Federal Court of Australia

CAI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1310

ORDERS

THE COURT ORDERS THAT:

1.    The time limited for the appellant to file an amended notice of appeal is extended to 4:00 pm on 8 October 2021.

2.    The application for leave to raise new grounds on appeal is refused.

3.    The appeal is dismissed.

4.    The appellant is to pay the first respondent’s costs of the appeal to be taxed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) in which the learned primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the Authority), which had in turn affirmed a decision of the delegate of the Minister for Immigration and Border Protection (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) to refuse the appellant’s application for a Safe Haven Enterprise (Subclass 790) visa (SHEV).

2    The essential issue in this appeal concerns the validity of the Authority’s decision. That decision, which was made on 28 March 2018, was based on the information available to the Authority at that time and, in particular, its assessment of the risk of harm which the appellant would then face were he to return to Afghanistan. It is notorious that the circumstances in that country have changed dramatically in the intervening period. Nevertheless, it would be erroneous to suggest that any dissonance between the relevant historical findings discussed and the current situation in that country is relevant to the issues raised by the present appeal.

3    For the reasons which follow, the appeal should be dismissed. The appellant required leave to advance on appeal two new grounds, neither of which were agitated before the FCC. That leave should not be granted, primarily due to the absence of an adequate explanation as to why the grounds were not raised at first instance and the prejudice which would be suffered by the Minister if leave were given. Even if such leave were granted, the appeal would not succeed. It is apparent that the Authority considered all of the evidence and claims before it in determining that it was satisfied that it would have been reasonable for the appellant to relocate to Kabul for the purposes of s 36(2B)(a) of the Migration Act 1958 (Cth) (the Act).

Background

4    The appellant is a citizen of Afghanistan of Pashtun ethnicity and a Sunni Muslim. He was born in the Pul-e-Alam district of the Logar province where he mostly resided, apart from the period between 2002 and 2006 when he resided in Kabul and completed high school.

5    He subsequently worked for a year on his family’s farm in the Pul-e-Alam district before training and working as a mechanic in Pul-e-Alam city from 2007 until October 2012.

6    In around November 2012, the appellant’s brother was killed when they were walking home from the appellant’s work and were fired upon. The appellant claimed that the Taliban were responsible for his brother’s murder.

7    He claimed that he feared for his life following his brother’s death. He went to live in Pakistan but returned to Afghanistan and lived in Kabul for a time before departing Afghanistan again. He arrived in Australia as an unauthorised maritime arrival in 2013.

8    In July 2016, he made an application for a SHEV, claiming to fear harm from the Taliban because, inter alia, they believed him to be a government informant, he had witnessed them kill his brother, and he was a failed asylum seeker who had lived for an extended period in a Western country.

9    On 30 May 2017, a delegate of the Minster refused to grant the appellant a visa on the basis that he did not have a well-founded fear of harm in his home province of Logar. That application was then referred to the Authority for reconsideration in accordance with s 473CA of the Act.

The Authority’s determination

10    There is no need to recite in detail all of the claims on which the appellant founded his SHEV application. Many were rejected and he has not persisted with them.

11    That which remains relevant is that he would face a real risk of significant harm if he returned to Afghanistan as the Taliban would target him as a person who had spent a significant period of time in a Western country. Specifically, he claimed that if he returned to the Pul-e-Alam district, his identity would soon become known as would the fact that he had resided in Australia for a number of years. The Authority accepted that the Taliban had a significant presence and influence in that district. Thus, it accepted his claim that if he returned to the village in that district where he grew up, despite taking precautions, knowledge that he had lived in a Western county would become known if it was not already known. He would, in consequence, receive adverse attention from the local Taliban through their networks. The Authority member concluded at paragraph [30]:

30.    … I am satisfied that there is more than a remote chance he will be imputed with a pro-Western political opinion and targeted for serious harm by the local Taliban if he returned to … Pul-e-Alam district. I am also satisfied that his imputed political opinion would be an essential and significant reason for the harm.

12    The next and essential issue for the Authority was whether the appellant would face a risk of harm in Kabul if he were repatriated. This arose by reason of s 5J(1)(c) of the Act which required that, for a visa applicant to establish their refugee status, it would need to be shown that there was a real chance that they would be persecuted in all areas of the receiving country. In this respect, the Authority concluded at paragraph [33] that it was not satisfied there was a real chance the appellant would suffer significant harm in Kabul as a returnee or failed asylum seeker from Australia. It reached this conclusion based upon the DFAT Country Information available to it which was to the effect that such persons did not usually attract such attention in Kabul and that most returnees were able to take measures to conceal their prior associations.

13    For the purposes of the appeal, the Authority’s conclusions on this topic at paragraph [37] of its reasons are important. There it noted the appellant had claimed “that it is not safe to live in Kabul” and that in support of that allegation he had referred to an attack on a military hospital in 2017. It accepted the proposition that, although the government was supposed to have control of Kabul and other cities, incidents still occurred. From several sources of country information, it recognised that the national security forces were adept in keeping major urban centres safe but Kabul still regularly experienced attacks which have targeted high-profile international institutions and civilian groups, civil servants, government institutions, security services and foreign missions. The government was identified as maintaining effective but not absolute control of Kabul and of being generally successful in holding ground against insurgent forces. The Authority accepted that people associated with the government or international community were at risk in Kabul, but was not satisfied the appellant had such a profile. In the result, it was not satisfied that he faced “a real chance of harm in the foreseeable future from the Taliban or other insurgent groups due to the general security situation in Kabul”. The consequence was that s 5J(1)(c) was not satisfied and the appellant did not have a well-founded fear of persecution which justified the grant of a SHEV on Convention grounds.

