Federal Court of Australia

EHV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 649

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

BEACH J:

1    The appellant, a citizen of Afghanistan, appeals from a judgment of the Federal Circuit Court where the primary judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority that had affirmed a decision of a delegate of the Minister to refuse to grant to the appellant a safe haven enterprise (subclass 790) visa.

2    The appellant complains, as part of a reformulated ground of appeal that I have permitted to be put, that there was a constructive failure to exercise jurisdiction by the Authority in that it failed to consider and determine the reasonableness and practicability of the appellant relocating to Kabul. This issue arises under the complementary protection criterion invoking ss 36(2)(aa) and (2B) of the Migration Act 1958 (Cth).

3    The ground is essentially meritless as I have explained in the following reasons, notwithstanding the able attempt by Ms Catherine Symons, counsel for the appellant, to persuade me otherwise. The appeal should be dismissed.

Some background

4    The appellant arrived in Australia in 2013 as an irregular maritime arrival.

5    On 4 July 2016, the appellant was invited by the Minister to make an application for the visa, which he subsequently did.

6    The appellant, who identified his home area to be the Khost province, claimed that he would be seriously harmed, even killed, by the Taliban if he was returned to Afghanistan. He said that he had received death threats from the Taliban whilst he was serving as a sergeant in the Afghan National Army (ANA), including a death threat that had been communicated to the appellant via his children when the Taliban attended their school. Further, apparently the appellant’s car had been shot at by the Taliban.

7    The appellant claimed that he would be unable to relocate to any part of Afghanistan as the Taliban “would not spare him” at any location. The appellant claimed that he would be distinguishable due to his linguistic and cultural characteristics. Further, he claimed that relocation, including to Kabul, would be unreasonable because he would not have access to clean water, sanitation, housing and employment.

8    On 16 February 2018, a delegate of the Minister found that the appellant did not satisfy either criterion under s 36(2)(a) or s 36(2)(aa) of the Act and refused to grant the visa.

9    The appellant was represented by a migration agent before the delegate. He had also attended a prior interview on 29 May 2017, a transcript of which I have perused; his evidence did not address the Kabul relocation question I am now addressing.

10    Now the delegate accepted that because the appellant was a relative of a former district governor of the Khost province and a former ANA soldier, the appellant had an enhanced profile in the Khost province as a member of a leading family who were actively supportive of the Afghan government and that there was a real chance of persecution in the Khost province based on imputed pro-government political opinions.

11    Nevertheless, the delegate was not satisfied that such a profile resulted in a real chance of the appellant facing persecution throughout Afghanistan as a whole. The delegate found that the appellant would not face such a real chance of harm in Kabul. Further, the delegate found that it would be reasonable for him to relocate to Kabul having regard to various factors, including his potential to earn a livelihood there and the fact that his mother and brother live in Kabul.

12    The delegate accepted that the appellant was at a real risk of significant harm if he returned to the Khost province, but was not satisfied that this risk extended to Kabul. As I say, it found that it would be reasonable for him to relocate to Kabul.

13    On 21 February 2018, the Minister referred the delegate’s decision to the Authority for review.

14    In March 2018, the appellant’s migration agent provided the Authority with a submission which included the following paragraphs directed at the delegate’s findings concerning the safety and reasonableness of Kabul as a relocation option:

[The appellant] states that he would face significant serious harm not just in Khost, as assessed by the Case Officer, but throughout Afghanistan, including Kabul.

[The appellant] strongly disagrees with the Case Officer assessment that he would be safe in Kabul. The militants have successfully targeted and killed many officials in Kabul, including present or former ANA officers, being in the militants’ hitlist.

Further, Kabul city is overpopulated, with population estimated in 2015 as nearly 4.7 million people. With so much over-dense population there would not be sufficient access for everyone to basic life resources, including access to public services, as well as, no sufficient employment.

It is true that [the appellant’s] mother lives with one of her sons in Kabul. However, [the appellant] has been living separately from them in Khost and does not have much relations with them. In addition, [the appellant’s] immediate family members including his wife and children reside in Khost. It would be unreasonable and impracticable for [the appellant] and his family to move to Kabul, with very low employment prospects, and inadequate access to public services such as health and education, in addition to being in danger from the side of the AGEs [anti-government elements].

