Federal Court of Australia

AXE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 557

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to file and serve an amended notice of appeal in the form of the draft served on the first respondent on or before 25 May 2021.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing the appellant constitutional writ relief in respect of the decision of the Immigration Assessment Authority dated 15 February 2016 to affirm the decision of the Minister’s delegate not to grant the appellant a protection visa: AXE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (No. 2) [2020] FCCA 1761.

The Authority’s decision

2    The appellant is a citizen of Afghanistan. The Authority, making findings more favourable to him than the delegate, accepted that the appellant had been a teacher with an ambition to be a principal of a girls’ school in his home area of Jaghori District in Ghazni Province, Afghanistan. He is a Shia Hazara.

3    The Authority accepted the appellant’s account as truthful and found that he had a well-founded fear of persecution that the Taliban were searching for him on roads well outside the Jaghori District, in Qarabagh, and, searching for him, had stopped a truck when he was disguised as an assistant truck driver. It accepted that where that occurred was a considerable distance from his home and in circumstances where the purpose of his being targeted in the search was the Taliban’s opposition to the teaching of females.

4    However, the Authority affirmed the delegate’s decision on the basis that despite the appellant’s well-founded fear of persecution, or of suffering significant harm, were he to return to either his home district or in the area of Qarabagh, he was at risk of being killed by the Taliban within the meaning of s 36(2)(a) and (aa) of the Migration Act 1958 (Cth), nonetheless he could safely relocate to and live in Kabul. The Authority considered whether Australia’s protection obligations were engaged either under s 36(2)(a) or (aa) by reference to the tests in ss 5J and 36(2B)(a) of the Act, namely that if he could relocate to Kabul and not be at risk of the harm in his home district and in nearby provinces for which he had a well-founded fear, he was not entitled to a protection visa for the purposes of either a refugee or complementary protection claim.

5    The Authority reasoned that the Hazaras constituted the largest ethnic group in Kabul, making up about two million of its estimated overall population of seven million persons. It found in [25]–[27] and [29]:

25.    It is estimated that Hazaras constitute the largest ethnic group in Kabul, and that they make up some two million or Kabul's estimated overall population of seven million persons. Attacks upon the Shia Hazara community in Kabul have occurred in the recent decade. The most significant of these was the Moharram 2011 bomb attack which resulted in the death of at least 70 people, many of whom were Shia Hazaras, responsibility for which was claimed by Pakistan-based Lashkar-e Jhangvi (LeJ). Some commentators, such as the academic William Maley, have argued that events such as this are evidence that is a mistake to conclude that Kabul is safe for Hazaras. Maley also points to the 2010 outbreak of violence which occurred in Kabul between the Hazara and the Kuchi communities on 13 August 2010, in which a number of ethnic Hazaras had been killed. Since this time, however, Kabul has seen very few subsequent incidents of ethno-sectarian violence. A rare instance of such violence occurred again in February 2014 there was an attack on an Ismaili (Shia) cultural centre in Kabul which killed one security guard. In March 2015, gunmen attacked a Sufi mosque in Kabul, killing 11 worshippers. And on 9 October 2015 one person was killed and three others were wounded in a bomb attack on a Shia prayer hall in the Kabul district of Chendawol, with Daesh subsequently claiming responsibility. There have been no further instances of mass casualty attacks like the Moharram 2011 bomb attack, and DFAT assesses that Sunni-Shia sectarian violence is infrequent in Kabul [DFAT, “DFAT Thematic Report: Conditions in Kabul”, 18 September 2015, 2.26].

26.    DFAT's 8 February 2016 report on Hazaras in Afghanistan indicates that over 100 Hazaras were abducted while traveling through regional areas of Afghanistan during 2015, and that while most were subsequently released, a group of seven Hazaras (four men, two women and a nine-year-old girl) who were kidnapped in Ghazni Province in October and later murdered, their bodies being found in neighbouring Zabul. DFAT notes that there was speculation that the killings were carried out by Daesh, and local Taliban leaders claimed to have tried and immediately hanged the perpetrators; while authorities from the Afghan National Directorate of Security (NDS) were reported in the media as suggesting that the Taliban were responsible, and it is unclear which faction may have been involved. Subsequently there were reports (which DFAT considers unconfirmed) that Hazara militia cooperating with Taliban loyal to Mullah Akhtar Mansour had entered Zabul and destroyed the resident Dadullah Taliban faction and its Islamic Movement of Uzbekistan (IMU) allies in Zabul province in November 2015, I am mindful that the situation in Ghzani and Zabul thus remains fluid. Nevertheless, abductions and/or executions of Hazaras are not occurring in Kabul. I am not satisfied that the applicant faces a real chance of such harm now or in the foreseeable future.