14    The Authority then addressed the issues relevant to the complementary protection grounds as provided for in s 36(2)(aa) of the Act. That section provides for the granting of a protection visa if the Minister is satisfied there are “substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. However, as mentioned above, s 36(2B)(a) has the consequence that this requirement would not be met in this case if the Minister was satisfied that it would be reasonable for the visa applicant to relocate to an area of Afghanistan where there would not be a real risk that they will suffer significant harm.

15    Whilst the Authority accepted that there was a real risk that the appellant in this case would suffer significant harm were he to return to his home area in the Pul-e-Alam district, it held that it was satisfied that he would not face that risk in Kabul. In reaching that conclusion, it considered that although there was substantial nepotism in Kabul, it would not result in him suffering adverse consequences amounting to significant harm. Further, although the appellant was a Sunni Muslim, there was not a real risk of him suffering harm in Kabul because of that.

16    The Authority expressed its conclusions as to the risk of harm which the appellant might face in Kabul at paragraph [45] of its reasons, stating:

45.     I have otherwise found that there is not a real chance that the applicant will face serious harm in Kabul as a returnee/ asylum seeker from the West, due to any imputed profile as a government informant/spy, because he witnessed his brother’s death, or on the basis of the general security situation. As the ‘real risk’ test imposes the same standard as the ‘real chance’ test, for the reasons stated above I am also not satisfied that there is a real risk of the applicant suffering significant harm on the return to Kabul for those reasons.

17    The parties before the Court each agreed that in this paragraph the Authority dealt with the first limb of the test provided for in s 36(2B)(a), being that there was another area of the country where the applicant would not face a real risk of significant harm.

18    The parties also agreed that from paragraph [46] the Authority commenced its consideration of the second limb, being whether it would be reasonable for the appellant to relocate to Kabul. It first identified that he had claimed at the SHEV interview that he could not relocate to Kabul as it was not safe there. It then identified his claim that he had to work in Australia to provide for his family and that, with his limited skills, he would have limited opportunity in Kabul to be able to support them.

19    At paragraph [48], it identified that Kabul was under the effective control of the Afghan government and offered greater employment opportunities and access to services than in non-urban areas of Afghanistan, even though there was still unemployment and underemployment. In this respect, it accepted the appellant had the skills, life experience and resilience to relocate himself to Kabul where employment, accommodation and other services were available to him. It subsequently noted that his immediate family were residing in Kabul and he would be arriving there as a married man. Although he would be required to support his family, accommodation would not be an issue for him and his network of friends and extended family would be able to support him. He had also previously resided in Kabul and had demonstrated that he was able to establish himself in new locations. Otherwise, as an abled bodied man with no known health problems or vulnerabilities, he would require less in the way of support. Thus, the Authority concluded at paragraph [49]:

49.    … Despite the applicant’s claim that he would have difficulty in financially supporting his family on return including difficulty in obtaining employment, I am satisfied that the applicant has the skills, life experience and resilience to relocate and establish himself in Kabul where employment, accommodation and other services would be available to him.

20    Finally, in relation to the reasonableness of him relocating to Kabul, the Authority expressed its conclusion at paragraph [50]:

50.     As has been noted above, although there are incidents of violence in Kabul I am satisfied that the government and security forces continue to maintain effective control. Taking into account this, the country information relating to the situation in Kabul, and the applicant’s personal circumstances, I am satisfied it is reasonable for the applicant to relocate to Kabul where he does not face a real risk of significant harm.

21    As a consequence of that conclusion, the appellant did not meet the criteria in s 36(2)(aa) for the grant of a visa on the complementary protection grounds.

The decision of the primary judge

22    The appellant applied to the FCC for judicial review of the Authority’s decision. The learned primary judge rejected each ground of review and dismissed the application. As the appellant does not press any of those grounds on appeal, it is unnecessary to analyse the reasons below.

Legislative context

23    Section 36 of the Act relevantly provides as follows:

36    Protection visas – criteria provided for by this Act

…

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

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

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

…

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

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

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

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

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

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

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

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

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

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

24    For the purposes of the issues arising in this appeal, it is also necessary to refer to s 5J which specifies the content of the concept of a “well-founded fear of persecution”. Of particular relevance is s 5J(1) which provides:

5J     Meaning of well-founded fear of persecution

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

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

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

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

…

General principles relating to the application of s 36(2)(aa)

25    The general effect of the operation of ss 36(2)(aa) and 36(2B)(a) is that:

(a)    the visa applicant will satisfy the criteria in s 36(2)(aa) where the Minister has substantial grounds for believing that if the applicant is returned to a receiving country there is a real risk they will suffer significant harm;

(b)    however, the Minister cannot be so satisfied if, inter alia, he is satisfied that it would be reasonable for the applicant to relocate to an area in that country where there would not be such a risk; and

(c)    the degree of satisfaction required to activate s 36(2)(aa), being “substantial grounds” for believing the risk exists is lower than that in s 36(2B)(a) where the Minister must be satisfied of the absence of the risk in a relevant area and of the reasonableness of relocating there.

26    It was accepted by the parties that s 36(2B)(a) had two limbs. First, the decision-maker must be satisfied that the place to which the non-citizen may relocate would be one where there was not a real risk that they will suffer significant harm. Second, that it is reasonable for the non-citizen to relocate to that place: DFE16 v Minister for Immigration and Border Protection (2018) 265 FCR 57 (DFE16) at 61 [24], 62 [27].

