Federal Court of Australia

CMB18 v Minister for Home Affairs [2022] FCA 343

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the appellant to amend the notice of appeal to rely on ground 3 of the grounds of appeal.

2.    Ground 3 of the appeal is dismissed.

3.    The appeal is otherwise dismissed.

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

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an appeal from orders and a judgment of the Federal Circuit Court of Australia (as the primary Court was then known, that Court now being known as the Federal Circuit and Family Court of Australia (Division 2)) published on 29 January 2020, dismissing an application for the grant of the constitutional writs in relation to a decision of the Immigration Assessment Authority (“IAA”) affirming a decision of the Minister’s delegate to refuse the appellant a Safe Haven Enterprise (subclass 790) visa (“Safe Haven visa”) issued under the provisions of the Migration Act 1958 (Cth) (the “Act”).

2    The appellant is a citizen of Afghanistan who arrived in Australia by boat on 21 April 2013. In his application for a Safe Haven visa he contended by his answers to questions on the application form (and otherwise) that he was “not safe” in Afghanistan (Answer 89); that if he returned to that country he “will not be safe there and will be killed or harmed by the Taliban” (Answer 90); that the “Taliban is still in control of the area around my home town [and] I will be harmed by them if I return because I have disobeyed their orders” (Answer 94); that the “government cannot provide me security as they cannot even provide security to Kabul” (Answer 95); and in response to the request to give details about why he would be unable to relocate within Afghanistan in support of his answer that he would not be able to do so, he said: “[t]here is no part of Afghanistan that is safe for me” (Answer 96). The reference in Answer 94 to the appellant’s belief that he would be harmed if he returned to Afghanistan because he had “disobeyed” the “orders” of the Taliban and that they were “still in control of the area around my home town” is a reference to the details he gave in support of his answer to Question 91 (that, yes, he had experienced harm in that country), as follows:

I was not harmed physically but my father was taken by Taliban and his where about[s] is still unknown. I was school watchman and Taliban had asked me to burn all the books but I didn’t. So they keep on threatening to kill me.

3    I mention these matters at this point as aspects of these claims and the findings of the IAA in relation to them go to the three grounds of appeal to be determined in these proceedings.

4    The first ground is that the primary judge erred by failing to find that the IAA engaged in jurisdictional error by misapplying the complementary protection criterion in s 36(2)(aa) of the Act. That conclusion is said to follow for these reasons. Although the appellant claimed to fear harm in the whole of Afghanistan by reason of his Hazara ethnicity and Shia religion, the IAA found that it was not satisfied that he held a well-founded fear of persecution within the meaning of s 5J of the Act (a s 36(2)(a) question) because in the area of his home town, Jaghori (and surrounds), he did not face a “real chance” of persecution and thus the IAA could not be satisfied that s 5J(1)(c) was satisfied. In this context, the appellant emphasises [25] of the IAA’s decision.

5    Next, in this reasoning, the appellant says that in considering whether it could be satisfied that the appellant met the criterion in s 36(2)(aa) of the Act, the IAA confined its consideration of whether there was a “real risk” that the appellant would “suffer significant harm” if removed from Australia to the receiving country of Afghanistan, to whether there was a real risk that the appellant would suffer significant harm “in or around Jaghori” and in deciding the s 36(2)(aa) question, the IAA at [37] of the decision relied on its findings in relation to s 36(2)(a).

6    Next, the appellant says that the IAA, however, had found at [30] of the decision, that the appellant may sometimes have to leave his home town of Jaghori to occasionally travel to Kabul and at [33] to travel to unspecified “contested areas” on an irregular basis.

7    Next, the appellant says that it follows that the IAA failed to properly consider the appellant’s claims under s 36(2)(aa) because it did not consider whether the appellant faced a “real risk” of suffering “significant harm” “in Kabul” or in the “contested areas” outside his home town and surrounds on the irregular occasions he would be travelling in those areas.

8    Next, the appellant says that the primary judge erred at [46](k) of the judgment (“J”) in holding that the IAA at [30] of the decision had properly considered the risk to the appellant in Kabul, as that paragraph of the IAA’s decision is confined to the risk to the appellant “on the roads to Kabul” and not while “in Kabul”. The appellant also says that the primary judge erred by failing to consider and make findings as to whether the IAA had considered the risk to the appellant within the “contested areas”.