27.    On the evidence, I am not satisfied that there is a real chance that the applicant would be killed or otherwise harmed in Kabul by a bomb attack, or some other form of violence, as a consequence of his being a Shia Hazara now or in the foreseeable future.

…

29.    Available reporting indicates that schools, including schools for girls, are operating in Kabul. In addition to being able to attend freely available government run schools the Hazara community operates a number of private schools in Kabul. There have been reports of families in Kabul declining to send their children to school for periods of time in response to security incidents. For instance, in May 2015 a bomb scare resulted in people refraining from sending their girls to school. Nevertheless, there is no information before me to indicate that any teaching staff or students in Kabul have been harmed in any way in the recent decade by the Taliban led insurgency or Al Qaeda. I accept that the applicant has been directly threatened by the Qarabagh Taliban in the past and that they actively searched for him when he travelled through Qarabagh District. However, there is no evidence to indicate that the Taliban or Al Qaeda have pursued and killed or otherwise harmed any teaching staff in Kabul. I note that the Taliban led insurgency has conducted assassinations in Kabul, targeting persons such as form [sic] Afghan President Burhanuddin Rabbani and American advisors to the Ministry of Interior. However, the applicant does not have a high profile like targets of this kind, and credible sources report that the Taliban does not pursue and target low profile persons of interest who flee to Kabul. I am not satisfied that the applicant, if he returned to Kabul, would face a real chance of being killed or otherwise harmed by the Taliban, Al Qaeda or any other insurgent group, for reason of his past involvement in female education now or in the foreseeable future. I am not satisfied that the applicant would face a real chance of persecution as a Shia Hazara teacher if he resumed employment in female education in Kabul.

(footnotes omitted)

6    The Authority then considered whether the factors which it had addressed individually might in combination or cumulatively give rise to a well-founded fear that would prevent the appellant relocating to Kabul. But, it concluded that his past and future involvement in female education, his being a Shia Hazara and a returnee from Australia would not result in him suffering significant or serious harm were he to relocate to Kabul. It also based its conclusion on the fact that country information indicated that, as a single able-bodied man without any identified vulnerabilities, he may be able to subsist in Kabul without family and community support, and that he had tertiary education qualification, professional experience working as a teacher and, at the time of its decision, Kabul was under effective government control with an active education system in which Hazara girls were able to attend at schools.

The proceeding before the trial judge

7    The appellant, who was represented before the trial judge and here by counsel, raised two grounds of review below, namely that, first, the Authority’s decision in relation to relocation to Kabul was legally unreasonable and, secondly, (a ground not pressed in this appeal) the Authority ought to have considered further information and wrongly exercised its discretion not to do so under s 473DC. It is only necessary to deal with the first ground for the purposes of this appeal.

8    His Honour rejected the appellant’s argument that the Authority’s decision about his relocation was illogical, based on Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. His Honour applied the test as to whether, at the time of the Authority’s decision in February 2016, its conclusion about relocation was one on which reasonable minds could differ. He noted that both the delegate and Authority came to the same conclusion on the material before them. I note that, while it is true that the ultimate conclusions were both the same, namely that a protection visa should be refused, the paths of reasoning were substantively different, and the Authority made more favourable credibility findings than the delegate in respect of the appellant’s claims.

9    His Honour accepted the Minister’s argument that it was necessary to establish “extreme illogicality” in order to make out legal unreasonableness in the context of judicial review. He said, relying on SZMDS 240 CLR at 648 [131] per Crennan and Bell JJ, that if reasonable minds could differ about the Authority’s assessment of the evidence, such an assessment could not be said to be illogical or irrational.

10    The trial judge said that the appellant had not identified any “extreme” illogicality as required, but that his submission merely argued with the Authority’s reasoning and in substance sought merits review, contrary to what their Honours had held at 636 [96]. He found that it was open to the Authority to conclude that the appellant did not face a real chance of being abducted, executed or killed by a bomb attack in Kabul, for the reasons that it gave at [25]–[27]. He said that the fact that the Authority had accepted that past attacks had occurred in Kabul did not mean it was obliged to find the appellant had a well-founded fear of such harm on the basis of country information available at the time of its decision that the Authority cited. His Honour said that the country information:

… provided a mixed picture for the security of Hazaras in Kabul, the interpretation of which was a factual matter for the Authority.

11    The trial judge said that the appellant’s disagreement with that interpretation, while emphatic, did not indicate jurisdictional error. He reasoned that the Authority’s acceptance of the appellant’s account, including that he had been stopped and threatened in his home area in 2012, did not mean that, necessarily, he had a high profile in Kabul, and that there was no illogicality in the Authority’s finding that he did not have a high profile, such as political leaders or foreign advisers, who had been, the Authority found, persons targeted in Kabul and at risk of harm there for that reason. His Honour found that the appellant’s submissions were no more than a disagreement with the Authority’s findings of fact in relation to his claim that the Taliban might find him in Kabul, because that presupposed that the Taliban would look for him there, in circumstances where the Authority had found that there was no evidence that the Taliban have pursued, killed or otherwise harmed any teaching staff in that city.

