Federal Court of Australia

FFQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 496

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the appellant to rely upon the amended notice of appeal filed on 3 March 2023.

2.    The appeal is dismissed.

3.    The appellant must pay the first respondent’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    The appellant is a national of Afghanistan who is a Shia Muslim of Hazara ethnicity. He arrived in Australia by sea to the Territory of Christmas Island on 21 February 2013. He did not hold a visa. Accordingly he is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth) (Act). On 23 May 2016, he was invited to make application for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV). He accepted the invitation and with the assistance of a migration agent, on 21 February 2017 applied for a SHEV.

2    A delegate of the Minister notified refusal of the visa application on 9 January 2018 on the ground that the appellant did not satisfy the criteria at s 36(2)(a) and (aa) of the Act. Concurrently, the application was referred to the Immigration Assessment Authority (IAA) for review under part 7AA of the Act.

3    On 17 September 2018, the IAA notified the appellant that it had affirmed the decision of the delegate. The IAA was not satisfied that the appellant met the criteria at s 36(2)(a) for a protection visa because he is a refugee or at s 36(2)(aa) because he is a person to whom Australia owes complementary protection obligations.

4    The appellant then applied to the Federal Circuit Court of Australia for judicial review of the IAA decision. He did not have the benefit of legal representation and relied on generic grounds of review to the effect that the IAA did not properly consider his claims. The primary judge dismissed the application for reasons published on 26 June 2020: FFQ18 v Minister for Immigration & Anor [2020] FCCA 1730 (PJ).

5    The appellant, again without the benefit of legal representation, filed a notice of appeal from the decision of the primary judge on 9 July 2020. He relied on three generic grounds of appeal. Fortunately, following the institution of the appeal he has received pro bono legal assistance from Mr T Lettenmaier, of the Western Australia bar. The Court is most grateful for his assistance.

6    By an amended notice of appeal filed on 3 March 2023, the appellant relies on new grounds that were not argued before the primary judge - often described as a constructive error. Counsel for the Minister, Ms K Hooper did not oppose a grant of leave to argue the new grounds. The hearing proceeded on that basis.

7    For the reasons that follow, I have concluded that the appeal must be dismissed.

Background facts

8    The appellant is from the Jaghori District (Jaghori), Ghazni Province (Ghazni), Afghanistan. He claims protection as a person who is a refugee within the meaning of s 5H of the Act and also that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal from Australia to Afghanistan, there is a real risk that he will suffer significant harm: s 36(2)(a) and (aa) of the Act. The basis for these claims is that he fears harm from the Taliban and Islamic State as a Shia Hazara who has worked for the government of Afghanistan and as a returnee from Australia.

9    The appellant accepts as accurate the summary of the primary judge of the findings made by the IAA at PJ [15], which for convenience I reproduce:

a)    Identity and family: The Authority accepted that the applicant is a Shi’a Hazara from a named district in Afghanistan, that his father was killed by the Taliban and that his brother has been missing since 2011. However, it found that the applicant had no profile and/or did not face any chance of harm in connection with his father’s death or his brother’s disappearance;

b)    Health: The Authority accepted that the applicant had some kidney issues, depression, stress and anxiety. It also found that there would be challenges in obtaining health care, but noted that the applicant would not be prevented from or denied access to health care or medication on return to Afghanistan. The Authority was not satisfied on the medical information that the applicant faced a chance of harm for any reason related to his current health circumstance;

c)    Abduction by the Taliban: The Authority accepted the applicant’s account of his first abduction by the Taliban in mid-2012 to be plausible, including the nature of his detention and escape. The Authority accepted that the first incident occurred. The Authority also accepted that the second abduction occurred in or about November 2012. However, the Authority was not satisfied that the second abduction was a targeted attack or that it was related to the first abduction, or connected with the applicant’s profile. The Authority was prepared to accept that ethnicity may have been a factor in the abduction. The applicant did not have a pre-existing profile with the Taliban who abducted him in late 2012, nor did they impute him with a profile of a person associated with or supportive of the Afghan government. The Authority found that forced labour and ransom were the motives here, but it did not discount the applicant may have been at risk if he had stayed in captivity. Having regard to all the circumstances and relevant country information, the Authority found that the applicant would not face a real chance of harm in connection with his abduction, detention and escape, or on the basis of any related or residual profile. The Authority concluded that the applicant’s fear of harm related to the abductions, and that any profile arising from those abductions was not well-founded;

