FEDERAL COURT OF AUSTRALIA

DBO17 v Minister for Immigration and Border Protection [2020] FCA 1118

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant have leave to rely upon proposed Ground 2 as identified in his proposed Amended Notice of Appeal.

2.    The appeal be upheld on Ground 2.

3.    The orders of the Federal Circuit Court of Australia dated 30 October 2019 be set aside, and in lieu thereof it be ordered that:

(a)    the decision of the Immigration Assessment Authority made on 7 June 2017 be set aside;

(b)    the matter be remitted to the Authority for determination according to law; and

(c)    there be no order as to costs.

4.    The First Respondent pay the Appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

KERR J:

1    The Appellant is a citizen of Afghanistan. He is of Hazara ethnicity and Shia Muslim faith.

2    On 23 May 2016, he lodged an application for a Safe Haven Enterprise (subclass 790) Visa (SHEV).

3    On 16 November 2016, a delegate of the Minister for Immigration and Border Protection (the Delegate) refused the application.

4    On 21 November 2016, the decision of the Delegate was referred to the Immigration Assessment Authority (IAA) for review.

5    On 7 June 2017, the IAA affirmed the decision of the Delegate.

6    On 11 July 2017, the Appellant filed an application in the Federal Circuit Court of Australia (FCCA) seeking review of the IAA’s decision.

7    On 30 October 2019, the FCCA dismissed the application: DBO17 v Minister for Immigration & Anor [2019] FCCA 3349. By a notice of appeal filed in this Court on 20 November 2019, the Appellant seeks to appeal that decision.

THE APPELLANT’S CLAIMS

8    The Appellant set out his protection claims in a statement in support of his application for a SHEV. He claimed to be a citizen of Afghanistan of Hazara ethnicity and Shia Muslim faith. He stated that to the best of his knowledge he had no other citizenship or right to reside in any other country. He claimed to fear harm from the Taliban and his “local Jihadi commander” due to his ethnicity, his faith and his association with “C”: a project implemented by USAid.

9    The Appellant grew up in a village in the Daikundi Province in Afghanistan. He has qualifications in biology and information technology. He has professional experience in the latter field. On 2 January 2012, he began working for C as a system analyst.

10    During his employment with C, the Appellant helped to set up IT services in regional Afghan areas and educate local staff in the use of such services. The Appellant’s work with C required him to travel to different provinces in Afghanistan accompanied by other IT staff members and social workers. He stated that this was dangerous, due to the presence of the Taliban. Initially, the United Nations Assistance Mission in Afghanistan provided safe transport for C members. However, its local office closed. The Appellant and his colleagues were then forced to travel independently by car.

11    On one occasion the Appellant was on leave and wished to travel to Kabul. He travelled by car to the Maidan Wardak Province, and then changed cars. He did so because it was dangerous to continue the journey in the same car, which the Taliban might recognise if driven through the provinces. He claimed that when he arrived in Kabul:

25.    … that same day I received a phone call from a member of the Taliban. He told me that I was working for the opposition and that assisting the US government made me an enemy of the Taliban. He told me that I had escaped this time but I will not have this chance again. He said he never wanted to see me in this part of town again. He said “If I catch you, I will kill you and every member of your family”.

26.    In the past, I had received similar calls but this was the most serious phone call I had received from the Taliban.

12    When he was due to return to work, he told a “white lie” to his employer. He claimed that he needed to take personal leave as his mother was sick. He considered it to be too dangerous for him to advise C of the threat, fearing that if he did so he and his family would face harm at the hands of the Taliban.

13    The Appellant subsequently made arrangements to leave the country.

14    The Appellant also claimed that while in Afghanistan he had feared a local “jihadi commander” in his district who had been targeting elders in his community, killing one of them. The Appellant claimed that he was scared that this commander would target other members of the community, and was therefore “obliged to leave the area in fear of [his] life”.

15    The Appellant stated that he feared that if he was returned home, the Taliban would find him and kill him. He claimed that the Afghan government could not help him as they are unable to effectively enforce the law, and police are also known to work for the Taliban. He further claimed that:

34.    Despite ceasing my employment with [C], it is too late for redemption. The Taliban have the view that I am associated with the opposition and am also an enemy of the Taliban.

35.    Since I have left Afghanistan, the situation has worsened with the rise of Daesh throughout the region. My family have told me over the phone that the Daesh is a lot worse than the Taliban.

Relocation

36.    I am unable to relocate to another area of Afghanistan because my risk of harm extends throughout the whole country, as the Taliban are everywhere.

Summary of claim

37.    In summary, I fear harm including physical assault, torture and murder at the hands of the Taliban and Jihadi commander on the basis of my Hazara ethnicity, Shia Muslim religion and my association with [C], funded by the US government. I further fear harm in relocating to other regions of Afghanistan as the risk extends throughout the whole country. I have personally been threatened to death by my feared persecutors. I cannot rely on the protection of the Afghan state and cannot safely relocate anywhere else in Afghanistan.

16    The Appellant’s representative provided further submissions to the IAA on 20 December 2016. Those submissions addressed in some detail the risks to which he asserted he would be exposed if he returned to Afghanistan, but relocated to Kabul. Those risks were said to arise from matters including his existing profile with the Taliban; his lack of social, tribal or personal connections in Kabul; and the security situation there. Importantly, the Appellant also submitted that it would be dangerous for him to exercise his skills in English and IT to seek employment in Kabul. He asserted that doing so would expose him to discrimination and persecution for being, inter alia, “associated with the international community and western/ideals culture”.

17    In his 20 December 2016 submissions, the Appellant sought to provide new country information. However, the IAA was not satisfied that there existed exceptional circumstances as would permit it to have regard to that information pursuant to s 473DD of the Migration Act 1958 (Cth) (Migration Act).

18    On 9 May 2017, the IAA invited the Appellant to comment on recent country information which it advised might lead the IAA to conclude that while Islamic State posed an “emergent threat” its capabilities and presence within Afghanistan were confined, and further that urban areas of Afghanistan had been relatively secure for several years, such that:

•    There is not a real chance or real risk of you being seriously harmed by Islamic State, the Taliban or any other Anti-Government Elements (AGE) for reasons of your religion or ethnicity in major urban areas like Kabul and Mazar-e-Sharif in Balkh Province, and therefore that your fear of persecution may not relate to all areas of Afghanistan;

•    Future attacks on the Shia population are likely to be occasional or infrequent, and that Islamic State’s capacity to perpetuate attacks is limited and being weakened and that any such the [sic] attacks are unlikely to result in the emergence of sectarianism in the country.

It may also be relevant to the issue of whether you could relocate to another area of Afghanistan as the IAA may conclude that it would be reasonable for you to relocate to an area such as Kabul or Mazar-e-Sharif where there is not a real risk of you suffering significant harm. Subject to your comments, this new information would be the reason, or part of the reasons, for affirming the decision not to grant you a protection visa.

19    On 23 May 2017, the Appellant’s representative provided a response to that invitation. The response referred to and collated various country information that was said to establish that Islamic State did have the capacity to carry out frequent attacks against targets including the Hazara Shia population of Afghanistan, and indeed had done so. The response also collated more general information regarding the security situation in Afghanistan. It included a report dated February 2017 by the United Nations High Commissioner for Refugees (UNHCR) to which I will refer in detail below. The Appellant also provided further submissions with respect to the reasonableness of his relocation to Mazar-e Sharif, as opposed to Kabul.

IMMIGRATION ASSESSMENT AUTHORITY DECISION

20    As noted above, the IAA affirmed the Delegate’s decision to refuse the Appellant a SHEV. Broadly, it did so on the basis that he did not face a real chance of persecution in “all areas of the receiving country” in accordance with s 5J(1)(c) of the Migration Act (emphasis added).

21    The IAA’s reasons are detailed, and the grounds of appeal advanced make it necessary to extract some passages at length.

22    For the purposes of the present appeal, the following introductory paragraph of the IAA’s reasons is important:

7.    The IAA wrote to the applicant on 9 May 2017 and invited him to comment on information relating to the recent security situation in Afghanistan, and the potential for the applicant to relocate within Afghanistan, and Mazar-e-Sharif. The applicant provided a submission on these issues on 23 May 2017. I have had regard to those submissions, albeit I have not expressly referenced all information referred to in those submissions.

