conditions, he would be able to establish himself to a reasonable standard of living in Kabul. He submits that the conclusion was infected by illogicality or irrationality and was not based on probative material. As explained below, the appellant also sought to agitate an issue which the court identified after the hearing, namely whether the Authority approached the question incorrectly by failing to consider how the security situation in Kabul impacted on the reasonableness of relocation, separately to the question of whether Kabul was a place where the appellant faced a real risk of significant harm.

4    For the following reasons, the primary judge was correct to conclude that the Authority did not fall into jurisdictional error on the basis of the arguments that were put to him. But the appellant will be granted leave to raise the further issue in this court, and the issue will be determined in his favour, so that the appeal will be allowed.

The statutory framework

5    Section 65(1)(b) of the Migration Act 1958 (Cth), read with s 65(1)(a)(ii), relevantly provides that if the Minister is not satisfied that criteria for the grant of a visa that are prescribed by the Act are satisfied, the Minister is to refuse to grant the visa.

6    Section 36(1A) relevantly provides that an applicant for a protection visa must satisfy one of the criteria in s 36(2). They include the criteria in s 36(2)(a) and s 36(2)(aa), which set out two alternative bases on which the Minister may be satisfied that Australia has protection obligations in respect of the visa applicant. One basis is that the person is a refugee: s 36(2)(a). I will call that the 'refugee criterion'. The other is that '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': s 36(2)(aa). I will call that the 'complementary protection criterion'.

7    The issue of whether an applicant for a protection visa can relocate to a different area in his or her country of origin arises in relation to each of the refugee criterion and the complementary protection criterion, but in different ways.

8    In relation to the refugee criterion, the question of relocation arises because, under the definition of 'refugee' in s 5H, a person is only a refugee if he or she has a well-founded fear of persecution, and under s 5J(1)(c), the 'real chance of persecution' which is necessary to be established in order for a person to have a well-founded fear of persecution must relate to all areas of a receiving country. So if there is an area of the receiving country in which the applicant does not face a real chance of persecution, the applicant will not satisfy the refugee criterion.

9    In relation to the complementary protection criterion, the question of relocation arises because under s 36(2B)(a) 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 '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'.

How the Authority dealt with the question of relocation

10    As is often the case in appeals from judgments in applications for judicial review of protection visa decisions, the outcome depends on construing relevant aspects of the decision under review in the context of the decision as a whole. It is therefore necessary to summarise the decision of the Authority here.

11    The Authority dealt with the refugee criterion first. The appellant is a Sunni Muslim of Tajik ethnicity. The Authority found that from 2006 until 2012, he and his brother operated a business supplying construction materials from the main bazaar for their home district, in the Logar province of Afghanistan. The business took on a sub-contract for a project involving a government authority in the region, which had been working with Americans. The resulting perception of an association with the Americans led to the Taliban attacking the appellant and his brother, and his brother died in the attack. The Taliban had previously killed the appellant's father as a result of his work for a non-government organisation that was performing what was said to be the 'non-Muslim' function of training Afghani women in certain skills.

12    The Authority accepted that there was a real chance of the Taliban imputing a pro-government political opinion to the appellant if he were to return to his home area in Logar, and there was a real chance that he would be physically harmed as a result.

13    However because of s 5J(1)(c) of the Act, the Authority needed to determine, relevantly, whether the real risk of persecution related to Kabul. The appellant claimed that it did, because there were suicide bombings 'on ordinary people' and the Taliban would come to know about his previous work for the government and target him.

14    The Authority referred to country information which indicated that, as Afghanistan's largest urban centre, for many people Kabul provides the most viable option for relocation within that country. The Afghan government maintains effective control over Kabul, but its control is not absolute and violent attacks still occur. The primary targets of those attacks are bodies and persons linked with the government, security forces, international organisations or some foreign countries. A 'low profile person who has fled a conflict with [the] Taliban' would in most cases not be tracked down in Kabul.

15    The Authority did not accept that the appellant's previously imputed links with international forces due to his employment in Logar meant that he faced a real chance of serious harm on return to Kabul. That was because in Kabul the appellant would experience some anonymity, as his family was not known and there was a large number of other people who have returned from overseas or relocated from within Afghanistan.

