Federal Court of Australia

BPV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 157

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Set aside the orders of the Federal Circuit Court of Australia made on 8 April 2020 and, in their place, order that:

(a)    writs of certiorari and mandamus be issued quashing the decision made by the second respondent on 16 March 2017 and remitting the matter to the second respondent to be determined according to law; and

(b)    the first respondent pay the applicant’s costs of the application for judicial review to the Federal Circuit Court of Australia.

3.    The first respondent pay the appellant’s costs of the appeal to this Court.

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

REASONS FOR JUDGMENT

NICHOLAS J:

Background

1    This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the second respondent (the Authority) affirming the decision of a delegate of the first respondent (the Minister) not to grant the appellant a Safe Haven Enterprise visa.

2    The appellant is a citizen of Afghanistan who was born in a village in the Jaghori District, Ghazni Province. He arrived in Australia by boat. He claimed to be of the Shia religion and Hazara ethnic group, both of which claims were accepted by the Authority.

The Relevant Statutory Provisions

3    Sections 5H, 5J and 36 of the Migration Act 1958 (Cth) (“the Act”) relevantly provide:

5H    Meaning of refugee

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

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

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

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

…

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.

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

…

The Authority’s Decision

4    The Authority accepted that the appellant was a Hazara Shia from Jaghori and that the Jaghori District, Ghazni Province, was his home area.

5    As to the criteria for a protection visa under s 36(2)(a) of the Act, the Authority’s conclusion appears in its reasons at [48]-[49]:

48.    I accept there is a real chance of the applicant being seriously harmed if he travels and returns to his home area in Ghazni, however I am satisfied that chance of harm is confined to his home area. In view of all the information before me, I find that there is not a real chance of the applicant being seriously harmed on the basis of his ethnicity, his or his father's religion (whether Shia, Christian or apostate), any actual or imputed political opinion, as a returnee from the west or as a person who sought asylum in Australia, or on the basis of any other actual or imputed profile arising from these factors, in all areas of the receiving country Afghanistan.

49.    The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).

6    Having concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1), and that he therefore did not meet the requirements of s 36(2)(a), the Authority then considered whether the appellant met the requirements of s 36(2)(aa), the complementary protection visa provisions, to which s 5J(1) does not apply. It found at [52] that there was a real chance of the appellant being seriously harmed if he returns to Ghazni and that it followed that there was a real risk that he would suffer significant harm if he returned to his home area in Ghazni. However, the Authority found that the chance of the appellant being harmed by generalised violence in Kabul was remote. That led the Tribunal to consider the question of relocation which arises under s 36(2B)(a).

7    In its reasons the Tribunal referred to s 36(2B) and the requirement that the Minister be satisfied that 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 would suffer significant harm. Ground 1 of the appellant’s appeal, which I shall return to, is concerned with the Authority’s finding that it would be reasonable for the appellant to relocate to Kabul.

8    The Authority referred to material and submissions put before it by the appellant dealing with the serious issues facing returnees to Afghanistan and reports about a growing humanitarian crisis in the country. The Authority said at [58] that the information before it indicated that the Afghan government’s response to the burgeoning crisis was inadequate and that it does not have the capacity to deal with the growing number of returnees, and that it had asked foreign governments to only return asylum seekers that wanted to return.

9    The Authority said at [64]-[70]:

64.    I accept that there are significant pressures from the large number of returnees and IDPs seeking to (re)establish themselves in major urban areas like Kabul. According to one report, the majority of Afghan IDPs are extremely vulnerable in socio-economic terms, and more so than their counterparts in the general population, given that displacement further erodes their resilience and ability to rebuild their lives. While I accept there are significant pressures in Kabul, I am not satisfied those factors preclude the possibility of him successfully relocating to Kabul. I do not accept the submissions that he falls within the same disadvantaged position of IDPs or urban poor described in the country information, which indicates they are principally persons from vulnerable backgrounds displaced by the conflict, or returnees from Pakistan and Iran. In this regard, I am satisfied he has a number of significant advantages over many IDPs and urban poor seeking to move to the cities.

65.    The applicant has some education, completing school until year 8. He speaks, reads and writes Hazaragi, Dari/Farsi and has some spoken, written and reading abilities in English. His family own farming land in Ghazni, and he had assisted on the farm in the past. He apprenticed as a mechanic, and has worked in this role in Afghanistan and the UAE. He also worked as a driver in the UAE, as well as being a courier in Australia. The applicant's work experiences demonstrate not only that he has strong work experience and skills, but he has the ability to relocate to a new area and find work. In doing so, he would have needed to find not only employment, but also make social connections, and find accommodation and access to services. This indicates that he is hardworking, resourceful and resilient and that he has the skills to relocate. I reject the submission that he has limited work experience.