(Emphasis added).

23    The IAA accepted that there was a risk that the Appellant would be harmed if he were returned to his home area. However, it found that this risk did not extend beyond that area to include cities such as Kabul. The IAA found as follows:

23.    I have considered whether the chance or risk of harm to him extends beyond his home area, whether due to his profile or the Taliban’s network. The applicant has contended that he would be on a Taliban blacklist. While I accept that he was threatened on more than one occasion by telephone, the applicant has not convinced me that he weight and gravity of his situation or profile is such that the Taliban or any other group or persons would seek to follow, track, identify or harm him outside of his home area. His employment was brief, and several years have passed since the threats. I am prepared to accept he has a profile, albeit a very low one, and that it is confined to his home and work area and contingent on him being recognised. Country information before me indicates that the Taliban may seek to track a high profile target elsewhere in Afghanistan, however it appears that the tracking of a law profile person is unlikely, and would also be difficult in a major urban area. I find that this would be the case in relation to the applicant.

24.    Given his past profile, I cannot discount that there is a more than remote chance the applicant would be targeted for serious harm if he returns to his home area … However I do not accept that [the Appellant] is on a blacklist or that his history or profile is such that he would be recognised, followed, tracked, identified or targeted outside of his home area ….

(Footnote omitted; emphasis added).

24    It is helpful for the purposes of the present appeal to extract in full the following passages from the reasons of the IAA concerning the potential implications of the Appellant’s future employment for his safety on relocation to Kabul:

26.    One residual question is that notwithstanding his limited profile in Afghanistan, whether he would return to employment with an international organisation. The country information indicates there are credible risks to persons with such profiles, even in major cities like Kabul where the government has effective control and there is a strong police and military presence.

27.    In terms of his return to Afghanistan, the applicant did not claim he had any intention or desire to work for [C] again, or find work with a government or international organisation. The evidence before me does not suggest that his decision to apply for work with [C] was anything other than the applicant taking a job opportunity in his chosen field of computing. As a question of fact, I am not satisfied he would seek to work for [C] or a similar government or international organisation in the future.

28.    In any event, I find that if the applicant feared harm on the basis of employment with the government or an international organisation elsewhere, such as Kabul, he could seek alternative employment that would not hold such a risk profile. It is apparent from his evidence that the applicant could take reasonable steps to avoid harm – he is highly educated and has excellent skills in computing and the English language. He has experience living in Kabul, and I find that he would have a network of friends and some family in the city (discussed in more detail below). Notwithstanding the difficult economic situation in Afghanistan, I am satisfied there is no impediment to him finding work with a low profile private business, that would provide a safer workplace and is not connected to a governmental or international organisation, and would avoid him developing an adverse risk profile. I am satisfied the applicant could take reasonable steps to modify his behaviour to avoid a real chance of persecution.

(Emphasis added).

25    Otherwise, the IAA rejected the proposition that the Appellant’s Hazara faith; Shia ethnicity; travel to the West; or earlier employment would place him at risk of harm on return: assuming that he did not return to his home area. In that regard, it is necessary in this appeal also to reproduce at some length the following passages of the IAA’s reasons:

33.    The applicant also claimed that because he had lived a number of years in a foreign country they will call him a foreigner servant, he will be seen as an infidel, and there will be problems for him on return. The representative has expanded on these claims and contended that the applicant falls within the potential risk profile of individuals perceived as ‘westernised’. It refers to UNHCR advice about reports of individuals who returned from Western countries having been tortured or killed by insurgents on the grounds that they had become ‘foreigners’ or that they were spies for a Western country. The submission also highlights the risk to those with direct, perceived and imputed support for the international community and western ideals, and indicates that the applicant’s past and future employment (including as a teacher), and the use of his English skills, exposes him to risk form the Taliban and other insurgents.

34.    The delegate considered these claims on the basis that he was a failed (Hazara) asylum seeker. I have assessed the claim on that basis, as well as consider the risks profiles of those returning from the west and individuals perceived as westernised, and other related risk profiles.

35.    I accept there are reports of returnees and asylum seekers being targeted and that the UNHCR guidelines refer to reports of individuals being threatened and targeted by insurgent groups because of their perceived values, appearance or other such characteristics which link them to the west. I note the UNHCR report says little beyond the description of the group potentially at risk. A footnote in the report refers to two reports that considered the situation of young Afghan men returning to Afghanistan from the United Kingdom. It indicates that young people with western connections, mannerisms, values or appearances are reportedly at risk of being mistaken for spies, or seen as foreigners or collaborators with the government and the international community. It states that “in some cases, young people have been threatened or targeted as a result of issues connected to their original asylum claims, and, for a significant group, simply being identified as a returnee has put them at considerable risk of violence”.

36.    The reference in the UNHCR guidelines is general and provides little details about the types and frequency of the incidents or, most critically, where the claimed incidents against such returnees occurred. The UNHCR report also cites two examples of two Afghan men, one was an Afghan-Australia and the other an asylum seeker, who were targeted for harm while travelling in the Hazarajat.

37.    DFAT also states it is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country, confirming reports of incidents in the Hazarajat, which I accept and have had regard to. However, DFAT also assesses that, in general, returnees from western countries are not specifically targeted on the basis that they are returnees from the west or because they may have sought asylum. Those reports also indicate that Hazara Shia returnees, including those from the west, who are not directly associated with the government or the international community, currently do not face a higher level of risk upon return than returnees to Afghanistan from other ethnic groups. DFAT further assesses that, because of Kabul’s size and diversity, returnees are unlikely to be discriminated against or subjected to violence on the basis of ethnicity or religion.

38.    He left Afghanistan in his early twenties. The applicant did not spend his formative years in Australia or the west. He did not claim to possess any western mannerisms or opinions that he considered would put him at risk on return. Moreover, he has considerable familiarity with Kabul itself. I consider his situation is far different from other young Afghan males returning to the country who possess western mannerisms and characteristics and/or may be unfamiliar with Afghan culture or vulnerable in an unfamiliar city or village.

…

40.    I am not satisfied that in a major urban area like Kabul, which has a diverse ethnic and religious population and has seen considerable population growth from returnees and IDPs over the years, that the applicant would face a real chance of being seriously harmed as a returnee from the west, or because he may have sought asylum, including as a Hazara Shia. Furthermore, there is nothing before me that indicates a person who has spent time in the west would be imputed to be an infidel solely on the basis of returning to Afghanistan from the west or that they would face a real chance of harm on this basis

41.    The information and evidence before me does not indicate the applicant possesses any adverse profile or political opinion, or that one would be imputed to him, even when accounting for his past experiences and background. While I acknowledge the representative’s submission that there are risks to those that are even perceived as connected to those groups, I am not satisfied the applicant has any actual history or higher profile, or that he would be imputed or perceived as having such a profile or connection, even when having regard to his religion and ethnicity, his past work for [C], his past teaching experiences, his English skills, his time in Australia, or his status as a returnee from the west and as an asylum seeker. I find that any such risks would be further reduced in a large and diverse urban area like Kabul. I find there is no real chance of the applicant being harmed for these reasons in Kabul.

(Footnotes omitted).

26    As for the information that the Appellant had provided to the IAA with respect to the risk posed by Islamic State, the IAA found that attacks against low profile Hazara Shia people living in Kabul were rare. It also found that Kabul had “a higher level of government control and a greater level of security than other parts of Afghanistan”.

27    The IAA further found that while Islamic State was capable of executing infrequent attacks in Kabul more generally, that risk was limited. Moreover, even that limited capacity of Islamic State was under threat. With respect to this issue, having regard to the submissions advanced on appeal it is again convenient to extract in full the following paragraphs from the IAA’s reasons. The passages in bold, in particular, are relevant to later analysis:

42.    I have assessed the risk to the applicant from the Taliban, other insurgents, and Islamic State on the basis of his ethnic and religious background as a Hazara Shia.

43.    The IAA invited the applicant to comment on country information about Islamic state. The applicant contended in submissions that Islamic State has the capacity to carry out frequent attacks against its intended targets, including the Hazara Shia population of Afghanistan, and that Islamic State’s purported geographical confinement, struggles to control territory, and inability to establish itself in other areas, is irrelevant in considering the threat the group poses to Hazara Shia Muslims in Afghanistan.