16    Country information also indicated that because of Kabul's size and diversity, the appellant as a Sunni Tajik was unlikely to be subject to violence on the basis of ethnicity or religion, and there was no indication that he would be targeted on the basis of being Western due to his absence from Afghanistan. The Authority did, however, refer to evidence that returnees faced 'difficulties in reintegration'. The Authority concluded that the appellant did not face a real chance of persecution upon return to Kabul in the reasonably foreseeable future.

17    The Authority also, in the course of considering the refugee criterion, referred to country information which indicated that Kabul offered relatively better opportunities for employment, access to services and state protection than rural areas did.

18    The Authority then considered the complementary protection criterion. For the reasons given in relation to the refugee criterion, it accepted that the appellant faced a real risk of significant harm if he returned to his home district. But for similar reasons, the Authority determined that Kabul was an area where there would not be a real risk that the appellant would suffer significant harm due to imputed political opinion, ethnicity, religion or past activities. The Authority also considered whether there was a real risk of significant harm due to generalised violence in Kabul. It noted that attacks remained a common occurrence, even in areas where government forces maintained strong control. Although attacks were often directed at specific targets such as government institutions and political figures, the methods of attack could be indiscriminate and often resulted in civilian casualties. Nevertheless, people associated with the government or the international community were at significantly higher risk than 'ordinary Afghans'. Since the Authority did not consider that the appellant would have such a profile in Kabul, it was not satisfied that he faced a real risk of significant harm due to the general security situation in Kabul.

19    The Authority then turned to the question of whether it would be reasonable for the appellant to relocate to Kabul. It recorded the appellant's representative as having submitted that the appellant had 'no pre-identified accommodation or livelihood options in Kabul', and that due to the unemployment situation there his skills in the construction industry would not give him a significant competitive advantage over other unemployed people. He submitted he had no meaningful support in Kabul because, while he had relatives there, they were not close relatives. The representative submitted that there was a lack of basic services in Kabul so that the appellant would face 'economic destitution' if he lived there and he would be unable to 'access his basic needs'.

20    The Authority also recorded at this point in its reasons that the appellant's representative had submitted that the security situation in Kabul had deteriorated over the past 12 months. That was the only express reference to the security situation in the part of the reasons in which the Authority considered whether it was reasonable for the appellant to relocate to Kabul.

21    The Authority said it had regard to the recommendations from the United Nations High Commissioner for Refugees and to the submissions of the appellant's representative which it had recorded. The recommendations indicated that large urban centres such as Kabul had limited capacity to absorb large numbers of displaced people so access to services remained 'a major concern'. In Kabul 70% of the population was estimated to live in 'informal settlements which are poorly located and under-serviced'. At paragraph 38 the Authority said (footnote omitted):

… UNHCR advises that relocation is reasonable where an individual has access to shelter, essential services, livelihood opportunities, and the traditional support network of extended family members or members of the larger ethnic community who are willing and able to provide support. The only exception to the requirement of external support are single able bodied men and married couples of working age without identified specific vulnerabilities.

22    The Authority also noted (at paragraph 39, footnote omitted) Department of Foreign Affairs and Trade advice that:

… in practice, lack of financial resources and employment opportunities are the greatest constraints to successful internal relocation which is generally more successful for single men of working age although lack of family or tribal networks for single men can impact on their ability to reintegrate into the Afghan community.

23    The Authority then turned to consider the specific circumstances of the appellant. He had spent all of his life in Afghanistan before his departure in 2013. The Authority found him to be an able bodied male of working age (according to Department records, he was born in 1985). He had no health problems or other specified vulnerabilities that required 'durable support'. The Authority was satisfied that he has 'the necessary skills and capacity to subsist in Kabul and some family networks albeit not close to assist him in establishing himself in Kabul'.

24    The Authority went on to explain that conclusion. It accepted that there had been a deterioration in the economic situation in Afghanistan, and that the decrease in the international presence and the 'tight budgetary situation' had reduced the availability of quality employment opportunities. Unemployment and underemployment were widespread in Kabul and many people relied on irregular day-work, particularly in the construction industry. People, often from rural areas, tended to suffer poor economic and social conditions which are compounded in Kabul by a relatively high cost of living, particularly the cost of housing.

25    Nevertheless, the Authority then said (at paragraphs 41 to 43):

… I accept that despite there being relatively more employment opportunities in Kabul there is unemployment and underemployment particularly in the construction industry. However the applicant has considerable work experience in the construction industry in Afghanistan where despite having limited education he operated and owned a building supply business which also undertook contracted construction work which from his description at interview provided a comfortable income with no financial problems. Although the [applicant's] representative claims that the applicant would not have a competitive advantage over other unemployed residents in Kabul I am satisfied that the applicant will be able to obtain employment to enable him to subsist in Kabul as well as provide for his family in Logar.