d)    Employment: The Authority accepted that the applicant had previously worked for a private construction company, which contracted for projects connected with the Afghan government or the international community. The Authority found that the applicant’s work for his previous company was motivated by a desire for employment and income rather than to work for or support the government specifically. It further found that should the applicant return to that employment, he would have an indirect profile of someone associated with the Afghan government and/or the international community. The Authority noted that the applicant had been targeted once as a result of his employment, but it gave weight to the fact that he worked for four years otherwise without incident and that he returned to work after changes were made to his work patterns/areas and security. The Authority accepted that previous targeting occurred in an area where there was considerable insurgent activity and insecurity. However, the Authority was satisfied that the applicant’s former employer and the applicant would not have returned to work in that area. The Authority found that if the applicant returned home and worked as he did after the first abduction, the chance of him being targeted for abduction or other harm would be remote. In the event that the chance of harm was more than remote, the Authority was satisfied that the applicant could take reasonable steps to modify his behaviour to avoid a real chance of harm on the basis of this profile. The Authority was of the view that those steps would not conflict with the matters set out in s 5J(3) of the Migration Act;

e)    Ethnicity/religion: The Authority found the chance of the applicant facing harm from the Taliban on the basis of his religious and ethnic profile was remote. Country information suggested that the Taliban did not currently have a sectarian or ethnic agenda, rather the main targets of the Taliban remained the government, the international community and Afghan national security forces. The Authority noted that there was information to suggest the risk of harm from Islamic State Khorasan Province in some areas was elevated. However, it found that in the applicant’s home area this risk was very remote;

f)    Road security: Taking into account the applicant’s individual circumstances and country information, the Authority found that the applicant could safely access his home area, whilst noting that there had been incidents involving Hazaras on the roads. That is, it was of the view that there was not at real chance of serious harm arising from the applicant’s religious and ethnic profile;

g)    Societal discrimination: The Authority found that the applicant may experience societal discrimination, however it noted that this was not at a level that would threaten the applicant’s capacity to subsist, or would otherwise constitute or amount to serious harm. In the context of the applicant returning to his home area, the Authority held that the chance or risk of discrimination or other harm for reasons of his ethnicity, religion or related profile would be highly remote, and that there was no real chance of the applicant facing discrimination or harm in that context;

h)    Claims related to time in the west: The Authority was of the view that the applicant’s status as a returnee from the west or an asylum seeker would be unremarkable. It noted that the applicant would be returning to a region of Afghanistan with limited insurgent activity, where he was already known and where his family continued to live. It also noted that the applicant was unlikely to be viewed with suspicion or imputed with any adverse profile or harmed. Further, the Authority noted that the applicant had spent the overwhelming majority of his life in his home area, and would be highly fluent in local culture. Moreover, the Authority noted that his familial and tribal links would not only benefit him in terms of reintegration, work and accommodation, but also in avoiding any suspicion or adverse profile. The Authority held that it was very unlikely that the applicant would be viewed with suspicion, considered an infidel, a spy for the west or otherwise targeted on the basis that he was a returnee or former asylum seeker. The Authority was not satisfied that there was a real chance of the applicant facing harm, whether considered separately or cumulatively, if he returned to live in Afghanistan;

i)    General insecurity and violence: The Authority noted that the security situation in Afghanistan had deteriorated in recent years, and that there were dangers to low profile civilians living in the applicant’s home province. However, it noted that insurgent or generalised violence was not at such a level, scope or frequency that the applicant would face a real chance of harm as a civilian if he returned to live in his home province or district. The Authority held that the chance of the applicant being harmed in generalised or insurgent violence was present but remote. It accepted that there were elevated risks for Shi’a Hazaras in Kabul, however was of the view that the applicant’s stay in the capital would be temporary. Given the occasional, albeit serious nature of the attacks in Kabul and against its airport, the Authority was of the view that there was not a real risk or chance of the applicant facing harm for any reason during any temporary stay in Kabul prior to travelling to his home region. Ultimately, the Authority was of the view that the applicant could safely access his home area, and it would be reasonable for him to remain in that region, and/or to travel infrequently into less secure areas; and

j)    Complementary protection: For similar reasons to its refugee findings, the Authority found that the applicant did not face a real risk of significant harm.