44.    While I accept the submissions on the deteriorating security situation in a number of provinces is a growing concern, the country information before me, including DFAT advice, also indicates that incidents of violence against Hazara Shia on the basis of religion remain infrequent in major urban areas like Kabul. Kabul has not been immune to attacks by insurgent groups, but over the last several years, attacks directed against the Hazara Shia population in the city have been rare. Instead, the threat from insurgents active in Kabul, principally the Taliban, has been directed towards high profile targets such as government institutions, political figures, the Afghan National Defence and Security Forces (ANDSF), NATO-led and International Security Assistance Force missions, other security forces, foreign missions and international organisations, as well as high profile locations such as schools, mosques and hospitals.

45.    Kabul has a higher level of government control and a greater level of security than other parts of Afghanistan. The ANDSF and international forces have put in place a range of countermeasures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within the city. These provide a deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in the city. While the government maintains effective control of Kabul and has a range of counter-measures in place, such attacks still occur with some frequency. Nevertheless, DFAT assesses that Kabul’s size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups in the city, and ethnic and religious based violence in Kabul is rare.

46.     While Kabul has been comparatively secure for Hazara Shias, in the last year there has been an escalation in attacks targeting the Shia population in the city. Islamic State’s local franchise, or affiliates of the group, has claimed responsibility for these attacks. These attacks raise a serious question as to whether the applicant would be at a real chance of being seriously harmed on the basis of his religion and ethnicity as a Hazara Shia within Kabul.

47.    I have weighed the country information before me about whether the recent attacks in Kabul are indicative of a shift in the security situation for Hazara Shia in Afghanistan …

…

48.    Recent country information suggests that Islamic State’s presence and capacity in the country has moved beyond the nascent stage, however the information before me also raises questions about whether the group has the capability to orchestrate anything beyond occasional high profile attacks against soft targets …

49.    A report from the Afghanistan Analysts Network (AAN) on the recent attacks states that while Islamic State seems capable of planning and executing ‘occasional’ attacks, it remains for now a limited threat. The AAN also assesses that it is unlikely that Islamic State can single-handedly drive the conflict in a sectarian direction. Other reports suggest that while Islamic State will probably continue to have capacity to undertake infrequent attacks in urban areas in Afghanistan in the future, Afghan, United States, and Taliban forces are intent on eliminating the group’s presence in the country and this is likely to limit any Islamic State expansion over the next 12 months. In terms of its current presence within Afghanistan, reports indicate the group is confined mostly to the Pakistan border, around Nangarhar, and specifically Achin District, and not Kabul. It has been estimate that in late 2015 that there were 1,000-3,000 Islamic State fighters in Afghanistan and that US and Afghan military efforts had reduced the group’s fighting strength by 15-20% as of October 2016 to roughly 1,000 personnel, as well as taking out high level leaders with the group.

50.    The representative has contended that Islamic State’s limitations have not been an obstacle for the group to carry out sectarian attacks against their intended targets. The AAN report indicates that Islamic State has clearly moved beyond the nascent stage, however it also emphasises that as an organisation it has struggled to expand beyond the four districts in Nangarhar in the east of Afghanistan, remaining, so far, a limited threat. I note the reference to a Vice News report from January 2017 which suggests the group is gaining ground in the east of Afghanistan. The presence of an Islamic State foothold in this part of the country is not in question, however I prefer later reporting that suggests that the group’s position in the East and Nangarhar has been weakened.

51.    The AAN report indicates that while the presence of Islamic State cells in Kabul is credible (drawing on existing groups of ex-Al Qaeda and Salafi fighters) and there is limited potential for future recruitment, it also emphasis that Islamic State’s presence in Kabul is limited ... This suggests to me that while earlier country assessments that indicate the group is capable of executing infrequent attacks in the country remain accurate, even that limited potential is under threat.

52.    Beyond the threat of future attacks, the AAN reports suggests that what has sharpened concern among Afghans is not Islamic State’s capabilities, but its willingness to drive the conflict in Afghanistan in a sectarian direction. In fact, the report states there are a range of ‘reassuring’ factors which indicate that sectarianism is unlikely to take hold in Afghanistan in the reasonably foreseeable future. These include the fact that the attacks have been widely condemned across lines in Afghanistan, including by the Taliban. There are also strong indicators that the parties to the main conflict, the Afghan army and security forces and the Taliban, as well as Shia and Sunni religious leaders, and the population of the country more generally, remain fundamentally opposed to sectarianism.

53.    The representative has contended that it is irrelevant whether sectarianism is likely to arise in Afghanistan, and that the law does not have a requirement that the harm should take place in a sectarian conflict. He posits that the key question is whether there is widespread targeted killing of Hazara Shia Muslims. I accept there is no requirement for the feared harm to occur in the context of broader sectarianism. The purpose of the assessment of sectarianism was to consider both whether Islamic State’s ‘goal’ of achieving sectarianism is likely to take hold, and therefore whether the risks of Hazara Shias being seriously harmed in Kabul is likely to increase beyond the threat of infrequent high casualty attacks. Instead, the information before me indicates the sectarianism (and frequent threats from this) are unlikely to take hold, and that the risk to Hazara Shia are confined to the credible, but remote, risks from infrequent high casualty attacks.

54.     The representative has contended that the Hazara Shia population has been among one of the biggest victims of the increased deterioration in the security situation in the country. Outside of the serious but limited threat posed by Islamic State, and ongoing risks posed to Hazara Shias on the roads in and around the Hazarajat, there is no clear indication in the country information of any escalation in other serious harm or other persecutory conduct towards Hazara Shia and any other religious and ethnic minorities in Kabul, whether by Islamic State, the Taliban or any other insurgent group, such as Lashkar-e-Jhangvi (LeJ), being the last group to orchestrate attacks against the Hazara Shia population in Kabul in 2011. Instead, the country information before me, including the numerous attacks cited by the representative, indicates that the persons and groups that remain most at risk from insurgents in Kabul and other cities like Mazar-e-Sharif, are those associated with the government, the military, the media and the international community. This is also true of a large number of attacks perpetrated by Islamic State outside of Kabul, and also more recent attacks in Kabul cited by the representative.

55.    The submissions cites Professor Maley and Mr Swincer as assessing that Afghanistan is not safe for Hazara Shias. While I have weighed that advice in my assessment, the country information before me does not support such an assessment. While there are clear examples of Hazara Shias being seriously harmed and killed in incidents within the country, and DFAT, the UK Home Office and the UNHCR acknowledge these attacks the vulnerabilities of this group, the advice does not suggest to me that Hazara Shias have a high risk profile or face a real chance or risk of being seriously harmed on the basis of their religion and ethnicity alone. Even in terms of the risks on the roads in Hazarajat, the advice as to whether Hazara Shias are targeted principally on the basis of their religion or ethnicity is equivocal. I accept there may be credible risks to Hazara Shias travelling in and out of the Hazarajat and other areas in the country, including from the examples cited by Professor Maley, and I accept there has been a general deterioration in the security situation across the country, however I am not satisfied on the information before me that those risks are present throughout Afghanistan, or that the applicant would face a real chance or risk of harm for these reasons within Kabul.

56.    Considering all the information before me, I am satisfied that Islamic State is a genuine, but limited and unsophisticated threat in the country. While I accept the group is able to orchestrate occasional attacks in Kabul, including against the Hazara Shia population, when having regard to the security presences and government control in the city, the limited capacity of Islamic State and its lack of territorial foothold in the area, the size and diversity and population of the city of Kabul, and the applicant’s lack of other profile or proximity connected to those In high profile groups, I find there is only a remote chance, and therefore not a real chance, of the applicant being seriously harmed on the basis of his religion and/or ethnicity, or for any other reason by Islamic State or its affiliated groups. Furthermore, I am also satisfied that the attacks are not yet an indication of the risk of sectarianism in the country in the reasonably foreseeable future, and I find that there is no real chance of the applicant being seriously harmed in sectarian violence in the country.

...