66.    I also note that he has been to Kabul several times, and has successfully and safely navigated between Kabul International Airport and his home village in Ghazni. This suggests some familiarity with the city, even if those experiences were limited, and I have given this some weight.

67.    In my assessment, his work experience and skillset, language skills, his personal characteristics in terms of his resourcefulness and resilience, and his past experiences in Kabul, place him in a favourable position on return to Afghanistan. Given the information provided in his submissions, I accept there would be challenges for him in accessing accommodation, essential services and employment in Kabul. However, when considering his individual circumstances, I am satisfied he is in a very strong position to overcome these challenges. I am satisfied he would be able to find work and accommodation in the city and overcome any lack of family or tribal support. I find these are significant factors which suggest it would be reasonable for the applicant to relocate within the country.

68.    The applicant has a wife in Ghazni. The applicant has contended that the delegate erred in finding that his wife can accompany him at his discretion. Given the current risks involved on the roads, I agree with that assessment. The applicant has already spent several years away from his wife while in Australia, and it appears she has been able to remain in relative safety in Ghazni. He also has other family in Ghazni. If the applicant's wife was unable to safely travel to Kabul to reunite with the applicant due to the security situation, I acknowledge that a continued separation from his wife would be difficult. However, I am also confident that during such a period the applicant could establish himself in Kabul and would be able to bring his wife there in due course when they are able to do so safely. I accept that security on the roads may prevent her travelling on the roads at this stage, however I am not satisfied this would be indefinite. The security situation in relation to the roads changes frequently, and there is some evidence that the army and police forces continue to seek to improve security on the roads.34

69.    I am satisfied that such a separation would be temporary, and it would not make it unreasonable for him to relocate there. Given the risks to him in Ghazni, I am also satisfied it would be reasonable for him to stay in Kabul during this time. And while he may be unable to return to Ghazni, I am satisfied that the applicant nevertheless has a family network of support (both in Ghazni and internationally) outside of Kabul.

70.    I accept relocating would be challenging, and there are significant pressures in his home country, however having regard to his individual circumstances, including his past work experiences and skills, his age, his demonstrated resourcefulness and resilience, his past experiences in relocating and finding work and establishing himself in other countries (UAE and Australia), I am satisfied he is well-equipped to find work and accommodation and overcome the lack of pre-identified living options. I consider that the applicant's strengths and advantages will enable him to earn a livelihood and establish himself within Kabul, which would provide him with access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life, and later those of his wife.

(footnotes to [64] omitted)

The footnote to [68] refers to the following country information:

(a)    Department of Foreign Affairs and Trade, “DFAT Thematic Report – Hazaras in Afghanistan”, 8 February 2016 (“the DFAT Report”);

(b)    European Asylum Support Office, “EASO COI Afghanistan Security Situation 2016”, 20 January 2016 (“the EASO Report”);

(c)    United Nations Assistance Mission in Afghanistan, “UNAMA Protection of Civilians Annual Report 2015”, 14 February 2016 (“the UNAMA Report”).

10    The Authority stated at [71] that it was satisfied that it would be reasonable for the appellant to relocate to Kabul and that it followed, by reason of s 36(2B), that there is taken not to be a real risk that the appellant would suffer significant harm in Afghanistan. On that basis it held that he did not meet the requirements of s 36(2)(aa) for complementary protection.

The Grounds For Review

11    Before the primary judge the appellant relied on three grounds in support of his application for judicial review. Each of those grounds was rejected by the primary judge. The same grounds as those relied upon by the appellant before his Honour have been reproduced in the grounds of appeal alleging, in essence, that the primary judge erred by failing to find that the Tribunal made a jurisdictional error as alleged in the three grounds.

12    In the circumstances, it is convenient to reproduce the grounds of appeal which, as I have said, are in substance the same as those that were relied upon before the primary judge. The three grounds are as follows:

1.    The Federal Circuit Court erred by failing to find that the Immigration Assessment Authority (IAA) made a jurisdictional error in considering whether it was reasonable for the appellant to relocate within Afghanistan to avoid significant harm.

    Particulars of IAA’s jurisdictional error

(i)    The IAA agreed with the appellant’s contention that the delegate erred in finding that the appellant’s wife can accompany him in Kabul at the appellant’s discretion...