15    On 13 August 2018, the Authority affirmed the decision of the delegate not to grant to the appellant the visa. In doing so, the Authority considered the March 2018 submission as it recited in its reasons.

16    In essence, the Authority found that the appellant faced a real chance of persecution by the Taliban should he return to his home area in the Khost province based on his profile.

17    But the Authority found that the appellant did not face a real chance of harm in Kabul arising from his profile, the general security situation or the fact that the appellant had sought asylum in a western country. So, it found that his real chance of persecution did not relate to all areas of Afghanistan.

18    Further, for the same reasons identified with respect to the refugee assessment, the Authority found that the appellant faced a real risk of significant harm in his home area but he did not face such a real risk in Kabul.

19    Now it will be apparent that aside from the appellant’s denial that he had travelled to Australia alone, the Authority essentially accepted the appellant’s claims. Nevertheless, the Authority did not accept that the appellant’s family profile would give him a profile outside of his home area, noting that his mother and brother had been living in Kabul, and that lower profile targets (as the appellant had been found to be) were unlikely to be targeted after relocation.

20    The Authority went on to find that it did not accept that there was a real chance that the appellant would be targeted in Kabul for any of the reasons claimed, even considered cumulatively, and therefore did not accept that his real chance of persecution related to all areas of Afghanistan.

21    The Authority also found that it was reasonable for the appellant to relocate to Kabul.

22    It said (at [30]):

I have considered whether the applicant could reasonably relocate to Kabul. Many returnees from western countries relocate to Kabul, where there are greater opportunities for employment. DFAT advises that traditional extended family and tribal community structures are the main source of protection or coping mechanism for successful relocation. The applicant’s mother and a brother are already settled in Kabul. The applicant submits he “does not have much relations with them”. However I note the applicant gave the name and telephone number of his brother in Kabul to the Department as his emergency contact, which indicates he did have contact and a relationship with this brother. I do not accept that he “does not have much relations with them” but even he if he currently has little contact, I find as relatives he could reasonably seek assistance from them. The applicant has worked in different jobs in Australia and lived at a number of addresses. He has shown himself to be adaptable and resilient in travelling to and settling in a foreign country. He is a young man with no known health issues or vulnerabilities. I acknowledge the applicant has a wife and 6 children, and I have considered his submission that it is impractical for him to bring his family to Kabul. I note his wife and children currently live with her father. The applicant is currently living separately from his wife and children. I consider it reasonable for his family to continue to reside with his wife’s father until the applicant is sufficiently settled with employment and housing to bring his family to Kabul. I am satisfied it is reasonable for the applicant to relocate to Kabul where he does not face a real risk of significant harm.

23    Now I should say here that the appellant complains that the Authority in only this paragraph dealt with the relocation question. That is not entirely accurate given the context and findings provided by the earlier paragraphs. But in any event it will be appreciated that [30] contains some 10 propositions which in context, in my view, addressed the real points raised. I will return to a more detailed analysis later.

24    The Authority affirmed the delegate’s decision.

25    The appellant then sought judicial review in the court below.

26    By the time of the hearing below, the appellant relevantly complained that the Authority had failed to consider the appellant’s objections to relocation to Kabul based on the overcrowded nature of Kabul and the lack of clean water or sanitation in Kabul.

27    The primary judge rejected that ground and dismissed the application. I do not need to discuss his reasons given the ground of appeal now raised before me.

The present appeal

28    The appellant originally appealed to this Court on the ground that the primary judge had erred by wrongly rejecting the ground in his amended application before the primary judge. But the appellant now seeks to reformulate his ground to essentially assert the following error:

The primary judge erred by failing to find that the decision of the Immigration Assessment Authority (IAA) dated 13 August 2018 involved a constructive failure to exercise jurisdiction that reflected the failure of the IAA to consider and determine the reasonableness and practicability of the appellant relocating to Kabul, in terms of his individual circumstances (which comprehended, amongst other things, his family responsibilities) and by reference to the relocation objections he expressly raised.

29    The appellant acknowledges that the new ground is one that is different from the ground that was dealt with by the primary judge; accordingly I do not need to discuss the primary judge’s reasons.

