FEDERAL COURT OF AUSTRALIA

DQA17 v Minister for Home Affairs [2020] FCA 864

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal is granted.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Background

1    These proceedings are concerned with an appeal from Orders of the Federal Circuit Court of Australia dismissing the appellant’s application for relief in the form of the grant of the constitutional writs quashing, and remitting for reconsideration, a decision of the Immigration Assessment Authority (the “IAA”) which affirmed a decision of the Minister’s delegate to refuse the appellant’s application for a Protection visa in the form of a Safe Haven Enterprise visa (a “Safe Haven visa”).

2    This appeal was originally to be heard together with four separate appeals by appellants BJI17, CNV17, CVQ17 and BYG17 as the same point of principle arose in each appeal although the contextual circumstances in which the question arose varied and required independent examination. After the solicitor acting for appellant DQA17 withdrew, the hearing of this appeal was adjourned generally and listed for determination before a single judge exercising the Court’s appellate jurisdiction.

3    The appeals in relation to BJI17, CNV17, CVQ17 and BYG17 were heard and determined by the Full Court (Greenwood J; McKerracher and Burley JJ agreeing) in BJI17 v Minister for Home Affairs [2020] FCAFC 58 (“BJI17”). Those reasons address the contentions raised on appeal by each of those four appellants in relation to the point of principle in issue and whether the IAA fell into jurisdictional error as contended. Had the present appellant maintained the same ground of appeal raising the same matter of principle (although applied to the particular circumstances of his own case), it would have been sensible to observe that the reasons in BJI17 ought to be read together with these reasons. However, as discussed later in these reasons the appellant has abandoned the original ground of appeal and seeks leave to rely on two new grounds.

4    In making an application for a Safe Haven visa, the appellant contended that he was a refugee for the purposes of s 5H(1)(a) of the Migration Act 1958 (Cth) (the “Act”) on the basis that, owing to a well-founded fear of persecution for reasons falling within s 5J(1)(a) of the Act, he was unable or unwilling to avail himself of the protection of his country of nationality, Afghanistan, and thus he is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

5    The appellant also contended, alternatively, that he is a person in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to the receiving country of Afghanistan, there is a real risk that he will suffer significant harm, for the purposes of s 36(2)(aa) of the Act, having regard to s 36(2A) and s 36(2B)(a) of the Act.

6    By the notice of appeal as filed, the appellant relied upon a single ground of appeal. He contended for error in the primary judge’s finding that the IAA did not fall into jurisdictional error in the exercise of its statutory review function, in the following terms (being a ground of appeal in the same terms as the ground relied upon by appellants BJI17, CNV17, CVQ17 and BYG17):

[The primary judge] erred in law by failing to conclude that the Immigration Assessment Authority erred in law by failing to direct itself that it had an obligation to consider, in making a choice, on a reasonable basis, as to what of conflicting information to accept and which of that information was reliable.

7    In so doing, the appellant sought to re-agitate ground two of the grounds relied upon before the primary judge in these terms:

The Tribunal unreasonably and illogically accepted and relied upon a 2016 DFAT country report and a UNAMA report concerning the plight of returnees … when the Tribunal also had regard to DFAT country information and Refugee Support Network reports from 2015 and 2016 consistent with an ongoing state of persecution of Hazara and failed asylum seekers returning to Kabul.

8    However, following the appellant’s change of representation, counsel abandoned the ground of appeal recited at [6] of these reasons and sought leave to rely on an amended notice of appeal raising two new grounds of appeal in these terms:

1.    The second respondent (the Authority) erred in treating a real risk of significant harm as the only level or kind of harm which could affect the reasonableness of the appellant’s proposed relocation to Kabul, and the Federal Circuit Court erred in failing to so find.

2.    The Authority erred in failing to consider whether the appellant’s accepted vulnerabilities, and in particular the trauma that he had experienced, made it unreasonable for him to relocate to Kabul where his community were being targeted and where there was some risk of his being harmed, albeit that it was less than a real risk of significant harm. The Federal Circuit Court erred in failing to so find.

9    Counsel for the appellant conceded that the grounds now sought to be raised were not raised on the pleadings or in argument before the Federal Circuit Court. Counsel for the appellant also conceded that ordinarily the Court in the exercise of the appellate jurisdiction would not permit arguments and new grounds of challenge not relied upon before the primary judge to be agitated on appeal. However, counsel for the appellant contends that the interests of justice are the paramount concern and, in this case, leave should be granted for four reasons.

10    First, counsel contends that the pleadings and arguments addressed to the Federal Circuit Court were misconceived or bound to fail and thus the appellant was deprived of an opportunity to agitate the real issues in the case going to contended jurisdictional error on the part of the IAA. Counsel contends that if the grounds now sought to be relied on are correct, and leave is refused, the appellant faces detention under s 189 of the Act and removal from Australia under s 198 of the Act, without the real issues having been considered and addressed by a court of competent jurisdiction.

11    Second, counsel observes that the appellant is, as the IAA found, barely literate in his own language and, lacking skills in English, he was even more reliant on his lawyers than a non-legally qualified Australian citizen.

12    Third, there is said to be no prejudice to the Minister, save as to costs.

13    Fourth, the proposed grounds of appeal are said to have merit.

14    Leave to amend was opposed by the Minister. However, the hearing of the appeal proceeded on the basis that the appeal would be argued by reference to the proposed grounds on the footing that the question of leave to amend would be addressed in delivering judgment. An appeal is conducted by way of rehearing according to the correction of error principle, within the limits of the grounds of appeal identified by an appellant, as discussed by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541. Because neither proposed ground of appeal was raised before the primary judge, neither ground is framed, or could be framed, in terms of error on the part of the primary judge. Each ground focuses upon contended error on the part of the IAA amounting to jurisdictional error. Nevertheless, the appellant contends for error in the sense that the order of the primary judge dismissing the application for the grant of the constitutional writs ought not to have been made, having regard to the jurisdictional errors now sought to be identified and relied upon.

15    The two grounds relied upon by the appellant are concerned with contended jurisdictional errors by the IAA in determining whether it could be satisfied that, at the date of the decision, there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to the receiving country of Afghanistan, there “is a real risk that the appellant will suffer significant harm”. In other words, the contended jurisdictional errors are concerned solely with the IAA’s determination of the claims of the appellant arising under s 36(2)(aa) of the Act.

16    No jurisdictional error is asserted concerning the IAA’s decision that it could not be satisfied of a real chance that the appellant’s contended claims of persecution related to all areas of the receiving country of Afghanistan for the purposes of s 36(2)(a), s 5H(1)(a) and s 5J(1) of the Act.

17    However, it should be noted that the appellant made claims under s 36(2)(a) on the footing that he claimed to be a refugee within s 5H(1)(a), claiming to hold a well-founded fear of persecution on a number of grounds within s 5J(1)(a), and asserted that there was a real chance of serious harm for those reasons relating to all areas of the receiving country of Afghanistan, as well as claiming that Australia has protection obligations to him under the complementary protection ground of s 36(2)(aa).

18    Aspects of the IAA’s factual analysis of the appellant’s claims so far as they related to s 36(2)(a), and especially whether it could be satisfied of a real chance of persecution on the claimed grounds relating to all areas of Afghanistan (the s 5J(1)(c) question), were also relied upon by the IAA in addressing factual matters relevant to determining two questions.

19    First, whether it could be satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Afghanistan, there is a real risk that the appellant will suffer significant harm.

20    Second, whether it could be satisfied that it would be reasonable for the appellant to relocate to Kabul within Afghanistan, where there would not be a real risk that the appellant will suffer significant harm (the s 36(2B)(a) question), thus engaging the statutory result, should the IAA be so satisfied, that there is taken not to be a real risk of the appellant suffering such harm.

Framework considerations

21    Although it will be necessary to examine the statutory provisions and their origin in a little detail, it is sufficient for present purposes to note the following matters.

22    In reaching its conclusion that it would be reasonable for the appellant to relocate to Kabul as an area within Afghanistan where there would not be a real risk that the appellant will suffer significant harm, the appellant contends that the IAA was required: to consider a comparison between the circumstances or conditions that prevail in the person’s existing area of residence and those circumstances or conditions that prevail in the other identified area (in this case Kabul) with a view to assessing the impact of relocation on the appellant: CRI028 v The Republic of Nauru (2018) 92 ALJR 568; 356 ALR 50 at [26] (“CRI028”), Gordon and Edelman JJ at [25] and [26], Bell J agreeing with the analysis of the “internal relocation principle” at [1]; to recognise that reasonableness of relocation depends upon the “particular circumstances” of the appellant and the “impact upon that person” of relocation to the place of residence: CRI028 at [25]; SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”), Gummow, Hayne and Crennan JJ at [24]; to recognise that the assessment is not answered only by reference to the “risk of harm” but requires consideration of the individual circumstances of the person and what is “practicable and reasonable” for that person: CRI028 at [26]; SZATV at [24]; to recognise that the “practical realities must be carefully considered”: CRI028 at [26]; and, to recognise that, depending on the issues and circumstances identified by the applicant, the decision-maker will need reliable information as to the safety and suitability of the place of relocation and will need to pay careful regard to the applicant’s personal and family circumstances: CRI026 v The Republic of Nauru (2018) 92 ALJR 529; 355 ALR 216 (“CRI026”), Kiefel CJ, Gageler and Nettle JJ at [39].

23    The appellant contends that the IAA was required to exercise its statutory review function in determining whether it could reach a state of satisfaction concerning the elements of s 36(2B)(a) in relation to the claim under s 36(2)(aa) in accordance with the principles at [22] of these reasons derived from CRI026 and CRI028, together with other authorities to be mentioned later in these reasons.

24    The decisions in CRI026 and CRI028 were handed down on the same day. The decisions have a particular context.

25    In CRI026, the Court (constituted by Kiefel CJ, Gageler and Nettle JJ) determined an appeal from the Supreme Court of Nauru which had dismissed an appeal brought under the provisions of the Refugees Convention Act 2012 (Nr) (the “RC Act”) against a decision of the Refugee Status Review Tribunal (the “Tribunal”). The Tribunal had affirmed a decision of the Secretary of the relevant Department made under the RC Act to reject the appellant’s application to be recognised as a refugee under the RC Act, or recognised as a person to whom the Republic of Nauru owed complementary protection obligations under that Act.

26    Section 3 of the RC Act defined a refugee as a person who is a refugee under the 1951 Convention as modified by the 1967 Protocol: Convention Relating to the Status of Refugees (1951), as modified by the Protocol Relating to the Status of Refugees (1967), (the “Refugee Convention”).

27    Thus, the appellant claimed to be entitled to recognition as a “refugee” by reference to the definition of refugee in Article 1A(2) of the Refugees Convention. The appellant also claimed protection under the complementary protection obligations of the RC Act (of Nauru) on the footing that his circumstances engaged, by reason of that Act, Nauru’s international obligations under the International Covenant on Civil and Political Rights (1966) (the “ICCPR”); the Covenant Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (“CAT”); and a Memorandum of Understanding between Nauru and the Commonwealth of Australia Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (2013).