(ii)    The IAA also found that security on the roads may prevent the appellant’s wife from travelling on the roads “at this stage”, however the IAA was not satisfied that this would be “indefinite”…

(iii)    The IAA stated that: “The security situation in relation to the roads changes frequently, and there is some evidence that the army and police forces continue to seek to improve security on the roads.”…

(iv)    The IAA concluded that a separation between the appellant and his wife would be “temporary”, and it would not make it unreasonable for the appellant to relocate to Kabul…

(v)    The country information cited by the IAA at footnote 34…to support its conclusion that the separation between the appellant and his wife would be “temporary” ([69]), namely:

DFAT Thematic Report – Hazaras in Afghanistan, 8 February 2016; EASO COI Afghanistan Security Situation 2016, 20 January 2016; and UNAMA Protection of Civilians Annual Report 2015, 14 February 2016

    contained no evidence that security on the roads was improving such that the appellant’s wife would be able to travel to Kabul to be reunited with the appellant at the time of the IAA’s decision or in the reasonably foreseeable future.

(vi)    The IAA therefore made a jurisdictional error in finding that it was reasonable for the appellant to relocate to Kabul based on a conclusion that the separation between the appellant and his wife would be temporary.

2.    The Federal Circuit Court erred by failing to find that the IAA made a jurisdictional error by failing to consider, in respect of its findings concerning the possibility of the appellant’s wife moving from her home to be reunited with the applicant in Kabul, whether it was reasonable for the appellant to relocate to Kabul in the reasonably foreseeable future.

    Particulars of IAA’s jurisdictional error

(a)    The IAA was not satisfied that the security situation on the roads preventing the appellant’s wife from travelling on the roads would be “indefinite”...

(b)    The IAA was also satisfied that a separation between the appellant and his wife would be “temporary”…

(c)    The IAA made no finding on whether the appellant’s wife would be able to travel safely to Kabul in the reasonably foreseeable future as a component of its finding as to whether it was reasonable for the appellant to relocate there, as it was required to do having regard to relevant country information.

3.    The Federal Circuit Court erred by failing to find that the IAA made a jurisdictional error by failing to engage in a detailed consideration of the appellant’s circumstances so as to consider whether a relocation to Kabul was reasonably practicable for him as an urban internally displaced person (IDP).

    Particulars of IAA’s jurisdictional error

(a)    The appellant put before the IAA a range of objections to relocating to Kabul as an ‘urban IDP’ in three written submissions by his migration agent Estrin Saul to the IAA dated 22 August 2016…

(b)    The objections included that the appellant would be likely to find himself in a situation comparable to other urban IDPs, “who are more vulnerable than the non-displaced poor as they are particularly affected by lack of access to social services and livelihood opportunities, with negative repercussions on food security and social protection mechanisms.” Further, “The lack of adequate land in urban areas and a lack of affordable housing often forces new and protracted IDPs to reside in informal settlements without an adequate standard of living and limited access to water and sanitation.”…

(c)    In addition, the objections included that “even the most resourceful of persons face a real risk of long-term unemployment affecting their capacity to subsist. The Applicant’s inability to secure employment is exacerbated by his lack of meaningful support networks, familial or ethnic, to call upon in Kabul.”…

(d)    The IAA did not engage in a detailed consideration of the appellant’s circumstances so as to consider whether a relocation to Kabul was reasonably practicable for him as an urban internally displaced person.

13    Both before the primary judge and in this Court the parties’ submissions were developed by reference to grounds 1 and 2 taken together, both of which relate to the Authority’s findings concerning whether it was reasonable for the appellant to relocate and, in particular, the hardship that the appellant would face in reuniting with his wife if he were required to relocate to Kabul. The third ground is concerned with the reasonableness of the Authority’s finding that the appellant could relocate to Kabul in circumstances where the appellant claims it will be necessary for him to live in an informal settlement without an adequate standard of living, limited access to water and sanitation and would likely face unemployment.

The Primary Judge’s Decision

14    In relation to grounds 1 and 2 the primary judge summarised submissions made by the appellant’s counsel which, in substance, challenged the logicality of the Authority’s findings in relation to the duration of any continuing separation between the appellant and his wife. The appellant’s submissions also drew attention to what was said to be the absence of probative material to support the Authority not being satisfied that the separation would be indefinite, that the army and police forces continue to seek to improve security on the roads, and that a separation between the appellant and his wife would be only temporary. These particular findings, which are referred to in ground 1, are found at [68] and [69] of the Authority’s reasons.

15    The primary judge dealt with grounds 1 and 2 and the appellant’s submissions in relation to them at [54]-[57]. His Honour said:

54.    The Authority’s reasons are not to be read with a keen eye for error. The Authority was clearly addressing the issue of reasonableness for the applicant to relocate in the circumstances of being separated from his wife and it identified that the separation had already occurred. The Authority’s reasons reflect a genuine consideration of the applicant’s claims and evidence in relation to the reasonableness of relocation.