60.    There is no evidence before me of extortion, illegal taxation, forced recruitment and forced labor, physical abuse, and detention of Hazara Shias within Kabul. In terms of forced recruitment, the UNHCR indicates that it occurs in areas where insurgent groups like the Taliban exercise effective control over territory and the population. The limited examples of extortion and illegal taxation also appear in the context of areas where the Taliban or insurgent/militia groups have control or influence. Other examples refer to general corruption at the district and provincial level. I am not satisfied that this is the case in terms of Kabul and that there is any real chance of the applicant being targeted in these particular ways on the basis of his ethnicity and religion.

…

64.    In terms of generalised violence and insecurity in Afghanistan, I have considered generally the deteriorating security situation in the country and the security risks in Kabul on this basis. It is uncontentious that there has been a deterioration of the security situation in Afghanistan. While I accept that there are ongoing security challenges, I am satisfied the Afghan government and security forces retain effective control over Kabul. Further, when having regard to the size and diversity of the population in Kabul, and the applicant’s lack of any profile or proximity to those with a risk profile, I find the chance of the applicant being harmed in generalised violence within Kabul is remote.

(Footnotes omitted; emphasis added).

28    In the interests of concision, I have omitted the footnotes from the above extracts. For the purposes of the present appeal however it is important to note that the IAA’s reasons are extensively footnoted to a range of country information from sources that include material prepared by the Department of Foreign Affairs and Trade, the UNHCR, the United Kingdom Home Office and the European Asylum Support Office, as well as news reports and other materials.

29    The IAA accordingly found that in Kabul the Appellant would not face a real risk of being seriously harmed by reason of his ethnicity or religion by Islamic State, the Taliban, or any other insurgent group. Any risk of his otherwise being harmed as a result of generalised violence in Kabul was remote. He might face some “societal or official discrimination” in Kabul, but any such discrimination would be low level and would not affect his capacity to subsist or otherwise constitute serious harm. While accepting that not being able to return to his home village to visit family would place “pressure” on the Appellant, the IAA was satisfied that it would be reasonable for the Appellant to relocate to Kabul.

30    For those reasons, the IAA found that the Appellant he did not meet the requirements of the definition of a refugee in s 5H(1) of the Migration Act. He did not have a well-founded fear of persecution, because there was not a real chance of persecution in all areas of the receiving country (s 5J(1)(c)). He therefore did not satisfy the criterion in s 36(2)(a) of the Migration Act.

31    For similar reasons, the IAA found that the Appellant’s case did not satisfy the criterion in s 36(2)(aa) of the Migration Act. Pursuant to s 36(2B), the IAA found that for the purposes of the Act there was not a real risk of him suffering significant harm if returned to Afghanistan because it would be reasonable for him to relocate to Kabul.

32    It is important to note that in reaching that conclusion, the IAA made various findings regarding the likely circumstances of the Applicant were he to relocate to Kabul. For the purposes of this appeal, the following findings are relevant:

90.    In terms of finding work, the representative has contended that the applicant’s English skills would not in fact be an asset, but would instead lead him to be at risk from the Taliban and other insurgents, as he would [be] linked to the west or the international community. I have found above that the applicant would not be targeted on the basis of any actual or perceived connections to the west within Kabul, let alone when considered against the size and diversity of the capital. The representative’s submissions presupposes that his teaching, English or computer skills could only be used in the context of a government or international organisation, but I do not agree with that assessment. The IOM is quoted as saying that most jobs are found in the private sector (often small businesses), and there are only few opportunities in the public sector.

91.    The representative also quotes the Afghanistan Independent Human rights Commission (AIHRC), through the Danish Report, as stating that Kabul has more than five million inhabitants and has reached its limits. It goes on to state that there ‘is no more room for people to settle in Kabul, people cannot find a decent livelihood, and houses as well as public services such as water and sanitation are not available’. And ‘the situation in Kabul is worse than in other major cities in Afghanistan because the demand for jobs and social services is higher than what the city can offer’. The quotes in the report need to be read in context. The Danish report cites the AIHRC in the context of pressures on the city from vulnerable IDPs and returnees, and the difficult conditions in the informal and illegal settlements. It does state that Kabul is under significant pressure from population movements, and that unemployment is high. I accept that is the case. The report further highlights that for people coming to Kabul from the country side without any education, the only opportunity available is often low-paid daily labour, mainly in the construction or service sector. However, the report also highlights that for people coming to Kabul from the country side without any education, the only opportunity available is often low-paid daily labour, mainly in the construction or service sector. However, the report also highlights the differences for a person in an advantaged position like the applicant. It quotes the IOM as stating that educated people have better opportunities to find a job within the government or in private companies, particularly those with foreign language or computer skills. As above, it also points to the importance of existing networks, which I am satisfied the applicant has in Kabul.

92.    The representative contends that the situation has likely deteriorated given these statements are from 2012. More recent advice from DFAT continues to indicate that the influx of IDPs and returnees to the city has put pressure on the local labour market. Consistently with the Danish Report, it states that those who have foreign language and computer skills tend to be best placed to find well-paid employment in Kabul, with new arrivals from rural areas at a disadvantage due to their lack of relevant skills. DFAT assesses that many of these new arrivals also lack a network of family contacts needed to find employment. In this situation, employment may be irregular and often insecure and that many work as relatively poorly paid day labourers who seek occasional work as it becomes available. I accept the situation likely has not improved since the 2012 report, but recent advice indicates to me that a person in the applicant’s situation remains in a far superior position to other IDPs and unskilled returnees. I accept there would be significant challenges for him in relocating, and that employment opportunities, accommodation and access to services are at a premium. However, I am satisfied the applicant’s networks, education and skillset, as well as his experience in the city, would enable him to find work, and accommodation and access to essential services, notwithstanding the significant pressures in the city, and in Afghanistan generally.

(Footnotes omitted; emphasis added).

FEDERAL CIRCUIT COURT OF AUSTRALIA DECISION

33    The Appellant pressed two grounds before the FCCA. The primary judge, who gave ex tempore reasons, summarised those grounds as follows:

Ground 2 is that the IAA failed to consider the Applicant’s employment prospects in Kabul, in the context of its finding that the Applicant would need to modify his behaviour; vis a vis seeking employment with lower risk profile organisations, to avoid the possibility of being targeted for harm on that basis (being the basis on which he had already been targeted in the past).

…

Ground 3 is that the IAA acted illogically or unreasonably in purporting to state that the risk of harm in Kabul from ISIS was “credible but remote” in paragraph 53 of the reasons.

34    With respect to ground 2, the primary judge stated that the Appellant had submitted that there was “paradox” between what the IAA stated at paragraphs [26], [27] and [28] (with respect to the Appellant’s ability to seek alternative employment of a lower risk profile), and what it said at paragraphs [90], [91] and [92] (with respect to the Appellant being in a “far superior” position in relation to other returnees by reason of his education, skills and experience). His Honour stated that he understood the Appellant’s position to be that the IAA had failed to adequately engage with the issues that he would face in assessing the reasonableness of relocation with respect to his employment prospects. Specifically:

43.    The submission was that even if the IAA found the Applicant might have been able to secure adequate employment in a private enterprise using only a limited range of his skill set, the IAA plainly fails to assess whether it was reasonable to expect the Applicant to give up pursuing a career with the skills that he had developed or whether it was reasonable to expect him to give up pursuing a career using the skills in the field of improving other people’s lives, as he had previously done.

35    It is convenient to extract in full his Honour’s reasons on this ground, which were as follows:

44.    The problem with that submission is that it dismisses what was said in paragraph 92 as simply looking at generalities. But the IAA was required to assess whether it was reasonable for the Applicant to relocate considering his prospects of employment:

It is assessed that he is in a far better position because of his skills to get employment than unskilled persons.

45.    The fact that the IAA was comparing the Applicant to unskilled persons is a recognition that he would be vying with others for low profile jobs rather than the jobs with higher profile for which he has appropriate skills. The juxtaposition of paragraphs 26, 27 and 28 does fit with paragraphs 90, 91 and 92.

46.    The IAA is not saying that the Applicant has skills that would suit him for those high profile jobs and, therefore, it is reasonable for him to move. The IAA is saying instead that the Applicant would be a candidate for the lower profile jobs and there would be competition for those positions but, because of his skill set, he would be at an advantage over those others for those low profile jobs.