28    The Tribunal concluded that CRI026 was not a refugee because it was reasonable for him to relocate to a part of Pakistan, namely, the Punjab (including Lahore and Sialkot) where he could live safely, and thus he could not be described as a person who is unable, for Refugee Convention reasons, to avail himself of the protection of Pakistan.

29    The Tribunal also found that because CRI026 could live safely in the place of relocation in Pakistan, returning CRI026 to the place of relocation did not breach Nauru’s international obligations under the three nominated international instruments in issue.

30    The appellant contended that the Tribunal had erred in the determination of the claim for complementary protection by taking into account, in determining the scope of Nauru’s obligations to CRI026, the capacity of the appellant to relocate to a place of safety within Pakistan.

31    The Court observed that the scope of Nauru’s complementary protection obligations arising under the relevant international treaties (which say nothing expressly about the matter of relocation within the country of nationality as a factor bearing upon the scope of the obligations) was to be determined according to the authorities in the international jurisprudence on that topic whereas the Court accepted, at [18], that those authorities are “unhelpful in interpreting the codified regime of complementary protection provided for in the Migration Act 1958 (Cth)”. The Court also observed that s 36(2)(aa) and (2B) of the (Australian) Act “in substance stipulate that an applicant for complementary protection must demonstrate that he or she cannot avail him or herself of the protection of the receiving country by relocating within that country” and thus it is important to “emphasise” that “each regime calls for a different technique of interpretation”: the Court at [18]. Thus, the context of the decision in CRI026 needs to be kept in mind.

32    The Court then examined extensively a range of authorities in relation to the international jurisprudence concerning complementary protection obligations arising under international treaties and the role of the capacity to relocate to a place of safety within the country of nationality of the claimant as a factor informing the scope of the obligations of the country from which complementary protection obligations are sought.

33    In that context, their Honours note that in SYL v Australia (108th Sess, United Nations Human Rights Committee, Doc CCPR/C/108D/1897/2009, 2013, Communication No 1897/2009), the Committee observed, in the context of a claim for complementary protection from harm of the kind described in Art 7 of the International Covenant on Civil and Political Rights 1966 (the “ICCPR”), that relocation to a place in Timor-Leste where the claimant would not suffer the claimed harm, was an answer to the claim for complementary protection. So too in BL v Australia (112th Sess, UN Doc CCPR/C/112/D/2053/2011, 2014), the Committee concluded that Australia was not obliged to provide complementary protection to an applicant from Touba, Senegal, against harm described in Arts 6, 7 and 8 of the ICCPR where reasonable internal relocation was available to the claimant.

34    In the context of dealing with those authorities and the scope of complementary protection obligations arising under international treaties (especially the ICCPR), the Court observed at [38] that the appellant had contended that it logically could not be the position that the availability of reasonable internal relocation is relevant to the assessment of complementary protection obligations because, if it were relevant, it would be incumbent upon an applicant for complementary protection to undertake the practically impossible task or burden of establishing that there is no place in his or her country of nationality to which the person could reasonably relocate.

35    Having made those observations, their Honours expressed the following observations at [39] which gives context to that part of [39] relied upon by the appellant in these proceedings:

[39]    That contention should also be rejected. Implicitly, it proceeds from the false premise that a claim for complementary protection is in the nature of an adversarial proceeding in which the burden of proof is on the applicant and, therefore, that, in the event of the applicant failing to discharge the burden of proof, the claim for complementary protection must fail. To the contrary, however, as appears from BL v Australia [United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia) 112th Sess, UN Doc CCPR/C/112/D/2053/2011, 2014], before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation [citing, in particular, United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th Sess, UN Doc CCPR/C/112/D/2053/2011, 2014, at [7.4], Apps III]. Moreover, as Gummow, Hayne and Crennan JJ observed in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24] in relation to a claim for refugee protection:

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

Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant’s personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.

[emphasis in bold added]

36    The following observations of their Honours in CRI026 at [41], [42] and in part, [43], in relation to complementary protection engaged by the ICCPR should be noted:

41    Counsel for the appellant contended that … it was apparent that judicial recognition of the relevance of reasonable internal relocation to a claim for protection under the Refugee Convention is based on the definition of “refugee” in the Convention and, since there is no such applicable definition of “refugee” in or in relation to the ICCPR [International Covenant on Civil and Political Rights 1966], and since the ICCPR is of such a different nature from the Convention, the logic of regarding reasonable internal relocation as relevant to complementary protection does not apply.

42    Logically, that does not follow. Admittedly, judicial recognition of the relevance of reasonable internal relocation to a claim for protection under the Refugee Convention has been said to be based on the Convention definition of “refugee”. As will be recalled, the Convention defines a “refugee” in substance as any person outside his or her country of nationality who is unable or unwilling for Convention reasons to avail him or herself of that country’s protection. And as Lord Bingham of Cornhill observed in Januzi v Secretary of State for the Home Department [[2006] 2 AC 426 at [7]-[8]], a person is not unable to obtain the protection of his or her country of nationality if he or she is able to obtain it in a part of that country to which or she could reasonably relocate:

The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution in place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. …

The ground of refusal would be that the person is not, within the Convention definition, a refugee.

43    But so to conclude in no way gainsays the relevance of reasonable internal relocation to the extent of non-refoulement obligations which, as a matter of international jurisprudence, are accepted as being implicit in Art 2 of the ICCPR and comparable treaty provisions. …

37    CRI028 was concerned with an appeal to the Court (constituted by Bell, Gordon and Edelman JJ) from the Supreme Court of Nauru dismissing the appellant’s appeal from the Tribunal’s determination that although the appellant held a well-founded fear of persecution in Karachi, the appellant could relocate to another place within Pakistan where he did not face a reasonable possibility of persecution and thus was not outside his country of nationality owing to a well-founded fear of persecution for a Convention reason (as engaged by the RC Act). The “internal relocation principle” was put this way by Gordon and Edelman JJ at [23]:

According to what is sometimes described as the internal relocation principle, a person is not a refugee if there is an area in the country of their nationality: (1)  where the person would not have a well-founded fear of persecution; and (2)  to which the person could, “in all the circumstances”, reasonably be expected to relocate [citing Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [23], [26]; and also [41]].

38    The observations of Gordon and Edelman JJ relied upon by the appellant and described at [22] of these reasons are contained in [25] and [26] of their Honours’ reasons, in these terms:

25    Whether a person could reasonably be expected to relocate to another area in the country of their nationality involves a comparison between the circumstances or conditions that prevail in the person’s existing area of residence and those circumstances or conditions that prevail in the other identified area, with a view to assessing the impact of the relocation on the person. The assessment is not concerned with comparing a person’s quality of life in the other identified area with the basic norms of civil, political and socio-economic human rights recognised in international human rights instruments. Importantly, the reasonableness of relocation “depend[s] 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” [quoting SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, Gummow, Hayne and Crennan JJ at [24]].

26    Put in different terms, the assessment of whether a person can relocate is not answered only by reference to the risk of harm. The assessment also requires consideration of the individual circumstances of the person, and what is practicable and reasonable for that person. As this Court said in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at 27 [24], “[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”. The practical realities must be carefully considered. And, as will be explained, the particular circumstances may include the person’s family situation. …

[original emphasis in italics; bold emphasis added; footnotes omitted]

39    The appellant contends that the principles identified in CRI026 at [39] and CRI028 at [25] and [26] apply to “the codified regime of complementary protection provided for in the [Act]”, to use the description in CRI026 at [18]. The appellant contends that although each regime (the international treaties on the one hand and the statutory scheme of the Act on the other hand), “calls for a different technique of interpretation” (CRI026 at [18]), there is said to be no point of particular distinction derived from the text and context of s 36(2B)(a) which would suggest that the “internal relocation principle” described in CRI028 at [23] (derived from the jurisprudence in relation to the relevant international treaties and applied having regard to the principles in CRI028 at [25] and [26] and CRI026 at [39]), does not apply so as to distil considerations that must be taken into account when the relevant administrative decision-maker undertakes an “assessment” (CRI028 at [25] and [26]) of whether “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” for the purposes of s 36(2B)(a) of the Act.

40    Having regard to the analysis of the “internal relocation principle”, the appellant contends for two propositions.

41    First, the IAA “misconstrued” s 36(2B)(a) by treating a “real risk of harm” as the only level or kind of harm relevant to whether the appellant could reasonably be expected to relocate to Kabul.

42    Second, the IAA failed to consider whether the appellant’s accepted vulnerabilities made it unreasonable for him to relocate to Kabul.

43    Apart from the references to CRI026 and particularly the observations in CRI028 at [25] and [26], the appellant relies upon three decision of single judges of the Federal Court: MZYQU v Minister for Immigration and Border Protection (2012) 206 FCR 191 (“MZYQU”), Dodds-Streeton J at [58], [61] and [62]; MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 (“MZZJY”), Davies J at [21]; and MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 (“MZACX”), Kenny J at [35]. The principles derived from these three decisions are said to have been applied by the Full Court in Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at [133]-[141] and CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [76].

44    I will return to these authorities later in these reasons but they are said to support two propositions.

45    First, when the IAA undertakes an assessment of whether it would be reasonable for the appellant to relocate to an area of the country of nationality where there would not be a real risk that the appellant will suffer significant harm (the s 36(2B)(a) question), it must recognise that a risk of harm, less than that of a real risk of significant harm, may be relevant to the reasonableness of relocation.

46    Second, whether a threat of harm, which is less than a “real chance”, is relevant to the reasonableness of relocation will depend on the “particular circumstances” of the visa applicant.

47    Before examining aspects of the codified regime of complementary protection provided for by the Act and the codified approach adopted by the Act to obligations arising under the Refugees Convention (which, for present purposes, may well be thought to be relevant to the principles derived from authorities concerned with decisions of administrative decision-makers concerning “refugee” claims prior to 18 April 2015 when the codified regime in relation to refugee claims commenced), the following aspects of the IAA’s decision should be noted.

48    The appellant is a Hazara Shi’a Muslim born in a village in the Miramor District of Daykundi (or ‘Daikundi’) Province in Afghanistan. He claims to be a citizen of Afghanistan.

49    The appellant arrived in Australia as an unauthorized maritime arrival on 31 March 2013. On 25 May 2016, he lodged an application for a Safe Haven visa. The application was refused by a Minister’s delegate on 22 November 2016. The IAA’s decision affirming the delegate’s decision was given on 14 July 2017.

50    The appellant claimed that if he returned to Afghanistan, as a Hazara Shi’a Muslim, he would be targeted by the Taliban or the Pashtun people. He claimed that in 1998, his father, the highest ranking government official in his village, was killed by Pashtuns linked to the Taliban, and the family subsequently relocated to Ghazni for two years, before his mother returned to live in the former family home in Daikundi.