55.    There was no speculation involved in the Authority’s observations that the separation was not one that would be indefinite, nor was the observation by the Authority in relation to the separation being temporary, a reflection of any misapplication or misunderstanding of the legislative provisions. There was no inconsistency or illogicality in the adverse findings as to the reasonably foreseeable future. The reference to the separation and the taking of the same into account in respect of reasonableness for relocation for the applicant was a logical and rational matter and does not reflect any illogicality as advanced by the applicant.

56.    The Authority was not determining whether the applicant’s wife met the statutory criteria in relation to complementary protection. Rather, the Authority was focused upon the reasonableness of relocation for the applicant in the applicant’s circumstances.

57.    No jurisdictional error, as alleged in grounds 1 and 2, is made out.

16    Contrary to what appears in [56], there is no reason to think that the appellant submitted that it was necessary for the Authority to determine whether his wife met the statutory criteria in relation to complementary protection. Paragraph [56] of the primary judge’s reasons can therefore be put aside on the basis that it reflects a misunderstanding of the submission put to his Honour in relation to grounds 1 and 2.

17    Paragraph [54] of the primary judge’s reasons does little more than assert that the Authority gave “genuine consideration” to the appellant’s claims and evidence in relation to the reasonableness of relocation. Paragraph [55] asserts that there was no speculation involved in relation to the Authority’s observations that the separation would not be indefinite and that it would only be temporary. Paragraph [55] also asserts that there was no inconsistency or illogicality in the relevant findings. Overall, the consideration given to the substance of the appellant’s submissions and, in particular, the question whether there was any probative material which could support a finding that the difficulties in travelling between Kabul and the appellant’s home area in Ghazni where his wife lived were only temporary, did not engage sufficiently with the detailed particulars relied on by the appellant in support of grounds 1 and 2.

18    As to ground 3, the primary judge reasoned at [58]-[60] of his reasons as follows:

58.    In relation to ground 5 the written submissions on behalf of the applicant contend that there was a failure to engage in a detailed consideration of the applicant’s circumstances in respect of relocation to Kabul in the context of the applicant being an urban internally displaced person. The Authority’s reasons identify an active intellectual engagement and/or proper engagement with the applicant’s personal circumstances in considering whether or not relocation was reasonable as summarised above.

59.    Moreover, the Authority had earlier identified, in its reasons, the taking into account of the applicant’s submissions in relation to the reasonableness of relocation, and the findings of fact made in relation to the Refugee Convention were logical and rational matters that the Authority was entitled to take into account in determining whether or not it was reasonable for the applicant to relocate.

60.    The Authority also referred to the submission about IDPs and expressly referred to being not satisfied that those facts precluded the possibility of the applicant successfully relocating and was satisfied that the applicant has a number of significant advantages over many IDPs.

19    It is apparent from these paragraphs that the primary judge was of the opinion that the Authority had considered the appellant’s submission relating to the hardships experienced by IDPs in Kabul and that these would also be experienced by the appellant if he were to relocate there. However, the primary judge’s reasons provide little in the way of detail to support that conclusion, which may explain why the Minister, while seeking to uphold his Honour’s decision, placed little reliance upon his Honour’s reasons.

Consideration

20    For the purpose of disposing of the appellant’s complementary protection claim, it was necessary for the Authority to decide whether it was reasonable, in the sense of practicable, for the appellant to relocate to Kabul. The plurality (Gummow, Hayne and Crennan JJ) in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 said at [24]:

However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. 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.

21    As Mortimer J observed in MZANX v Minister for Immigration and Border Protection [2017] FCA 307(“MZANX”) at [51]:

[51]    In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.

Her Honour went on to say at [55]:

[55]    In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship … Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope …

Grounds 1 and 2

22    The Authority’s decision may be set-aside if the decision, or some material finding made on the way to reaching that decision, is properly characterised as illogical or irrational, lacking any intelligible justification, or made in the absence of any evidence or material capable of supporting any of it. However, such a conclusion is not lightly drawn. Illogicality in this context refers to extreme illogicality. The possibility that reasonable minds may differ in relation to the quality of the decision-maker’s reasoning process including in relation to the evaluation of the evidence or material before it, does not imply that a decision is illogical, that it lacks any intelligible justification, or that a particular finding upon which the decision is based is not supported by any probative material.