In addition although he claims to have no close relatives or meaningful support in Kabul, the applicant indicated at interview that he has a second cousin as well as two other more distant relatives who lived in Kabul. During the SHEV interview the applicant stated that he is in occasional contact with his second cousin who has a shop in Kabul and the applicant's family stay at his house when they visit Kabul. The applicant also has a friend who is from his tribe in Logar who assisted him when he was leaving Kabul.

Whilst I accept that living conditions in Kabul would not be without difficulties, the applicant has some family and tribal links in Kabul which I am satisfied he would be able to utilise to obtain their support. Although the applicant has not resided in Kabul previously, he is an able bodied male of working age who has family residing in Kabul as support, and who may be able to assist him in establishing himself in Kabul. Taking into account the applicant's personal circumstances I am satisfied it is reasonable for the applicant to relocate to Kabul.

26    The Authority therefore affirmed the delegate's decision to refuse the protection visa.

The Federal Circuit Court proceedings

27    The sole ground of review in the Federal Circuit Court alleged that the Authority made a jurisdictional error, in that its conclusion that the appellant did not have a well-founded fear of persecution was unreasonable, or was the result of the Authority having addressed the wrong question. There were particulars to this ground which referred to risk of persecution, and also referred to the Authority's finding that it was reasonable for the appellant to relocate to Kabul.

28    It was not clear from the ground of review whether the appellant was complaining about the finding of a well-founded fear of persecution, which is relevant to the refugee criterion, or about the finding that it would be reasonable to relocate to Kabul, which was relevant to the complementary protection criterion, or perhaps about both.

29    In any event, in his brief ex tempore reasons the primary judge found that there was no illogicality in the Authority's reasons in relation to the real risk of persecution and that the Authority's findings could not be said to lack an evident and intelligible justification. His Honour also found that in relation to reasonableness of relocation, the Authority took into account all the circumstances, including the appellant's personal circumstances, so the Authority's findings on that subject also could not be said to lack an evident and intelligible justification. His Honour dismissed the application for judicial review.

The appellant's case in this court

30    The appellant was represented by his present solicitor and counsel in the Federal Circuit Court and at all stages in this appeal. There are two grounds of appeal. They allege that the primary judge erred in law in failing to conclude that the Authority erred in law by:

1.    Failing to direct itself that it had an obligation to consider, in making a choice, on a reasonable basis, as to what of [sic] conflicting information to accept, and which of that information was reliable; and

2.    Failing to direct itself that it had an obligation to consider, in making a choice, on a reasonable basis, of [sic] all the relevant country information before it [sic]

31    It was difficult to make out from these grounds exactly how, according to the appellant, the Authority fell into jurisdictional error. Only an error of that kind would have permitted the Federal Circuit Court to quash the Authority's decision: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [83].

32    The appellant's first set of written submissions in this court were also unclear. They argued that the Authority based its conclusion 'upon an irrational, arbitrary selection of country information'. But at the same time they accepted the correctness of the country information to which the Authority did refer, they did not identify any different country information to which it should have referred, and they accepted that it was a matter for the Authority to determine which country information it took into account.

33    However, during oral submissions it became clearer that the two grounds resolved to one complaint: that the findings that the appellant would not face a real risk of significant harm in Kabul, and that it would be reasonable for him to relocate to Kabul, were not based on probative material that was rationally and reasonably capable of supporting the findings that were made. The appellant submitted that was so both in relation to the Authority's findings about the risk of harm in Kabul, and its findings about the appellant's ability to subsist there.

34    In relation to the risk of harm, counsel for the appellant submitted that the fact that the appellant did not have a profile that would lead him to be targeted in at least some of the ongoing attacks in Kabul did not mean that he was not going to be at risk of an attack. The appellant was being expected to return to a war torn city, where individuals of no particular profile are harmed.

35    In relation to the subsistence issue, counsel for the appellant submitted that the Authority's findings about the appellant's personal circumstances did not address the country information about high unemployment and underemployment in Kabul and the 70% increase in the city's population. He submitted that the information about the appellant's age, health, skills and relatives did not enable the Authority to reasonably conclude that the appellant would find employment allowing him to subsist in Kabul. He said it was irrational of the Authority so to find, and that the Authority had ignored the country information about conditions in Kabul.