51    The appellant claimed that he found it difficult to travel from Ghazni to Daikundi as it was dangerous for Hazaras to travel on the roads because of the Taliban. He claimed that he could not relocate to another area, because he would be recognised as a Hazara Shi’a Muslim anywhere in Afghanistan. He claimed the Taliban and Pashtuns are everywhere, and the Afghan government could not protect him. Additionally, he claimed to fear being targeted upon his return to Afghanistan as a failed asylum seeker imputed with pro-Western culture and values.

Findings of the IAA

52    The IAA made the following factual findings.

53    The IAA accepted the appellant’s claims concerning his faith, ethnicity and place of origin: at [11]-[12].

54    The IAA also accepted that the appellant’s father held a local government position and was killed after being abducted by a group of Pashtun males linked to the Taliban in 1998: at [14]. The IAA accepted that the appellant’s father’s death was tragic and a significant event in the appellant’s life. However, the IAA did not accept that the Taliban or any Pashtuns had any ongoing interest in the appellant on account of his father’s government role, nor for any other reason following his father’s death, and did not accept he would face a real chance of harm in Daikundi or anywhere else in Afghanistan on the basis of any actual or perceived association with or support for the Afghan government by virtue of his familial connection to his father or for any other reason connected with his father’s profile: at [16]. The decision-maker observed: “I do not discount the seriousness of what happened to the applicant’s family but it was almost 20 years ago and I am not satisfied the appellant would face harm on account of this in the reasonably foreseeable future upon return”.

55    In terms of where the appellant had lived and maintained connections in Afghanistan, the IAA accepted the appellant’s evidence at his Safe Haven visa interview that, six to 12 months after his father’s death, he moved to Ghazni, before returning to Daikundi a few years later: at [12]. The IAA accepted that the appellant then moved back to Ghazni when he was around 17 years old (in approximately 2005), and did not return to live in Daikundi other than on one occasion when he stayed there temporarily to visit his family: at [12]. The IAA also accepted that although the appellant did not live in Kabul, he visited there at least three times, staying for varying periods on each visit, and has friends and/or tribal connections in the Kabul community: at [13].

Ethnicity and Religion

56    The IAA then addressed the appellant’s claim to fear harm in Daikundi on account of his race and religion: at [18]-[19].

57    The IAA had regard to four documents: first, a DFAT “Thematic Report – Hazaras in Afghanistan and Pakistan” dated 26 March 2014 (“the DFAT March 2014 report”); second, a DFAT “Thematic Report – Hazaras in Afghanistan” dated 8 February 2016 (“the DFAT February 2016 report”); third, a Country of Origin Information Section (COIS) paper entitled “AFG Returnees Issues Paper July 2015” dated 27 July 2015, and fourth, a European Asylum Support Office (EASO) report entitled “Afghanistan Security Situation: EASO Country of Origin Information Report” dated 31 January 2015 contained in the COIS’s “Afghanistan: Hazaras Issues Paper” dated 2 April 2015.

58    At [19], the IAA made the following findings:

I am satisfied on the basis of DFAT’s assessments (and in an absence of any more recent information which runs contrary) that the applicant’s area in Daykundi is relatively secure. While I have had regard to the wider conflict formations and the strength of the insurgency (discussed in more detail below), I am not satisfied there is a real chance of Hazara Shi’as being targeted and harmed in Daykundi Province. Country information also does not support that Daykundi has been the site of attacks against returnees, or against those perceived as adopting western norms and values or otherwise being westernised. I am not satisfied the applicant faces a real chance of harm in Daykundi on account of his race, religion, his profile as a returnee with western affiliation or values nor any combination of such factors.

Travel by road

59    The IAA then considered whether it was dangerous for the appellant, as a Hazara Shi’a, to travel on the roads, particularly from Kabul to Daykundi, because of the Taliban: at [20] to [22].

60    The IAA had regard to four documents: first, the DFAT March 2014 report; second, the DFAT February 2016 report; third, an August 2015 United Nations Assistance Mission in Afghanistan (“UNAMA”) report entitled “Afghanistan: Midyear Report 2015 – Protection of Civilians in Armed Conflict”; and fourth, a United Nations High Commissioner for Refugees (UNHCR) document entitled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan” dated 19 April 2016 (the UNHCR April 2016 Report).

61    At [21], the IAA summarised the country information as follows:

… For its part, DFAT is somewhat equivocal in its assessment of the risks to Hazara Shia on the roads. On the one hand, DFAT states it is too simplistic to attribute the incidents to racial targeting against Hazaras. Inter alia, DFAT points out that all ethnic groups are at risk of violence from AGEs (Anti-Government Elements) but no particular group is systematically targeted solely on the basis of ethnicity and that rather than targeting along ethnic lines, insurgent groups typically target people associated with the government and the international community, or those who appear wealthier than other Afghans… On the other hand, DFAT concedes Hazaras may have been targeted in part due to their religious or ethnic background and that once a group of travellers is stopped, Hazaras are more likely to be selected for kidnapping or violence. While in some cases the attacks appeared motivated by other goals such as prisoner exchanges, DFAT has speculated that Hazaras can often appear wealthy, making them an attractive target for kidnap and ransom and that Hazaras may represent a lower risk target from the kidnappers’ perspective. UNHCR and DFAT both advise that Anti-Government Elements (AGEs) systematically target civilians associated with or who are perceived to be supportive of the Afghan government and international community and according to DFAT Hazaras are widely perceived to be so affiliated. While DFAT assesses that low-profile Hazaras who have spent time in western countries face a low risk of violence on the basis of those international links, it expressly exempts Hazaras travelling by road between the Hazarajat and Kabul from this assessment.

62    The IAA concluded at [22]:

Based on his past experience and noting the applicant no longer has any family left in Daykundi but has some tribal connections or friends in Kabul, I find the applicant would likely undertake road travel with more frequency than a single trip from Kabul to Daykundi and that this would somewhat elevate the risk… Taking into account the higher risk facing the applicant arising from more frequent road travel, the equivocal nature of DFAT’s assessment and that there is no other more recent information before me which more clearly indicates otherwise, I am prepared to accept the applicant faces a small but real chance of serious harm as a Hazara Shi’a returnee from insurgents while travelling between Kabul and Daykundi.

[emphasis added]

The IAA’s consideration of the factor arising under s 5J(1)(c)

63    Having accepted that the appellant faces a small but real chance of serious harm as a Hazara Shi’a from insurgents, while travelling between Kabul and Daykundi, the IAA noted that in order to be satisfied that the appellant holds a well-founded fear of persecution, s 5J(1)(c) of the Act provides that one element of a well-founded fear of persecution is that “the real chance of persecution relates to all areas of the receiving country”.

64    The IAA then considered a series of factors so as to form a view about whether the appellant would, or would not, face a real chance of serious harm on the claimed grounds should he return to the receiving country and reside in Kabul. The question, of course, for the IAA was one of addressing the integer of s 5J(1)(c) of the codified regime by which the Parliament has determined the particular obligations arising under the Refugees Convention which find statutory recognition as part of the municipal law of Australia and thus the circumstances in which a person has a well-founded fear of persecution.

65    As to the factors concerning s 5J(1)(c), the IAA considered the following matters.

66    At [23], the IAA noted that Kabul has a substantial Hazara population; that the appellant has tribal connections in Kabul; and that the appellant has some familiarity with Kabul having been there a number of times. At [24], the IAA considered the higher level of government control and greater security in Kabul; the focus of attacks on high profile institutions and individuals; and the total population of Kabul which the IAA regarded as between 3.6 and 7 million. In the context of those matters, the IAA was not satisfied that the appellant would be pursued and targeted by the Taliban or affiliated Pashtuns in Kabul for any reasons related to his father’s profile. The IAA was satisfied that the appellant did not hold any other “such profile” (that is, a high profile) connected to government or the international community, nor any proximity to persons who have such a profile.

67    At [25], the IAA recognised that there had been attacks against Hazara Shi’as in Kabul and in the Balkh Province and recognised that between October 2015 and November 2016 approximately 170 people had been killed and over 621 injured. At [26], the IAA accepted that Islamic State had sought to inject sectarianism into the conflict and had sought to influence others to carry out an anti-Shi’a ideological agenda. The IAA observed that a Department of Foreign Affairs and Trade (“DFAT”) country information report dated 18 September 2015 suggested that Islamic State had limited capacity and influence in Afghanistan and that civilians face a low risk of violence compared to the risks faced by high profile groups. The IAA observed that the report suggests that Islamic State had struggled to expand beyond four districts in Nangahar. At [27], the IAA observed that it was not satisfied that Islamic State attacks would be conducted more than “occasionally”. At [28], the IAA was satisfied that the appellant was not personally of any adverse interest to the Taliban and that he did not have a pro-government/NGO/international community profile that would bring him to the Taliban’s attention upon return to Afghanistan should he reside in Kabul. At [29], the IAA further examined security in Afghanistan and concluded that it was not satisfied that violent sectarianism would be likely to take hold in Afghanistan in the reasonably foreseeable future such that the appellant would face a real chance of harm from insurgents in Kabul.

68    At [30], the IAA expressed observations about the degree of control exercised by the government over Kabul and concluded that it was not satisfied that sectarian violence would become manifest in the reasonably foreseeable future such that violence against Hazaras/Shi’a’s in Kabul would extend beyond “sporadic incidents”. At [30], the IAA expressed observations about the size and diversity of the population of Kabul noting that the Hazara Shi’a population of Kabul was estimated to be between 1.6 and 2 million. Drawing together these observations, the IAA observed at [30] that it found that “the chance of the applicant being seriously harmed by Islamic State, the Taliban, or any other AGE [Anti-Government Entity]/insurgent/extremist group in the reasonably foreseeable [future] in Kabul for reasons of his race and religion is remote and therefore not real”.

69    At [31], the IAA noted that the appellant claimed to fear harm from Pashtuns. The IAA examined aspects of ethnic-based violence in Kabul and inter-faith violence and concluded that it was not satisfied that there was a real chance that the applicant would suffer serious harm as a consequence of communal violence in the reasonably foreseeable future in Kabul.

70    At [32], the IAA considered the extent to which Shi’a Muslims and the appellant might face discrimination. The IAA notes, again, the DFAT Report of 18 September 2015 and other reports which suggest that there is no official policy of discrimination pursued by the Government on the basis of ethnicity and the IAA concludes that it is satisfied that State protection would not be withheld from the appellant on the basis of his being Hazara and/or a Shi’a Muslim.

71    At [33], the IAA notes that in Afghanistan ethnic, tribal and familial connections play an important role in daily life. It also observes that the risk of discrimination might be slightly higher for returnees from western countries.