47.    It does not seem to me that there has been a lack of engagement with the submissions. It seems to me that, on a proper reading of the reasons of the IAA, they have truly engaged with the submission of the Applicant. I find that there is no jurisdictional error illustrated and so this ground fails.

36    With respect to ground 3, his Honour identified the Appellant’s argument as being that the finding involved a contradiction: a risk could not be both credible and remote. If a risk was credible, then it could not be “downgraded” by identifying that risk as “remote”. With respect to that submission, his Honour held as follows:

50.    In looking at what it is that is said to be credible or remote, it is clear that the IAA is talking about the risk to Hazara Shia. They are real risks but remote. The discussion in relation to that was summarised in paragraph 56, which I have already read into the record. It seems to me that paragraph 56 puts what it is that the IAA is saying about being “credible but remote” into its true context.

51.    I reject the submission that there is a contradiction in saying that the risk is both credible and remote. During argument in the hearing, I posited the example of the threat of ISIS in France to tourists. There were terror attacks in Paris and vans driven into crowds in Nice. These attacks were directed at tourists. In describing the risks for tourists to France, a description of “credible but remote” would be apt. The risk is credible or real because it is not illusory. It can happen, it has happened and there have been high casualties. But it is still remote because there are not that many ISIS or ISIL devotees who would act that way, security in France is going to be strong and it would never get to the point where tourists simply would not be safe in France.

52.    Similarly, here, ISIS is a credible and real threat because of what they can do. What they can do has been documented but the risk is still remote and it is remote because of the matters that the IAA have identified; those being that the Afghan, United States and Taliban forces are intent on eliminating the presence of ISIS in the country, which would limited their expansion; the number of active members in Kabul was in the dozens rather than hundreds; they appear to be focused on propaganda and recruitment; that the group ISIS was limited in being able to carry out infrequent attacks; and, that they were unlikely to be able to drive conflict in a sectarian direction.

53.    It seems to me then, that the words “credible and remote” can stand together and that they properly describe what it is that the IAA has found as to the risk from the ISIS to the Applicant. For those reasons, there is no jurisdictional error and ground 3 also fails.

GROUNDS OF APPEAL

37    On 20 November 2019 the Appellant filed a Notice of Appeal relying on the following grounds, which were in substance identical to those advanced in the court below:

The Federal Circuit Court erred in holding that the decision of the Immigration Assessment Authority (“the Authority”) made on 7 June 2017 confirming the decision of the Minister to reject the Applicant’s application for a Safe Haven Enterprise Visa was not affected by jurisdictional error and in particular:

1.    The learned Primary Judge should have found that the Authority failed to consider the applicant’s employment prospects in Kabul in the context of its finding that the applicant would need to modify his behaviour, viz. seeking employment with lower risk profile organisations to avoid being targeted for harm on that basis (being the basis on which he had already been targeted in the past).

2.    The learned Primary Judge should have found that the Authority acted illogically or unreasonably in purporting to state that the risk of harm in Kabul from ISIS was ‘credible’, but remote’ (Reasons [53]).

38    By way of submissions filed on 15 July 2020, the Appellant sought leave to file an amended Notice of Appeal. The amended Notice would amend Ground 2, and would also add a proposed Ground 3 not raised in the court below.

39    The proposed amended Grounds were as follows:

The Federal Circuit Court erred in holding that the decision of the Immigration Assessment Authority (“the IAA”) made on 7 June 2017 confirming the decision of the Minister to reject the Appellant’s application for a Safe Haven Enterprise Visa was not affected by jurisdictional error and in particular:

1.    The learned Primary Judge should have found that the IAA failed to consider the Appellant’s employment prospects in Kabul in the context of its finding that the Appellant would need to modify his behaviour, viz. seeking employment with lower risk profile organisations to avoid the possibility of being targeted for harm on that basis (being the basis on which he had already been targeted in the past).

2.    The learned Primary Judge should have found that the IAA’s findings that the threat by Islamic State is “infrequent”, “occasional”, “rarer”, “limited for now” and not targeted at Hazara Shias with no “clear indication … of any escalation” reveal jurisdictional error constituted:

a.    By making a finding of jurisdictional fact unsupported by evidence that no rational or [sic] decision-maker could have reached; or

b.    By a constructive failure to exercise its jurisdiction or failure to carry out its statutory task in that the IAA did not actively consider, evaluate and weigh information in the sense required by Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.

Particulars

The IAA made its decision on 7 June 2017. It arrived at these findings at [44], [45], [48], [49], [50], [51] and [61] in the absence of any consciousness or consideration of the claims and country information put forward by the Appellant recording five targeted killings of Shia Muslims between 23 July 2016 and 22 November 2016, including three occurring in Kabul on 23 July 2016, 11 October 2016 and 21 November 2016, representing a 573 per cent increase in violence from 2015.

3.    The learned Primary Judge should have found that the IAA made a jurisdictional error by failing to consider, properly or at all, an integer of the Appellant’s claim that he would be perceived to be associated with the west, and by making findings as to his “mannerisms” and “characteristics” unsupported by evidence and without interviewing the Appellant.

40    In written submissions counsel for the Minister Mr O’Leary indicated that the Minister did not consent to leave being granted to the Appellant to rely on his proposed Amended Notice of Appeal, but did not wish to be heard in opposition to that course.

41    In written submissions the Minister cites well-accepted principles regarding this issue, including that leave should be granted only if it is expedient in the interests of justice to do so and that the FCCA proceedings ought not be reduced to “little more than a preliminary skirmish” (Coulton v Holcombe [1986] HCA 33; 162 CLR 1). The Minister acknowledges however that claims for a protection visa raise special considerations in this regard (citing authorities including VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588).

42    The Minister identifies no relevant prejudice that would be occasioned by the granting of leave. The Minister does note that the Appellant was represented before the FCCA, suggesting that the decision to seek to rely on the proposed new ground represents a forensic choice by his representatives. The Minister further submits that:

The resolution of [Ground 2 as amended and proposed new Ground 3] requires the production of evidence, in the form of country information, not led before the FCC. However, it is accepted that the relevant country information was cited to the IAA by the appellant’s representation and was therefore evidence that was before the decision-maker (the IAA), despite it not being before the FCC.

43    At the outset of the hearing I sought confirmation from Mr O’Leary that the Minister would be content to have the question of whether leave to rely on new grounds should be granted considered after argument on the merits. He confirmed that the Minister had no objection to that course being adopted. I proceeded on that basis.

44    Counsel for the Appellant, Ms Chan, then formally sought leave to adduce evidence before this Court that was not before the FCCA. She identified the relevant evidence as follows:

10.1    the following country information provided to the IAA, by way of a submission dated 23 May 2017, in response to the IAA’s invitation to comment:

(a)    United Nations High Commissioner for Refugees Annual Report 2016, (UNHCR Report);

   (b)    BBC news report dated 23 July 2016;

(c)    Human Rights Watch report dated 21 November 2016 referenced in the Appellant’s submission dated 23 May 2017; and

10.2    The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Australia, 19 April 2016, referenced in the IAA’s decision at AB230, footnote 22.

45    By way of background, the Appellant’s solicitor filed an affidavit in these proceedings on 16 July 2020 annexing the relevant materials and deposing that the evidence identified in [10.1] was produced to the IAA in response to an invitation to comment. He deposed that these materials were not before the FCCA because the orders in that court had made provision for the Minister to prepare and file a court book, and the Minister had not included the documents in the court book so prepared and filed.

46    The Appellant relies on the observation of Stewart J in CBN18 v Minister [2019] FCA 2190 at [84] in granting leave to advance new appeal grounds in like circumstances. Mr O’Leary consented to the leave sought being granted. There being no objection to that course, I granted the Appellant leave to rely on that further country information as so documented on the basis that both parties accepted that the relevant material had been before the IAA.

CONSIDERATION

Ground 1

47    Ground 1 provides as follows:

The learned Primary Judge should have found that the IAA failed to consider the Appellant’s employment prospects in Kabul in the context of its finding that the Appellant would need to modify his behaviour, viz. seeking employment with lower risk profile organisations to avoid the possibility of being targeted for harm on that basis (being the basis on which he had already been targeted in the past).