36    Counsel for the appellant also submitted that the Authority was obliged to consider the reliability of the information about the appellant's family connections on which it based its findings. That was a reference to the appellant's second cousin and two more distant relatives in Kabul. It was hard to understand why there was any doubt about the reliability of that information, as it was information provided by the appellant, and he did not dispute it. But in the course of oral submissions it became clear that this too was a submission that it was unreasonable for the Authority to conclude, on the basis of the information, that the appellant would be able to obtain the support of those relatives. That was because, it was submitted, nothing was known about the relatives' age, health or position in society, including whether they relied on others for work.

The Authority's decision was not irrational or illogical

37    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Crennan and Bell JJ surveyed the case law as to when an administrative decision may be set aside on the basis that it is illogical, irrational or unreasonable. Their Honours did so in the context of the requirement in s 65(1)(a)(ii) of the Act that the Minister be satisfied of the relevant criteria in order to grant a visa. Their Honours said that a decision about that requirement was a decision as to a jurisdictional fact: SZMDS at [102].

38    In the course of their survey, their Honours referred to statements in other High Court decisions suggesting that reaching the necessary state of satisfaction will involve jurisdictional error if the determination was 'irrational, illogical and not based on findings or inferences of fact supported by logical grounds' (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [38]), or based on 'findings or inferences of fact which were not supported by some probative material or logical grounds' (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [147]), or 'was illogical, irrational, or was not based on findings or inferences of fact supported by logical grounds' (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [4]). At the end of the survey, their Honours concluded as follows (at [131]):

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

39    Heydon J agreed with Crennan and Bell JJ in the result, on the basis that the Refugee Review Tribunal's reasoning was not illogical, and the issue was one on which minds might differ: SZMDS at [77]-[78].

40    Gummow ACJ and Kiefel J, while the minority as to the outcome, proceeded, like Crennan and Bell JJ, on the basis that the state of satisfaction required by s 65 involved a finding of jurisdictional fact: SZMDS at [39]. At [40], Gummow ACJ and Kiefel J also referred to SGLB, and went on to emphasise that the critical question of whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds 'should not receive an affirmative answer that is lightly given'. While their Honours differed from the majority in the result, I do not discern any material difference in their statement of the underlying principles.

41    Applying those principles to the present case does not lead to a finding that the Authority fell into jurisdictional error. I have traced the Authority's process of reasoning above. It is one on which minds may differ. But there is nothing illogical or irrational about it.

42    The essence of the Authority's reasoning as to the risk of harm to the appellant was that he would not be specifically targeted by the Taliban because they would not track him down from Logar to Kabul, a big city. While there was a residual risk of the appellant being caught up in an attack, that risk did not rise to a real chance of persecution involving serious harm (the refugee criterion) or a real risk of significant harm (the complementary protection criterion). There is nothing illogical about that reasoning. Nor can it be said that it was not based on probative material or logical grounds. It was based on the country information and on information about the appellant's lack of the requisite profile in Kabul. The appellant accepts the correctness of all of that material.

43    The essence of the Authority's reasoning about the issue of whether the appellant could make a living in Kabul was that the appellant's work history as part owner of a successful business contracting and supplying construction materials left him well placed to find employment which would not only permit him to subsist in Kabul, but would allow him to provide for his family in Logar. The Authority considered that to be the case notwithstanding that the city's population had increased significantly, and there was widespread unemployment and underemployment. That was a conclusion that was open to the authority, and there is nothing illogical or irrational about the way it arrived at the conclusion.

44    As for the question of familial support, while the appellant did not have close relatives in Kabul, on the basis of his description of his relationship with his second cousin, the Authority concluded that he would find still support there. Once again, there was nothing illogical about that. I do not accept the submission that it was illogical because nothing was known about the appellant's relatives in Kabul. The facts about the second cousin which the authority noted - that he had a shop in Kabul and a house at which the appellant's family stayed when visiting the city - provided a rational basis on which the Authority could find that the appellant would receive some assistance from that relative.

45    The appellant's submission that the Authority's decision was illogical or irrational was nothing more than an emphatic way of expressing disagreement with it: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 at [5] (Gleeson CJ). The primary judge was correct to characterise it as an invitation to merits review, and his Honour's reasons for refusing that invitation display no error.

