Federal Court of Australia

AGE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 668

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court be set aside and in lieu thereof it be ordered that:

(a)    the decision of the Second Respondent be quashed; and

(b)    the First Respondent pay the Applicant’s costs in the Federal Circuit Court.

3.    The First Respondent pay the Appellant’s cost of the appeal.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    The Appellant is a citizen of Afghanistan. He arrived in Australia as an unauthorised maritime arrival on 27 August 2012 and lodged an application for a Safe Haven Enterprise Visa (a type of protection visa) on 29 October 2015.

2    The Appellant claimed to fear harm from the Taliban and other insurgent groups in Afghanistan because of his Shia religion. He also claimed he would be at a higher risk of harm due to his imputed political opinions because he had applied for asylum in Australia and spent time in a Western country. The visa application was refused by a delegate of the Minister on 8 February 2017.

3    The delegate found that although the Appellant would face a real chance of persecution in his home district of Khoshi, Afghanistan, he could reasonably relocate to Kabul where he would not face a real chance of persecution or a real risk of significant harm.

4    The delegate’s decision was made in part on the basis that the Appellant had an uncle and two sisters residing in Kabul, and they would “bring the security that family provide in Afghanistan”. In relation to the prospect of relocation to Kabul, the Appellant claimed that he would face a continual denial of his capacity to work and to earn a livelihood in Kabul. The delegate referred to the importance of familial connections for the purposes of employment in Afghanistan, and therefore his family connections in Kabul were relevant in relation to his ability to subsist there. The delegate also noted that he would be able to support his wife and children (currently residing in Iran) if they were to re-join him in Kabul.

5    In fact, the Appellant’s uncle had passed away in 2014, and this information was included in the Appellant’s statutory declaration filed in support of his visa application.

6    The matter was referred to the Immigration Assessment Authority (the ‘Authority’) on 13 February 2017. On 6 March 2017, the Appellant provided a signed statutory declaration to the Authority. The statutory declaration stated, inter alia, that the Appellant’s sisters had fled Kabul (the ‘Kabul Claim’) and that he had not raised this at his interview. Accordingly, the Appellant submitted to the Authority that he no longer had any family in Kabul.

7    Pursuant to s 473DD of the Migration Act 1958 (Cth) (the ‘Act’), the Authority decided not to consider the Kabul Claim, stating as its reasons:

It is relevant to note that the applicant has not claimed that he fears harm in Kabul (or another part of Afghanistan) on account of his uncle’s death, or the threats his sisters purportedly received from several extremist groups, but rather, he contends, in response to the delegate’s decision, that he cannot live in Kabul, in part, because he no longer has any family support there. The applicant’s claim that he no longer has any family (ie his sisters) in Kabul is new information. However, I have found it unnecessary to consider the question of relocation to Kabul. On the approach I have taken, the new information concerning whether the applicant has family in Kabul is irrelevant. Having regard to all the circumstances, I am not satisfied there are exceptional circumstances to justify considering this new information.

8    The Authority affirmed the delegate’s decision by concluding that although the Appellant would face a real chance of persecution or significant harm if he returned to his home district of Khoshi, he could reasonably relocate to the Afghan city of Mazar-e Sharif.

9    The principle of “reasonable relocation” under s 36(2B)(a) of the Act is of moment in this proceeding, and is set out below:

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

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

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

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

10    It is to be recalled that the concept of relocation arises in the Act as an exclusionary principle for protection as a refugee at s 5J(1)(c) of the Act and as an exclusionary principle for the complementary protection regime under s 36(2B)(a) of the Act – that is, protection visa applicants who are found to be able to relocate internally within the country from which they are seeking asylum do not satisfy the criteria for a protection visa. The relocation principle under s 5J(1)(c) as it applies to refugee applicants (for applications made on or after 16 December 2014) is now different to the relocation principle developed pursuant to the Refugee Convention as previously enacted by the Act at that time and is now different to the relocation principle under s 36(2B)(a). Under s 5J(1)(c), the reasonableness of requiring a person to move to an area that is free from a real chance of persecution does not form part of the test. Accordingly, the Authority in this case considered the reasonableness of the Appellant’s relocation only for the purposes of his complementary protection claim and the Authority’s reasons are primarily challenged in that context.