27    For the purposes of the second limb, what is reasonable, in the sense of being practicable, will depend upon the applicant’s particular circumstances and the impact upon them of relocating their place of residence within their country of nationality: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV) at 27 [24]. Whether or not the decision-maker is satisfied as to the reasonableness of relocation is a question of fact for the decision-maker alone involving, as it does, assessment and judgment: Soosaipillai v Minister for Immigration & Multicultural Affairs [2001] FCA 357 [57] per Carr J (with whom Hill and Whitlam JJ agreed).

28    It has been generally accepted that in the formation of the state of satisfaction as to the reasonableness of relocation by the non-citizen, s 36(2B)(a) does not compel the Minister to take into account any specific matters. In particular, it has been held that the Minister is not obliged by the terms of that section to take into account any other and different risks of harm in the relocation area – that is, other than a real risk of significant harm: MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 (MZYQU) at 199 – 200 [51], [52] and [55] per Dodds-Streeton J; and that is so even where those risks are assessed as being less than the “real risk” threshold. Such risks are integers which the decision-maker is permitted, but not mandated, to consider in ascertaining whether they are satisfied of the reasonableness of the applicant relocating: MZYQU at 200 [55]; MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 (MZZJY) [21] per Davies J; MZZZA v Minister for Immigration and Border Protection [2015] FCA 594 [34] per Mortimer J; MZACX v Minister for Immigration and Border Protection (2016) 161 ALD 73 (MZACX) at 86 – 87 [48] per Kenny J.

29    However, it was also accepted by the parties that, given the structure of s 36 and of the Act generally, in ascertaining whether they have reached the required state of satisfaction stipulated by s 36(2B)(a), a decision-maker is obliged to consider the grounds raised by the applicant including any claim that it is not reasonable for them to relocate to a particular locality due to a risk of harm which is less than a “real risk” of “significant harm”. For the purposes of these reasons, that is referred to as a “lesser risk of harm”.

30    Ms Hoiberg for the appellant submitted that this principle was helpfully summarised by Dodds-Streeton J in MZYQU where her Honour stated (at 200 [54] – [55]):

54    While the plurality in SZATV recognised that neither s 91R nor any other provision of the Act applied to further specify the “relocation principle”, it did not state, nor is it a necessary inference, that the risk of harm in the proposed new region (of whatever level and however defined) is irrelevant in applying the principle of relocation laid down in SZATV. Conversely, neither SZATV, nor any other authority to which I was directed, holds that where the risk of harm is relevant to the reasonableness of relocation, it is restricted to a risk of serious harm within the meaning of s 91R(1)(b).

55     Consistently with SZATV, factors such as “other and different risks in the propounded place of internal relocation” (which, as recognised in MZYPW, may include the “risk of violence for non-Convention reasons”) may be relevant, albeit not mandatory, considerations when determining the reasonableness of a proposed relocation.

31    Ms Hoiberg further submitted that this principle had been accepted in MZZJY and MZACX. Whilst that is so, it must be kept in mind that the decision in MZYQU concerned the operation of s 91R of the Act as it then was and the concept of the “internal relocation principle” as applied by international jurisprudence in relation to the Convention Relating to the Status of Refugees (1951), as modified by the Protocol Relating to the Status of Refugees (1967) (the Convention). Those cases were not concerned with the operation of the complementary protection provisions as they are now codified in ss 36(2)(aa) and 36(2B). The evolution from the application of the internal relocation principle derived from the Convention concept of refugee to the codified complementary protection regime in the Act was thoroughly assayed by Greenwood J in DQA17 v Minister for Home Affairs [2020] FCA 864 [106] and the differences between the two were recently considered by Wheelahan J in CXO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 17.

32    In Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 (DZU16), the Full Court (Robertson, Murphy & Kerr JJ) had occasion to analyse the Authority’s obligation to consider the risk of harm to a visa applicant in a putative place of relocation for the purposes of considering the reasonableness of relocation. It concluded the Authority had correctly taken into account all of the relevant risks to the applicant when considering whether relocation was reasonable. In this respect, it held that (at 554 [108]):

108     For these reasons, the Authority’s reasoning was not at odds with MZYQU, MZZJY and MZACX insofar as they stood for the proposition that a risk of encountering violence in a putative place of relocation of an unspecified nature or level (that is, below the threshold of serious harm) may be relevant to the reasonableness of relocation.

33    By this, the Full Court sought to eschew the proposition that the three identified decisions imposed an obligation upon the Authority in all cases to consider any lesser risk of harm at the proposed place of relocation. The Court later held (at 554 – 555 [110]):

110    … Insofar as MZYQU, MZZJY and MZACX, if considered to apply equally to the relocation test under s 36(2B)(a), may suggest that consideration must always be given to the risk of generalised violence when assessing the reasonableness of relocation, they were, with respect, wrong as they descended to a greater level of particularity than was called for by the Migration Act, and should not be followed.

34    The Full Court subsequently identified the question for the Authority under s 36(2B)(a) as being whether it was satisfied that it would be reasonable for the visa applicant to relocate to an area in Afghanistan where there would not be a real risk that they would suffer significant harm. After considering the material to which the Authority referred, it was held that the Authority had asked itself the correct statutory question.

35    It follows that for the purposes of the second limb of s 36(2B)(a), a decision-maker is not required to consider every possible impact or obstacle associated with relocation, but is only required to consider those impacts or obstacles which the applicant has raised: see most recently CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156 [10] (CSZ16). The observations in CSZ16 echo those of Kenny J in MZACX where her Honour observed (at 82 – 83 [34]):

[34]    The nature of the inquiry as to the reasonableness of relocation depends on the particular objections raised by the visa applicant to relocation: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 … at [124], citing Randhawa at CLR 442–3... These objections set the parameters for the Tribunal’s inquiry: MZYXP v Minister for Immigration and Border Protection (2013) 137 ALD 348… at [61]. The Tribunal’s task is to assess the reasonableness of relocation as regards the applicant by reference to the issues raised by him and on the other material before the Tribunal: AZAEH v Minister for Immigration and Border Protection [2015] FCA 414 at [21]; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 … at [58], [60]–[61], [68].