9    The second ground of appeal is that the primary judge erred by failing to find that the IAA engaged in jurisdictional error by misapplying s 36(2B)(a) of the Act. That conclusion is said to follow having regard to three considerations.

10    First, the appellant relies on the sequence of reasoning relied upon in relation to the first ground of appeal.

11    Second, the appellant says that because the IAA confined its consideration of a risk of harm to the appellant, to harm in Jaghori and its surrounds, the IAA proceeded on an “implicit assumption” that the appellant would remain living within Jaghori and its surrounds, which raised a question of whether such an expectation or implicit assumption was “reasonable”.

12    Third, the IAA failed to discharge its obligation to consider and decide whether it was “reasonable” in the sense of “practicable” for the appellant to remain in or around Jaghori.

13    The third ground of appeal which was identified orally during the course of the hearing is that the IAA engaged in jurisdictional error because it conflated the question of whether the appellant faced a real risk of significant harm in Jaghori with whether it was reasonable and practicable for the appellant to reside in Jaghori. This third ground requires leave as the ground was not raised before the primary judge. No leave has been sought and no amended notice of appeal has been formulated. Nevertheless, the contention is clear enough. The question of leave also engages the merits of the ground. These matters are considered later in these reasons.

14    Although the provisions of the statutory codified regime effected by the amendments to the Act by the Migration Amendment (Complementary Protection) Act 2011 (Cth) which introduced s 36(2)(aa), (2A), (2B) and (2C) into the Act commencing on 24 March 2012 and the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) which introduced ss 5H and 5J into the Act as from 18 April 2015, are well understood, the following features of the regime ought to be noted having regard to the grounds of appeal.

15    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant is a non-citizen (in Australia) in respect of whom the Minister is satisfied (and thus on review the IAA is satisfied) Australia has protection obligations because the applicant is a refugee. For the purposes of the Act and Regulations, the relevant s 36(2)(a) applicant is a refugee if the person, in a case where the person has a nationality (such as in the case of the present appellant), is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). The relevant person has a well-founded fear of persecution having regard to the conjunction of three statutory factors.

16    First, whether the person fears being persecuted for, relevantly here, reasons of race (ethnicity) or religion (being a Shia Muslim), but also membership of a particular social group or for reasons of political opinion: s 5J(1)(a).

17    Second, whether there is a “real chance” that if the person returned to the receiving country, the person would be persecuted for any one or more of the s 5J(1)(a) factors: s 5J(1)(b).

18    Third, whether the real chance of persecution relates to “all areas of a receiving country”: s 5J(1)(c).

19    If a person fears persecution for one or more of the s 5J(1)(a) reasons, that reason must be the essential and significant reason: s 5J(4)(a). The persecution must involve “serious harm” to the person: s 5J(4)(b). The persecution must involve systematic and discriminatory conduct: s 5J(4)(c).

20    Without limiting what is “serious harm” for the purposes of s 5J(4)(b), the six “instances” of harm at s 5J(5) are instances of “serious harm”: a threat to the person’s life or liberty; significant physical harassment; significant ill-treatment; significant economic hardship that threatens a person’s capacity to subsist; denial of access to basic services threatening the person’s capacity to subsist; and a denial of a capacity to earn a livelihood threatening a person’s capacity to subsist.

21    All of the matters at s 5J are concerned with aspects of the statutory notion of a well-founded fear of persecution as an aspect of whether the relevant person is a refugee for the purposes of s 36(2)(a) of the codified regime.

22    Section 36(2)(aa) provides that a criterion for a protection visa is that the applicant is a non-citizen (other than a non-citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied (and thus on review the IAA 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”. Section 36(2)(aa) does not adopt the formulation of a “real chance” (which is the character of the chance of persecution in s 5J(1)(b)) of “serious harm” (which is the character of the statutory harm involved in persecution in s 5J(4)(b) and s 5J(5)), but rather a “real risk” of the relevant person suffering “significant harm” as a necessary and foreseeable consequence of being removed to the receiving country.

23    A non-citizen will suffer significant harm if such a person will be arbitrarily deprived of their life; or the death penalty will be carried out; or they will be subjected to torture; or they will be subjected to cruel and inhuman treatment or punishment; or subjected to degrading treatment: s 36(2A) of the Act.