72    At [34], the IAA notes that the appellant has travelled to Kabul for work purposes previously in order to obtain supplies and that he spent a period in Kabul before travelling to Australia. It notes that the appellant has tribal connections in Kabul and that he has called upon those connections in the past. It notes that recent demographic estimates indicate that Hazaras are a large, if not the largest, ethnic group in Kabul. At [34], the IAA examines country information in considering the question of whether the appellant would be likely to be denied basic services or a capacity to earn a livelihood by reason of his race or religion or for any reason. The IAA observes that although unemployment is widespread in Kabul, the city offers a greater range of employment opportunities than many other areas of Afghanistan. Turning to further aspects specific to the appellant, the IAA said this at [34]:

He is an able bodied male of working age with some work experience as a painter in Australia, doing farming work in Daykundi (many years ago) and as a self-employed street vendor in Ghazni. On the evidence, I am not satisfied the applicant has any vulnerabilities which would prevent him obtaining employment. I am satisfied that the applicant’s prior visits and his tribal links and familiarity with the city will assist him to settle, find work and access the basic necessities. I am not satisfied the applicant’s capacity to subsist will be threatened, or that he will otherwise face discrimination or mistreatment for any reason amounting to serious harm.

73    At [35]-[39], the IAA considers whether the appellant’s Hazara Shi’a identity and his return to Afghanistan as a failed asylum seeker from Australia may lead others to adversely perceive him as a supporter of the Afghan Government or the international community or whether such a consideration would otherwise contribute to a risk of harm. The IAA had already observed that it was not satisfied that the appellant was of any interest to the Taliban and observed that it was not satisfied he would be of interest upon return. At [39], the IAA observed that it was not satisfied that the appellant, upon return, would be identified as having a direct association with the Afghan Government or the international community as a person returning from the west as a failed asylum seeker.

74    At [10], the IAA observed that in the appellant’s written application for a Safe Haven visa, the appellant described his father’s death as a violent and shocking event and requested that the delegate take his specific circumstances and vulnerabilities into account. The IAA observed that no specific information had been provided as to the appellant’s claimed vulnerabilities. The decision-maker observed that, nevertheless, the IAA had regard to the trauma the appellant would have experienced and the challenges he would presumably have faced taking over his father’s role as the male head of the family and in assuming other responsibilities following his mother’s death. The IAA also noted that the appellant is “mostly illiterate”, cannot read or write in his own language, has only undertaken religious studies, and finds simple concepts in his own dialect difficult to comprehend. The IAA observed at [10] that it had taken all of these considerations into account in assessing his evidence.

75    Apart from observing that it had taken those considerations into account in assessing the appellant’s evidence, the IAA returned to this topic at [40] in the context of the question arising under s 5J(1)(c), in relation to the appellant’s psychological state or mental health, in these terms:

In his application the applicant described the death of his father as shocking and asked that his specific circumstances and vulnerabilities be taken into account. However no further information about his specific circumstances and vulnerabilities has been provided. I acknowledge the applicant and his family experienced a shocking tragedy but there is no evidence before me indicating that the applicant would face particular risks upon return. Even considering any impact on the applicant’s psychological state or mental health I consider it too speculative on the evidence before me to conclude that such problems would lead to a risk of harm upon his return. The applicant has demonstrated resilience in living abroad for several years. While I accept there would be few if any support mechanisms, country information that was before the delegate does not indicate that mental health treatment in Afghanistan is intentionally withheld from persons for any reason specified in s.5J(1)(a). The applicant would also be returning to a city with which he has some familiarity and has tribal connections.

76    At [40], the IAA concluded that it was “not satisfied that his capacity to subsist will be threatened or that there is a real chance that the applicant’s mental health will deteriorate or that he will require treatment not available in Kabul”.

77    At [41], the IAA examined country information regarding the security situation in Kabul confronting civilians. It recognised that civilians have been killed in bazaars and other ordinary places to which civilians have access. However, the IAA at [41] said this:

I find the chance the applicant would be harmed as a bystander, inadvertently getting caught up in attacks, or otherwise through generalised violence is remote. That is, I am not satisfied that he faces a real chance of suffering serious harm through generalised violence in Kabul.

78    At [42], the IAA also recognised that Kabul, “like all of Afghanistan, would be affected by a high level of serious crime”, citing the DFAT Thematic Report of 18 September 2015, but considered that country information did not indicate that people with the appellant’s profile, including as a returnee from the west, are targeted “for money or any perception of wealth”. At [42], the IAA concluded that the appellant would not face a real chance of harm in Kabul as a consequence of criminality.

79    As to accessing Kabul, the IAA was satisfied, having regard to the discussion at [43], that the appellant would be able to access Kabul and that there was not a real chance of his facing serious harm before accessing “Kabul city”.

80    At [44], the IAA draws all of these considerations together and concludes that although the appellant may face some discrimination upon return, the IAA was not satisfied that it would amount to or lead to serious harm. It was not satisfied that the appellant faces a real chance of being killed or otherwise suffering serious harm from the parties identified or on any of the other contended grounds summarised at [44].

81    From [7]-[44], the IAA is engaged in a process of examining the content of the factual foundation of all of the appellant’s claims arising under s 36(2)(a) of the Act tested against the integers of the codified regime particularly having regard to s 5H(1) and s 5J(1) of the Act. At [45], the IAA expresses the ultimate conclusion that the appellant does not meet the requirements of the definition of “refugee” in s 5H(1) and thus the IAA was not satisfied that Australia has protection obligations to him as a refugee for the purposes of s 36(2)(a) of the Act.

Complementary Protection

82    At [46], the IAA commenced its discussion of the appellant’s claims under s 36(2)(aa) of the Act. The IAA, at [46], identified the elements of the section, and at [47], noted the text of s 36(2A) as to the circumstances in which the non-citizen will suffer significant harm.

83    At [48], the IAA notes that in the course of its reasoning up to this point of its decision, it had found that the appellant would face a small but real chance of being seriously harmed travelling between Kabul and the appellant’s home region of Daykundi. The IAA then observes at [48] that “for the same reasons”, the IAA is also satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant’s removal to Afghanistan, the appellant will face “a real risk of significant harm travelling between Kabul and his home area”.

84    At [49], the Tribunal observes, however, that s 36(2B) of the Act provides that there is taken not to be a real risk that the person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm.

85    At [50], the Tribunal observes that it had already found that the appellant would not face a “real chance” of being killed or otherwise suffering “serious harm” in Kabul from a number of actors or by reason of particular circumstances. The summary, at [50] of those findings, is in these terms:

I found above the applicant would not face a real chance of being killed or otherwise suffering serious harm in Kabul from the Taliban, Islamic State, or other groups, nor Pashtun or other members of the community, nor from the government itself in connection with his father’s profile, nor on the basis of his profile as a Hazara Shi’a male who would be returning after several years, as a westernised failed asylum seeker from Australia, for any actual or imputed connection with or support for the Afghan government, western or international community (or any contrary imputed opinion of being anti-Taliban/Islamic State/AGE), nor for any other reasons.

86    At [50], the IAA then observes that “for the same reasons and because ‘real chance’ equates to ‘real risk’, I am also not satisfied that the applicant faces a real risk of suffering significant harm in returning to, and residing in Kabul”.

87    At [51], the IAA then considers the circumstance that it had accepted that the appellant may face some discrimination upon return and expressed the view that it would be “low level and infrequent” and would not threaten his capacity to access services, earn a livelihood or otherwise subsist. At [51], the IAA also said this:

I am not satisfied the applicant would face any discrimination or other mistreatment arising from any specific circumstances or vulnerabilities that would lead the applicant to be subject to acts or omissions which would constitute significant harm, as defined under s 36(2A) and s 5 of the Act upon return.

88    At [52], the IAA continued to take up a consideration of the appellant’s “specific circumstances or vulnerabilities” (as mentioned at [51] but also at [10] and [40]), and said this:

As noted above, with regard to the specific circumstances and vulnerabilities that the applicant requested be taken into account, no further information has been provided and there is no evidence before me indicating that the applicant would face particular risks upon return. Even considering any impact on the applicant’s psychological state or mental health I consider it too speculative on the evidence before me to conclude that such problems would lead to a risk of harm upon his return. I also do not accept that treatment for such conditions in Afghanistan is intentionally withheld for any reason and I am not satisfied that these factors would lead the applicant to be arbitrarily deprived of his life, have the death penalty applied, or be tortured. I am also not satisfied that through any act or omission the authorities would intentionally inflict pain or suffering, or severe pain or suffering on the applicant such as to meet the definition of cruel or inhuman treatment or punishment, nor that they would intentionally cause extreme humiliation.

89    At [52], the IAA reached the following conclusion:

I am not satisfied that there are any specific circumstances of vulnerabilities which would lead the applicant, as a result of his mental health or psychological state or otherwise, to be subject to acts or omissions which would constitute significant harm, as defined under s 36(2A) and s 5 of the Act upon return.

90    At [53], the IAA notes that it had already found that the chance of the appellant suffering serious harm from violence targeted against him or from generalised violence or criminality in Kabul including on arrival at the airport is “remote (and therefore not real)”. The IAA observes at [53] that as a real chance equates to a real risk, the IAA was not satisfied, for the reasons discussed earlier in its decision, that the appellant faces a real risk of suffering significant harm in returning to and residing in Kabul.

91    At [54], the IAA concluded that it was not satisfied that the appellant would face a real risk of significant harm for any of the individual reasons or the reasons cumulatively, taking into account “all the circumstances upon return to Kabul”.

92    At [55], the IAA observes that having regard to the appellant’s “personal circumstances”, the IAA has considered whether it is reasonable for the appellant to relocate to Kabul. The IAA observed that this question was discussed with the appellant at the Safe Haven visa interview and was further addressed in the appellant’s representative’s submission to the IAA. The IAA observes that in addition to security concerns, the evidence and submissions before the IAA focused on the high unemployment rate and cost of living.

93    As to those matters, the IAA at [56] considered a report entitled UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan dated 19 April 2016. The IAA observes that the UNHCR considers that relocation within Afghanistan is reasonable where the individual has access to shelter, essential services and livelihood opportunities and a traditional support network of members of his or her extended family or members of his or her ethnic community. The IAA observes at [56] that DFAT, in its report entitled DFAT Thematic Report – Hazaras in Afghanistan dated 8 February 2016, and the DFAT Report dated 18 September 2015, had noted that in Afghanistan, ethnic, tribal and family affiliations are important factors, and that kinship is central to identity and acceptance in the community. It notes that traditional extended family and tribal community structures of Afghan society, are the main protection and coping mechanisms for people in Afghanistan. The IAA also notes DFAT’s view that lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation and that unemployment and under-employment are high across Afghanistan.

94    At [57], the IAA notes that the UNHCR advises that there are exceptions to the requirement of external support and those exceptions include the circumstance that the person is single, male, able-bodied, of working age, and without specific vulnerabilities. The IAA observes that the UNHCR considers that such persons may, in certain circumstances, be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life, and that, like Kabul, are under effective government control.