46    I do not uphold grounds of appeal 1 and 2.

Addressing risk of harm in assessing the reasonableness of relocation

47    It can be a jurisdictional error for the repository of the power determining an application for a protection visa to fail to maintain a distinction between the question of whether there is an area within the receiving country where the visa applicant will not suffer significant harm, and the question of whether it would be reasonable for the visa applicant to relocate to that area. In DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177; (2018) 265 FCR 57, Reeves, Rangiah and Colvin JJ explained the position as follows:

[27]    So, where relocation is being considered in the context of a claim to a protection visa based upon complementary protection as provided for in s 36(2)(aa) of the Migration Act, there are two aspects that arise. Firstly, whether there is an area within the receiving country where the visa applicant will not suffer significant harm. Secondly, whether it would be reasonable for the visa applicant to relocate to that area.

…

[29]    As to the second aspect, there may be many factors personal to the particular visa applicant which mean that it would be unreasonable for an applicant to relocate to an area even though there is the absence of a real risk of significant harm as defined. In that context, significant harm as defined is confined to quite serious consequences that may befall the visa applicant. So, the fact that it may be concluded that there is not a real risk of significant harm as defined does not mean that the area is safe or that there may not otherwise be quite serious adverse outcomes if the visa applicant was to relocate to that area. Therefore, it is necessary in considering a claim to a protection visa based upon the complementary protection criteria, for the repository of the power determining the application to maintain a clear distinction between the two aspects to which s 36(2)(aa) and the related provisions in (2A) and (2B) direct attention. Further, the risk of harm that does not amount to significant harm as defined may be advanced as part of why it is not reasonable for a particular visa applicant to relocate to a particular area.

48    The decision of Kenny J in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 161 ALD 73 is sometimes cited as authority for the proposition that the fact that a risk of serious harm is remote does not answer the question whether it is reasonable that the applicant face that risk: see MZACX at [48] and see e.g. CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150; (2018) 265 FCR 572 at [74]-[76]. In DFE16 at [33], the Full Court explained that jurisdictional error can occur in that regard because there was a failure to undertake the statutory task, which requires a consideration of whether it is reasonable to relocate by reference to the material presented to support the claim.

49    While DFE16 and MZACX concerned the Administrative Appeals Tribunal and its predecessor, the Refugee Review Tribunal, there is no material difference in the Authority's task in relation to the present question. Despite the specific limitations in Part 7AA of the Act on the way in which the Authority must perform the task, it fundamentally remains one of review, which requires the Authority to determine for itself whether or not it is satisfied that the criteria for the grant of the protection visa have been met: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [17] (Gageler, Keane and Nettle JJ).

Written submissions after the hearing

50    In the present case, up to and including the hearing, the appellant did not rely on the line of authority that includes MZACX and in DFE16. Having identified that line after the hearing, I directed the parties to provide written submissions on the point.

51    In submissions filed pursuant to the direction the appellant, after referring to MZACX, submitted that the Authority had 'considered the risk of serious harm as the only kind of harm in determining the reasonableness of relocation and failed to consider the appreciable risk of harm having regard to the particular circumstances of the Appellant and the impact upon the Appellant of relocation to Kabul'. The submissions also said that the Authority did not consider whether or not the appellant 'faced an appreciable risk of harm on relocation to Kabul in that it failed to consider the practical realities with regard to the Appellant's personal circumstances or the impact of relocation to Kabul'. The submissions referred to matters to which, they said, the Authority should have had regard, including that the appellant would be a civilian who 'may or may not be associated with the Afghan government', he would be at risk of being an 'innocent bystander' (presumably the submissions meant at risk of being harmed as an innocent bystander), 'a victim of failed effort/s to prevent the increasing risk of attacks' and also at risk of being perceived to have adopted Western values as a result of living in Australia. The submissions also presented further argument to the effect that the Authority had not considered the appellant's ability to subsist in Kabul.

52    The submissions were not any clearer than the appellant's original written submissions, which I have mentioned above. Their clarity was not enhanced by the repeated use of the phrase 'appreciable risk' which, in MZACX and many other decisions, is used to designate the threshold risk of harm which must be found not to exist before the reasonableness of relocation can be considered: see e.g. MZACX at [35]. Nevertheless, it is possible to discern from these submissions a contention that the Authority failed to consider whether the risk of harm to the appellant in Kabul, while not rising to a real risk of significant harm, should still have been considered in the course of addressing whether it was reasonable to relocate. It appears that the risk is said to arise to the appellant as an 'innocent bystander', because of increasing risk of attacks in Kabul, and because of a perception that the appellant had adopted Western values. However the appellant neither applied for leave to amend his grounds of appeal to make that contention, nor argued in the submissions that leave was not required.