36    However, as the Minister accepted, a decision-maker may also be required to consider an unarticulated claim which clearly emerges from the materials: see AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 (AYY17) at 509 – 510 [18].

Consideration of the appeal

37    In ascertaining whether leave should be granted to raise a new ground on appeal, the merits of the proposed new ground should only be analysed at an impressionistic level: NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 [31]. Usually, that analysis precedes the hearing and consideration of the substantive appeal where, if leave is granted, the ground is analysed in more detail. However, an understanding of the Minister’s submissions as to the prejudice which he alleges he will suffer if leave is granted in this case necessitates a detailed consideration of the proposed new grounds and their prospects. For that reason, it is appropriate to consider the proposed new grounds as if leave had been granted and return to the question of leave subsequently.

38    Although there are the two new grounds of appeal in respect of which leave is sought, in substance, they amount to a single allegation that the Authority constructively failed to undertake its task of reviewing the delegate’s decision because it neglected the obligation in s 36(2B)(a) to consider a claim raised by the applicant that it would not be reasonable for him to relocate to Kabul due to it not being safe there as a result of the existence of a lesser risk of harm.

39    It was not in dispute that the Authority undertook an assessment of the level of safety for the appellant were he to relocate to Kabul and ascertained that it did not amount to a real risk of significant harm: see paragraph [45] of the Authority’s reasons. The point advanced was that, in assessing whether it was reasonable for him to relocate there, it ought to have ascertained whether there existed a lesser risk of harm and include that in its assessment. As was submitted on behalf of the Minister, the proposed new ground gave rise to two issues being, first, whether the appellant had established that the relevant claim was raised by him and, second, whether he had established that the Authority failed to take that claim into account.

Did the appellant make a relevant claim?

40    The Minister submitted that at no time did the appellant make a claim that in considering the issue of reasonableness of relocation to Kabul the decision-maker ought take into account the presence of any lesser risk of harm to him in that city. For that reason, so the submission went, the Authority was not required to assess its satisfaction of the matters in s 36(2B)(a) on any other basis than his claim that he would face a real risk of significant harm in all areas of Afghanistan.

41    In broad terms, Ms Hoiberg submitted for the appellant that there was evidence that he had raised the relevant claim before the delegate or, alternatively, if it were not raised by him the issue clearly emerged on the evidence or on the Authority’s findings: AYY17 at 509 – 510 [18].

42    In this discussion, some clarity needs to be maintained as to the nature of the “claim” which is alleged to have been made. In the course of submissions, that concept vacillated between a claim for a protection visa under the complementary protection grounds on the one hand and, on the other, a “claim” that, within the consideration of ss 36(2)(aa) and 36(2B)(a), there existed a lesser risk of harm for the appellant in Kabul which rendered it not reasonable for him to relocate there.

The nature of the appellant’s claims

43    By a letter of 6 July 2016 to the Department, the appellant, by his representatives, delivered his SHEV application. In the covering letter, reference was made to the circumstances of his brother’s death which led to his leaving Afghanistan and to the risk of harm to him in the whole of the country. In the latter respect, the letter stated:

He could not relocate to any area of the country where he would not be in danger and the current government and security forces in Afghanistan cannot protect him.

44    The letter then proceeded to explain that it was not safe for the appellant anywhere in Afghanistan and that, even in the cities controlled by the Government, there was no effective state protection. Later, a specific claim was made for the granting of a SHEV on the complementary protection grounds:

Complementary Protection

While [the appellant’s] claims for protection are in no way conceded, in the event the decision maker considers [the appellant] does not meet the criteria as set out under the Migration Act 1958, we ask the decision maker to recommend that he be afforded complementary protection and meet the criterion for protection of a SHEV visa.

[The appellant] has a genuine fear that if he returns to Afghanistan, he will be punished, tortured or killed by the Taliban.

45    In a statement attached to his SHEV application, the appellant specifically addressed his claim that it was not safe for him to relocate to another part of the country. He asserted that there was no place in Afghanistan where he might avoid harm or that is safe for him to live, the Taliban has significant control of Afghanistan and that government forces will not stand up to them, the Taliban will use their connections to kill him regardless of where he might live in Afghanistan as the government is weak and unable to protect him, there was no safe place for him to return to, and there is a real chance of significant harm to him no matter where he lived in Afghanistan.

46    His application also attached a number of pieces of country information relating to the general safety situation in Afghanistan.

47    By a letter dated 15 August 2017, the appellant’s representatives made submissions to the Authority on his behalf. One of the headings used in those submissions was “The real chance of persecution relates to all areas of a receiving country”. In a technical sense, that more appropriately relates to the requirement in s 5J(1)(c) of the Act that the material satisfies the decision-maker that the visa applicant would be persecuted in all areas of their home country. The submissions made on behalf of the appellant were addressed to that issue and asserted that, given the then current situation in Afghanistan, he would face a real risk of significant harm in all parts of that country.

48    Ms Hoiberg identified that the Authority appeared to refer in its reasons to assertions by the appellant as to the general safety considerations in Kabul. It recorded at paragraph [37]:

The applicant claims that it is not safe to live in Kabul and refers to the attack on the military hospital in March 2017.

49    It observed at paragraph [46]:

The applicant claimed at interview [sic] that he could not relocate as it is not safe in Kabul.

50    The transcript of that interview was not in evidence and Mr McGlade for the Minister submitted that had the issues underlying the proposed grounds been raised before the FCC, that transcript could have been adduced in evidence before the FCC.