95    At [58], the IAA observes that based on the country information, and having regard to the appellant’s submissions, the IAA accepts that there are economic and other challenges in relocating to Kabul. It observes that while there are a greater range of employment opportunities in Kabul than elsewhere, there is also evidence of unemployment and under-employment. The IAA considers the issue of rents payable in Kabul; the circumstance that many residents live in informal settlements; that large numbers of refugee returnees also settle there, creating pressures on accommodation, employment and basic services. The IAA accepts that these factors would make relocation challenging. Nevertheless, the IAA says this at [58]:

However on the information before me about this applicant in his specific personal circumstances, I am satisfied that although the applicant will face challenges, I do not accept the applicant will become destitute or that the challenges would make relocation unreasonable.

96    At [59], the IAA notes that there is a large Hazara population in Kabul and that the appellant has some tribal connections or friends there, although the IAA notes the appellant’s evidence that they were not close connections or close friends. The IAA notes that the appellant has been to Kabul a number of times. It is satisfied that the appellant would have some familiarity with the city. The IAA considered that these links and familiarity will protect him from being considered an outsider upon return. It considered that Government control, relative stability and greater economic opportunities would be conducive to the appellant finding employment.

97    At [59], the IAA also notes that the appellant conducted his own street vendor business before leaving Afghanistan and used to obtain some supplies from Kabul. It notes that he now has experience in painting. It notes that even with the withdrawal of the international presence, construction is among the top five sectors of employment in Afghanistan. The IAA considered that the appellant’s painting work in Australia would be conducive to his finding work. It was satisfied that the appellant has the benefit of experience in relevant industries and would be able to obtain some form of employment. It observed, at [59], that, more broadly, it was satisfied that the appellant can draw on his established connections to obtain work, shelter and integrate into the community in Kabul.

98    At [60], the IAA notes the appellant’s claims that he was previously responsible for his sisters. It notes that while one sister was in Afghanistan when the appellant arrived in Australia, both sisters are now in Iran. The IAA notes that there is no information before the decision-maker to indicate that the appellant is still financially or otherwise responsible for his sisters or that they would join him in Afghanistan. The IAA notes that as the appellant will be arriving in Kabul unaccompanied by dependents and will not be encumbered by the expense of having to accommodate a family in Kabul, and since the IAA was satisfied that the appellant would be able to find employment, it was also satisfied that, having established himself in Kabul, the appellant will have the opportunity to earn a livelihood sufficient to enable him to send some financial support to his sisters while also being able to access the basic necessities of life for himself.

99    At [60], the IAA observes that while it accepts that this further separation from his sisters may be challenging, it did not accept that it would be unreasonable. The IAA found that the appellant could establish himself in Kabul and that once settled, he could decide, with his sisters, about making arrangements for them to join him.

100    At [61], the IAA notes the concerns of the appellant’s representative about security risks. The IAA observes that it is satisfied that Kabul is under the effective control of the Afghan Government and will be so in the reasonably foreseeable future. It finds that the risk that the appellant would be harmed through generalised or insurgent violence or criminality is “remote”. It observes that taking into account the appellant’s overall circumstances and his foreseeable livelihood and security situation in Kabul more broadly, the IAA is not satisfied that relocation of the appellant to Kabul is rendered unreasonable.

101    At [63], the IAA observes that it is satisfied that in Kabul the appellant would be able to earn a livelihood and that he would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. The IAA observes that it is satisfied that the appellant has some tribal connections or friends in Kabul and that, over time, the appellant would find community support among the Hazara population of the city and that it would be reasonable for the appellant to remain and reside in Kabul.

102    At [64], the IAA expresses the ultimate conclusion that in its view there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Afghanistan, there is a real risk that the appellant will suffer significant harm and thus the appellant does not meet the elements of s 36(2)(aa) of the Act.

The statutory provisions

103    The relevant provisions of the codified regime are these:

36    Protection visas – criteria provided for by this Act

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

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

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

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

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

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

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

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

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

(2B)    However, there is taken not to be a real risk that the non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

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

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

104    Sections 5H and 5J of the Act are in the following terms:

5H    Meaning of refugee

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

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

(b)    in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:    For the meaning of well-founded fear of persecution, see section 5J.

(2)    Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)    the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)    the person committed a serious non-political crime before entering Australia; or

(c)    the person has been guilty of acts contrary to the purposes and principles of the United Nations.

5J    Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

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

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

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

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person's identity or conscience; or

   (b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)    conceal a physical, psychological or intellectual disability;

(v)    enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)    alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

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

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

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

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

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

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

   (b)    significant physical harassment of the person;

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

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

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

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

(6)    In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

The guiding principles

105    In determining the questions raised by the appeal, and the extent to which principles guiding “reasonableness” of relocation, derived from authorities relied on by the appellant concerned with “Convention claims” under s 36(2)(a) of the Act might apply to the construction to be attributed to s 36(2B)(a) concerning claims under s 36(2)(aa), it is necessary to identify the features of the regime that gave rise to the relevant principles, the changes made to that regime commencing on 18 April 2015, and the specific statutory features of the complementary protection regime introduced into the Act as from 24 March 2012.

106    The relevant principles are these:

(1)    Prior to the commencement on 18 April 2015 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the “2014 Amending Act”), the Commonwealth Parliament had enacted into the municipal law of Australia aspects of Australia’s obligations arising under the Convention Relating to the Status of Refugees (Geneva, 28 July 1951), the “Refugees Convention”, as amended by the Protocol Relating to the Status of Refugees (New York, 31 January 1967), the “Refugees Protocol”, by s 36(2)(a), which provided that a criterion for a protection visa was that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Thus the Act, in engaging with the notion of a “refugee”, did so by reference to the definition of the term “refugee” in Article 1 of the Refugees Convention. Article 1A(2) provides that the term “refugee” shall apply to any person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country; or who, not having a nationality and being outside the country of his [or her] former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return [to] it.

[emphasis added]

(2)    In the international jurisprudence concerning the Refugees Convention and, in particular, whether a non-citizen was to be regarded as a “refugee” having regard to the definition in the Convention, questions arose about whether the non-citizen would be regarded as being unable or unwilling to avail himself or herself of the protection of his or her country of nationality, owing to a well-founded fear of persecution, if he or she could reasonably be expected to relocate to a place of relocation within the country of nationality where the non-citizen could have no well-founded fear of persecution. That so-called “relocation principle” was put by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department [2006] 2 AC 426 at 440 (“Januzi”) in this way at [7]:

The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.

[emphasis added]

(3)    In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”) at [11], Gummow, Hayne and Crennan JJ observed that any notion of “relocation” and the “reasonableness” of relocation (perhaps elevated into a “relocation principle”) is to be derived, if at all, as a matter of inference from the more generally stated provisions of the definition. That was so because Art 1A(2) makes no express reference to relocation. Their Honours also noted, at [22], Lord Bingham’s observation in Januzi, expressed as a corollary of a proposition derived from the 1979 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, that a person will be excluded from refugee status if, under all the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country.

(4)    In SZATV, their Honours, at [23], observed that the Minister had framed the issue before the Court as being “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” [emphasis added].

(5)    At [24], their Honours observed that that formulation of the question required “more” in order to be “sufficient and satisfactory”. The further consideration was this: “What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”: at [24].

(6)    In Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 (“SZSCA”) at [30], French CJ, Hayne, Kiefel and Keane JJ observed that in Januzi, the House of Lords approved the approach of the Court of Appeal in E v Secretary of State for the Home Department [2004] QB 531 at [23] in relation to the factors that might be relevant to internal relocation (to the extent relevant to the issues alive in SZSCA). The Court of Appeal said this at [23]:

Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there. Living conditions in the safe haven may be attendant with dangers or the vicissitudes which pose a threat which is as great or greater than the risk of persecution in the place of habitual residence. One cannot reasonably expect a city dweller to go to live in a desert in order to escape the risk of persecution. Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can not properly say that a refugee who has fled to another country is “outside the country of his nationality by reason of a well-founded fear of persecution”.

(7)    At [24], the Court of Appeal said this:

If this approach is adopted to the possibility of internal relocation, the nature of the test of whether an asylum seeker could reasonably have been expected to have moved to a safe haven is clear. It involves a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker.

[emphasis added]

(8)    At [24], the Court of Appeal also observed

What the test will not involve is a comparison between the conditions prevailing in the safe haven and those prevailing in the country in which asylum is sought.

[emphasis added]

(9)    In SZSCA, as an illustration of the application of the relevant comparison, their Honours observed that the administrative decision-maker was required to consider the living conditions for the respondent in Kabul, the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business, the respondent’s ability to earn an income from other sources and his needs and those of his family. This analysis is undertaken to determine “the factum upon which the principle of relocation operates” which is “that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm”: SZSCA at [23].

(10)    On 18 April 2015, the “2014 Amending Act” commenced. The Explanatory Memorandum (“EM”) for the Bill that became the 2014 Amending Act recites at p 2 that the Bill “fundamentally changes” Australia’s approach to managing asylum seekers in a number of ways including by “codifying in the Migration Act Australia’s interpretation of its protection obligations under the [Refugees Convention]” and, at p 4, by removing “most references to the Refugees Convention from the Migration Act and replacing them with a new statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention”. By the new codified approach, the Commonwealth Parliament sought to articulate for itself the boundaries and limits of the obligations arising under the Refugees Convention which would form part of the municipal law of Australia.

(11)    Although, of course, the scope and content of the new sections of the Act are to be determined by reference to the text and the well-established techniques of statutory interpretation, it is appropriate to briefly mention the conception of the changes described in the EM at least so as to identify the objectives of those who drafted the Bill when explaining its proposed operation to Parliamentarians for the purpose of their consideration of the changes. The Bill sought to achieve the articulation described at [106](10) of these reasons by amending s 36(2)(a) so as to link Australia’s protection obligations to the non-citizen in Australia to the question of whether the Minister is satisfied that the applicant is a “refugee” as defined by the Act; by introducing a definition of refugee as part of the new statutory framework (s 5H); by defining the circumstances to be satisfied in order for a person to have a well-founded fear of persecution having regard to the relevant five grounds (s 5J(1)(a)) drawn from Art 1A(2) of the Refugees Convention (s 5J); by introducing into the Act the notion of a “real chance” of persecution if returned to the receiving country (s 5J(1)(b)); and by seeking to make clear, by s 5J(1)(c), that a person only has a well-founded fear of persecution if that person has a real chance of persecution “in all areas of the receiving country”: EM at p 10.

(12)    At pp 10 and 11, the EM says this:

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

[emphasis added]

(13)    Nevertheless, the EM at p 10 observes that it is not the intention of the Government to resile from Australia’s protection obligations under the Refugees Convention “but rather to codify Australia’s interpretation of these obligations within certain sections of the Migration Act”.