53    The Minister filed written submissions in response. These accepted the correctness of the line of authority represented by MZACX. The Minister submitted, however, that while it was not entirely clear, the appellant appeared to be raising a new ground of appeal, which was not a ground raised in the Federal Circuit Court, so he required the leave of this court to raise it for the first time on appeal. There was here, the Minister submitted, no explanation for why the issue was not raised below and the point had insufficient merit to permit it to be agitated.

54    Despite these matters being raised, the appellant still did not apply for leave to amend the grounds of appeal. It was, perhaps, arguable that leave was not necessary. In the Federal Circuit Court the ground of review claimed, apart from unreasonableness, that the Authority addressed the wrong question. While that was said to be in relation to 'well-founded fear of persecution', and so did not appear to relate to reasonableness of relocation, the particulars to the ground go on to say that the Authority misdirected itself when it found that it was reasonable for the appellant to relocate to Kabul. The particulars referred to the fact that Kabul regularly experiences serious security incidents, and the fact that they otherwise referred to conditions said to mean that it was not reasonable or practicable for the appellant to establish himself there shows that the appellant was raising the security issue in connection with the issue of reasonableness. The appellant's written submissions in the Federal Circuit Court referred to the frequency of attacks in Kabul 'which attacks often cause significant casualties amongst civilian bystanders'. I have already described the way the appellant put the case in this court; see in particular the submission recorded at [34] above.

55    However, in the Federal Circuit Court proceeding the manner in which the applicant's counsel raised the issue of security in Kabul was insufficiently clear to permit a conclusion that he was raising it in relation to reasonableness of relocation. And there was no specific criticism of the Authority's decision on the ground that it failed to consider how concerns about security might impact on reasonableness. In my view it was necessary for the appellant to apply for leave to raise that criticism. Given that his solicitor still had not done so, even after the Minister's submissions made it clear that the Minister objected to the point being raised, it may have been open to the court to dismiss the appeal without more. But having regard to the potentially serious consequences for the appellant, I decided that it was necessary to make directions requiring any application for leave to amend to be made within a certain time.

56    That did prompt an application, although there was delay caused by the fact that the appellant's solicitor used the wrong form. And even now, the proposed amended ground is not clear. It claims that the Authority erred by:

Failing to direct itself that it had an obligation to consider, in making a choice, on a reasonable basis whether or not it is reasonable and practicable for the Appellant to relocate to Kabul.

57    Nevertheless, it is possible to read this as a contention that the Authority failed to discharge its task of review by failing to consider the question of reasonableness of relocation properly, and in the context of the procedural history I have set out that can be read as encompassing the need to assess the impact of the security situation on that question.

58    The appellant's counsel provided further written submissions in support of the application. These argued that leave was not required. For reasons I have given, I do not agree. The submissions appeared to give an explanation for the omission to raise the point below (assuming that it had not been raised) which, yet again, was difficult to follow. They did, however, appear to blame a 'failure to correctly apply the legal test established by the Court' on the part of the appellant's solicitor, who was also the counsel making the submissions. I will take that to be an admission of an inadvertent failure to recognise the point.

Whether leave to raise the point should be granted

59    The Minister submitted that, independently of the merit of the point, certain reasons that Bromwich J gave for denying leave to amend grounds of appeal in Han v Minister for Home Affairs [2019] FCA 331 at [20] also applied here. Those reasons were, in summary:

(1)    the appellant was represented before the primary judge by counsel who was experienced and highly capable in the migration field;

(2)    allowing the proposed ground to be advanced would subvert the evident design of Part 8 of the Migration Act, which generally operates to provide for one substantive trial in the Federal Circuit Court and for one substantive appeal in this Court, with very limited prospects of going further due to the barriers in obtaining special leave to appeal to the High Court.

(3)    only in compelling circumstances should the appellate jurisdiction be used for advancing what is, in substance, a trial point that could and should have been run below;

(4)    the issue sought to be raised has no particular novelty or importance beyond the present case;

(5)    the appellant had not explained why granting leave is not just expedient in the sense of advancing her interests, but expedient in the interests of justice; and

(6)    in the circumstances of the case it was of little moment that there was no need for more evidence to run the point, as that is often the case in judicial review proceedings.