24    Section 36(2B) provides that there is taken not to be a real risk that the relevant person will suffer significant harm in a receiving country if the Minister (and thus the IAA on review) is satisfied that it would be “reasonable” for the person to “relocate” to an area of the receiving country where there would not be a real risk of the person suffering significant harm: s 36(2B)(a). The same deemed result arises if a state of satisfaction is reached that the person could obtain protection from an authority of the receiving country such that there would not be a real risk of suffering significant harm (s 36(2B)(b)) or the real risk is one faced by the population of the receiving country “generally” and not one faced by the non-citizen “personally”: s 36(2B)(c) of the Act.

25    Thus, if the contention or claim is that as a necessary and foreseeable consequence of an applicant being removed to a receiving country, there is a real risk that that person will suffer significant harm, there will be no such risk if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk of suffering such harm: s 36(2B)(a).

How did the IAA reach its decision to affirm the delegate’s decision?

26    At [9] of the decision, the IAA sets out its understanding of the appellant’s claims. It notes that the appellant is an Afghani national of Hazara ethnicity born in an area in the Jaghori district, Ghazni Province, and that he is a Shia Muslim. It notes that his father is missing, his mother and five siblings are living in Jaghori and his wife and his brother are studying in Kabul. It notes that the appellant’s father worked at a girls’ school in Pato, Jaghori, for approximately four to five years. It notes that the appellant claimed to have commenced employment as a guard/watchman at the school where his father worked and that he continued in that position for approximately two years. It notes that his father began receiving threats from the Taliban. In 2012, when returning from Ghazni City with schoolbooks, the appellant’s father was abducted by the Taliban. Following his father’s abduction, the appellant began to receive written threats delivered to the school and threatening phone calls which included orders to burn the books at the school. After about three months of these events, the appellant fled Afghanistan. At [9], the IAA notes that the appellant feared being killed or harmed by the Taliban on return because he had disobeyed their orders to burn the books and the Taliban were still in control of the area around his home town: see the answers at [2] of these reasons. It notes that the appellant feared harm as a Shia Hazara and as a returnee who has lived in a western country and from generalised violence.

27    At [11] and [12], the IAA examines aspects of the evidence.

28    At [11], the IAA accepts that the appellant’s father was employed at a local girls’ school undertaking duties which included obtaining books for the school on occasions from Ghazni City and that the appellant secured work at the school as a watchman/guard.

29    At [12], the IAA examined the appellant’s claim that in 2012 his father had gone to Ghazni City to collect schoolbooks when he was abducted by the Taliban on the road between Ghazni City and Jaghori when travelling through two areas the Tangi area near the Mogur District. The IAA notes reports of the Department of Foreign Affairs and Trade (“DFAT”) which suggest that the Mogur District has a high level of Taliban infiltration.

30    At [13], the IAA recites having concerns regarding the appellant’s claim that his father had received threats from the Taliban prior to being abducted. At [13], the IAA says that it is not satisfied that the appellant’s father received personal threats as claimed prior to being kidnapped. The IAA accepts, however, that the appellant’s father when travelling between Ghazni and Jaghori may have been stopped on the road when returning with schoolbooks and was abducted due to his perceived links with the Afghan government. Other claims of the Taliban having prior knowledge of the father’s employment at a girls’ school or that he was personally threatened due to his employment were not accepted by the IAA.

31    At [15], the IAA accepts that the appellant may have received a number of telephone threats from the Taliban after his father’s abduction, due to the familial relationship. The IAA also accepts that some threatening letters may have also been received at the school following the father’s abduction which was a position consistent with country information regarding the targeting and intimidation of school staff at some schools. The IAA was not satisfied that these letters were specifically addressed to the appellant at the school although the IAA notes that given the appellant’s role as a guard/watchman, it accepted that he would have been aware of the letters having been received. The IAA at [15] accepts that the appellant and the school received a number of threats following the appellant’s father’s abduction which precipitated the appellant’s resignation from his employment and departure from the area.

32    At [18], the IAA examines the appellant’s claims of fear of being killed or harmed by the Taliban on return to Jaghori because he had disobeyed their orders, given after his father’s abduction, to burn the schoolbooks.

33    At [19], the IAA accepts that in some areas teachers and staff have been threatened and intimidated by the Taliban. The IAA repeats at [19] its acceptance of the claim that the appellant’s father had been abducted on the roads by the Taliban when returning from Ghazni City with schoolbooks and that both the school and the appellant had received a number of threatening calls. The IAA did not accept that those circumstances indicated that the appellant would be of interest to the Taliban on his return. At [19], the IAA notes that although there have been attacks against some schools including girls’ schools, there was no evidence before it to indicate that these types of attacks have occurred in Jaghori and, additionally, over six years had elapsed since the appellant left his employment and returned to Jaghori where the number of security incidents was low.