(14)    Four things should be noted, the fourth of which, by parity of approach, may have implications for the questions arising in this appeal. First, there is no suggestion in any of the authorities to date that any of these changes are other than a valid law of the Commonwealth in constitutional terms. Second, whether as a matter of textual construction the Parliament has enacted a set of provisions which, when properly construed, sits in conformity with the statements in the EM remains to be determined by the High Court. Third, it seems clear enough that the Parliament has sought to remove any notion of a reasonableness test in relation to claims for protection made under s 36(2)(a) within the new codified regime.

(15)    As to the fourth matter, whilst the statutory question now arising under s 5J(1)(c) of the codified regime (as one of the integers of whether a person has a well-founded fear of persecution) is whether the real chance of persecution relates to “all areas of a receiving country”, the scope of the term “all areas”, to take up the observations of the Court of Appeal in E v Secretary of State for the Home Department, would not be likely to include “expecting a city dweller to live in a desert in order to escape the risk of persecution”: see generally the discussion by Allsop CJ in FCS17 v Minister for Home Affairs [2020] FCAFC 68 (“FCS17”). At [21], the Chief Justice observes that the phrase “all areas” in s 5J(1)(c), from its context, is to be taken to mean “inhabited or habitable, and safe areas to which the person can lawfully go”. His Honour observes that this is not to read words into the provision but rather to understand that words in another context which might be merely words of geography have, in the context of the Refugees Convention, “a context of meaning directed to human life, social existence and safety”: at [21]. In FCS17, at [80], White and Colvin JJ observed that a “literal construction” of “all areas” would mean that the availability of an uninhabitable, inhospitable or unsafe area where a person would be free from persecution would deprive the person from being able to seek refuge in Australia and thus “it is implicit from the subject matter of the provision that areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work, are not included within the areas of a receiving country”. In this context, areas of a receiving country where there is freedom from persecution are areas where safe human habitation exists. Of course, terms such as “unsafe area” and phrases such as “unsafe area where a person would be free from persecution” (that is, an area where the person would be free from “serious harm” for the purposes of s 5J(4)(b) and s 5J(5) but where the area would be “unsafe” in some lesser or other way), seems to raise the possibility that within the operation of s 5J(1)(c), general questions of whether the relevant person might be “unsafe” forms part of the statutory framework as a matter of construction of the section.

(16)    See also the consideration by White and Colvin JJ in FCS17 at [65]-[82]; Allsop CJ agreeing in general at [1], of the authorities holding that s 5J(1)(c) has the effect of removing the reasonableness of internal relocation principle from consideration in an application for protection under s 36(2)(a) (subject to the construction described at (15) above to be attributed to s 5J(1)(c)). For the purposes of this appeal, it is not necessary to express a view about the construction question.

(17)    In the context of the principles described at [106](1)-(9) of these reasons, Kenny J determined an appeal (MZACX v Minister for Immigration and Border Protection [2016] FCA 1212) concerning questions of contended jurisdictional error on the part of the Administrative Appeals Tribunal in relation to the Tribunal’s decision concerning a claim under s 36(2)(a) of the Act in the pre-amendment form, thus raising questions related to whether appellant MZACX was a “refugee” under Art 1A(2) of the Refugees Convention and whether the relocation principle (as described above at [106](1)-(9)) was engaged. Appellant MZACX also made a claim under the complementary protection criterion in s 36(2)(aa). However, the grounds of appeal seem to be concerned with the Tribunal’s contended error in the application of the relocation principle in the context of the “persecution claim”, that is, the s 36(2)(a) Convention claim. See MZACX at [23], [26] and [35] and the references to “feared persecution”. Nevertheless, the observations of Kenny J should be regarded as also being directed to considerations which apply to an assessment of reasonableness in relation to the complementary protection claim under s 36(2)(aa) made relevant by s 36(2B) of the Act.

(18)    At [35], Kenny J expressed observations about the approach to considering the possibility of relocation within the visa applicant’s country of nationality. Kenny J in those observations uses the term “appreciable risk” when describing the degree of risk of the feared persecution occurring in the proposed place of relocation, which is the description of risk adopted by Gummow, Hayne and Crennan JJ in SZATV at [23]. At [35], her Honour said this:

In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of inquiry, as MZYQU (2012) 206 FCR 191 and MZZJY [2014] FCA 1394 illustrate.

(19)    Thus, so far as the question was one arising under a Convention claim, once a place of relocation within the country of the applicant’s nationality had been identified where there was no appreciable risk of persecution, the question of whether relocation of the applicant to that place was “reasonable”, in the sense of “practicable” (having regard to the “factors” discussed in the jurisprudence earlier described), is engaged. In determining whether, by reference to those factors, relocation is reasonable in the sense of practicable, Kenny J accepted that it “may” be “relevant” to include in the “assessment of reasonableness”, in the particular circumstances of the case, risks of harm faced by an applicant at the place of relocation which are “different” to, or “lower” than, “an appreciable risk of persecution” (which is the character of the harm the Convention protects against and which is accepted, for the purposes of the assessment of reasonableness, as not present at the place of relocation). Thus, once the inquiry as to reasonableness is engaged, it can only be determined by taking into account the particular circumstances of the applicant; by taking account of the particular objections of the applicant to relocation having regard to the factual basis of the claims and the relevant circumstances; by considering the impact of relocation on the applicant; and, in a particular case, it may be relevant to have regard to different or other or lower forms of harm faced by the applicant at the proposed place of relocation, than the harm the Convention protects against.

(20)    Kenny J observed that a failure to keep the two stages of inquiry separated (that is, is there an appreciable risk of persecution at the proposed place of relocation; and, if not, is relocation reasonable) constitutes jurisdictional error.

(21)    It can be accepted for present purposes that the matters of principle contained in the observations of Dodds-Streeton J in MZYQU, and Davies J in MZZJU, are to the same effect as the principle formulated by Kenny J at [35] in MZACX.

(22)    As to MZYQU, MZZJU and MZACX, the appellant contends that the principles derived from these authorities have been affirmed and applied in relation to claims engaging s 5J(1)(c) (whether the s 5J(1)(a) fear of persecution engages a real chance of persecution relating to “all areas of a receiving country”) and s 36(2B)(a) (where the statutory question is, would it be reasonable for the applicant to relocate to an area of the country where there would not be a real risk of the person suffering significant harm), by the Full Court in CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [76]. At [76], their Honours simply observed that they considered the principles set out MZACX (a decision in the context of Convention claims) and the relocation principle engaged by the Convention (as held to operate according to the principles described at [106] at (1) to (9) above), as “correct”. That observation at [76] was made consequent upon quoting observations of the Full Court in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 (“DZU16”) (Robertson, Murphy and Lee JJ) at [108] and [110], but those paragraphs of DZU16, respectfully, seem to be concerned with the Court’s summary of the contentions of the Minister rather than the conclusions of the Court concerning the contentions which seem to begin (as to matters of relocation) at [117]. In DZU16, their Honours considered whether, in relation to claims engaging both s 5J(1)(c) and s 36(2B)(a), the IAA had fallen into jurisdictional error by failing to have regard to whether the visa applicant would be “under threat” in Mazar-e-Sharif (the proposed place of relocation) even though there would not be a “real risk that he would suffer significant harm” in Mazar-e-Sharif. The Full Court found at [132] that the primary judge had erred in finding that the IAA had failed to consider whether the level of violence in Mazar-e-Sharif rendered it “unreasonable (as opposed to unsafe) to relocate” [emphasis added]. The Court at [132] also said this:

Similarly, in our view, the primary judge was in error … in finding that the Authority did not consider whether the established risk of generalised violence in Mazar-e-Sharif rendered it unreasonable for the respondent to relocate there. Nor do we accept, contrary to the finding of the primary judge, that the Authority only considered the risk of violence in accessing the city, not in living in it.

(23)    At [134]-[138], their Honours considered the observations of Dodds-Streeton J in MZYQU, Davies J in MZZJY and Kenny J in MZACX. In relation to MZZJY, the Full Court at [136] noted the context of the observations of Davies J at [21] in these terms:

In MZZJY, Davies J held, at [21], that the Tribunal dealt with the position of Shias generally in Karachi but did not consider the practical realities facing the applicant, as a person at risk of attack in Karachi because of his religion. In doing so, the Tribunal wrongly elided the question posed by the “reasonableness” criterion with the inquiry, was there a lack of “appreciable risk” of harm? The conclusion that the chance of harm was not more than remote dealt only with the consideration as to whether objectively there was an appreciable risk of persecution for a Convention reason in Karachi, but did not deal with the question as to whether it is reasonable, in the sense of practicable, to expect the applicant to live there faced with a risk of violence and where he would lack protection from the authorities, as the Tribunal accepted.

(24)    At [136], the Full Court noted the principle in these terms:

The same considerations did not necessarily apply to both limbs. The fact that the risk of harm may be remote did not necessarily answer the question whether it was reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it was reasonable to expect him to relocate. It did not do so, and in failing to do so, fell into jurisdictional error.

(25)    At [137], the Full Court observed that in relation to the IAA’s reasons there under examination (including both s 5J(1)(c) and s 36(2B)(a)), that the IAA did not err in its application of “the criterion whether it would be reasonable for the [visa applicant] to relocate to an area of the country where there would not be a real risk that he will suffer significant harm”. The Full Court observed that the IAA, in effect, had found that there was no specific or generalised risk which would confront the visa applicant and that the IAA had considered the practical realities facing the visa applicant in relocating to Mazar-e-Sharif. The Full Court then examined aspects of the reasoning of Kenny J in MZACX.

(26)    The two points to be noted from these observations of the Full Court in DZU16 are these. First, at no point do their Honours call into question the principles derived from MZYQU, MZZJY and MZACX or their application to s 5J(1)(c) and s 36(2B)(a). Second, their Honours apply those principles in determining whether the IAA fell into jurisdictional error in the context of the codified regime engaging s 5J(1)(c) and s 36(2B)(a).

(27)    So far as s 5J(1)(c) is concerned, there is no “reasonableness” principle contained within that part of the codified regime. Subject to any determination of the High Court, the scope of the text “the real chance of persecution relates to all areas of a receiving country” in s 5J(1)(c) should be understood in the terms earlier described by reference to FCS17.

(28)    As to s 36(2)(aa) and s 36(2B)(a), those provisions form part of the Act as a result of an amendment to the Act brought about by the Migration Amendment (Complementary Protection) Act 2011 (Cth) which commenced on 24 March 2012. The Amending Act introduced s 36(2)(aa), (2A), (2B) and (2C) into the Act. As to the legislative history, the following matters at [43] and [44] of the Full Court’s decision in GLD18 v Minister for Home Affairs [2020] FCAFC 2 should be noted:

43    … The relevant legislative history has been described in previous decisions of the High Court, and the Full Court of the Federal Court: see, for example, SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [1]-[3] (Kiefel CJ, Nettle and Gordon JJ) in which their Honours adopted Edelman J’s description of the relevant legislative background, which includes his Honour’s observations at [69]-[73]; Plaintiff M150/2013 v Minister for Immigration and Border Protection [2014] HCA 25; 255 CLR 199 at [2] (French CJ), and in particular the contents of footnote 11; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [64]-[72] and [96]-[100] (Lander and Gordon JJ); Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; 207 FCR 211 at [17]-[19] and [29]-[31] (Lander, Jessup and Gordon JJ).