60    All of these matters may, in certain cases, weigh against granting leave to argue a new ground on appeal. But in the end the decision whether to grant leave is a discretionary one: see CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [35] (Murphy, Mortimer and O'Callaghan JJ). It is to be exercised in all the circumstances of the case at hand: CHZ19 v Minister for Home Affairs [2019] FCA 914 at [39] (Colvin J). And it is to be exercised by reference to what is expedient in the interests of justice: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]; and Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [19]. The factors listed in the preceding paragraph were six out of ten which, collectively, Bromwich J found to compel the refusal of leave in the case before him. It does not follow that even if all six apply here, the same result should follow.

61    The often cited non-exhaustive list of questions posed by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [166] provides, with respect, a pragmatic approach to determining where the interests of justice lie:

1)    Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)    If not, where, in all the circumstances, do the interests of justice lie?

62    It must be borne in mind that in refugee cases such as the present the consequences for the applicant of being refused leave to raise a new point can be very serious: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). It can be in the interests of the administration of justice to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, which is an aspect of upholding and applying the rule of law: ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25] (Mortimer J), approved in CGA15 at [36].

63    On the other hand, it is also important to have regard to the systemic imperative of ensuring that the trial is not just a preliminary skirmish: Coulton v Holcombe (1986) 162 CLR 1 at 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ). It can be undesirable to deny, in effect, a layer of appellate scrutiny to a respondent because his only avenue is to seek special leave to appeal to the High Court: see AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14] (Perram J) and Han at [20(4)].

64    It is seldom the case that all of the relevant considerations point in one direction as to how the discretion is to be exercised: SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; (2014) 226 FCR 68 at [55] (Flick J).

65    In my view it is expedient in the interests of justice to grant leave to the appellant to raise the argument relying on MZACX, albeit by way of his less than clear proposed new ground of appeal. The merit of the proposed new ground is an important consideration: CGA15 at [36]. As will be seen below, I consider that not only does the point have merit, it results in the appeal being allowed.

66    The explanation that the appellant's counsel gave for it not being raised below is, as far as one can tell, an admission of an oversight on his part, albeit one qualified by his earlier submission that there was no need to amend the grounds of appeal. This has, at least, the benefit of being candid, and in all the circumstances the court can safely conclude that it was not a forensic choice to which the appellant and his counsel must be held. 'A new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation, and all that can be said by way of explanation was that its significance may not have been apparent to the appellant’s lawyers in the hearing below': CGA15 at [37]. It is relevant in this regard to note that, while I have concluded that leave to amend did need to be sought, it is arguable that it is not needed and the point is not an entirely novel one; it overlaps with criticisms of the Authority's assessment of the security situation in Kabul and its assessment of reasonableness of relocation which were put below. All in all, I do not consider the lack of an entirely satisfactory explanation for it not being raised below is a compelling reason not to grant leave in the present case.

67    This is not a case where the new grounds might have been met by calling evidence at the hearing or might have resulted in the case of the respondent being differently conducted. The Minister did not raise any prejudice. Entertaining the new argument will not produce further inefficiency or waste of court time than has already been caused in the circumstances set out above. In my view, these matters, and in particular the merit in the new point in circumstances where there is a great deal at stake in the case for the appellant, outweigh the factors from Han on which the Minister relied. In all the circumstances, I consider it is in the interests of justice to permit the appellant to raise a new argument which overlaps, at least, with arguments he did advance but which, through no fault of the appellant personally, was not made in the court of first instance.

Whether the Authority failed to perform its task of review

68    As I have said, the Authority did record, in connection with the question of relocation, a submission on behalf of the appellant that 'there are suicide bombings on ordinary people' in Kabul and, in connection with the reasonableness of relocation, a submission that the security situation in Kabul had deteriorated in the past 12 months. So the security situation in Kabul, including the risk of generalised violence, was part of the material presented to support the appellant's opposition to any finding that it was reasonable for him to relocate. That meant that in order to discharge the Authority's statutory task, it was required to address the question of reasonableness of relocation by reference to the security situation: see DFE16 at [33]

69    The Minister submitted that the Authority gave a detailed consideration to the issue of complementary protection and relocation to Kabul and concluded that there was not a real risk of significant harm to the appellant should he relocate there. That included a consideration of the general security situation in Kabul.