51    Nevertheless, it is clear that the appellant attempted to rely upon the complementary protection grounds in support of his application for the granting of a SHEV. In doing so, however, he did not specifically assert that it was not reasonable for him to relocate to Kabul due to the existence of a risk of harm which was less than a real risk of significant harm. That was, perhaps, not unsurprising as his primary case was that he would suffer persecution in all parts of Afghanistan (which would satisfy the requirements of s 5J(1)(c)), and much of his evidence and submissions were directed to establishing that claim. It was not forensically sensible for him to aver, at least in the first instance, that he faced a lesser risk of harm in Kabul. That would necessarily undermine his claim based on the Convention grounds. It may be for that reason the letter of 6 July 2016 only raised, or appeared to raise, the complementary protection grounds as an alternative if the decision-maker was not satisfied that the criteria of s 36(2)(a) were met.

52    The statements by the Authority as to the appellant’s generalised assertions as to a lack of safety in Kabul are somewhat difficult. The reference to his claims at paragraph [37] was made in the context of its discussion as to whether the appellant faced a real chance of significant harm for the purposes of s 36(2)(aa). That being so, it can be expected the Authority was referring to the appellant’s evidence as being relevant to whether he faced that degree of risk. The reference at paragraph [46] was, as the parties agreed, in the context of the Authority’s discussion of the second limb of s 36(2B)(a) and, likewise, it might be thought that the articulation of the appellant’s claim related to that issue. However, whilst it is an indication that the appellant had raised an allegation that it was not safe for him in Kabul, there is nothing in the statement to suggest that he asserted the existence of any specific level of risk to him.

The authorities dealing with the requirement to raise a claim

53    In support of his submission that the appellant had not sufficiently raised a relevant claim, Mr McGlade for the Minister relied upon the decision of the Full Court (Reeves, Rangiah and Colvin JJ) in DFE16 which concerned a not dissimilar factual situation. The Administrative Appeals Tribunal (the Tribunal) had found that the real chance of the appellant suffering significant harm in the area of intended relocation in Afghanistan, being Mazar-e-Sharif, was “remote” and that it would be reasonable for the appellant to relocate there. The appellant had submitted that the Tribunal had failed to assess whether the second limb of s 36(2B)(a) was satisfied by reference to the existence of a lesser risk of harm.

54    The Full Court referred to the authorities which required the Tribunal to consider all claims made to it in order for it to fulfil its statutory duty: at 60 – 61 [19]; being the claims that are expressly articulated or which clearly arise from the materials and including any claim raised by the evidence and contentions before the Tribunal which if resolved one way or the other could be dispositive on review. In reliance on the decision of Allsop J (as the Chief Justice then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 [15] (NAVK), it was apparently accepted that a claim clearly arises if it can be said to arise tolerably clearly from the material to a reasonably competent Tribunal: DFE16 at 61 [21]. Their Honours then considered several decisions concerning the relocation principle in s 36(2B)(a), observing that a number of High Court authorities indicated that it operated where there was another location in the receiving country where the applicant may be safe from harm: Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at 327 [25]; or where there was no appreciable risk of harm: SZATV at 26 – 27 [23] – [24]. As to the operation of the second limb of s 36(2B)(a), the Full Court said (at 62 [29]):

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

55    The Full Court then noted that the submissions advanced by the applicant in that case had identified the lack of family network in the proposed place of relocation as being the most important factor in relation to ss 36(2)(aa) and 36(2B)(a): DFE16 at 64 [38] – [40]. Submissions about the level of safety in that place were somewhat generalised and mostly concerned the risks in the surrounding areas. In rejecting the conclusion that the Tribunal had failed to deal with a relevant claim, the Full Court held (at 66 – 67 [49]):

(a)    the appellant did not advance submissions to the Tribunal on the basis that lesser risks of harm in the proposed place of relocation may be a reason why it would not be reasonable for him to go there;

(b)    the submissions made to the Tribunal on the applicant’s behalf had accepted that the proposed relocation area was “relatively safe”;

(c)    the Tribunal had commenced its determination of whether it was reasonable for the applicant to relocate by considering the question of safety, having already determined that there was no real risk of significant harm; and

(d)    the materials before the Tribunal did not expose a significant separate issue of harm that was less than substantial harm such that a reasonable Tribunal would be expected to consider that lesser harm in discharging its function.

56    It then concluded in relation to that ground of appeal (at 67 [50]):

Therefore, the primary judge was correct to find at [57] that there was no suggestion of any residual type of harm or lower levels of harm that remained to be considered by the Tribunal in determining whether relocation was reasonable.

57    Mr McGlade for the Minister also relied upon the not dissimilar decision of the Full Court (Jagot, Charlesworth and Snaden JJ) in CSZ16. There, the submission was made that, while the Authority had dealt with the issue of generalised violence in Kabul when assessing whether the appellant would be at significant risk of harm should he return there, it had failed to consider the impact of that violence when answering the question of the reasonableness of any relocation. It was submitted that the grounds advanced by the appellant concerning the volatile situation in Kabul should have been considered in different ways when considering the statutory requirement of significant risk of harm on the one hand, and the reasonableness requirement of the second limb of s 36(2B)(a) on the other. The Full Court framed the relevant issue for the Authority as follows (at [10]):

10     In other words, the question whether it is necessary to consider whether the non-citizen is exposed to a risk of harm other than significant harm in the place of relocation depends on the facts and, in particular, how the non-citizen framed their claims for protection.