APPEAL

11    Before me, the Appellant relied on two grounds of appeal from the then Federal Circuit Court where the primary judge rejected the Appellant’s application on 23 July 2021:

1.    The learned primary judge erred in finding that the decision of the Immigration Assessment Authority (Authority) was not affected by error. The error was that the Authority made a finding with respect to the reasonableness of the Appellant’s relocation to Mazar-e Sharif (Mazar-e Sharif Finding) at the s473DD, or ‘anterior stage of decision-making’, at which point there was no statutory authority to make the Mazar-e Sharif Finding.

Particulars

(a)    The delegate of the Minister had found that whilst the Appellant faced a real chance of persecution and a real risk of significant harm in his home district of Khoshi, Afghanistan, he could reasonably relocate to Kabul where he would not face a real chance of persecution or a real risk of significant harm. (Delegate’s Decision).

(b)    The Delegate’s Decision was based partially on its understanding that the Appellant had sisters in Kabul.

(c)    During its review, the Appellant provided new information to the Authority that his sisters had left Kabul (Kabul Claim).

(d)    The Authority declined to consider this new information under s473DD of the Migration Act 1959 (Act) on the basis that the information was irrelevant because it had reached the view that relocation to Mazar-e Sharif, as opposed to Kabul would be reasonable (Mazar-e-Sharif Finding).

(e)    The learned primary judge accepted the Minister’s submission that in determining whether to consider the Kabul Claim under s473DD the Authority was entitled to reflect on and assess the ‘review material’ already before it ([17]-[18]).

(f)    The information assessed by the Authority in determining whether to consider the Kabul Claim under s473DD included country information with respect to Mazar-e-Sharif (Mazar-e-Sharif Information).

(g)    The Mazar-e-Sharif information was not ‘review material’ before the Authority, but ‘new information’.

(h)    The Authority impermissibly considered the Mazar-e Sharif Information in determining to not consider the Kabul Claim.

(i)    Accordingly, the Authority made the Mazar-e-Sharif Finding at the anterior stage of decision-making, at which stage there was no statutory authority to make such a finding.

Materiality

(j)    The learned primary judge erred in determining that if the Kabul Claim ‘had been accepted as new information, the best that the Applicant could hope for would be a ‘finding that it would be unsafe for him to relocate to Kabul’ ([28]).

(k)    In determining whether the error was material, the question which must be asked ‘had the Authority not made the Mazar-e-Sharif Finding at the anterior stage of decision-making, at which point there was no statutory authority to make any findings with respect to the reasonableness of relocation to Mazar-e-Sharif, was there a realistic possibility that there could have been a different outcome for the Appellant?’, to which the answer must be ‘yes’.

2.    The learned primary judge erred in finding that the Authority had considered the Applicant’s family situation ([50]) with respect to his ability to support himself and his family should he have to relocate to Mazar-e-Sharif.

Particulars

(a)    The learned primary judge correctly found that the Authority was aware that the Applicant had a family that reside in Iran ([45]).

(b)    The learned primary judge erred in conflating this with a genuine consideration of the Applicant’s ability to support his family should he have to relocate to Mazar-e-Sharif ([50]).

12    It is apparent and the parties accepted that if the Appellant is successful on Ground 2, it is unnecessary to consider Ground 1, but if the Appellant is successful in proving legal error only on Ground 1, but not Ground 2, then on materiality grounds the Appellant would not be entitled to the relief sought. The latter proposition is because if the Authority’s Mazar-e-Sharif Finding as defined in the pleading was within jurisdiction (that is, if it survives the challenge under Ground 2), then any actual consideration of the Kabul Claim by the Authority would not have been material to the ultimate decision, which was based on the Mazar-e-Sharif Finding. I propose to deal with Ground 2 only as I have come to the clear view that the Appellant is successful on that ground.

GROUND 2

13    Ground 2 provides that, in determining whether relocation to Mazar-e Sharif was reasonable, the Authority failed to consider a claim which clearly arose from the material: that is, for the Appellant to reasonably relocate to and remain in Mazar-e Sharif, the Appellant would need to be able to support his wife and children as well as himself.

14    It was submitted by the Appellant that the importance of the Appellant’s immediate family as a factor for his reasonable relocation clearly arose from the material because:

(a)    the review material before the Authority included a statutory declaration of the Appellant dated 27 October 2015 claiming:

My heart breaks when I think about my wife and children and the life they are living in Iran. At the moment my wife is struggling to support herself and my children because I cannot work in Australia to support them. She has to work sometimes at the plastic factory, or go into others’ houses to work as a servant for them.