Appellant’s Submissions

48    Ms Chan submits that at paragraphs [30]-[31] of its reasons, the IAA found that the Appellant would need to modify his behaviour to mitigate the risk of harm in Kabul by not working for an international organisation. The Appellant submits that it was on this premise that the IAA was then required to analyse the issue of the reasonableness of relocation. He submits however that the IAA at paragraphs [90]-[92] overlooked that premise, both in the generality with which those paragraphs are expressed and its finding at paragraph [91] that his language and computer skills would assist him to find work with “government or in private companies” (emphasis added).

49    The Appellant then draws attention to the IAA’s finding at [90] where, in response to concerns raised by the Appellant as to how he might safely find employment in future, the IAA found that “most jobs are found in the private sector”. The Appellant submits that this reasoning fails to properly grapple with the limitations he would face on return. He submits that:

[t]he trouble here is that [the Appellant’s] skills do not seem to be relevant to a small business – a “systems analyst” would not be useful to a small business [The footnote to this sentence reads: A fair description of this job is an “information technology professional who specialises in analysing, designing and implementing information systems”. A small business might have use for a systems analyst in establishing their systems, but that would be once off or infrequent work]. Although English language skills would probably be useful to all enterprises, the IAA simply does not assess whether this would provide a relevant competitive advantage for the applicant – perhaps the usefulness of English language skills is far outweighed by other considerations, such as nepotism.

50    Ms Chan further submits that in any case, the IAA fell into error by failing to consider the reasonableness of the Appellant modifying his behaviour to pursue safe employment and thereby giving up “pursuing a career using his skills in the field of improving other people’s lives (as he had done previously in Afghanistan, at great personal risk)”. The Appellant cites in that regard MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; 206 FCR 191 and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (CRY16).

51    However, in her oral submissions Ms Chan did not assert that the Appellant had advanced any claim in the IAA that he had an established ideological commitment to working for entities which might be understood to be at high risk of attack by the Taliban or Islamic State such as that for which he had previously worked: whether funded by the United States or otherwise. To the extent that her written submissions might have suggested otherwise, Ms Chan resiled from submitting that the Appellant’s circumstance was analogous to that of a person with an innate characteristic who might have to modify the very behaviour for which he or she was at risk of persecution to secure his or her safety. She conceded that his claim before the IAA went simply to whether it was reasonable, in the sense of being practicable, that he be required to relocate in circumstances in which he might well choose not to seek employment with certain potential employers as might expose him to risk: notwithstanding that his skills as a computer specialist and English speaker might make him an attractive employee for such roles, and that such roles might pay better than other jobs available in the private sector.

Minister’s Submissions

52    Mr O’Leary submits that the reasons of the IAA, which expressly consider the Appellant’s employment prospects in some detail, directly contradict the assertion of a failure to consider this issue. Mr O’Leary submits therefore that with respect to Ground 1, the “real complaint appears to be with the merits, not the legality” of the IAA’s reasons. He expresses particular concern in that regard with respect to the Appellant’s submissions as to his employability, extracted above at [49].

53    The Minister submits that the IAA was required to assess the reasonableness of relocation in the sense of what was “practicable” (citing SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [24]; CRY16). The primary judge was correct to find that the IAA had carried out that task without falling into error.

Consideration

54    I accept Mr O’Leary’s submissions. The task the IAA had to undertake in respect of the issues relevant to Ground 1 was to decide whether it was reasonable, in the sense of it being practicable, to require the Appellant to relocate to Kabul. That task was to some degree inherently evaluative.

55    Having regard to Ms Chan’s concession as referred to at [51] above I am satisfied that no issue of the Appellant having to shape his conduct to avoid persecution by reason of an inherent characteristic or acquired profession such as that of journalism arose. I therefore proceed on the basis that the line of authorities that flow from the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473, which in other circumstances might be relevant, are not relevant in this instance.

56    What was before the decision maker in those circumstances was the question of whether if the Appellant were to relocate to Kabul, he would be able to find work as would permit him to sustain himself in an adequate manner. In answering that question, it was not an error for the IAA to have reasoned that while there would be significant challenges for him in relocating to Kabul where employment opportunities, accommodation and access to services were at a premium, his networks, education and skillset, as well as his experience in the city, would enable him to find work, accommodation and access to essential services: notwithstanding the significant pressures in the city and in Afghanistan generally.

57    I would accordingly dismiss Ground 1.

Ground 2

58    Proposed Ground 2 provides as follows:

2.    The learned Primary Judge should have found that the IAA’s findings that the threat by Islamic State is “infrequent”, “occasional”, “rarer”, “limited for now” and not targeted at Hazara Shias with no “clear indication … of any escalation” reveal jurisdictional error constituted:

a.    By making a finding of jurisdictional fact unsupported by evidence that no rational or [sic] decision-maker could have reached; or

b.    By a constructive failure to exercise its jurisdiction or failure to carry out its statutory task in that the IAA did not actively consider, evaluate and weigh information in the sense required by Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.

Particulars

The IAA made its decision on 7 June 2017. It arrived at these findings at [44], [45], [48], [49], [50], [51] and [61] in the absence of any consciousness or consideration of the claims and country information put forward by the Appellant recording five targeted killings of Shia Muslims between 23 July 2016 and 22 November 2016, including three occurring in Kabul on 23 July 2016, 11 October 2016 and 21 November 2016, representing a 573 per cent increase in violence from 2015.

Appellant’s Submissions

59    The Appellant’s written submissions contend that the IAA’s findings with respect to the risk posed to him as a Hazara Shia in Kabul were “unsupported by the evidence, logically flawed and irrational”. The Appellant highlights in that regard that in response to the IAA’s invitation to comment, he had on 23 May 2017 referred to and quoted from a report prepared by the UNHCR. The report is titled “Afghanistan – Protection of Civilians in Armed Conflict, Annual Report 2016, Kabul, Afghanistan February 2017” (the UNHCR Report). That report (received as new evidence in these proceedings) identifies five attacks against Shia Muslim mosques and gatherings between 23 July 2016 and 22 November 2016. The Appellant had also provided the IAA with a Human Rights Watch report dated 21 November 2016, and a BBC news report dated 23 July 2016.

60    The Appellant’s written submissions also refer to a document cited in a footnote by the IAA, being the UNHCR “Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan” dated 19 April 2016.

61    The Appellant describes this body of information collectively as the Competing Country Information.

62    The written submissions advanced by the Appellant with respect to the Competing Country Information include a contention that the IAA did not assess that information in a “real or active way” (citing Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 (MZYTS) at [39]). Specifically, the written submissions contend that the absence of any express recitation of the Competing Country Information in pertinent aspects of the IAA’s reasons suggests that the information was omitted and ignored rather than weighed in the balance against inconsistent country information. The submissions note in that regard that the IAA identified some of that inconsistent country information as being “equivocal”.

63    The written submissions assert that there are various other errors in the reasoning of the IAA that are said to be apparent when those reasons are read in light of the Competing Country Information. Having regard to the way in which Ms Chan crystallised the Appellant’s submissions under proposed Ground 2 at the hearing however, it is unnecessary to further summarise the detailed written submissions advanced in those regards.

64    In oral submissions it quickly became clear that the complexity of the Appellant’s written submissions might obscure that proposed Ground 2, as ultimately pressed by Ms Chan on the Appellant’s behalf, involved two distinct limbs.

65    The first limb was that notwithstanding the IAA’s statement at paragraph [7] of its reasons that it had had regard to the submissions, albeit that it had not expressly referenced the information to which they referred, the Court should be satisfied that it had overlooked and not had regard to one particular document: the UNHCR Report. That document was, in Ms Chan’s submissions, critically significant. By failing to have had regard to it, the IAA had not lawfully discharged its duty of review. Its error was so fundamental that it went to jurisdiction.

66    The second limb - which needed to be considered if the first limb were not accepted - was that if the Court declined the Appellant’s invitation to conclude that the IAA had not had regard to the UNHCR Report then, having regard to that material and the other materials his representative had put before the IAA, the decision was flawed by reason of irrationality.

67    Ms Chan emphasised that the UNHCR Report bore a publication date of February 2017. It therefore could be accepted to be the most current of all the relevant country information that had been before the IAA.