44    Section 36(2)(aa) was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth), and took effect on 24 March 2012. It created an additional criterion for the grant of a protection visa aside from the existing criterion in s 36(2)(a), which was only engaged in circumstances where the Minister was satisfied Australia had obligations towards a person because she or he is a refugee. Prior to the enactment of s 36(2)(aa), an applicant who was unable to satisfy the criterion in s 36(2)(a) was ineligible to receive a protection visa under the Migration Act: see SZTAL at [69]-[71]. As such, the key purpose of the introduction of the “complementary protection regime” provisions, including s 36(2)(aa), was to address this issue and in doing so facilitate Australia’s adherence to its non-refoulement obligations, as explained in the outline of the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) (Explanatory Memorandum):

The Migration Amendment (Complementary Protection) Bill 2011 (the “Bill”) amends the Migration Act 1958 (the “Act”) to introduce greater efficiency, transparency and accountability into Australia’s arrangements for adhering to its non-refoulement obligations under the International Covenant on Civil and Political Rights (the “Covenant”), the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child (the “CROC”) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”). Protection from return in situations that engage these non-refoulement obligations is often referred to as “complementary protection”, that being protection under international treaties that is additional to the protection given to refugees under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees (the “Refugees Convention”).

The purpose of the amendments in this Bill is to establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia’s arrangements for meeting its non-refoulement obligations and better reflect Australia’s longstanding commitment to protecting those at risk of the most serious forms of human rights abuses.

(29)    The following observations of Lander, Jessup and Gordon JJ in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 at [18]-[20] also ought to be noted:

18    … The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Sections 36(2B)(a) and (b) have adopted a different and contrary position. Sections 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.

19    Further, the test adopted in ss 36(2)(aa), (2A) and (2B) is significant harm, not irreparable harm, being the test referred to in the General Comment No 31 on the ICCPR (Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligations Imposed on State Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) at [12]), or serious harm, being the standard referred to and defined in s 91R of the Act.

20    It is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely s 36(2)(aa) and (2B), construed in the way that has been indicated.

[emphasis added]

(30)    The codified regime of complementary protection begins with the text of s 36(2)(aa). It contemplates, as a criterion for a protection visa, a state of satisfaction of the Minister as to whether Australia has protection obligations in respect of the applicant because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a “real risk” that the applicant “will suffer”, “significant harm”. Section 36(2A), unlike s 5J(5), does not identify “instances” of the relevant harm addressed by the subsection: “serious harm” in the case of s 5J(5); “significant harm” in the case of s 36(2A). Nor does it, unlike s 5J(5), use terms like “without limiting” what is within the concept of the relevant harm. Rather, s 36(2A) provides that a person “will suffer significant harm” if the non-citizen suffers any one of the five nominated occurrences in subsection (2A).

(31)    Section 36(2B) addresses the topic of “a real risk” of the applicant suffering significant harm and provides that there is taken not to be a real risk that the non-citizen will suffer significant harm if the Minister (or the review tribunal) 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 the applicant will suffer significant harm, that is, where there would not be a real risk that the applicant will suffer any one of the five occurrences described at s 36(2A).

(32)    Section 36(2B) identifies two considerations. First, is there an area of the country where there would not be a real risk that the non-citizen will suffer significant harm? Second, would it be reasonable for the non-citizen to relocate to that area? If the answer to both questions is yes, there is taken not to be “a real risk” that the applicant “will suffer significant harm”. Both inquiries are directed to the particular not the general in the sense that the focus is specifically directed to an area of the country where there would not be a real risk that the particular applicant will suffer significant harm (as described in subsection (2A)), and the reasonableness inquiry is directed to whether it would be reasonable “for the non-citizen to relocate”. It can be seen from the elements of significant harm that each form of significant harm is concerned with very specific and major acts of harm (as defined) perpetrated against the particular individual. Thus, the particular circumstances of the applicant are critical.

(33)    The question to be determined as a matter of statutory construction in the context of the codified regime (rather than any inferences drawn from any international conventions which gave rise to the codified regime) is whether s 36(2A) and s 36(2B) are designed to exhaustively address the content and character of the harm for both questions arising under s 36(2B)(a) by reference to the statutory term “significant harm”, and whether, in determining whether it would be reasonable for the visa applicant to relocate to the nominated place where “there would not be a real risk that the non-citizen will suffer significant harm”, the statute has dealt with and addressed the only class of harm relevant to the question of relocation for the purposes of a claim under s 36(2)(aa) taken in conjunction with s 36(2A) and s 36(2B) of the Act. A question thus arises as to whether, in deciding whether 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, it nevertheless remains relevant, within the concept of “reasonableness”, to consider a degree of harm which is something other than a real risk of “significant harm” which might be faced by the applicant at a place of relocation. The question then would be whether the assessment of reasonableness is intended to address questions of “practicability”, “special circumstances” and “impact” of relocation on the applicant and the applicant’s family, but not questions of different harm, lesser harm or other forms of harm not falling within the description “significant harm”, on the footing that the section has addressed the only kind of harm relevant for all purposes of the section. Nothing said in relation to reasonableness of relocation as jurisprudential inferences drawn from international treaties has any direct application to the codified statutory regime. Whether, analogically, principles derived from that jurisprudence might usefully aid the construction of the text of the codified regime is, of course, a separate question.

(34)    Section 36(2A) and s 36(2B) might be thought to be an exhaustive statement of the content of the harm relevant to the operation of the section. Subject to what follows, in considering an assessment of the reasonableness of relocation, an administrative decision-maker is not bound to consider in each claim whether the place of relocation might be thought to be “unsafe” in some way which is less a real risk of the “significant harm” contemplated by the section. However, it remains analogically relevant, for the purposes of the codified regime, to observe, as Kenny J observed in a different context, that in the relevant case, subject to the content of the claims of an applicant and the way in which the particular circumstances of the visa applicant are framed and identified, it may be relevant to consider a question of whether the visa applicant is exposed to, or at risk of, a class of harm which may not fall within the description “significant harm”, in the proposed place of relocation. That consideration is engaged by the question of what would be “reasonable”. Without seeking to identify the scope of that inquiry, the question of whether a visa applicant on relocation might be exposed to a particular class of harm which might make it unreasonable to relocate to a place where he or she is not at real risk of significant harm, might include a case where a visa applicant is significantly physically impaired (such as a person who is profoundly blind; a person who has lost limbs and whose mobility is significantly compromised, both of which might significantly affect the flexibility and capacity of the applicant to respond to whatever the character of the threat to safety might be in the place of relocation). Violence at the proposed place of relocation which has a particular relevance to the features of the applicant’s special circumstances may be relevant.

(35)    It should also be noted that in introducing the 2014 amendments to the Act so as to codify the questions arising under s 36(2)(a) and remove any principle of reasonableness of relocation for the purposes of claims under that section, the Parliament did not take the opportunity to amend s 36(2B) to remove the reasonableness element of that subsection.

(36)    It should be noted also that in DFE16 v Minister for Immigration and Border Protection (2018) 265 FCR 57 (“DFE16”), Reeves, Rangiah and Colvin JJ expressed these observations at [27]-[29]:

[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.

[28]    As to the first aspect, as already noted at [6] above, there will be a real risk of significant harm (as defined) if there is a real risk that the visa applicant will die or will suffer cruel, inhuman or degrading treatment or punishment that is intentionally inflicted.

[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.

[emphasis added]

(37)    Having regard to the observations of, and the approach adopted by, the Full Court in DZU16, taken together with the remarks of the Full Court in DFE16, I propose to address the questions in issue in this appeal on the footing that the appellant’s claim was that class of case which required the IAA to have regard to whether Kabul was unsafe for the appellant thus engaging a consideration of a lower level of harm than a real risk of significant harm, having regard to the contention of the appellant that upon relocation to Kabul he would suffer harm of the kind he asserted and made the subject of his claim.

Resolution of the appeal

107    The appellant contends that two questions arose to be resolved by the IAA when determining the issue of relocation.

108    First, the IAA had to determine whether, objectively, there was no appreciable risk of the occurrence of the feared harm in another part of Afghanistan.

109    Second, if, as here, the IAA was satisfied there was not an appreciable risk of the appellant suffering significant harm in another part of the country, namely Kabul, the decision-maker was then required to determine whether the relocation of the appellant to Kabul was reasonable, in the sense of practicable, having regard to the appellant’s particular circumstances.

110    The appellant contends that in addressing the second question, it was relevant for the IAA to consider risks of harm faced by the appellant which were “different or lower risks of harm” than a real risk of suffering significant harm insofar as those lower level risks of harm bore a relationship with the “reasonableness” or “practicability” of the appellant’s relocation to Kabul. The appellant contends that the IAA’s failure to do so, both in terms of having regard to lower or different levels of harm, and to the appellant’s particular circumstances, caused the IAA to fall into jurisdictional error on both counts.

111    The appellant contended that this failure on the part of the IAA can be seen most clearly from [55]-[63] of the IAA’s decision. Counsel for the appellant contended that when considering the reasonableness of the appellant’s relocation to Kabul, the IAA primarily had regard to security issues and practical considerations, with a particular emphasis on the high unemployment rate and cost of living, those two issues being, as noted by the IAA, a focus of the appellant’s evidence and (former) representative’s submissions to the authority.

112    After summarising the background facts regarding the appellant’s father’s death and the appellant’s claim to fear harm at the hands of the Taliban on account of his ethnicity and religion, counsel for the appellant in oral submissions principally relied on the material contained in the submission from the appellant’s then representative to the IAA dated 13 December 2016.

113    During the final hearing, the appellant drew the Court’s attention to the following matters contained in the material to which the IAA is said to have failed to have proper regard.

114    First, at pp 3 and 4 of that submission to the IAA (AB 133-134), there is an assertion that inside and outside Kabul, “Taliban and Daesh remain focused on killing those who are Shias and of Hazara ethnicity,” which counsel argued was at the “forefront” of the appellant’s feared harm, namely targeted violence against him as a Hazara Shi’a in Kabul. This was supported by the following country information and news articles, which mention attacks in Kabul on 12 April 2016 (on Government security officials), 11 October 2016 (on a gathering of Shi’a pilgrims at a shrine), and 21 November 2016 (on Shi’as worshipping in a mosque): the DFAT February 2016 report; a London School of Economics article dated 2 August 2016 entitled “As the Taliban increase the tempo of violence in Afghanistan they face new competition from the rising Wilayat Khorasan”; an Al-Jazeera news article dated 12 October 2016 entitled “Worshippers marking Ashoura shot dead in Kabul”; and a Human Rights Watch article dated 13 October 2016 entitled “Afghanistan’s Shia Hazara Suffer Latest Atrocity”.