30    I will grant leave to the appellant to raise this new ground. Essentially the new ground can be readily dealt with by me and the Minister does not say that he will suffer any relevant prejudice if I deal with it. The reason why it was not run below is explained by the change in counsel. In the present context of an administrative law issue, that is good enough for me. Given that I would have to address the merits of the new ground in determining whether leave was granted or not, it is inefficient to do anything other than get straight to the heart of the matter, rather than further linger over leave principles.

31    Now essentially the appellant contends that the Authority failed to consider and determine the reasonableness and practicability of him relocating to Kabul.

32    I should say that in the context of such an argument I accept that the assessment of whether a person who has been found to have a well-founded fear of persecution in one part of his country of nationality can relocate to another region or part of that country is not to be approached only by reference to the risk of harm, but is also to be assessed by reference to the individual circumstances of the person concerned, and what is practical and reasonable for that person. So, in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24] the plurality said:

… 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.

33    In this context, the appellant referred to MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [51], where Mortimer J explained that what is practicable and reasonable for a person to do, or not to do, involves a fact intensive assessment. I will return to this decision later.

34    Further, the appellant said that in AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457 at [27], Mortimer, Moshinsky and Thawley JJ pointed out that the question of whether it is reasonable to expect an applicant to return to a particular part of his country of nationality will depend to some extent on the framework set by the claims made by the applicant about why it is not safe or not reasonable for him to return to a particular location(s).

35    The appellant says that the Authority did not deal at a factual level with the specific objections raised by the appellant in his March 2018 submission concerning relocation to Kabul and nor did it examine the material and make findings about whether the appellant, both as an individual and an individual with his wife and six children, could, as a matter of practical reality, relocate to Kabul in a way which would allow him and his family to meet their basic needs. The appellant elaborated on his criticisms.

36    First, it was said that the Authority either paid insufficient attention to or overlooked the considerations that comprised the framework of objections identified in his March 2018 submission. In this regard it was said that the assessment of reasonableness requires something considerably more exacting than a resort to generalities. Accordingly, the Authority’s references to the March 2018 submission and the blanket statement concerning the referred material, evinced a “broad-brush” approach that was antithetical to the fact-intensive analysis that the Authority was required to undertake.

37    Second, it was said that the Authority did not do more than advert to the possibility that the appellant’s family might ultimately relocate with him to Kabul. The appellant complained that the Authority undertook no evaluation and recorded no findings directed at the reasonableness and practicability of the family members undergoing this dislocation. Instead, its finding was premised on a conclusion that the appellant would be in a position to obtain employment and housing. It is said that the Authority’s reasons failed to grapple with the prospect that the appellant’s children would be denied education or that the appellant or his family would experience challenges associated with the lack of health services. It was said that the mere advertence to the appellant’s family was not sufficient to establish that the appellant’s objections to relocation with his family had been considered.

38    Third, it was said that the Authority made findings, unsupported by probative material, about significant matters relating to the circumstances that the appellant would face if relocated to Kabul. So, for example, it was said that the Authority found that the appellant would be in a position to secure employment based on nothing more than its observation that he was a person who had previously proven himself to be adaptable and resilient. But it was said that the Authority did not refer to any evidence concerning the availability of work in Kabul or whether the appellant’s skills and experience might equip him for such employment. It was also said that a further illustration of this lack of engagement and resort to generalities could be found in the Authority’s purported evaluation of the support available to the appellant. It was said that the Authority found that the appellant could seek assistance from his mother and brother but recorded no findings as to what this support would look like “on the ground” for the appellant, and in particular whether it might extend to assistance with fundamental needs such as accommodation and employment.

39    I would reject the appellant’s case.

40    Let me first say something about the non-controversial principles that can be synthesised from the numerous authorities drawn to my attention by both the appellant and the Minister; I have eschewed excessive citations.

41    First, the question of whether it is reasonable for a visa applicant to relocate to a particular location(s) depends in part on the framework set by the claims of the applicant as to why it is not practical or reasonable for him to relocate to that location(s).

42    But as Mortimer J rightly said in MZANX at [58]:

There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.

43    Second, no broad brush approach should be taken by the decision maker. Some detailed consideration of the matter is required to determine the question of practicability and reasonableness concerning the question of relocation and the area proposed for relocation. But the level of detail required will depend on the context, the issues raised and how the matter was put.