68    Ms Chan specifically drew the Court’s attention to what the UNHCR Report stated at pp 34-5:

Deliberate Sectarian Attacks against the Shia Muslim Religious Minority

In 2016, the emerging pattern of deliberate sectarian attacks against the Shia Muslim religious minority, mainly claimed by Daesh/ISKP, raised grave concerns regarding the right to freedom of religion or belief and the protection of minorities.

In the second half of the year, UNAMA recorded five separate attacks against Shia Muslim mosques and gatherings:

•    On 23 July 2016, two suicide attackers targeted a peaceful demonstration in Deh Mazang Square of Kabul city protesting a decision relating to a cross-country power line project, killing at least 85 civilians and injuring 413 others – the deadliest attack recorded by UNAMA since 2001. Nearly all victims were men and members of the Shia Muslim religious minority of Hazara ethnicity. On the same day, Daesh/ISKP, claimed responsibility for the attacks through a Twitter account affiliated with the Amaq News agency, linking the attacks to the reports of Hazaras’ alleged participation in fighting in Syria on the side of the government. Anti-Shia Muslim statements were delivered in the same message. A Truth-Finding and Investigative Committee was appointed by the President on 25 July 2016 following this incident, but it has not yet published any report.

•    On 11 October 2016, the day of Ashura, a major Shia Muslim commemoration, an attacker disguised in an Afghan national security force uniform entered the Karte Sakhi Mosque in Kabul, opened fire at Shia worshippers and used a hand grenade, killing 19 civilians and injuring 60 others. The attack caused minor damage to the mosque. Daesh/ISKP also claimed responsibility for this attack by issuing another online statement containing hate language targeting the Shia Muslim religious minority.

•    On 12 October 2016, an explosion occurred at the entrance of a mosque where Shia worshippers had gathered for the religious commemoration in Khojagholak area of Balkh district, Balkh province. This incident killed 18 civilians and injured 67 others, including 36 children, and also caused minor damage to the gate. No group claimed responsibility for this incident.

•    On 21 November 2016, a suicide attack killed at least 40 civilians and injured 74 others, including many children, at the Baqer-ul Ulum mosque in Kabul during observance of the religious ceremony of Arbaeen, a commemoration on the 40th day after Ashura. The suicide bomber detonated the device at the mosque, deliberately targeting the large congregation composed mainly of worshippers from the Shia Muslim religious minority. Daesh/ISKP claimed responsibility for this attack using derogatory expressions and calling for violence against Shia Muslims, as it called in earlier statements.

•    On 22 November 2016, Anti-Government Elements detonated a remote-controlled IED that injured four Shia Muslim worshippers at the Razaiya Mosque in Herat city. No group claimed responsibility for this incident.

The attacks against the four mosques accounted for the almost six-fold increase in civilian casualties from attacks deliberately targeting religious persons and places of worship observed in 2016. UNAMA documented 377 civilian casualties (86 deaths and 291 injured) from such attacks in general, a 573 per cent increase from 2015.

(Footnotes omitted).

69    Ms Chan submitted that that there were clear indications in the text of the IAA’s reasons as would entitle the Court to conclude that its omission of any reference to the UNHCR Report was not in consequence of it having been considered by the IAA to have not been material, but rather in consequence of the IAA not having considered it at all. The significance of that distinction, Ms Chan submitted, can be illustrated in an operative context having regard to the reasoning of the Full Court (Rares, Perry and Charlesworth JJ) in BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; 269 FCR 94 (BYA17) at [55]:

54.    It follows that while the information was not directly about the appellants, it potentially provided independent and objective corroboration of important aspects of their claims to fear harm which were otherwise regarded as speculative by the IAA, including: as to the reach of the drug smugglers and the lengths to which they may go for revenge; and as to the risk of harm posed to the husband if he were detained in prison even for a short time, which the IAA accepted may occur (see above at [18]). It follows, with respect, that we do not agree with the primary judge that the news reports were of “marginal relevance” only, being the reason given by his Honour as to why he did not infer that the IAA had failed to consider the information.

70    Ms Chan submitted the first indication that the IAA had failed to consider the UNHCR Report was that in contradistinction to all of its other reasoning, which was extensively footnoted to relevant country information, there was a glaring omission of any footnoting of that document.

71    Secondly, Ms Chan submitted that contextually the only conclusion open to this Court was that the UNHCR Report could not have been considered. Ms Chan submitted that it was not open to the IAA to have expressed the conclusions it reached at paragraphs [44] and [54] of its reasons had it had regard to the UNHCR Report.

72    More specifically, I take Ms Chan to submit that the UNHCR Report was inconsistent with the IAA’s reasoning that the country information as had been referred to by the Appellant’s representative supported its conclusion that those insurgent attacks that had occurred had primarily targeted those associated with the government, the military, the media and the international community. Ms Chan submitted that it was also inconsistent with the IAA’s more generally expressed finding at paragraph [44] that over the last several years attacks directed against the Hazara Shia population in Kabul had been rare.

Minister’s Submissions

73    The Minister notes at the outset of his written submissions that the articulation of the ground as referring to the reasons of the learned primary judge is not correct, given that this ground was not raised before his Honour. The Minister then identifies some general principles as are relevant to a ground of this nature.

74    With respect to illogicality or irrationality the Minister submits that the Appellant is required to establish “extreme” illogicality “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”, and notes that it is not sufficient that another decision-maker may have come to a different conclusion (citing authorities including DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175; Minister for Immigration and Citizenship v SMZDS [2010] HCA 16; 240 CLR 611).

75    The Minister submits that it is also well settled that it is for the IAA to determine which country information to take into account, and what weight to attach to it (citing authorities including NBKT v Minister for Immigration and Multicultural and Indigenous Affairs ([2006] FCAFC 195; 156 FCR 419). The Minister further notes that the IAA is not required to refer to every piece of evidence in its reasons (citing WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593).

76    With respect to MZYTS, the Minister submits that the IAA was required to consider the claims that the Appellant articulated and determine what would happen if he were returned to Afghanistan (or more specifically Kabul) with a “consciousness and consideration” of the submissions, evidence and material advanced by the Appellant that gave the most accurate picture of the circumstances on the ground.

77    Having regard to those general principles, the Minister submits that the Appellant’s submissions do not fairly represent the IAA’s reasoning read in context. It is otherwise convenient to reproduce in full the Minister’s various submissions, as follows:

37.    Relevantly, at [14.1] of the AWS (which the appellant incorrectly cites as IAA [51] but actually appears at IAA [44]), the IAA has considered the submission about deteriorating violence in the context of a further source – the DFAT report. Note that the word “also” in the IAA’s reasons in the first sentence of that paragraph makes clear that the IAA is evaluating more than one piece of country information. The IAA is plainly not stating that on some unstated or objective basis, violence is rare or infrequent per se. Read in context, the IAA’s statement is clearly rational; it proceeds by reference to country information, including the DFAT Report.

38.    With respect to AWS [14.2], again, the relevant part of the IAA’s reasons makes it clear that the finding proceeds on the basis of country information which is situated in the time period of “the last several years”. That finding is a broad one and is not rendered irrational because another piece of country information might quantify the level of violence in another way or by reference to some different or specific period and/or quantitative base line. The question is whether it was open (i.e. rational) on the country information for the IAA to make that finding. The answer to that question is plainly “yes”.

39.    With respect to [14.3] of the AWS, at that part of the reasons (i.e. [49]-[50]), the IAA is making reference to a specific piece of country information (the AAN network information) before proceeding to note “[o]ther reports”. Indeed, the balance of the paragraphs is heavily referenced. Thus, it is simply not correct to assert that the findings in those paragraphs have no rational or logical support. The country information cited indicates precisely the opposite.

40.    With respect to [14.4] of the AWS, which concerns [46] of the IAA’s reasons, the IAA notes that Kabul has been “comparatively secure for Hazara Shias” before then proceeding to state that there has been an escalation in attacks targeting the Shia population in the city. The IAA then stated that this escalation as evidenced in the “attacks” raise a serious question as to whether the [appellant] would be at a real chance of being seriously harmed…”: AB 228 [46]. Read in context, the IAA is fully cognisant that the security situation is not constant, indeed, it stated that it can escalate, which compelled the IAA to consider the issues raised by that information as part of its assessment of the appellant’s real chance of being harmed. So understood, the IAA is discharging the very function reposed in it: it is engaging with relevant information (which does not point in one direction) in light of the appellant’s individual circumstances. It is, with respect, engaging in the very intellectual exercise required of it.