58    In concluding that the Authority had not failed to consider properly the existence of a lesser harm in the proposed place of relocation, the Court held (at [21]):

21    Fourth, none of the submissions made on behalf of the appellant drew any distinction between the type of harm to which the appellant would be exposed if he were to return to Kabul for the purposes of, first, determining if he would be at a real risk of significant harm there and, secondly, determining the reasonableness of the relocation. In these circumstances the IAA’s reference to the “volatile situation” in Kabul making the appellant vulnerable to harm encompasses all of the facts on which the appellant relied in his claims. It was not necessary for the IAA to identify other facts as relevant to the reasonableness of the appellant relocating to Kabul as no other or different facts had been asserted as relevant to that issue.

59    It was also observed that the Authority’s reasons had made numerous references to the issue of generalised violence in Kabul and the appellant’s submissions as to the risk of harm to him there. Consequently, it was thought to be unlikely that in evaluating the reasonableness of him relocating there it would have excluded from its consideration the issue to which it had given such extensive consideration: at [22]. There was nothing in the Authority’s reasons which suggested that it believed that the risk of harm to the appellant in Kabul was not relevant to its consideration of whether it was reasonable for him to relocate there. Accordingly, the Full Court refused to infer that the Authority stopped its evaluation of the risk of violence which the appellant would face in Kabul at whether there existed a real risk of significant harm.

60    Mr McGlade also submitted that the Authority would generally only be required to consider a particular risk of harm in relation to the second limb of s 36(2B)(a) where it has been raised as the subject of a separate claim in relation to the reasonableness of relocation. However, as he also accepted, a decision-maker may be required to consider unarticulated claims which clearly emerge from the materials: AYY17 at 509 – 510 [18]. In the present context, this may be relevant where a decision-maker concludes that a particular risk of harm relied upon in relation to the first limb of s 36(2B)(a) does not amount to a “real risk” of significant harm. Even if the visa applicant has not raised that risk as a factor which, if it is not found to amount to a real risk of significant harm, affects the reasonableness of relocation, that unarticulated claim may nevertheless “clearly emerge” from the materials or on the findings. Whether that is so will invariably depend upon the circumstances and, in particular, the findings made in relation to the first limb of s 36(2B)(a). It ought also to be recalled that this may not necessitate a completely separate consideration of the particular risk in relation to the second limb: CSZ16 [21].

61    In this case, it has not been established that the appellant advanced a claim that he would face a lesser risk of harm in Kabul, nor would such a claim have been tolerably clear to a reasonably competent Tribunal from the material, adopting the test articulated by Allsop J in NAVK. His claim was that he faced being killed by the Taliban due to his being a returnee from a Western country and that, as a result of its organisation throughout the country and the government’s inability to counter it, he faced that risk anywhere in Afghanistan. That underpinned his claim that he faced a real risk of significant harm for the purposes of s 36(2)(aa) and it was the only claim on which he relied in support of his application generally.

62    There was no evidence that he expressly asserted that a lesser risk of harm existed in Kabul. If it were advanced in the SHEV interview with the delegate, no evidence was adduced to support that fact. The Authority’s identification of the appellant’s general assertions about safety in Kabul are wholly equivocal. They might refer to either a real risk of significant harm or a lesser risk and it cannot be said that either is tolerably clear. That is particularly so given the Authority referred to the appellant’s submission that it was “not safe” for him in Kabul both in the context of considering the requirements of s 36(2)(aa) and in the context of the second limb of s 36(2B)(a). If the appellant’s submissions were correct, the reference to it being “not safe” had different meanings on each occasion. The fact that the alleged submissions were equivocal justifies the determination that the relevant claim does not clearly arise: ADU18 v Minister for Home Affairs [2020] FCA 366 [72] – [73].

63    However, Ms Hoiberg’s submission that the evidence before the Authority did disclose that the appellant’s risk of harm from the Taliban in Kabul was less than a real risk of significant harm as faced by him in other areas of Afghanistan might be accepted. In the consideration of his claim, the Authority examined a substantial amount of material relating to the security situation in Kabul in relation to persons such as the appellant and held that, although there were some security concerns as a result of violence from the Taliban, the chances of a person such as him suffering significant harm were remote. Put differently, it recognised that the nature of the risk of harm to the appellant in Kabul fell below that of a real chance of significant harm.

64    The difficulty here is differentiating the Authority’s rejection of the appellant’s submission that he would face a real risk of significant harm in all of Afghanistan, because that risk did not exist in Kabul, from the exposure of a significant separate issue that there was a lesser risk of substantial harm in that city which the Tribunal would be expected to consider in discharging its function. As Mr McGlade submitted, this was precisely the same situation dealt with by the Full Court in CSZ16. As in that case, none of the appellant’s submissions sought to draw any “distinction between the type of harm to which the appellant would be exposed if he were to return to Kabul for the purposes of, first, determining if he would be at a real risk of significant harm there and, secondly, determining the reasonableness of the relocation”. As best as can be understood from the available materials, all of his submissions were to the effect that he would suffer a real risk of significant harm in all areas of Afghanistan. He did not raise for the Authority’s consideration in relation to the second limb of s 36(2B)(a) that it would not be reasonable for him to relocate to Kabul because of the existence of a lesser risk of significant harm than existed elsewhere in Afghanistan.

65    Further, that issue was neither raised by the material before the Authority nor its findings. The Authority considered the risk of harm to the appellant in Kabul and reached the conclusion that it was less than a real risk of significant harm. It did not specifically identify or articulate some level of the risk which it might use for the purpose of determining the reasonableness of the appellant relocating there for the purposes of s 36(2B)(a). Certainly, no such identifiable level and degree of risk was articulated by the appellant.

Did the Authority fail to consider the claim?

66    A further difficulty for the appellant is that, even if it had been concluded that the material before the Authority or its findings had disclosed that the appellant faced a lesser risk of harm in Kabul, he was unable to establish that it failed to consider that matter.