(b)    the review material included the delegate’s decision, which had given express consideration to whether the Appellant could support his family if they relocated to Kabul with him:

The applicant has established networks in Kabul with his Uncle and his married sisters also reside there. Given the applicant’s family connections and prior experience of living in Kabul, albeit briefly, I also consider that if his wife and children chose to join him in Kabul, that it would still be reasonable for him to relocate there, and that he would be able to earn a livelihood, and find accommodation and access basic services sufficient not only for himself but also for his wife and children.

(c)    the material before the Authority identified Afghanistan as the poorest country in Asia with over a million Afghan children reported to suffer from acute malnutrition, and 9.1% of children dying before their fifth birthday.

15    In addition to the matters specifically raised by the Appellant:

(a)    in the delegate’s reasons, it noted that: “[t]he applicant stated that since his departure his wife had been threatened with removal and was unable to enrol their children in school”;

(b)    in the Appellant’s submissions to the Authority dated 6 March 2017, it was noted that his “immediate family currently reside illegally in Iran”; and

(c)    in the Statutory Declaration dated 6 March 2017 of the Appellant, it was said at paragraph 9:

I have been living in an uncertain situation for more than 5 years - if my life was not in danger, of course I would want to go and re-join my wife and children. Please do not force me to return to Afghanistan where my life will be in danger.

16    Therefore, from the material before the Authority it was apparent that the Appellant desired to be with his family, and that he would want to support them.

17    The Federal Circuit Court in relation to this issue of relocation simply stated without more elaboration at [45] of the primary judge’s reasons:

… it is plain that the Authority was aware that the Applicant had a family (wife and children) that reside in Iran: see [61] and [62] of the reasons, as well as the last sentence of [63]. No inference can be drawn that the Authority ignored or overlooked that fact or proceeded on the basis that the Applicant was a single male.

18    It is not disputed that the Authority was aware that the Applicant had a family. What is in issue – and what was not addressed by the Federal Circuit Court – was whether the Authority considered whether the Appellant’s wife and children would also relocate to Mazar-e-Sharif and whether the Appellant would be able to support his family in addition to himself if so.

Reasons of Authority

19    It is convenient at this stage to set out the various paragraphs of the Authority’s reasons regarding the Appellant’s reasonable relocation referred to by the parties, namely [45]-[46] (in relation to the Appellant’s refugee claim), and in particular [61]-[66] (in relation to the Appellant’s complementary protection claims):

45.    In his SHEV statement, the applicant stated that on return he would be unable to find employment in any part of Afghanistan. According to the employment history recorded on the applicant’s SHEV application, between 1989 and 2012 he has worked in various roles including as a construction labourer, a cleaner, a factory worker, and as a farm assistant. In the IAA submission, the applicant’s representative submits that the applicant’s hypertension and arm/leg length discrepancy renders him unable to perform any labour involving heavy lifting. According to the applicant’s clinical notes summary, he was seen by his general practitioner for hypertension in May 2013 and January 2017, and a ‘leg-length discrepancy’ in May 2013. There is no other information before me about the applicant’s claimed arm-length discrepancy and no further medical information is provided, including whether the leg and hypertension conditions have been treated, are ongoing, or the impact that these conditions may have on the applicant’s ability to work. The letter from The Dermatology Clinic confirms the applicant is being treated for a skin condition called vitiligo. Again, there is no information before me that indicates what impact, if any, the skin condition has on the applicant’s ability to obtain employment. Even if I was to accept that he applicant was unable to perform any labour involving heavy lifting, I am not satisfied this would prevent him from finding suitable employment in Mazar-e-Sharif. On the evidence before me, I am not satisfied that upon return any ongoing medical conditions the applicant has will prevent him from being able to gain employment or subsist in Mazar-e-Sharif, or that he would otherwise suffer harm in connection with this.