23    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Crennan and Bell JJ said at [135]:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims …

24    In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 the Full Court distinguished between legal unreasonableness which affects a finding made on the way to an ultimate decision and the legal unreasonableness of the ultimate decision itself. Allsop CJ, Robertson and Mortimer JJ said at [47]:

This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the Court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

25    In Tsvetnenko v United States of America (2019) 269 FCR 225 Besanko, Banks-Smith and Colvin JJ said at [83]-[85]:

[83]    Unreasonableness as a ground of review is concerned with whether an implied statutory standard as to the character of the decision to be made in the exercise of power has been satisfied. Unreasonableness may be demonstrated by showing that the result is unreasonable or by showing that the reasons do not provide an intelligible justification for the result (see the review of the authorities in Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513 at [72]-[95] (Colvin J)).

[84]    However, unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.

[85]    The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.

26    Later in the Full Court’s judgment reference is made to the need for an applicant to show that a legally unreasonable finding was material to the ultimate decision. The Full Court said at [96]-[99]:

[96]    … [I]n a case where unreasonableness is sought to be demonstrated by reference to the reasons given by the decision-maker the application of the requirement for materiality involves a consideration as part of evaluating whether the decision is unreasonable as to whether any illogicality or other defect in the reasoning was material to the decision.

[97]    So, in CGA15 v Minister for Home Affairs (2019) 268 FCR 362, the Court (Murphy, Mortimer and O’Callaghan JJ) was concerned with whether an error by a tribunal in statistical analysis was jurisdictional. Citing Hossain and SZMTA, the Court stated at [59]:

    Before characterising the illogical or irrational reasoning, or conclusion, as an error going to the jurisdiction of the decision-maker, it is necessary for the Court to be satisfied that the illogical or irrational reasoning was “material” to the ultimate decision, in the sense that it deprived the appellant of the realistic possibility of a successful outcome.

[98]    The Court then found that the error in statistical analysis was material to the tribunal’s decision because it was one of three reasons underpinning its conclusion on an issue that had to be determined in the exercise of the decision-making power and it could be safely inferred that the analysis materially contributed to the tribunal’s conclusion: at [61].

[99]    In DPI17, Griffiths and Steward JJ first concluded that certain aspects of the reasoning of the administrative decision-maker were legally unreasonable because the failure to consider certain matters was unreasonable or plainly unjust: at [45]. Then, consideration was given by their Honours to whether that error was material and involved jurisdictional error: at [48]. It was found that the error was material because the ultimate decision might have been different if the matters had been considered: at [53]. Expressed in that way their Honours recognised that the conclusion of unreasonableness depends upon demonstrating that there was an effect on the result.

27    For the purpose of considering the appellant’s submissions in relation to grounds 1 and 2, it is necessary to analyse the Authority’s process of reasoning when dealing with the issue of continued separation of the appellant from his wife. That reasoning consists of the following steps.

28    First, the Authority found that there was a real chance of the appellant being seriously harmed if he returned to his home area of Ghazni. The Authority did not find that situation was likely to change in the foreseeable future. This raised the question whether the appellant could relocate to Kabul.

29    Second, if the appellant relocated to Kabul, he would remain separated from his wife who resides in Ghazni. This raised the question whether it would be safe for her to travel by road from Ghazni to Kabul.

30    Third, the Tribunal was satisfied that the separation of the appellant from his wife were he to relocate to Kabul would be temporary and that it would therefore not be unreasonable for the appellant to relocate to Kabul. The word “temporary” implies that the relevant state of affairs would not be permanent and will change at some stage in the future.

31    The Authority accepted that “at this stage” security on the roads may prevent the appellant’s wife from travelling between Ghazni and Kabul. However, the Authority was not satisfied that this would be “indefinite” since “… [t]he security situation in relation to the roads changes frequently and there is some evidence that the army and police forces continue to seek to improve security on the roads.” The word “indefinite” implies that the separation would continue for an unknown or uncertain period of time.

32    The critical finding is that the separation would be temporary. This gives rise to two questions. The first is what does “temporary” mean in this context? The second is whether there was any probative material before the Authority to justify a finding that the appellant’s separation from his wife would be “temporary” in the sense that word was used by the Authority.

33    I think the Authority is to be understood to have been satisfied that the appellant and his wife’s separation would not be permanent if he relocated to Kabul because circumstances were likely to change in the foreseeable future allowing them to be reunited there. The Authority appears to have considered (though I accept it did not say so in these terms) that there was likely to be an improvement in the security situation that would enable the appellant’s wife to travel from Ghazni to Kabul at some stage in the foreseeable future.