67    In the course of its reasons, the Authority considered, as it was required to do for the purposes of s 36(2)(aa), whether the appellant faced a real risk of significant harm in all of Afghanistan. It concluded that if he returned to the Pul-e-Alam district in which he had previously lived he faced a real risk of significant harm in that he may be targeted by the Taliban as a person who had returned from living in a Western country. He was known in that area and those connected with the Taliban would soon know of his return. However, it further concluded that the appellant did not face such a risk in Kabul. That was because he would not have been known there by Taliban sympathisers, he would not be imputed with an adverse political opinion, he would not be targeted by reason of his ethnicity or religion, he was not a member of any of the groups who were targeted there by the Taliban, and government forces generally maintained control.

68    Later in its reasons when considering the complementary protection provisions codified in ss 36(2)(aa) and 36(2B), it again noted that the appellant had claimed at interview that it was not safe for him in Kabul. It considered several factors raised by him as to why it would not be reasonable for him to return to Kabul including his inability to earn as much as he could in Australia and his limited employment opportunities in Kabul. However, it noted that Kabul offers a much wider variety of employment opportunities than other parts of Afghanistan even though there is a not insignificant level of unemployment there. Overall, it held that as a result of his life-skills, experience and resilience he would have the capacity to relocate and establish himself in Kabul. As his extended family lived in Kabul, it was determined that he would not have difficulty in obtaining accommodation there and relying upon their support.

69    It was in that context that it identified at paragraph [50] the issue of the risk of violence faced by the appellant were he to be repatriated to Kabul. Although that paragraph is set out above, it is convenient to repeat it here:

50.     As has been noted above, although there are incidents of violence in Kabul I am satisfied that the government and security forces continue to maintain effective control. Taking into account this, the country information relating to the situation in Kabul, and the applicant’s personal circumstances, I am satisfied it is reasonable for the applicant to relocate to Kabul where he does not face a real risk of significant harm.

70    It is apparent the Authority drew upon its conclusions as to the risks which the appellant faced in Kabul as had been determined in its consideration of his claim based on Convention grounds. The reference to that which had been “noted above” is obviously a reference to paragraph [37] of its reasons where it discussed the nature and extent of violence committed by the Taliban and against whom, as well as the ability of government forces to maintain control in Kabul and to paragraph [38] where it concluded:

38.     I find that there is not a real chance of the applicant being harmed in Kabul as a Sunni Pashtun, due to any imputed profile as a government informant/spy, because he witnessed his brother’s death, as a returnee/failed asylum seeker from a western country, or due to generalised violence…

71    It is, with respect, quite clear that the Authority addressed the question of whether the violence which it has ascertained the appellant might encounter in Kabul would render it unreasonable for him to relocate there and concluded it was not. In doing so, its consideration encompassed all of the facts which were raised before it as to the nature and degree of risk to him in Kabul and no submission was made that any fact was not considered by it. As was the case in CSZ16, there was nothing in the reasons which suggested the Authority approached its determination on the basis that the risk of harm to the appellant in Kabul was not relevant to its consideration of whether it was reasonable for him to relocate there. Indeed, it expressly incorporated its earlier conclusions as to that topic into its conclusions in relation to the second limb of s 36(2B)(a).

72    It follows that, to the extent to which any generalised risk of violence had been raised by the appellant, that risk was taken into account by the Authority in reaching its conclusion that it was reasonable for him to relocate to Kabul. It appears that it fulfilled the requirements of its statutory duty in this respect. At the very least, the appellant has not been able to demonstrate that it omitted to do so.

Conclusion

73    It follows that even if leave were given to raise the new grounds of appeal they would not succeed.

Application for leave to appeal

74    It was not in dispute that the new grounds on which the appellant seeks to rely on this appeal were not agitated before the FCC on the hearing of the application for review. The appellant, represented by Counsel, advanced nine different grounds of review at that hearing none of which are now pressed. Necessarily, he now seeks to rely upon an alleged constructive error to the effect that the primary judge failed to identify the Authority’s failure to comply with the statutory duty imposed by s 36(2B)(a).

75    It must be kept in mind that an implicit element of the new grounds is that the issue which it is said was not considered by the Authority was appropriately raised in the course of the visa process commencing with the making of the SHEV application. Whether that occurred is undoubtedly a question of fact in respect of which evidence could have been adduced at first instance. Although the appellant did not precisely identify the occasion on which he claims to have raised the issue as part of that visa process, the Minister would have been entitled to adduce evidence of every claim which the appellant had advanced to disprove his current assertion.

76    In the decision in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 (Tohi), I set out the principles relating to the exercise by this Court of the discretion to grant leave to an appellant to raise new grounds on appeal. There is no need for me to repeat them here. I acknowledge that I was in dissent in that case as to whether or not leave ought to be granted. However, that turned upon the perceived weight of the arguments sought to be agitated rather than any question of principle.

77    A significant issue weighing against the grant of leave in the present appeal is the absence of an adequate explanation for the failure to raise the grounds before the FCC. The appellant was represented by Counsel and solicitors in those proceedings and no evidence has been adduced from those then representing him as to why the grounds now sought to be relied were not raised on that occasion. Instead, an affidavit of the appellant’s present solicitor filed in support of the application for leave identified the mere fact of the change in representation. As Ms Hoiberg for the appellant accepted, there is a line of authority to the effect that a change in representation may not, of itself, be a sufficient explanation: Tohi [13(2)] and the cases there cited.