46.    On the evidence before me, I am not satisfied there are any significant vulnerabilities or barriers that would deny the applicant’s capacity to earn a livelihood on return to Mazar-e- Sharif, or that he will experience significant economic hardship, or will be denied access to basic services that threatens his capacity to subsist, now or in the foreseeable future. I accept that the applicant presents with a skin condition and that he has seen his doctor for other health matters in the past, but there is nothing before me to indicate that any health issues have impacted on his ability to work in the past, or that those issues will act as a barrier to him being able to subsist in Mazar-e-Sharif. DFAT assess that ethnic groups who are in the minority in the area in which they reside face a risk of societal discrimination which may include the denial of access to employment or housing. However, as noted above, Tajiks form one of the majority ethnic groups in Mazar-e-Sharif. DFAT assess that official discrimination on the basis of religion is low and that any religious or ethnic discrimination faced by Shias in Afghanistan, is more likely to be societal in nature, at the community level, primarily as a result of the important role played by ethnic, tribal and familial networks in Afghan society and the dominance in many areas of the Sunni majority. Societal discrimination generally occurs as a result of a positive preference for members of one’s own family/tribal/ethnic/religious group, rather than negative discrimination against a particular group. The applicant presents with a varied work history, is still of working age, and on the evidence before me does not present with any health problems or other vulnerabilities that would impact his ability to seek and obtain employment. I am not satisfied that any societal discrimination that the applicant may be subjected to will prevent him from obtaining employment or manifest itself in such a way that it would constitute serious harm.

I interpolate at this stage that the Authority’s consideration of the Appellant’s possible relocation for the purposes of his refugee claim had regard to his prospects of employment and ability to subsist in Mazar-e-Sharif, but clearly did not have regard to the Appellant’s need or ability to support his immediate family. As the required analysis here (for the purposes of the Appellant’s refugee claim) is focussed on any “serious harm” the Appellant might suffer in the place of relocation, rather than the “reasonableness” of relocation, this is understandable. However, the analysis does not at all support the Minister’s contention that the Appellant’s capacity to support his family was in fact implicitly considered by the Authority.

61.    Having regard to the applicant’s personal circumstances, I have considered whether it is reasonable for him to relocate to Mazar-e-Sharif. In his SHEV statement, the applicant stated that he has nobody to protect or support him in any area of Afghanistan. He also stated that he would be unable to find work or find a safe place to stay. In the applicant’s representative’s response to the IAA of 13 December 2017, it is submitted that it is unreasonable for the applicant to relocate within Afghanistan due to him having no remaining family connections there. It is submitted that in the absence of such a family network he would be precluded from participating in most forms of employment, and that his ability to find employment is restricted due to a combination of health issues and the absence of an established support network.

62.    The applicant’s wife and children reside in Iran and the applicant has no current status or residence permission in that country. I accept that on return to Afghanistan he would be unable to return to Iran or travel to Iran to visit his immediate family. I also accept this would be difficult for the applicant, but these difficulties would exist regardless of where he lived in Afghanistan. I do not consider this factor means it would not be reasonable for the applicant to relocate within Afghanistan.

The above paragraph indicates that the Authority has assumed that the Appellant’s family would not be relocating with him, and that they would remain in Iran.

63.    I accept that the applicant has no family or other existing support network in Mazar-e-Sharif. However, while such networks are deemed advantageous by DFAT and UNHCR, they are not deemed a prerequisite for successful relocation for able-bodied men. DFAT considers that men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, but that the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. In UNHCR’s view, the reasonableness of relocation is dependent on the effective availability of traditional support mechanisms, provided by members of the applicant’s extended family or ethnic group, and advises that the only exception for the requirement of external support are single able bodied men, without identified specific vulnerabilities. I have accepted that the applicant presents with a skin condition and that he has seen his doctor for other health matters in the past. However, there is nothing before me to indicate that any health issues or medical conditions have impacted on his ability to work in the past, or that those issues will act as a barrier to him being able to subsist in Mazar-e-Sharif. While traditional support networks are important in rural areas, such persons may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control. The applicant’s immediate family reside in Iran and as noted above, Tajiks are a dominant ethnic group in Mazar-e-Sharif and the applicant has demonstrated that he is resourceful and resilient and has successfully lived apart from his family and settled in unfamiliar places such as Kabul and Australia. [emphasis added]

Again, the last part of the paragraph above indicates that Authority has assumed that the Appellant’s family would not be relocating with him. Further, the Authority sets out the UNHCR’s view that single able-bodied men are regarded as an exception to the postulate that individuals relocating to Mazar-e-Sharif may struggle to subsist without family and community support. It is on this basis that the UNHCR considers the relocation to Mazar-e-Sharif of certain single able-bodied men to be reasonable in certain circumstances.