34    At [19], the IAA notes that even if the Taliban became aware of the appellant’s return, it was not satisfied that there existed a real chance of the appellant being imputed with a pro-government profile after a period of six years or targeted due to his or his father’s former employment or because he refused to obey Taliban orders or for any other reason.

35    At [20], the IAA notes the appellant’s claim to fear harm as a returnee from a western country.

36    At [21], the IAA notes that it is “not satisfied on the evidence that returnees like the [appellant] are targeted in Jaghori by insurgents or that the [appellant] would be targeted on return because he is perceived to be pro-western due to his residence in a western country”. At [21], the IAA observes that it is not satisfied that the appellant would be imputed with a pro-government political opinion by the Taliban or other insurgents in Jaghori as a Shia Hazara who resided in a western country and nor was it satisfied that there is a real chance of the appellant being harmed in Jaghori for that reason.

37    At [22], the IAA notes that although the appellant fears harm as a Shia Hazara from the Taliban and other Sunni insurgent groups, Country Information indicated that Hazarajat, of which Jaghori is a part, is considered to be more secure and Hazaras are generally able to move about freely in these areas without facing undue security risks.

38    At [23], the IAA notes the contentions of the appellant’s representative that there is evidence of the presence in Ghazni of representatives of Islamic State and residents were being threatened. The IAA notes at [23] references in the material to support that proposition and notes that apart from their presence in Kabul, some disgruntled former Taliban commanders have joined IS in neighbouring provinces although the level of coordination remains unclear.

39    At [24], the IAA says that it is satisfied that the appellant could reside in Jaghori safely and would not face a real chance of harm as a Shia Hazara from either the Taliban, Islamic State or other agencies. At [24] and [25], the IAA says this:

24.    Unlike Kabul where there were attacks against Shias in 2016, 2017 and 2018 by IS, there is no evidence confirming the presence of IS in Ghazni or of Shia Hazaras being targeted by IS or other insurgents in Jaghori or Ghazni due to their religion or ethnicity in the past 2 years. I am not satisfied that there is a real chance of the [appellant] being harmed in Jaghori as a Shia Hazara.

25.    Considering the [appellant’s] history and profile, including his ethnicity and religion, and his residence in Australia, as well as his employment at a girls’ school for two years approximately six years ago, I am not satisfied there is a real chance he will be harmed in Jaghori in the reasonably foreseeable future.

40    At [26], the IAA notes that the appellant’s representative had emphasised that Hazaras have been particularly affected by Taliban blockades on the roads in the Qarabagh District of Ghazni and that there was fighting in September 2017 when the Taliban attacked security checkpoints on the road to Jaghori. The IAA notes Country Information indicating that Hazaras were targeted on the roads between Kabul and Hazarajat during 2015 although the targeting decreased significantly in 2016. The IAA notes that there is no recent evidence of Hazaras being targeted on the roads around Ghazni or on the road to Jaghori in 2016, 2017 or more recently due to ethnicity or religion.

41    At [27], the IAA notes further aspects of that matter and observes that it is satisfied that the appellant “does not face a real chance of harm on the roads when returning to Jaghori”.

42    At [28], the IAA notes that there is a regular flight connection between Kabul and Bamiyan and that the appellant was not therefore restricted to road travel when accessing Hazarajat.

43    At [29], the IAA says this:

On the evidence, I am not satisfied that the [appellant] would face a real chance of harm in Jaghori or in travelling to his home area either on the road from Kabul or via Bamiyan airport and on roads through adjoining Hazarajat areas which are considered safe, as a returnee Shia Hazara, or due to any profile arising from his and his father’s former employment, his refusal to obey Taliban orders, any other associations or for any other reason. I am not satisfied there is a real chance the [appellant] will be harmed in Jaghori or when travelling on the roads to return to his home area.

44    At [30], the IAA says this:

Given the [appellant’s] close family links to Jaghori I am satisfied that he would return to Jaghori and be able to re-establish himself there. The family have land in Jaghori which the [appellant] farmed and there is no indication this land has been relinquished. … The [appellant] only travelled to Kabul to facilitate his departure from Afghanistan and was not reliant on travel to Kabul for employment. Nor has he indicated that he would travel there for employment on return. Although he may be required to undertake occasional travel to Kabul on return I am not satisfied he would face a real chance of harm while travelling on the roads to Kabul.