12    His Honour concluded that the ground before him did no more than amount to an argument that the Authority should have found that the appellant had faced a real chance of harm in Kabul, being a disagreement with the merits or a finding of fact, which was not an error of law.

This appeal

13    The appellant relied on two grounds of appeal, namely that his Honour erred, first, in not finding that the Authority committed a jurisdictional error in relation to assessing whether he could relocate to Kabul, and, secondly, in applying the test for ascertaining jurisdictional error as requiring “extreme” illogicality, as opposed to illogicality, in the Authority’s reasons. The Minister accepted that there was no prejudice in allowing the appellant to amend his notice of appeal to raise the second ground.

14    The appellant argued that the trial judge erred in requiring that the Authority’s reasoning had to exhibit “extreme” illogicality. He contended that the word “extreme” was a gloss on the test of whether a finding was illogical. He called in aid observations of Mortimer J in AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [24]–[25] that Perry J endorsed in AFD16 v Minister for Immigration and Border Protection [2020] FCA 964 at [52]–[53]. He contended that, by using the language of extreme illogicality, the trial judge had imposed a standard of judicial review not found in the authorities.

15    He submitted that the trial judge should have found that the Authority had engaged in illogical reasoning in arriving at its conclusion that he could relocate safely to Kabul because it had accepted, in its findings at [25]–[27] and [29] set out above, that there were bomb attacks and violent incidents directed at Hazaras in Kabul, and, as the Authority found in [25], there had been three relatively recent violent attacks on Shias in Kabul in February 2014, March 2015 and on 9 October 2015. He argued that it was illogical for the Authority to have concluded at the end of [25], by reference to the Department of Foreign Affairs and Trade’s (DFAT) assessment in its report of 18 September 2015, that Sunni Shia sectarian violence was infrequent in Kabul. He contended that the Authority had accepted that DFAT had found, in a more recent country information report of 8 February 2016, that over 100 Hazaras had been abducted while travelling through regional areas of Afghanistan during 2015, and that while most had been subsequently released, a number had been murdered in Ghazni Province and their bodies found in the neighbouring area of Zabul.

16    The appellant argued the Authority’s process of reasoning in [25] and [26] failed to take account of the three reports of bomb attacks in Kabul in 2014 and 2015 and the actual violence that the Authority had found he had suffered in his home area, being the actual threat of being targeted by the Taliban that it had accepted existed in his home area in Ghazni Province and some distance away in Qarabagh. He contended that, in addition, looking at the Authority’s finding in [29] that there had been a bomb scare in May 2015 that had resulted in people refraining from sending their girls to school in Kabul, it was illogical for the Authority to find that there was no information before it that teaching staff or students in Kabul had been harmed in any way in the recent decade by the Taliban led insurgency or Al-Qaeda. He submitted that the Authority had found, illogically, that there was no evidence to indicate that he might be at risk, were he to teach in Kabul or resume employment in female education in that city. He argued that the Authority had reasoned, in effect, through a checklist of individual incidents or aspects of his overall claim to dismiss them separately, and that in [32] of its decision, the Authority was illogical in its conclusory assertion that it had considered all of his claims cumulatively.

17    He contended that the country information on which the Authority had relied for its finding that the Taliban did not pursue and target low profile persons of interest who had fled to Kabul, such as he might be characterised, included the Danish Immigration Service’s report issued on 1 May 2012, which, he asserted, was well out of date by the time of the Authority’s decision, and it (the Authority) did not pay regard to the then current situation (in 2015 and 2016). He submitted that, examining the findings of the Authority overall, its reasoning was illogical because it did not explain how the appellant could access what Kirby J referred to, in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at 42 [81], as “durable safety” in Kabul.

18    He contended that, because of his profile, the Authority could not rationally have proceeded to conclude that he would be able to relocate safely to Kabul in circumstances where it had found there was violence all over Afghanistan, and that he had a profile which it accepted gave him a well-founded fear of persecution or suffering serious harm by reason of his characteristics as a Shia Hazara and a person who had been actually targeted by the Taliban in searches well outside his home district because of his profession and professional interest in educating girls.

Consideration

19    I am not satisfied that the trial judge erred in using the expression “extreme” to characterise illogicality, because the use of that adjective has been used in at least two decisions of the Full Court, namely in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 517–518 [60]–[61] and DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at 184 [30](5). In the latter decision, Kenny, Kerr and Perry JJ said that:

(5)    A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “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” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

(emphasis added)

20    In arriving at her conclusion in AWU16 [2020] FCA 513 at [24]–[26], Mortimer J relied on what Crennan and Bell JJ had said in SZMDS 240 CLR at 649–650 [135], namely:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

(emphasis added)

21    In SZATV 233 CLR at 25 [18], Gummow, Hayne and Crennan JJ said:

It also is well settled since Chan v Minister for Immigration and Ethnic Affairs [(1989) 169 CLR 379 at 389, 396–397, 406, 413, 429] and Minister for Immigration and Ethnic Affairs v Guo [(1997) 191 CLR 559 at 571–572, 596], that the requirement that the “fear” be “well-founded” adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which formed the basis of the fear experienced by the particular applicant.