64.    Agriculture, wholesale and retail trade, manufacturing and construction are the main sectors of employment in Afghanistan. DFAT assess that economic and employment opportunities vary across the country, particularly in rural areas and areas directly affected by armed conflict. I accept that there is high underemployment and unemployment in Afghanistan. However, the city of Mazar-e-Sharif is one of the biggest commercial centres and the more stable security and greater economic opportunities will be conducive to the applicant finding employment. I also accept that due to Mazar-e-Sharif being a major urban area where IDPs and refugee/returnee populations are likely to settle in, there will be pressures in terms of accommodation, employment and basic services. I accept these factors would make relocation challenging. However, on the evidence before me and considering the applicant’s personal circumstances, I am satisfied that although he will face challenges, I am not satisfied. the applicant has any vulnerability (including any health issue or condition) which would act as a barrier to him obtaining employment to enable him to subsist in Mazar-e-Sharif.

65.    Overall, I accept there are economic and other challenges in relocating to Mazar-e-Sharif. I also accept that the applicant may face difficulties in establishing himself and that he may be affected by employment discrimination through nepotism. However, the applicant is of working age, and I am satisfied he would have some relevant skills and attributes gained through his experience of being gainfully employed in the construction and manufacturing industry which would support his ability to find employment upon return. I am satisfied the applicant would be able to access the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. I am also satisfied that over time, he will be able to integrate into the local community.

Paragraph 64 indicates one of the reasons why relocation to Mazar-e-Sharif is generally challenging is the “pressures in terms of accommodation, employment and basic services”. At [65], the Authority concludes that it is satisfied the Appellant would be able to access the necessary infrastructure and essential services to sustain himself. However, it is logical to suggest that the challenges might be even greater for a person seeking accommodation and basic services for not only himself, but also his wife and children. The Authority’s failure to consider this issue distinguishes its reasoning from the delegate’s reasoning in relation to relocation to Kabul quoted earlier in these reasons.

66.    I have noted the applicant’s and his representative’s concerns about the reasonableness of relocation in Afghanistan. However, in considering the applicant’s personal circumstances and the country information relating to Mazar-e-Sharif, including the social, economic and security situation, I am satisfied it is reasonable for the applicant to relocate to and remain in Mazar-e-Sharif.

It is to be noted that the Appellant’s desire to live with and support his family, while arising in the review material discussed earlier in these reasons, was not specifically raised by the Appellant in any representations regarding the reasonableness of his relocation to Afghanistan. Rather, it was raised in the Appellant’s submissions and statutory declaration in the review material as more of a general matter, and only specifically raised in the context of the relocation question by the delegate in relation to Kabul. Accordingly, the Authority concluding by noting the Appellant’s concerns should not be taken to be an implicit consideration of the capacity of the Appellant to support his wife and children in Mazar-e-Sharif in addition to himself.

Discussion

20    I have come to the view that the Authority and the primary judge fell into error. In my view, the Authority failed to consider a relevant material matter which clearly emerged from the review material, namely an objection to relocation to Mazar-e Sharif given the Appellant’s family situation, which the Authority should have appreciated and considered explicitly.

21    At the outset it is worthwhile recalling the sentiment expressed by Allsop CJ in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225 (‘Hands’) at [3] (albeit in a different context):

… where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

22    The first hurdle for the Appellant is to show that, as an objection to the reasonableness of relocation to Mazar-e Sharif, the question of whether the Appellant could support his family and himself there, sufficiently or clearly arises from the review material (which must be considered by the Authority): NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55]-[63] (Black CJ, French and Selway JJ). In my view it does.

23    On this topic, Allsop J (as the Chief Justice then was) said in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]:

… the unarticulated claim … must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to every day decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been [made], and then subjecting them to further analysis to assess their legitimacy. [emphasis added]

24    The authorities concerning this principle (whether an unarticulated claim “clearly emerges” or was “sufficiently raised”) were helpfully set out by the Full Court of this Court in ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 164; [2021] FCAFC 44 (‘ESQ18’) at [61] (the Court). As was said there, understanding whether a claim has clearly emerged from the material cannot be assessed in a vacuum, and consideration must be given to the way an applicant’s claims are presented over time. As is evident from the references set out at [14]-[15] of these reasons, the presence of the Appellant’s family in Iran and the possibility (and desire) that they would join him was raised on numerous occasions over time. Moreover, recognising the sentiment in Hands quoted above, it may be considered that a claim based on the need to support one’s family is more likely to “clearly emerge” from the material given the fundamental relevance of the matter in human terms. In considering the reasonableness of a husband and father’s relocation to an area of a country he has previously fled (although the area is not one in which it is found he has a well-founded fear of persecution), the consideration of his wife and children might accordingly “clearly emerge” from the references in the review material more easily (especially having regard to the principles of reasonable relocation detailed later in these reasons) than a more abstract claim based on an almost latent contextual fact.