44    Third, in the present context the question of practicability and reasonableness of relocation is concerned with matters apart from the real chance of harm to the appellant referable to that relocation. So in the present context, the Authority in its reasons dealt separately with the real chance of harm aspect in [29] and the matter than I am presently addressing in [30].

45    Fourth, the Authority must intellectually engage with the question of reasonableness and practicability and must have some probative basis for its findings on this question. Speculation or stereotypical assumptions without more are insufficient. Reliable information to assess reasonableness and practicability is required. Such information also includes personal and family circumstances.

46    Fifth, the question of reasonableness and practicability, albeit obviously a factual inquiry, is at the end of the day an evaluative assessment that is founded on the particular circumstances of the visa applicant and the impact on that person of relocation to and at the relevant location.

47    Sixth, the question of reasonableness and practicability must be assessed in the relevant comparative context. So, in the present case, the appellant complains of living standards in Kabul. Now let it be accepted that living standards in Kabul are far below those that are typically experienced in a Western city. In context that does not establish that relocation to Kabul is unreasonable or impractical. The wrong comparator would be being used. Putting to one side the question of real harm, the comparison is between Kabul and the Khost province, and not between Kabul and inner Melbourne. If you like to generalise, the comparison is between the place of otherwise habitual residence (Khost province) and the proposed place of safe haven (Kabul).

48    Seventh, it is wrong to assert that the Authority had to set out in its reasons a detailed discussion of each and every aspect raised by the appellant concerning relocation. I am not dealing with the need to consider a mandatory factor concerning each and every matter raised by the appellant against the reasonableness or practicability of relocation. Further, the level of detail required is partly a function of how the appellant has raised the point and the detail given by him. Further, the question is whether the Authority actively engaged with the relevant issue and acted on sufficiently probative material to reach the required state of satisfaction on the overall question of reasonableness and practicability.

49    Eighth, as to the circumstances in which an omission in a decision-maker’s reasons may indicate that it failed to consider a matter that is material, and so committed jurisdictional error, I refer to my discussion in VZKW v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FCA 579 at [101] to [104]. I should say now that in context I infer no such failure as asserted by the appellant. The Authority’s reasons, particularly at [30], in the context of the assertions made by the appellant in his March 2018 submission, provide no basis for such an inference.

50    Let me now address some of the appellant’s specific complaints. I should say at the outset that in my view the Authority gave appropriate consideration to the particular circumstances and objections which had been raised.

51    First, as the Minister correctly contended, it may be inferred that the Authority considered matters relating to overpopulation, clean water, and sanitation. Its reasons at [5] and [30] specifically mention the March 2018 submission. The March 2018 submission specifically noted overpopulation, and lack of access to basic life resources, which were said to include access to public services. It is unlikely that in the context of the Authority discussing the March 2018 submission on relocation it would have considered some parts but not others.

52    Further, I note that the appellant’s earlier statement on relocation in his visa application was to the effect that it was unreasonable to relocate, including on the basis that “more than a million [people] have been displaced and moved to Kabul, and who do not have access to clean water, sanitation, housing and employment”. Accordingly, the references in the March 2018 submission to basic life resources and public services clearly take their colour from the earlier statement.

53    Further, although the appellant complains that the issue of overpopulation, clean water and sanitation was considered at too high a level of generality by the Authority, that may be merely a reflection of the generality with which those matters had been asserted by the appellant. Indeed the appellant’s mention of clean water and sanitation in his visa application was by reference to aggregate data in the form of “a recent survey by a source of UNHCR”. Further, the March 2018 submission put it in vague terms.

54    In my view none of such matters were obliged to be considered to a greater degree than the Authority did. Further, there was no broader duty of inquiry. Moreover, I am not dealing with a case based upon an unreasonable failure to exercise any s 473DC power.

55    Second, as for the appellant’s family reuniting with him in Kabul, the appellant had raised the difficulty of his family coming to Kabul by reference only to the “very low employment prospects, and inadequate access to public services such as health and education, in addition to being in danger from the side of the AGEs”.

56    Now the Authority found that it was reasonable for the family to await reunification until the appellant had settled with employment and housing. That finding followed from the Authority’s findings that the appellant’s employment prospects were promising. In my view, as the Minister rightly contended, the Authority did more than advert to the possibility that the appellant’s family might ultimately relocate with him to Kabul. Rather, the Authority assessed their prospects of reunification on the basis of the appellant’s prospects of securing employment and appropriate housing.