78    The Minister’s written submissions can be summarised to the effect that it is not to the point that there may be some pieces of country information that present a different account of the security situation from that which the IAA found to exist. The IAA’s reasons, read fairly and without an eye keenly attuned to the perception of error, manifest real and active engagement with and consciousness of what the Appellant feared having appropriate regard to country information. It did not fall into error.

79    In oral submissions Mr O’Leary did not dispute that proposed Ground 2 also put in issue the prior question as to whether the IAA’s reasons, fairly read and notwithstanding what the decision maker had stated at paragraph [7], disclosed the error asserted by the Appellant: namely that the IAA had, by oversight, failed to give any consideration at all to the UNHCR Report.

80    Mr O’Leary accepted that in Craig v South Australia [1995] HCA 58; 184 CLR 163, the High Court had stated that the failure of an administrative tribunal to consider materially relevant evidence can constitute jurisdictional error. He accepted that the task of the IAA had been to review the rejection of the Appellant’s application having regard to the materials lawfully before it.

81    Mr O’Leary re-emphasised that that duty did not require the IAA to mention every item of evidence. He submitted that the IAA had plainly stated (at paragraph [7]) that it had had regard to all of the materials which had been put before it: notwithstanding that it might not explicitly have referenced them. He submitted that the passage in the IAA’s reasons at paragraph [46] in which it acknowledged (without a footnote) that there had been an escalation of attacks targeting the Shia population in Kabul must have been sourced from materials not explicitly referenced in that regard: including the UNHCR Report.

82    As to the relevant legal principles, Mr O’Leary submitted that the IAA’s duty required it to engage with the forward looking evaluative task of considering the risks to which the Appellant might be exposed were he to return to Kabul. He reinforced his written submissions that the IAA’s comprehensive reasons demonstrated that it had not failed to discharge that duty.

83    Mr O’Leary conceded however that if, contrary to his submissions, the Court were to find that the IAA had omitted to give any consideration to the UNHCR Report at all then it could not be maintained that it had lawfully fulfilled that duty. Nor could it be plausibly suggested, Mr O’Leary conceded, that were that to be found to be the case, had that report been considered a different outcome might not have been reached. The error would be material and jurisdictional.

Consideration

84    I am satisfied that I am entitled to find that, although I accept entirely by innocent oversight, in its otherwise detailed, thoughtful and comprehensive review the IAA did not give any consideration to the UNHCR Report. In my view, the circumstance that the otherwise comprehensive and fully footnoted reasons of the IAA do not refer once to the UNHCR Report is strongly indicative of that evidence being overlooked (cf ETA067 v Republic of Nauru [2018] HCA 46; 92 ALJR 1003 per Bell, Keane and Gordon JJ at [24]; see also BYA17 at [55]).

85    I reject Mr O’Leary’s submission that the passage at paragraph [46] of the IAA’s reasons, in which it acknowledged that there had been an “escalation” of attacks targeting the Shia population in Kabul, must have been sourced from the UNHCR Report. It would have been available to the IAA to have made that more general observation having regard to other materials the Appellant had put before it, and which it had acknowledged and footnoted. Further, such a submission does not go to the implausibility that the IAA could have made the findings it recorded at paragraphs [44] and [54] of its reasons had it given attention to the UNHCR Report.

86    I am satisfied that the UNHCR Report was not peripheral to the task the IAA had the lawful duty to undertake, being as Mr O’Leary submitted to determine what would happen to the Appellant if returned to his country of origin with a “consciousness and consideration of the submissions, evidence, and material advanced by [the Appellant] most likely to give the [IAA] an accurate picture of the ongoing circumstances on the ground” (MZYTS at [38]). The critical issue is thus whether the IAA erred by failing to have regard to substantial and consequential material that was before it, and if so, whether such an omission was material: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 per Robertson J at [111]. I am satisfied that in the absence of it identifying any discernible reason for not viewing the UNHCR Report as material, the IAA’s absence of any reference to it and its findings inconsistent with its content are strong evidence that it was not considered. Mr O’Leary does not dispute that the UNHCR Report was the most recent statement of reputable country information available to the IAA in respect of the forward looking task it had the duty to undertake.

87    On the understanding that the Court might make such a finding, Mr O’Leary did not submit that the failure to have regard to that information would not constitute jurisdictional error. Having reached such a conclusion it is unnecessary for me to go further and address the contingent, alternatively premised, submissions of the parties.

88    In my view it is in the interests of justice that I grant leave to the Appellant to rely on proposed Ground 2. In that regard I again note that the Minister was content to have that question determined having regard to the Court’s conclusions as to the merit of that proposed ground.

89    I would uphold Ground 2.

Ground 3

90    Ground 3 is stated as follows:

3.    The learned Primary Judge should have found that the IAA made a jurisdictional error by failing to consider, properly or at all, an integer of the Appellant’s claim that he would be perceived to be associated with the west, and by making findings as to his “mannerisms” and “characteristics” unsupported by evidence and without interviewing the Appellant.

Appellant’s Submissions

91    The Appellant takes issue with the IAA’s finding at paragraph [38] that he had not claimed to possess “western mannerisms and characteristics” that would put him at risk on return, and that his situation was “far different” from that of returnees who did possess such mannerisms and characteristics. The Appellant submits that this finding was not supported by a proper evidentiary basis. First, the Appellant had claimed that by using his English skills he would be “associated with western society”, “western ideals/culture” and “pro-western ideals” if returned to Kabul. Secondly, the IAA did not interview the Appellant and thus had no opportunity to assess his “mannerisms and characteristics”. The Appellant notes in that regard that the Delegate who did interview the Appellant:

accepted that he is identifiable as a “returnee who has lived in a Western country” an found that “as a person who has lived for over 3 years in a western country, the [Appellant] may be viewed as such”.

92    The Appellant submits that the error into which the IAA fell in that regard was material.

Minister’s Submissions

93    Mr O’Leary submits on behalf of the Minister that this ground is difficult to understand. He submits that the IAA plainly did clearly and expressly consider the risk that the Appellant may be “perceived to be associated with the west” (referring to paragraphs [33]-[38], [40] and [41] of the reasons of the IAA).

94    With respect to paragraph [38] of the IAA’s reasons, Mr O’Leary submits that the finding there recorded must be read in context. It appears in the context of the IAA addressing the claim identified at paragraph [33], being a claim that the Appellant feared harm on the basis of having lived for a number of years in a foreign country such that he might be regarded as an “infidel”. That claim was not advanced on the basis that the Appellant had come to possess “western mannerisms and characteristics”.

95    On the contrary, as the IAA noted at paragraph [37] of its reasons, the Appellant had lived and studied in Afghanistan. He had not been disassociated with Afghan culture. Further, the IAA did consider UNHCR material addressing this relevant issue. The IAA’s finding at [38] was therefore “self-evidently rational and logical”. Thus:

[n]ot only was the purported integer of the claim – that of being perceived to be associated with the west – clearly and expressly considered, but the reasoning process was supported by the evidence, considered in light of the appellant’s individual circumstances.

96    The IAA therefore did not fall into error as the Appellant asserts.

Consideration

97    I accept the Minister’s submissions. The IAA gave careful attention to the Appellant’s personal history, including his years outside Afghanistan and his previous history within Afghanistan, and addressed the question before it in detail. In my view the proposed ground is little more than a challenge to the merits of the IAA’s findings dressed up as a question of law.

98    Having regard to my summary assessment of its want of merit at the threshold, I should not give more detailed consideration to that question but rather decline the leave required to press a ground not advanced in the court below.

99    I would decline to grant leave to the Appellant to rely on proposed Ground 3.

Costs in the court below

100    The parties were agreed that in the event of the Court upholding this appeal only on the basis of a ground not advanced in the court below, the Court should order that each party bear its own costs in that court. I agree that that is an appropriate approach. I will so order.

DISPOSITION AND ORDERS

101    The appeal will be upheld. I will make orders setting aside the IAA’s decision and requiring the review to be remitted to the IAA to be determined according to law. I will order that the First Respondent pay the Appellant’s costs of this appeal.

Associate:

Dated:    3 August 2020