34    The country information referred to by the Authority in the footnote to [68] of its reasons does not contain any material which indicates that security on the roads connecting Ghazni and Kabul had improved or was likely to improve at any time in the reasonably foreseeable future.

35    The DFAT Report stated:

2.26    Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly those roads that pass through areas contested by insurgents. The Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common. Official checkpoints—operated by Afghan National Army (ANA) or Afghan National Police (ANP) with the aim of improving the security on the roads – can be operated by poorly-trained, poorly-paid personnel, and corruption is common. There are reports that, in some cases, Hazara truck drivers are prevented from passing through these checkpoints; only Pashtun drivers are allowed to pass …

2.28    There have been a series of reported incidents of Hazaras being kidnapped since late 2014, including the February 2015 kidnapping of 31 people – almost all Hazaras – while travelling on two buses through Zabul province (see also the 18 September 2015 DFAT Afghanistan Country Information Report) …

2.32    Multiple credible sources informed DFAT that some bus companies are refusing to sell tickets to Hazaras because of the risk to their vehicles and drivers of being stopped by insurgents or criminals because of the possibility of Hazaras being on board. There are also credible anecdotal reports of ‘spotters’ being used at bus stations to call ahead and alert insurgents as to which buses are carrying Hazara people …

2.33    While no ethnic group is immune from kidnappings, DFAT assesses that Hazaras travelling by road between Kabul and the Hazarajat face a greater risk than other ethnic groups …

36    The EASO Report stated:

It was reported that overall road security has not improved. Due to the increased Taliban control over rural areas…roads are less safe and people from some districts are cut off from the cities.

37    The UNAMA Report stated at page 30:

Taliban issued a series of statements claiming to have closed the Kabul-Ghazni highway and engaging Afghan security forces, and blamed the incident on Government forces.

38    Nothing in the country information referred to by the Authority could have led it to logically or rationally conclude that the security situation in relation to the roads was such that a separation between the applicant and his wife would be “temporary” or that it would be safe for the wife to travel to Kabul in the reasonably foreseeable future. None of the reports cited by the Authority include any forecast or prediction about the security situation on the roads in the future nor do they even faintly suggest that the situation was improving or that it would improve in the foreseeable future.

39    The Minister did not point to any other material before the Authority that was capable of supporting a finding that there was any realistic prospect that the security situation around the roads connecting Ghazni and Kabul would change for the better. The Minister did refer to several other parts of the relevant country information that was before the Authority which he said showed that the position in relation to security on the roads “changed frequently”. There are a couple of points to make about that material and submission.

40    The Minister referred to a statement in the DFAT Report indicating that roads linking Hazara-dominated areas in Ghazni with Kabul suffer from a high level of insecurity. That statement provides no rational basis for concluding that the appellant’s wife would be able to travel between Ghazni and Kabul at any foreseeable time in the future.

41    Another statement referred to by the Minister that appears in the EASO Report indicated that “[r]oad security and the possibility to travel via different routes in Afghanistan must be assessed from day to day”. However, the very next paragraph states:

Ruttig and Munch reported that since 2013, insurgents were more successful in cutting off major highways, especially in the north. It was reported that, since early 2014, insurgents increasingly control main transport and access routes. Several reports indicate the inaccessibility of roads due to insurgent activities. For example, in October 2015 the Taliban blocked the major highway from Kabul to Kandahar. The road has a history of insecurity and fighting, but now the entire road was blocked causing all traffic to be stopped. This resulted in fighting between ANSF and the Taliban around the road, with incidents reported in Ghazni and Zabul. Blocked travellers reportedly had to flee the fighting.

(footnotes omitted)

42    If anything, the additional statements appearing in the country information relied upon by the Minister in his submissions indicate that the security situation with regard to roads linking Ghazni and Kabul was deteriorating. The fact that the situation may be described as “fluid” does not really advance matters at all. It may be accepted that travel on the roads may be more dangerous on some days than on others, but it does not follow that it was, or in the foreseeable future ever would be, safe for the appellant’s wife to travel from Ghazni to Kabul.

43    In the circumstances, I consider that a key finding upon which the Authority’s conclusion that it would be reasonable for the appellant to relocate to Kabul was based was not supported by any country information. In my opinion that finding lacked any intelligible justification, was not supported by any probative material, and was legally unreasonable. I also consider that the Authority’s error deprived the appellant of a realistic possibility of a different and more favourable outcome of the review.