25    The Appellant in this regard relied on CAF17 v Minister for Home Affairs [2019] FCA 2203 (‘CAF17’), where the issue of an unarticulated objection to reasonable relocation similarly arose. In that case, the applicant’s personal circumstances that were said to have clearly emerged yet were not considered in the context of relocation consisted of the totality of traumatic circumstances he had endured involving the Taliban, including multiple of his family members being murdered, beaten or threatened. Although the specific claim that such traumatic circumstances were a reason for the applicant not to be relocated was not made, the applicant did express his fear and anxiety at the prospect of return, and so Greenwood J at [69]-[72] found that the material squarely raised the issue of human trauma as an objection to relocation that ought to have been considered. Accepting that these circumstances are of a different quality to the Appellant’s in the case before me, the principle I draw from CAF17 is that the human significance of certain personal circumstances in the context of assessing “reasonable relocation” may be important in considering whether a claim “clearly emerges” from the review material.

26    In any event, aside from the nature of the claim and facts underlying it here, the main reason for my conclusion is the reference in the delegate’s decision (as quoted at [14(b)] of these reasons) to the Appellant’s capacity to support his wife and children for the purposes of assessing the reasonableness of relocation to Kabul.

27    Before going any further, I should indicate as highlighted in ESQ18, the “review material” includes the delegate’s decision. In that case, the delegate’s decision considered an unarticulated claim concerning an applicant’s fear of harm as a returnee from a Western country, but the Authority on review explicitly declined to do so. The Court said at [66]-[68]:

[66]    As stated above, it was common ground that the “review material” before the Authority included the delegate’s decision. We accept that was the case and note that this characterisation is consistent with the reasoning in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] in relation to a review under Part 7AA of the Act:

[T]he point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

[67]    The statutory scheme under Part 7AA of the Act expressly provides for a fast track review process, in which adverse decisions made by the Minister are automatically referred to the Authority for review by operation of s 473CA of the Act. While visa applicants are permitted to provide additional written submissions, Practice Direction 20 strictly limits those submissions to five pages. It is important to observe that those submissions supplement the material before the Authority and must be considered. The submissions do not, however, alter the Authority’s statutory obligation to consider the review material, including the claims that were dealt with by the delegate.

[68]    Moreover, in our view, the unarticulated claim is one that clearly emerges from the materials. While there is no precise standard for determining whether a claim had been “squarely raised” or “clearly emerges”, it is significant that the delegate considered the unarticulated claim as relevant based on the “established facts” that the appellant was a Shia Muslim who had lived outside Afghanistan for almost his entire life and therefore might be perceived to be a supporter of the Afghan government, or International community, by the Taliban or other insurgent groups.

28    The consideration of the Appellant’s family by the delegate stands in contrast to that of the Authority, accepting the relocation place is different (namely Kabul, not Mazar-e Sharif).

29    It is to be recalled that the delegate’s consideration was as follows:

Given the applicant’s family connections and prior experience of living in Kabul, albeit briefly, I also consider that if his wife and children chose to join him in Kabul, that it would still be reasonable for him to relocate there, and that he would be able to earn a livelihood, and find accommodation and access basic services sufficient not only for himself but also for his wife and children.

30    While the decision-maker’s task is informed by what an applicant puts forward, it is not necessarily confined to those matters. I accept that there is no obligation on a decision-maker to make its own further inquiries about the reasonableness of relocation in circumstances where there are no other obvious impediments to relocation.

31    While the delegate’s consideration of the unarticulated claim was more detailed in ESQ18, there was in the delegate’s decision here a clear mention made of the family and the Appellant’s capacity to support them in Kabul. The same question would logically and relevantly apply to Mazar-e Sharif in giving proper intellectual deliberation to the reasonableness of relocation.

32    The next question is whether the Authority in any event engaged with the issue of the Appellant’s family or otherwise dealt adequately with the issue of relocation. In my view it did not.

33    The appropriate test for whether there has been a failure to engage with a claim (or in this case an objection to relocation) is not whether the Authority is “aware” of a piece of evidence which could be relevant but is whether the decision-maker has engaged in an “an active intellectual process”: see Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [36] (per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).