78    As was the case in Tohi, it was solely within the appellant’s power to adduce evidence as to why the grounds now sought to be relied upon were not raised before the FCC in order to demonstrate that the omission to do so was not the consequence of a deliberate forensic decision. In light of the appellant in this case being legally represented below and advancing nine grounds of review, the inference that it was perceived that the proposed new grounds were without merit is necessarily rather strong. The appellant’s failure to call any evidence to the contrary tends to indicate that neither the Counsel appearing nor the solicitor instructing could provide evidence which would assist on this issue.

79    It is well accepted that in the ordinary course all grounds on which a party relies to advance their case ought to be raised at first instance. That is the occasion on which all issues between the parties are to be raised and determined. This has long been regarded as an important rule for the efficacious administration of justice. The inevitable consequence of a new ground being raised on appeal is that the other party, the Minister in this instance, is denied a right of appeal on that issue. Had it been raised at first instance and succeeded, he would have been entitled to agitate for a different outcome on his own appeal. However, raising the new ground now has the consequence that, if it had been found against him, the only avenue to challenge the point is to seek special leave to appeal to the High Court and the occasions on which such leave is granted are limited. Whilst such prejudice is common to every case in which a new ground is sought to be raised on appeal, it is nevertheless real.

80    The Minister further submitted he will suffer irreparable prejudice if leave is granted on the basis that if the grounds had been raised below, he may possibly have met them by adducing evidence. It is undoubted that it is almost invariable that a court will not permit a new ground to be advanced for the first time on appeal where there is “any possibility” that a respondent may have been able to meet the new ground by adducing evidence were it to be raised at first instance: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at 439 – 440 [37] – [38]. As Mr McGlade submitted, the High Court has reiterated this on a number of occasions and it has identified why the strict application of the principle is necessary in the interests of justice: Water Board v Moustakas (1988) 180 CLR 491 at 497; Metwally v University of Wollongong (1985) 60 ALR 68 at 71.

81    In support of this submission, it was asserted that, had the appellant raised the new grounds before the FCC, the Minister would have had the opportunity to adduce evidence in the form of the transcript or recording of the SHEV interview with the delegate which would have disclosed the nature of the grounds raised on that occasion. As it was not entirely clear as to when it was that the appellant had raised the alleged issue of the level of violence in Kabul as a reason for it not being reasonable for him to relocate there, it was further submitted that the Minister was entitled to consider all of the material collected in the course of the administrative continuum which may have thrown light on the issue: AYY17 at 509 – 510 [18]. An additional submission was that in ascertaining whether any claim as made was overlooked, the manner in which it was raised would bear on the question of whether it can be inferred that it was overlooked or appropriately considered: Singh v Minister for Home Affairs (2019) 267 FCR 200 at 210 [37(1)]. The evidence of the visa application process may have been available to shed light on that issue as well.

82    The Minister’s submissions that he will suffer prejudice if leave were given to raise the new grounds of appeal should be accepted, albeit with some caution. It is undoubted that had they been raised before the FCC as grounds of review, the Minister would have been entitled to adduce whatever relevant evidence may have been available. However, the difficulty with this, in the context of appeals from decisions upon an application for judicial review, is that the prejudice might be more chimerical than real. The core of the controversy between the parties is the refusal to grant the SHEV to the appellant and the evidence surrounding that is confined and easily identified. If there were evidence that the appellant had raised the claim in question, it must necessarily be easily identified and located by both parties. If the claim was raised at the SHEV interview as is suggested, the evidence of what occurred there, whether a recording or transcript, should be available and ascertainable. Indeed, that evidence might be more readily available to the Minister than the appellant. However, that is not to endorse the appellant’s submission that such evidence, once found, should simply be adduced on appeal nor that it would be proper to do so. If that were regularly permitted, it would effectively make the appellate court one of first instance in relation to judicial review applications which would subvert the statutory regime provided for in the Act for reviewing decisions made under it. Nevertheless, the point to be made is that the possibility that evidence may have been adduced to meet a new ground raised on appeal may not be as prejudicial in appeals from judicial review decisions as it must be in relation to other types of litigation.

83    The Minister further submitted that the proposed new grounds lacked any sufficient merit warranting leave being granted. However, he did not deny that the Court should only consider the merits of the proposed grounds at an impressionistic level and is not to undertake a complete analysis of them for the purposes of determining whether leave should be granted. For present purposes, it can be accepted from the previous discussion in these reasons, that the proposed new grounds were not unarguable or wholly without merit. If they be the tests for the purposes of the current analysis, the determination of the application for leave should proceed on the basis that the proposed grounds had some merit.

84    Despite that conclusion, leave to raise the new grounds on appeal should not be granted. The absence of an adequate explanation for the failure to raise them before the FCC strongly militates against granting leave. Had the grounds been raised at first instance, the Minister may have adduced evidence which demonstrated that the appellant had not raised them before the Authority or otherwise in the administrative continuum. The possibility that evidence negating the suggestion that the grounds were raised might have been adduced weighs very heavily against granting leave. Even if the evidence which might have been called at first instance were available, to give leave for it to be adduced on appeal would, effectively, reduce the appellate proceedings to a first instance review of the Authority’s decision which is a jurisdiction this Court does not have. This combination of considerations has the consequence that it is not in the interests of justice to allow the new grounds to be raised on appeal.

Costs

85    In the circumstances, there is no reason why costs should not follow the event and an order should be made requiring the appellant to pay the Minister’s costs of the appeal.

Conclusion

86    From the foregoing, the orders should be as follows:

(a)    the time in which the appellant might file an amended notice of appeal is extended to 4:00 pm on 8 October 2021;

(b)    the application for leave to raise new grounds on appeal is refused;

(c)    the appeal is dismissed; and

(d)    the appellant is to pay the first respondent’s costs of the appeal to be taxed.

Associate:

Dated:    28 October 2021