Ground 3

44    The appellant’s migration agent provided detailed submissions to the Authority which address the issue of relocation and the Delegate’s consideration of that issue. The country information relied on by the appellant cited by the Delegate included extracts from a report of the Danish Immigration Service entitled “Country of Origin Information for use in the Asylum Determination Process: Report from the Danish Immigration Services Fact Finding Mission to Kabul, Afghanistan, 1 May 2012” (“the DIS Report”). The appellant’s submissions to the Authority drew attention to various statements appearing in the DIS Report including, relevantly, the following:

Kabul no longer has the capacity to absorb more people and basic services cannot be provided in Kabul.

There is no more room for people to settle in Kabul, people cannot find a decent livelihood, and houses as well as public services such as water and sanitation are not available.

45    The appellant’s submissions to the Authority also included extracts from the 2016 UNHCR Eligibility Guidelines which are also referred to by the Delegate. The appellant’s submissions to the Authority included the following:

15.    Given that the Applicant is ‘likely’ to find himself in a situation comparable to that of other urban IDPs, it follows that the IAA should consider the 2016 UNHCR Eligibility Guidelines description of the current situation for IDPs in Afghanistan:

    Afghanistan is experiencing a period of rapid urbanization; many IDPs end up in large urban centres that have limited absorption capacity and where access to basic services remains a major concern. The lack of efficient urban policy and regulatory frameworks, as well as weak and ineffective governance, have reportedly contributed to increased poverty and inequality in urban areas. A large proportion of Afghanistan’s middle and low-income urban households are reportedly residing in poorly located and under-serviced informal settlements. According to the Afghan Living Conditions survey 2013-2014, 73.8 per cent of the urban population in Afghanistan live in slum households. Poverty among urban households is reportedly widespread and the economic situation of urban households is reported to have deteriorated significantly in the past years.

    The city of Kabul has seen the biggest population increase of Afghan cities. Official population estimates indicate that by 2015 the city had 3.5 million residents, with an estimated annual population growth of 10 per cent between 2005 and 2015. An estimated 21 per cent of Kabul’s population was born elsewhere, and Kabul has reportedly received close to 40 per cent of all new conflict-induced IDPs in Afghanistan since 2002. Some estimates put the percentage of Kabul’s population living in informal settlements at 70 per cent. The financial situation of Kabul residents and their employment opportunities are reportedly worsening. In the Kabul Informal Settlements (KIS), designated sites of protracted IDPs, returnees and other urban poor targeted for humanitarian assistance, 80 per cent of a population of about 55,000 people are reportedly severely or moderately food insecure.

    Within this context, urban IDPs are more vulnerable than the non-displaced urban poor, as they are particularly affected by lack of access to social services and livelihood opportunities, with negative repercussions on food security and social protection mechanisms. The lack of adequate land in urban areas and a lack of affordable housing often forces new and protracted IDPs to reside in informal settlements without an adequate standard of living and limited access to water and sanitation. Antiquated land tenure policies and lack of security of tenure are reported to leave IDPs and other inhabitants of informal settlements vulnerable to continuous threats of evictions and secondary displacement. Land grabbing, including of land allocated for returning refugees or IDPs, reportedly represents an additional obstacle.

16.    This miserable reality is supported by the Delegate’s own evidence that UNHCR claims that that ‘[r]eturnees reportedly experience severe difficulties in rebuilding their lives in Afghanistan’ and that an ‘estimated 40 per cent of returnees are reportedly vulnerable with poor access to livelihood, food, and shelter’. The 2016 UNHCR Eligibility Guidelines also states that:

    Humanitarian indicators are critically low in Afghanistan: by the end of 2015, out of a total population of approximately 27 million people, 8.1 million people were reported to be in need of humanitarian assistance. Over one million children are reported to suffer from acute malnutrition, while 9.1 per cent of children die before their fifth birthday. The proportion of the population who are reported to live below the national poverty line stands at 35.8 per cent, while 1.7 million Afghans are severely food insecure. Only 46 per cent of the population have access to potable water. Afghanistan remains the poorest country in the region, ranking 171 out of 188 countries in the 2015 UN Human Development Index ... It is reported that 36 per cent of the population has no access to essential primary health care services.

    ... UNICEF further notes in the context of relocation that “families often have no choice but to settle in slums where they lack access to decent housing, water sources, sanitation, health care and education. Limited land availability has pushed people to settle in precarious places, such as the steep hillsides surrounding Kabul. These informal settlements are characterized by high exposure to natural hazards such as extreme winter weather, limited access to clean water and unhygienic environments, raising serious public health concerns.”