70    That is correct. But reading the Authority's reasons as a whole without an eye keenly attuned to error, it is clear that the Authority's discussion of the security situation in Kabul exclusively concerned whether the appellant would face a real chance of serious harm, or a real risk of significant harm, for the purposes of the refugee criterion and what the Full Court in DFE16 described as the first aspect of the complementary protection criterion. So the Authority looked closely at whether the appellant would have any profile with insurgents in Kabul, either as a result of the political activities that had been imputed to him and his family in Logar, or as a result of his Tajik ethnicity or Sunni beliefs. The Authority found that he would not have that profile, and that was the basis of its conclusion that he did not face a real chance of serious harm for the purposes of the refugee criterion. When it came to the complementary protection criterion, the Authority was still addressing the first aspect of the question, that is the threshold question of real risk of significant harm, rather than the second aspect, of reasonableness of relocation.

71    The Authority then expressly indicated that it had turned away from the first aspect to consider the second aspect with the following two sentences (from paragraphs 36 and 37 of its reasons):

After consideration of the applicant's circumstances and the country information, I am not satisfied that there is a real risk of the applicant suffering significant harm on the return to Kabul.

I have therefore considered whether it is reasonable for the applicant to relocate to Kabul on return.

72    Such signposting does not, of course, mean that the Authority has wiped its previous findings from its mind. But in its discussion of reasonableness, the Authority hardly refers to the security situation at all. It makes a brief reference to a submission about the deterioration of that situation in Kabul in the preceding 12 months along with a description of the appellant's submissions on other issues. And later it makes a statement that it had had regard to the appellant's submission in considering the reasonableness of relocation; that is, his submissions generally - it is not a specific reference to the submission about the security situation. Then the discussion is all about the economic circumstances that the appellant would face. There is no express consideration of whether, together with or separately from those circumstances, it was reasonable for the appellant to relocate to a city as unsafe as Kabul. And no consideration of that issue is implied in the Authority's reasons, which do not display any intellectual engagement with the question.

73    The Minister submitted that reading the Authority's treatment of the question of reasonableness in conjunction with the earlier conclusion that the appellant was not at risk of significant harm if he were to relocate to Kabul negated the claim that the Authority had failed to address the second limb of the relocation test. The Minister relied on CIT17 in that regard. However that case is distinguishable, because there the Authority referred explicitly to its earlier findings about the security situation in the course of stating its determination about reasonableness of relocation: see CIT17 at [77]. So there was good reason to read the two parts of the reasons in conjunction. Here there is no such specific reference, or even a general one such as 'for all the above reasons I find'. Observing the necessary requirement to read the reasons as a whole does not compel the assumption that the Authority was employing each part of its reasons in the course of every other part.

74    I have considered whether the Authority's omission to address the security situation in this part of its reasons is explicable by an inference that it considered that issue and concluded that it was not relevant: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [35]. In my view, that inference is not open, because there are several indications in the reasons that the Authority accepted that there was a risk of harm to the appellant which was more than trivial. The Authority acknowledged that the government's level of control in Kabul, while effective, was not absolute. It referred to country information to the effect that attacks remain a common occurrence even in areas such as Kabul, and that even targeted attacks can employ indiscriminate methods which 'often result in civilian casualties'. While the Authority found that people associated with the government or the international community are at a significantly higher risk than ordinary Afghans in Kabul, it does not follow that the risk facing ordinary Afghans is so low as not to merit consideration in the context of reasonableness of relocation. The Authority said that people associated with the government or foreigners were the primary targets of the attacks. It did not say that they were the sole targets, let alone the sole victims. In the face of those comments, I do not infer that the Authority was largely silent on the issue of risk of harm in relation to reasonableness of relocation because it had determined that it was not relevant to that question.

75    The better inference, with respect, is that the Authority overlooked how the security situation might be relevant to the reasonableness of relocation, and overlooked the appellant's reliance on it in that context. That inference follows from the way the Authority has separated the question of reasonableness of relocation from the question of risk or chance of harm, and also from its all but exclusive focus on the question of the appellant's ability to subsist when it came to deal with the reasonableness question. In overlooking the potential relevance of the security situation in that context, the Authority failed to perform its statutory task and fell into jurisdictional error.

Orders

76    The decision of the Authority should be quashed, albeit not for a reason articulated before the primary judge. The appeal will be allowed. Given the way the matter has evolved, costs will be reserved and after hearing from the parties there may need to be directions for the resolution of any issues arising on that subject.

Associate:

Dated:    21 April 2020