45    At [31], the IAA notes that there are limited employment opportunities in Jaghori and in Hazarajat due to a heavy reliance on agriculture and the geographical terrain. The IAA notes that the appellant has a range of employment experience and in Australia worked as a tiler. The IAA notes that the appellant’s family and tribal links are all in Jaghori and it is not persuaded that the appellant could not find work there or in the adjoining areas of Hazarajat or Ghazni or that he would be prevented from undertaking employment to enable him to subsist there.

46    At [32], the IAA notes that the appellant fears being harmed in general violence on return. The IAA notes that there have been attacks on the roads particularly in secure areas. However, the IAA notes that it is not satisfied that there is a real chance of the appellant being harmed on the roads as a Shia Hazara, a western returnee or due to imputed support of the international community. The IAA notes that Country Information indicates that security incidents in Jaghori itself are rare and that Hazarajat is largely secure.

47    At [32], the IAA observes that it is not satisfied that there is a real chance of the appellant being harmed either in Hazarajat or when “occasionally travelling through areas such as Qarabagh” and, additionally, it was open to the appellant “to travel through safe adjacent Hazarajat areas rather than through areas such as Qarabagh”.

48    At [33], the IAA says this:

Moreover given the [appellant’s] family is based in Jaghori although his wife continues to travel occasionally between Kabul and Jaghori for study, and the employment and services he requires are available in Hazarajat and Jaghori, I consider that he would not be required to travel in contested areas outside Hazarajat or Jaghori on a regular basis. I am satisfied that he would be able to safely access services through travel in adjacent safe areas. I am not satisfied the [appellant] has a well-founded fear of persecution.

49    Having regard to all of those considerations, the IAA concluded at [34] that the appellant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and thus the appellant did not meet the requirements of s 36(2)(a) of the Act, that is to say, the IAA could not reach the relevant state of statutory satisfaction required by s 36(2)(a) of the Act.

50    Having considered all of those factual matters and having reached findings as described, the IAA then noted the elements of s 36(2)(aa) of the Act. Having noted the reference to a “real risk” that the non-citizen will suffer “significant harm”, the IAA notes that the non-citizen will suffer significant harm if any one of the factors in s 36(2A)(a) to (e) are satisfied.

51    At [37], the IAA makes these observations:

I have found there is not a real chance that the [appellant] will face harm in Jaghori, on the roads around Jaghori or in Hazarajat as a Shia Hazara returnee from the west, or due [to] his and his father’s former employment, his refusal to obey Taliban orders, or due to general violence when accessing his home area or travelling around his home area or in adjacent areas, or any combination of these matters or for any other reason. 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 [appellant] suffering significant harm on return to Jaghori, on the roads around Jaghori or in Hazarajat for those reasons. Having regards to the [appellant’s] circumstances and the country information before me, I am not satisfied that there is a real risk of the [appellant] suffering significant harm on return to Jaghori.

52    Accordingly, the IAA concluded at [38] that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to the receiving country, there existed a real risk that the appellant would suffer significant harm and thus the IAA was not satisfied of the relevant statutory matters for the purposes of s 36(2)(aa) of the Act.

53    In the result, the IAA affirmed the decision not to grant the appellant a protection visa.

54    The appellant contends that as to complementary protection, the IAA’s findings are confined to the observations at [37] of the decision and those findings are insufficient to support conclusions which must necessarily address the statutory integers of s 36(2)(aa) one of which is whether, as a necessary and foreseeable consequence of being removed to the “receiving country” (that is, throughout the country as a whole, it is said), there is a real risk that the appellant will suffer significant harm. The appellant says that by confining its analysis (and findings) to whether such risk arises within only a particular area or town, does not support a conclusion as to the “receiving country” at large.

55    The appellant says that the IAA simply failed to address the statutory criterion thus giving rise to jurisdictional error. This failure is said to be compounded because the IAA found at [30] that the appellant would sometimes leave Hazarajat and may be required to “undertake occasional travel to Kabul”, and at [33] the IAA seemed to accept that although the appellant would not be required to travel outside Hazarajat or Jaghori “on a regular basis” into contested areas, such travel would occur at least irregularly. The appellant contends that the IAA failed to address the risk to him of harm “in Kabul”.