(footnotes omitted, original emphasis)

46    The Authority, at [64] of its reasons, rejected the appellant’s submission that he suffered the same disadvantages as internally displaced persons (“IDPs”) or urban poor. The Authority was satisfied that he had a number of significant advantages over many IDPs and urban poor seeking to move to the cities. The Authority also accepted at [67] of its reasons that the appellant would face challenges in accessing accommodation, essential services and employment in Kabul, but that, because he would be able to find work and accommodation in Kabul, it would be reasonable for the appellant to relocate there.

47    It is clear that the appellant raised with the delegate the hardship that he contended he would experience if he were required to live in Kabul due to (inter alia) a lack of access to basic services such as water and sanitation. In this Court the Minister accepted that these matters were raised by the appellant and that his submissions to the Authority were “cogent and detailed”.

48    However, the Minister submitted that the Tribunal was entitled to conclude that the appellant’s personal circumstances were such that his experience in relocating to Kabul was likely to be different from that of other returnees who had experienced problems of the kind addressed in the appellant’s submissions, and that the appellant was not in the same disadvantaged position as other IDPs or urban poor as described in the country information.

49    The appellant does not submit that any of the findings made by the Authority in relation to his ability to overcome challenges in accessing accommodation, essential services and employment in Kabul was legally unreasonable. According to the relevant ground, the complaint is that the Authority failed to engage in a detailed consideration of the appellant’s circumstances when considering whether it was reasonably practicable for him to relocate to Kabul as an urban IDP.

50    It is common ground that the Authority was required to consider the appellant’s submissions and to engage in an active intellectual process with reference to those submissions.

51    The authorities also make clear that a finding by the Court that the relevant decision-maker has not engaged in an active intellectual process will not lightly be made: see CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 at [76] per Allsop CJ, Kenny and Snaden JJ. In that case the question was whether the Tribunal had given adequate consideration to the claims of the appellant including whether she would be rendered homeless if she were to relocate to a particular locality within her country of nationality. The Full Court said at [76]:

It is beyond dispute that the appellant contended that relocation to Lagos was not reasonably open to her because, if she went there, she would be homeless. That contention was sufficiently material that the Tribunal was obliged to consider it … Doing so did not require that it record, in explicit terms, a finding one way or the other about whether or not the appellant would be homeless if returned to Lagos; but it did require that the Tribunal undertake an “active intellectual process directed at that claim” … A conclusion that the Tribunal has not engaged in an active intellectual process vis-à-vis a contention advanced before it is one that this court will not lightly make …

(citations omitted)

52    The appellant relied on the judgment of Mortimer J in MZANX at [51] (set out above) in support of his submission that the Authority’s treatment of the appellant’s submissions in relation to the availability of essential services, including water and sanitation services, was at too higher level of generality and abstraction and did not sufficiently engage with them. He also placed reliance on two decisions of the Federal Circuit Court of Australia, namely, CMV18 v Minister for Immigration & Anor [2019] FCCA 2522 (Judge Driver) and DIJ17 v Minister for Immigration and Anor [2018] FCCA 2407 (Judge Smith). In the latter case Judge Smith found that the Authority had committed a jurisdictional error by failing “to grapple with the essential element of the applicant’s objections to relocation, namely, that the reality in those cities [which included Kabul] was that the basic resources were meagre and there was stiff competition for them”.

53    I do not accept that the Authority failed to consider the appellant’s submission that as an urban IDP it would not be reasonably practicable for the appellant to relocate to Kabul. The gist of the appellant’s submission to the Authority was that he would experience the same or similar hardships to those suffered by other urban IDPs who had relocated to Kabul including unemployment, and difficulty accessing accommodation and essential services.

54    The Authority engaged with that submission at [64]-[67] of its reasons. It referred to country information indicating that the majority of Afghan IDPs were people from extremely vulnerable backgrounds displaced by conflict or returning from Pakistan or Iran. The Authority was satisfied that the appellant had significant advantages over many other IDPs and urban poor moving to cities. It was satisfied, based on its assessment of his strong work experience, work ethic, skills and resourcefulness, all matters to which it gave detailed consideration, that the appellant’s circumstances were different from that of most urban IDPs. It therefore rejected the basic premise of the appellant’s submission, namely, that the appellant was likely to find himself in a situation comparable to most other urban IDPs living in Kabul. I am not persuaded that there has been a failure by the Authority to consider the relevant submission or to engage in the required active intellectual process when considering it.

Disposition

55    The appeal will be allowed. The judgment of the primary judge will be set-aside. There will be orders for the issue of writs of certiorari and mandamus quashing the Authority’s decision and remitting the matter to the Authority for determination according to law. The Minister must pay the appellant’s costs of the proceeding before the primary judge and of the appeal.

Associate:

Dated:    28 February 2022