34    A number of matters of principle concerning relocation are clear. In CAF17 at [55] and [58], Greenwood J conveniently set out the point of principle to be applied in this appeal:

[55]    The point of principle on this topic is this. In SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415, Tracey and Foster JJ note at [124] the relevant test for relocation set out in the High Court decisions of SZATV and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51 and observe that the answer to the question of whether it is practicable in the particular circumstances of the particular applicant to relocate, “in turn depends upon the framework set by the particular objections raised to relocation”, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) at 442-443 and especially at 443C-D, Black CJ; Whitlam J agreeing at 453; Beaumont J at 443-453 referring to the “generalised character of the appellant’s own material”. At 443C-D, Black CJ said this in Randhawa:

I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider these but having regard to the issues raised by the appellant and to the material that was before the decision-maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India.

…

[58]    If a claim (or objection to relocation) is expressly made or arises clearly on the materials before the Authority, the failure to address it constitutes a failure to conduct the review required by the Act and thereby jurisdictional error.

35    In the context of the reasonableness of relocation, Mortimer J stated in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (‘MZANX’) at [51] and [55]:

[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.

…

[55]    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…

[56]    Otherwise, the risk is that the assessment becomes formulaic, and removed from any real factual basis relevant to an individual person arriving in a place such as Kabul: in this case, to live with a partner and young child. That is, in fact, what will occur and there must be a considered attempt to assess what, in a real and practical sense, will happen to that individual and her or his family in those circumstances.

36    Where an applicant has dependent family members, it will usually be necessary for a decision-maker to consider whether or not those family members would accompany the applicant to the new “safe” area upon his or her return or in the reasonably foreseeable future. If so, matters such as the availability and adequacy of employment, the ability to support family, housing, education and healthcare in the “safe” area may also be relevant to an assessment of the reasonableness of the applicant relocating.

37    It is not a question of making a checklist to be considered in every case. The range of factors that will be relevant in any particular case will be largely determined by the case that the applicant seeks to be made out and other matters that may arise on the material: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443, 453.

38    The Authority’s references to the Appellant’s family are not in any way a consideration of his ability to provide for his immediate family upon relocation to Mazar-e Sharif. The references in [61] and [63] of the Authority’s decision are consideration of the Appellant’s claim that the Appellant has no family support in Mazar-e Sharif. The references to networks by the Authority are quite different to the issue here that needed consideration – that is, the ability of the Appellant himself to support his family, not to get the advantage of a family network. The reference in [62] is consideration of the Appellant not being able to visit his immediate family in Iran if he relocated to Mazar-e Sharif. The Authority addressed the Appellant’s employment, but only as a single person. The Appellant had lived away from his family for some time so (as put by Counsel for the Minister) this was not a new development. However, it was a situation the Appellant likely wanted to change. Further, I do not consider there is necessarily a “natural nexus” (as put by Counsel for the Minister) between a person obtaining employment and their ability to support their family such that the Authority’s consideration of the former issue can be taken to have been an implicit consideration of the latter in the circumstances. Much will depend upon the circumstances of the family and the type of employment. For example, the availability of sufficient accommodation for a family, access to schooling and health care, and the safety of the area for a family are all relevant matters: see MZANX [62]. Further, the Authority did not consider how or whether the Appellant’s wife and children could safely travel from Iran to Mazar-e-Sharif (which may also be relevant to the narrower principle of relocation under s 5J(1)(c)). These are the types of factors (amongst others) that required proper thought and consideration by the Authority in relation to the Appellant. Such considerations ought to have been addressed by the Authority but were not, and in that respect, the Authority was in error.

DISPOSITION

39    I do not need to consider in detail whether the error in Ground 2 is material. The Minister did not contend that the error in Ground 2 was not material, although the onus to demonstrate materiality is on the Appellant. In any event, in my view there was a realistic possibility that the Authority would or could have found that relocation to Mazar-e Sharif was not reasonable in light of the Appellant’s responsibility and desire to provide for his family and in light of the factors discussed above.

40    The Court will order that:

(1)    The appeal be allowed.

(2)    The orders of the Federal Circuit Court be set aside and in lieu thereof it be ordered that:

(a)    the decision of the Second Respondent be quashed; and

(b)    the First Respondent pay the Applicant’s costs in the Federal Circuit Court.

(3)    The First Respondent pay the Appellant’s cost of the appeal.

Associate:

Dated:    10 June 2022