56    The ultimate proposition is that the IAA engaged in error of law by failing to address the distinction between s 36(2)(a) and s 36(2)(aa) and thus engaged in jurisdictional error.

57    It is, of course, true, that the statutory question for the IAA as to s 36(2)(aa) is framed by reference to a real risk of suffering harm as a necessary and foreseeable consequence of removal to the “receiving country”. However, the IAA is required to engage with and address the factual claims presented to it by the appellant in the context of the relevant circumstances of the appellant’s background revealed by the evidence and the place or places within the receiving country where the appellant, on the whole of his evidence, would be (within the receiving country) should he be returned to his country of nationality (in this case, Afghanistan as the receiving country).

58    In this case, it was not part of the appellant’s claim before the IAA that he would face a real risk of significant harm in Kabul, a place in which he would not be residing should he return to Afghanistan. Nor was it part of his case (notwithstanding the answers he gave recited at [2] of these reasons that refer to Afghanistan generally) that, although as a matter of the particular claims he would not be living in Kabul should he return to the receiving country and that he was not a person the target of any “particular violence” throughout the receiving country, he was, nevertheless, a person facing a real risk of significant harm in Kabul.

59    Apart from the insurmountable difficulty that the case or claims as put to the IAA did not engage the error in the IAA’s decision-making contended for by the appellant, the IAA did seek to address various dimensions of the appellant’s likely activities in the receiving country having regard to the whole of the evidence before it. It is true that these matters were addressed in the context of the analysis of the factual claims for the purpose of s 36(2)(a), but the matters of fact addressed by the IAA before expressing its conclusion at [37] on the application of the statutory integers of s 36(2)(aa) to aspects of the facts included these matters.

60    First, the appellant did not claim, in terms, a real risk of suffering significant harm in Kabul, and the references in the answers and evidence to his “return” and to “the areas around my home town” are clearly enough references to a return to his home town of Jaghori.

61    Second, the appellant did not claim either a fear of harm or a real risk of suffering significant harm from a need to use the roads as part of deriving a living such as working as a truck driver or as a person who needed to travel on roads as part of his employment.

62    Third, the appellant had not engaged in activities in or around Jaghori that had made it necessary to travel to Kabul except for the purpose of seeking out, in Kabul, possible employment opportunities in Jaghori, and for the purpose of enabling him to leave Afghanistan by plane.

63    Fourth, upon returning to the receiving country, the appellant would be able to travel safely from Kabul to Jaghori where many of his family are living.

64    Fifth, travel on the roads out of Jaghori into neighbouring districts would not engage a real chance of serious harm as the appellant would not be required to travel outside of Hazarajat or Jaghori into the “contested areas” on a regular basis and occasional travel to Kabul would not present a real chance of serious harm.

65    In the course of argument and in the written submissions, the respondent contends that the appellant requires leave to agitate Ground 1 of the appeal. I am satisfied that that is not so and that the essential contention was agitated before the primary judge. However, I am not satisfied that Ground 1 is made out.

66    As to Ground 2, the appellant contends that the IAA misapplied s 36(2B)(a) by acting on an implicit assumption that the appellant would remain living in Jaghori and surrounds and failed to examine whether it was “reasonable in the sense of practicable” for the appellant to remain in or around Jaghori. Section 36(2B)(a) creates a statutory consequence of no real risk of significant harm for the purposes of s 36(2)(aa) if it would be “reasonable” for the appellant to relocate, upon being removed to the receiving country, to an area of the country where there would be no real risk of significant harm.

67    The contention is that the IAA assumed that the appellant would remain in Jaghori but did not consider whether the appellant could reasonably be expected to return and remain there and no finding was made that it was reasonable in the sense of practicable for him to remain there. This is said to be an “incorrect approach” expressly inconsistent with the reasoning of the plurality in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [29] (“SZSCA”). The correct approach is said to be a fact intensive analysis and requires consideration of what is reasonable in the sense of what is practicable. The appellant contends that contrary to the primary judge’s findings at [44]-[47], the IAA did not engage with whether it would be reasonable in the sense of practicable for the appellant to remain in Jaghori. The appellant contends that, at most, the IAA was satisfied at [30]-[31] of the decision that the appellant would not be seriously harmed in and around Jaghori.