115    Counsel for the appellant contended, at p 14, lns 16-25, that the IAA’s failure to recognise any risk less than that of a real risk of suffering significant harm, or a well-founded fear of persecution upon relocation to Kabul, was evident in the IAA’s summary of its findings at para 61:

Taking into account the applicant’s overall circumstances and the foreseeable livelihood and security situation in Kabul more broadly (including the overall situation regarding generalised violence and criminality in Kabul), I am not satisfied that relocation to Kabul is rendered unreasonable.

116    Second, in relation to ground two, counsel for the appellant asserted that the specific circumstances which the IAA failed to have regard to were “the trauma he had suffered [as accepted by the IAA] and his claimed fear of the Taliban in deciding whether it was reasonable for him to relocate to Kabul”: p 14, lns 42-44.

117    At the outset of its consideration of the issues raised by the review, the IAA acknowledged receipt of the appellant’s former representative’s submission and that it contained “new information” which was not before the delegate, and specifically, that there was country information published immediately prior to and on the day of the delegate’s decision in relation to the attack on the Shi’a mosque on 21 November 2016. The IAA was satisfied that there were “exceptional circumstances” to allow it to consider this information, and the appellant does not contend that the IAA failed to consider the attacks and country information described above.

118    Thus, as the appellant no longer contends that the IAA failed to have regard to the relevant country information, the present issue in relation to ground one is confined to whether, in considering the reasonableness of the appellant relocating to Kabul, the IAA had regard to a real risk of suffering significant harm as the only level of relevant harm.

119    In exercising its statutory review function, the IAA undertook the following process.

120    First, the IAA satisfied itself that the appellant would not face a real risk of significant harm upon return to another area of the country, specifically Kabul, having regard to all of the relevant country information and the material before it.

121    Second, the IAA determined that, in the particular circumstances of the appellant, it would be reasonable for him to relocate to Kabul. A number of the passages earlier mentioned in these reasons, show that the IAA had regard to practical considerations, specific risk factors for the appellant and different types and levels of harm posed by the proposed relocation to Kabul. All of these factors have been set out above.

122    For example, in the passage at para 61 of the IAA’s decision emphasised by the appellant, the IAA examined the country information in detail and satisfied itself that Kabul was under the effective control of the Afghan Government and would be so in the foreseeable future. The IAA considered that the risk of the appellant being harmed through generalised or insurgent violence or criminality was remote, and determined that this low, remote risk of harm was not of the type or level of harm which would make it unreasonable for the appellant to relocate to Kabul.

123    When read in isolation, the wording used by the IAA to express its conclusion at para 61 may seem broad, but the findings that the security risk posed to the appellant upon relocation to Kabul is remote and not a basis to render relocation unreasonable, must be viewed in context of the following eight passages of findings.

124    First, although the appellant had not previously lived in Kabul, he had visited, and had friends and tribal connections in the Hazara community, which includes a substantial population of 1.6 to 2 million Hazara Shia’s: IAA at [13] and [23].

125    Second, the Taliban or Pashtuns responsible for his father’s death did not maintain any specific interest in the appellant, nor had he been the subject of any targeted abductions or personal threats for any connection with his father. The appellant’s name and links to his father were considered as potential sources of risk for him being harmed by the Taliban, his primary claimed fear, but the IAA concluded there was no evidence to support a finding that this put him at any heightened risk such that relocation would be unreasonable: IAA at [15], [16], [24] and [40].

126    Third, Kabul is under effective government control and the IAA was “not satisfied that sectarianism will manifest in the reasonably foreseeable future such that violence against Hazaras/Shi’as in Kabul will extend beyond sporadic incidents”: IAA at [30]. The IAA had considered material relating to the two incidents primarily relied upon in the appellant’s submission, being the October and November 2016 targeted attacks on Shi’as, and identified a low level risk of sporadic incidents, but did not consider, in the exercise of its discretion, that this risk was such that it would render relocation impracticable. The IAA also considered whether the appellant would be of interest to the Pashtun members of the community and would be at risk as a member of the ethnic and religious minority of Hazara Shi’as in Kabul, but found that he would not, and noted that this minority is a substantial community which comprises 1.6 to 2 million people in Kabul: IAA at [31].

127    Fourth, Hazara Shia’s are free to participate in public life and where discrimination exists, it is low-level only, and state protection will not be withheld against the appellant because he is a Hazara Shi’a: IAA at [32]. The appellant may face discrimination, but it would be low-level and infrequent, and would not threaten his capacity to access services, earn a livelihood or otherwise subsist: IAA at [51]. Here, the IAA evaluated one aspect concerning the reasonableness of the appellant relocating to Kabul by weighing the risk of what it found to be low-level discrimination against how it might practically affect his ability to work and subsist, concluding it did not threaten that capacity.

128    Fifth, the appellant’s capacity to subsist will not be threatened and he does not have any vulnerabilities which would prevent him from accessing employment. Although there is widespread unemployment, Kabul offers better opportunities than other parts of Afghanistan and the appellant is an able-bodied man of working age with experience as a painter, farmer and self-employed street vendor: IAA at [34] and [59].

129    Sixth, the appellant is of no specific interest to anti-Government elements (AGEs), insurgents or extremists such that he would be personally targeted in Kabul, and would not be associated with the Afghan government or international community or the west as a result of being a returnee failed asylum seeker who spent time in Australia: IAA at [39] to [41]. Here the IAA considered another claimed risk of harm to which a person in the appellant’s specific circumstances may be exposed upon relocation to Kabul, but determined there was no evidence to elevate the risk to a level which would render relocation unreasonable.

130    Seventh, although the appellant and his family experienced a shocking tragedy when his father was killed, there is no evidence to indicate specific risks to the appellant upon return to Kabul. It is too speculative to conclude that any impact on the appellant’s psychological state or mental health would lead to a risk of harm. The appellant has demonstrated resilience in living abroad and there is not a real chance that his mental health will deteriorate or that he will require treatment not available in Kabul: IAA at [40]. In relation to this passage, the Court took counsel for the appellant to the passage of the IAA’s reasons earlier mentioned in these reasons, and set out below:

However, no further information about his specific circumstances and vulnerability has been provided. I acknowledge the applicant and his family experienced a shocking tragedy but there is no evidence before me indicating that the applicant would face particular risks upon return.

[emphasis added]

131    The Court asked counsel for the appellant whether those observations of the IAA reflected a fair statement of the position about the state of the evidence before the IAA in relation to the specific circumstances and vulnerabilities of the appellant. Counsel for the appellant accepted that it as a fair statement of the position and made these remarks:

But … what I’m relying on is that there was a finding that the murder of his father had been traumatic … and had been significant in his … life, and that there was … no finding, as far as I can see … as to whether or not he did fear the Taliban or any other insurgent group, and that, in my submission, is significant when it comes to the question of relocation. So no, there wasn’t a psychological report or anything like that … but there was a claim and acceptance of, essentially, trauma.

132    A finding that this tragic event occurred and that it was traumatic for the appellant was clearly made and taken into account by the IAA. A fair reading of the IAA’s reasons reveals that the IAA was conscious of these tragic circumstances, the presumed emotional impact it must have had upon the appellant and the appellant’s contentions that his vulnerabilities arising out those events ought to be taken into account. However, no further evidence as to how those events may have elevated his risk profile upon return to Kabul was put before the IAA. The IAA’s conclusion that the appellant would not face particular risks upon return to Kabul as a result of having experienced this trauma was open and its conclusion did not constitute a failure to have regard to the appellant’s specific circumstances or vulnerabilities, as the IAA took those matters into account to the extent that they were before it. The appellant’s contention reflects, essentially, an emphatic disagreement with the IAA’s conclusion on the merits that, absent any further evidence to the contrary, neither the trauma nor the tragic event in 1998 itself exposed the appellant to particular risks upon return to Kabul which would render relocation unreasonable. I will return to this analysis in relation to ground two.

133    Eighth, although there is a high level of crime in Kabul, there is no evidence to suggest the appellant, as a returnee from the west, will be targeted for money or a perception of wealth, and his familiarity with Kabul will be conducive to his integration and ability to take appropriate precautions: IAA at [42]. Here, the IAA evaluated whether the risk of the appellant being targeted in a city with a high level of crime on the basis of a perception of wealth as a returnee from the west was such that it would render relocation unreasonable. The IAA concluded, when evaluating that risk in the context of other findings made regarding practical considerations such as the appellant’s familiarity with, connections in, and other factors in favour of his capacity to find employment and subsist in Kabul, that the risk did not render relocation unreasonable.

134    Having regard to all of these considerations, and the matters comprehensively discussed in these reasons concerning all of the findings of the IAA, the appellant’s contention that the IAA failed to have regard to risks lower than, or types of harm other than, a real risk of suffering significant harm, is clearly incorrect. The appellant’s contention again reflects an underlying disagreement with the conclusions reached by the IAA on the merits, having engaged in an evaluative exercise in respect of each risk or type of harm to which the appellant would be exposed upon relocation to Kabul. The IAA determined, when those risks were weighed individually and cumulatively along with the other risks and practical considerations, such as the appellant’s familiarity with Kabul; his ability to integrate as a minority Hazara Shi’a; his connections in Kabul; and his capacity to find work, that relocation to Kabul was not unreasonable, in the sense of impracticable.

135    Accordingly, ground one must fail.

136    In relation to ground two, counsel for the appellant asserted that the specific circumstances which the IAA failed to have regard to were “the trauma he had suffered [as accepted by the IAA] and his claimed fear of the Taliban in deciding whether it was reasonable for him to relocate to Kabul”: p 14, lns 42-44.

137    The analysis relevant to these two contentions is linked with observations already made above when discussing whether the IAA had regard to the real chance of the appellant suffering significant harm upon relocation to Kabul as the only level or type of harm to which he would be exposed upon return.

138    With respect to the former, the trauma the appellant had suffered was taken into account by the IAA in the manner discussed earlier in these reasons.

139    With respect to the latter, namely, the claimed fear of the Taliban, and specifically in Kabul, the IAA considered the appellant’s claimed fear of harm and the risk of suffering harm from the Taliban, extensively, and did so specifically in the context of evaluating the practicability and reasonableness of his relocation to Kabul. The IAA reached conclusions with which the appellant simply disagrees.

140    No jurisdictional error has been demonstrated in relation to either ground relied upon by the appellant.

141    Accordingly, the orders will be that the appellant is given leave to amend the notice of appeal in the terms proposed. The appeal is dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal.

Associate:

Dated:    19 June 2020