22    Their Honours concluded, in relation to whether it was reasonable for a decision maker to find that an applicant for protection could relocate safely to another part of his or her country of nationality, that (233 CLR at 27 [24]):

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

23    In my opinion, the Authority’s reasoning process could not be characterised as irrational or unreasonable. It identified country information and explained the relationship between that information and its factual conclusions. It had squarely in mind the appellant’s well-founded fear that he would face serious or significant harm in his home and nearby provinces. But, it examined country information and the characteristics which it had accepted gave rise to the appellant’s well-founded fear in his home and nearby provinces, in considering what would be his position in Kabul, were he to relocate there, in order to determine whether that fear was well-founded in that situation: SZATV 233 CLR at 25 [18]; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571–572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ and 596 per Kirby J. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ held in Guo 191 CLR at 574–575:

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

(emphasis added)

24    While different minds may have come to a different view, ultimately the question was one of fact for the Authority to assess having regard to country information and its findings as to the basis on which the appellant claimed to have the well-founded fear. There is no error of law in an administrative decision-maker making a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. As their Honours noted, it is important to bear in mind the limited role of a court in reviewing the exercise of administrative decisions.

25    I am unable to perceive any relevant illogicality in the way in which the Authority analysed the position on the basis of what it summarised as the country information it had before it. It is true that in [25] it referred to a DFAT report dated 18 September 2015 on conditions in Kabul for its conclusion that Sunni Shia sectarian violence was infrequent in Kabul. The Authority cited that report for its mention of the February 2014 and March 2015 attacks, that antedated the 9 October 2015 bomb attack, which the Authority mentioned in the immediately preceding sentence. However, the Authority’s ultimate assessment in [25], although based on the earlier DFAT report, was one which was open to it and not so obviously illogical or irrational that it could constitute a jurisdictional error. Nor is the Authority’s finding that the situation as to the risks to Hazara Shias fleeing from the Taliban in Ghazni and Zabul provinces was fluid illogical in respect of its ultimate conclusion that those risks did not apply in Kabul, where about two million Hazara Shias lived.

26    In addition, I am not satisfied that the Authority’s reliance on country information from the Danish Immigration Service of 1 May 2012 could be characterised as an irrational or unreasonable basis for its finding that persons like the appellant, who did not have a high profile of persons such as a former president of Afghanistan or foreign advisers to ministries in Kabul, would not be persons whom the Taliban targeted. The Authority clearly had in mind, in [29], that the appellant had been specifically targeted by the Taliban in the Qarabagh District that was well outside his home area when they searched there for him, and that the Taliban or Al-Qaeda pursued and killed or otherwise harmed teaching staff in those areas. But, it found in [29] that there was no country information before it to suggest that any teaching staff or students in Kabul had been harmed in any way in the previous decade (to February 2016) by the Taliban or Al-Qaeda. In those circumstances, there was nothing illogical in its citing the 2012 report to support its ultimate conclusion that this continued to be the position at the beginning of 2016.

27    In my opinion, there is also no reason to think that the Authority did not genuinely make an overall assessment of the combination of the accepted bases of the appellant’s fears based on his actual experiences. I am not persuaded that it can be suggested that the Authority was not entitled to make its finding that there was no real chance of the appellant facing the real risk of persecution or significant harm were he to return to Afghanistan and relocate to Kabul.

Conclusion

28    For these reasons, in my opinion, the appeal must be dismissed with costs.

29    The trial judge made a final observation that more recent judicial review applications that had come before the Federal Circuit Court were based on more up-to-date country information in Afghanistan than was before the Authority at the time of its decision of 15 February 2016. He said that there had been a recent trend in decisions of the Authority concerning Hazaras in Afghanistan that tended against the proposition that they could safely relocate to Kabul.

30    As his Honour found, it was no fault of either the Minister or the appellant that it had taken four years (and now five) for his case to be determined by the courts on a final basis. The Minister accepted that because of his Honour’s findings as to more recent country information, not available to the Authority at the time of its decision, it would be reasonable for the appellant to seek to have the Minister lift the bar under s 48B of the Act and to reconsider his situation in light of the more advanced country information. No doubt that is more so given the recently announced decision of President Biden to finalise withdrawal of the United States military from Afghanistan by 11 September 2021.

Associate:

Dated:    25 May 2021