57    Third, the appellant complains that the Authority’s findings on the appellant’s employment prospects were unsupported by probative material. I disagree. The Authority noted the appellant’s employment history in Australia. Further, it was observed that the appellant had no known health issues or vulnerabilities. Clearly that was also relevant to his employability, and supported the finding of adaptability and resilience.

58    Further, it cannot sensibly be said, as the appellant seemed to suggest, that the Authority committed jurisdictional error by reason that it had not obtained and considered labour market or similar data because the appellant asserted that he faced low employment prospects on relocation. But in any event, the Authority did rely upon DFAT information to the effect that Kabul had relatively greater opportunities for employment and so was a destination of preference for returnees. So, relative to other parts of Afghanistan, Kabul had better employment prospects, although in an absolute sense the prospects were low.

59    Fourth, in my view the Authority’s findings that the appellant could seek assistance from his mother and brother did not manifest error. Indeed, as the Authority noted, the appellant had given to the Department his brother’s details as his emergency contact. This gave some insight into the relative support and assistance that the appellant might enjoy from him in Kabul.

60    Further, the existence of the mother and brother in Kabul was a significant issue for the delegate in finding that it was reasonable for the appellant to relocate there. Contrastingly, the only matter which the appellant then later submitted to the Authority was that he did “not have much relations with them”. Given that thin statement, the Authority was entitled to make the findings that it did in the context of the March 2018 submission.

61    Fifth, and more generally, as Mr Alexander Solomon-Bridge, counsel for the Minister, rightly emphasised, after the delegate’s decision the appellant was on notice that the dispositive issue was the relocation question. If the appellant in his March 2018 submission to the Authority chose to deal with the matter in a generalised fashion, the Authority could hardly be criticised for addressing the matter in a manner reflective of that generality. But in any event, the Authority’s reasons at [30] do display detail and a sufficient engagement with the issues. Its approach was neither formulaic nor broad-brush.

62    Sixth, at one stage the appellant’s oral submissions seemed to confuse the question of the reasonableness of the appellant’s relocation, and the question of the reasonableness of the relocation of his wife and six children who live with the wife’s father in the Khost province. But I am dealing with the former question, although of course the latter question is part of the matrix under which the former question is being considered. But in any event two points can be made. As to the reasonableness for the appellant, it is perhaps a lesser incremental downside not being with his family for the moment if he returned to Kabul, given that he has been separated from them for some years. On another point, and as I have explained, the Authority did consider the latter question to some extent but linked it to the appellant’s employment prospects in Kabul.

63    Seventh, the appellant asserted that the Authority had not dealt with his “residual harm” claim. Reference was made to the March 2018 submission concerning anti-government elements. Now I do not accept that a separate residual harm argument was clearly made to the Authority. But if it was it was dealt with and rejected.

64    At [19] the Authority rejected the targeted harm argument in the following terms:

The EASO report states individuals targeted by the Taliban often relocate to cities for their safety. Sources referred to by EASO indicate targeted individuals can still be tracked and killed in major cities, but resources are directed towards high profile individuals. Lower profile targets and their families are unlikely to be targeted after relocation. I find the applicant is a low profile target in his home area. I am not satisfied he would be of interest to the Taliban in Kabul for military service that ended 6 years ago, even when this is considered cumulatively with his family’s profile. I do not accept he would have any profile with the Taliban operating in Kabul to punish him for fleeing the Taliban in his home area in 2012. I find the chance of the Taliban targeting him in Kabul is too remote to be a real chance.

65    Contrastingly, at [20] the Authority rejected what may be described as the “residual harm” argument in the following terms:

I have considered the general security situation in Kabul. I accept there have been an increase in high profile attacks in Kabul, but note DFAT reports they are generally directed at specific targets. Civilians can be caught up in such attacks, however I find the chance of the applicant being inadvertently caught in an attack in Kabul is too remote to amount to a real chance. I am not satisfied the applicant face a real chance of harm due to the general security situation in Kabul.

66    This point lacked substance.

Conclusion

67    The new ground of appeal is not made out.

68    The appeal should be dismissed with costs.

Associate:

Dated:    15 June 2021