68    The IAA did engage with the facts in a fact-intensive way in seeking to address the claims of harm and the character of that harm in seeking to determine whether it could be satisfied of the statutory factors under s 36(2)(a) and s 36(2)(aa) and whether it was reasonable and practicable for the appellant to relocate from Australia to his home town area and surrounds and move about in the areas in the way contemplated by the discussion at [25] to [30] of the IAA’s decision. That analysis took into account what was reasonable and practicable in the particular circumstances of the appellant. See the matters at [60] to [64] of these reasons.

69    In SZSCA, the majority, French CJ, Hayne, Kiefel and Keane JJ at [25], accepted that what is reasonable is a question of what may “reasonably be expected of the respondent” and at [27], the majority accepted that “[w]hat 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”. In SZSCA, because the applicant was a truck driver who had lived in Kabul and who had derived a living by driving trucks between Kabul and Ghazni and Jaghori as part of his systemic livelihood before coming to Australia, the administrative decision-maker was required to consider in the case of a person returning to Kabul in those particular circumstances whether it was reasonable and practicable for the applicant to remain in Kabul (so as to avoid a risk of the claimed harm on the roads) and not drive trucks “on the roads he usually frequented in the course of his business” and to consider the “ability [of the applicant] to earn an income from other sources and to his needs and those of his family”: SZSCA, the majority at [31]. In the case of the present appeal, apart from the matters taken into account by the IAA referred to at [60]-[64] of these reasons, the IAA also took into account employment factors affecting the appellant and his ability to earn a living: IAA at [30] and [31].

70    In DQA17 v Minister for Home Affairs [2020] FCA 864 (“DQA17”), I examined the history of the amendments leading to the present codified regime and the authorities which had applied the observations of Kenny J in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 concerning the element of “reasonableness” in the “relocation principle” (developed under references to the Refugees Convention) to s 36(2B)(a) under the codified regime (recognising that for the purposes of s 36(2)(a), s 5J(1)(c) has the effect of removing the reasonableness of internal relocation from consideration in an application for a protection visa under that limb of s 36(2): FCS17 v Minister for Home Affairs [2020] FCAFC 68 (“FCS17”), subject to the construction to be attributed to the phrase “all areas of a receiving country” in s 5J(1)(c): FCS17 at [21], Allsop CJ; White and Colvin JJ at [65]-[82]).

71    In considering the factual matters put to it, the IAA considered the claim that the appellant, should he be returned to the receiving country, would not be “safe” in Afghanistan and would be “killed” or “harmed” by the Taliban as the Taliban “is still in control of the area around my home town” and that he would be harmed if he returned to Afghanistan (which can only be a reference to a return to the area around his home town which, he contended, was remaining in the control of the Taliban). He said he feared such harm of the character just described as he had disobeyed the orders of the Taliban concerning the burning of the schoolbooks. The factual matters addressed by the IAA engaged, fairly read, a consideration of all of the claimed sources or causes of harm and the character of the contended harm.

72    Those considerations necessarily engaged a consideration of whether it was reasonable for the appellant to locate in and around his home town of Jaghori so as to be safe from a real risk or real chance of the claimed harm as put to the IAA including a claim that the appellant would be killed or harmed by the Taliban for disobeying the particular orders. The reasonableness or otherwise of locating in such a place was an assessment made by the IAA in the context of whether locating in such a place would not present a “real risk” or “real chance” of the claimed harm occurring and since locating there did not present such a risk it was considered reasonable by the IAA for the appellant to be in such a place. In considering that analysis, the IAA considered a number of matters going to practicability of locating there in the circumstances and history of the appellant. They are mentioned at [60] to [64] of these reasons.

73    I am not satisfied that Ground 2 of the appeal is made out.

74    As to Ground 3 (apart from the question of leave), the appellant contends that if the Court is satisfied that the IAA at [30] to [32] of its decision has given consideration to the reasonableness of the appellant locating in Jaghori and its surrounds, the IAA nevertheless engaged in jurisdictional error by only considering a risk of “serious harm” and by failing to take into account (and treating as irrelevant) harm that is “not serious harm”.

75    The codified regime requires the IAA to consider the claims of harm said to give rise to the claim in reliance on s 36(2)(a) which requires the IAA to consider whether it can be satisfied of a “real chance” of the appellant suffering “serious harm”, a concept not limited by the instances of serious harm at s 5J(5) of the Act. The codified regime also requires the IAA to consider the claims of harm said to give rise to the claims in reliance on s 36(2)(aa) which requires the IAA to consider whether it can be satisfied of a “real risk” of the appellant suffering “significant harm”. Whereas s 5J(5) identifies six instances of “serious harm” “without limiting what is serious harm for the purposes of s 5J(4)(b)”, s 36(2A) identifies five classes of harm that constitute the suffering of “significant harm” without adopting the statutory formulation of “without limiting what is significant harm for the purposes of s 36(2)(aa)”. That may suggest, as a matter of construction, that “significant harm” for the purposes of s 36(2)(aa) is the harm identified at s 36(2A) and not otherwise. It remains an open question of whether particular harm in a given case falling outside s 36(2A) but nevertheless engaging an affirmative evaluative judgment that the harm a person will suffer is “significant harm” in the wider sense in which that term might be understood, on the relevant facts, is “significant harm” for the purposes of s 36(2)(aa).

76    The codified regime draws a distinction between “serious harm” as an element of a well-founded fear of persecution on the one hand, and “significant harm” as an element of the codified complementary protection regime, on the other hand. In the case of the codified complementary protection regime, the reasonableness of relocation to an area of the country where there would not be a real risk of the relevant person suffering significant harm renders the decision-maker unable to be satisfied of a critical element of s 36(2)(aa): s 36(2B)(a).

77    Section 36(2B)(a) contemplates the possibility that, in a given case, it would be reasonable for the person to “relocate” to an area of the receiving country where there is a no real risk of suffering significant harm as claimed. The question is whether the IAA is also required to consider, as an element of reasonableness, whether harm amounting to something less than a “real risk” of “significant harm” is to be taken into account in deciding whether the decision-maker can reach the relevant state of satisfaction contemplated by s 36(2B)(a). The answer to that question is that the very particular circumstances of the relevant applicant’s case may require the IAA to do so. I see no reason, however, to depart from the observations I made in DQA17 at [106](33) and (34).

78    However, what did the IAA do in this particular case?

79    The appellant contends that in the context of whether it would be safe for the appellant to return to Kabul and Mazar-e-Sharif (which was not part of the case as to location actually put to the IAA, but rather the claim concerned harm in returning to his home town in the context of the Taliban’s remaining control there), it would be unreasonable due to the reasoning identified in a European Asylum Support Office (“EASO”) Report (of either August or December 2017) referred to in the report of Professor William Maley AM dated 4 April 2018 and [5] of the IAA decision to relocate in Jaghori and surrounds. The factors described in the report are said to be “separate” from any questions or issues of “serious harm”. The appellant contends that no factors concerning matters of harm less than serious harm were considered by the IAA and they ought to have been taken into account. The failure to do so is said to give rise to jurisdictional error. The EASO Report and extracts from it contained in submissions were before the IAA. In particular, the Report addresses the security situation in Afghanistan generally or overall and whilst it does not go specifically to either a real chance of serious harm to the appellant or a real risk of significant harm to him, the element of “reasonableness” in s 36(2B)(a) is said to have required its consideration by the IAA and findings as to whether questions of generalised harm informed the state of satisfaction required by s 36(2B)(a).

80    In this case, the IAA properly identified the claims of harm and the character of the contended harm the appellant said he would suffer should he relocate to the receiving country. It analysed, in the context of those claims, the potential for harm in Jaghori and surrounds; potential harm on the roads in the Qarabagh District of Ghazni; potential harm on the roads when returning to Jaghori; and potential harm on the roads to and from Kabul and the adjoining Hazarajat areas. The IAA addressed these matters at [25] to [29] and [37]. The IAA, however, did contextualise that discussion by considering the activities of the Taliban and the exposure to harm as a returnee from a western country. General questions of violence were taken into account by the IAA at [18], [19], [20], [22], [23] and [32]. Further, there were no special circumstances that rendered the appellant particularly vulnerable or particularly sensitive to harm of a general kind.

81    Accordingly, Ground 3 is not made out.

82    Ground 3 also engaged the question of whether leave to amend ought to be granted. The ground was raised during the course of the oral hearing. Having regard to the merits of the ground, and the history in which it came to be raised, I would ordinarily not be satisfied that leave ought to be granted. However, having regard to the character of the case involving, as it does, questions of a protection visa, I propose to grant leave to amend to raise Ground 3, but dismiss the ground.

83    Accordingly, as none of the grounds of appeal have been made out, the appeal must be dismissed with costs.

Associate:

Dated:    6 April 2022