(Footnotes omitted.)

10    Before me the appellant emphasised aspects of the written submission that he made to the delegate: that there had been a number of Taliban attacks near Hazara dominated areas in 2017, relevant country information confirmed that the security situation in Afghanistan was complex, highly fluid and deteriorating, that safe regions should not be compartmentalised or the risks assessed without attention to the wider conflict in the country and that any withdrawal of foreign forces could lead to further conflict and an increased risk faced by Hazaras. It was also stated that attacks against Hazaras were infrequently reported and that Jaghori lacks a police or military personnel presence.

11    The IAA referenced the fluid security situation, accepted that the appellant was a Shia Hazara from the Jaghori region of Ghazni, accepted that the security situation in Afghanistan had deteriorated and that the Taliban remained engaged in a violent and armed insurgency, concluded that the Hazarajat region, which includes Jaghori, was safe and that the appellant would only face a remote risk of harm from insurgent or generalised violence because those areas are Hazara dominated.

Amended appeal grounds

12    The constructive error now relied upon finds expression in a single amended appeal ground:

The Federal Circuit Court of Australia erred by failing to find that the second respondent constructively failed to exercise jurisdiction by misunderstanding or misapplying sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) because it did not assess what was likely to occur in the future in relation to generalised violence in Afghanistan.

Alternatively, the Federal Circuit Court of Australia erred by failing to find that the second respondent ignored or misunderstood material before it in relation to generalised violence in Afghanistan.

Particulars

a)    Whether the appellant faced a real chance of serious harm or a real risk of significant harm required the second respondent to assess what was likely to occur in the future.

b)    The second respondent accepted that the security situation in Afghanistan was fluid and had deteriorated, and that Ghazni was volatile (at [14] and [64]).

c)    There was information before the second respondent that indicated that:

i.    the security situation was deteriorating;

ii.    country information, including recent assessments, did not necessarily accurately predict the security situation in Afghanistan; and

iii.    there had been recent violence and attacks throughout Afghanistan and proximate to the Hazarajat.

d)    In reaching its finding that the appellant only faced a remote chance of serious harm, the second respondent did not undertake any assessment as to the nature and extent of generalised violence in Afghanistan in the future (at [64]-[67]).

e)    The second respondent relied on its anterior findings and found that the appellant did not face a real risk of significant harm because of generalised violence in Afghanistan.

13    Counsel for the appellant submits that the IAA erred jurisdictionally in failing to consider the risk that the appellant would likely face from generalised or insurgent violence in the reasonably foreseeable future. Acknowledging that the IAA did reference the relevant legislative provisions and concluded, overall, that the appellant was not at risk of generalised or insurgent violence, nonetheless he submits that:

… the Authority’s reasons in relation to the generalised or insurgent violence demonstrate that it unduly focused on the past and present security situation in Afghanistan, particularly, Jaghori, Ghazni and the Hazarajat, but it did not look to the future, let alone the reasonably foreseeable future. The Authority recorded that the security situation in Afghanistan was fluid and deteriorating and that Ghazni was volatile and insecure. However, when it considered the risk faced by the appellant it did not consider whether the relative stability in Hazara dominated areas may change in the reasonably foreseeable future given the fluidity. It simply found that, at the relevant time, the country information indicated the level of violence was such that there was only a remote risk. The Authority then relied on this finding to conclude that the appellant could avoid harm by staying in Hazara controlled areas within the Hazarajat.

14    A further error that is asserted is that the IAA ignored significant probative material upon which it ought to have speculated in assessing the real risk that the appellant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia.

15    That material included evidence of a range of attacks carried out close to Hazara dominated areas and a report authored by Professor William Maley in October 2017 (Maley report) which stated that as at the that time the Department of Foreign Affairs warned of the “extremely dangerous security situation and the very high threat of terrorist attack” with the consequence that “[t]ravel to all areas of Afghanistan remains unsafe” per the US department of State March 2017 warning. Professor Maley then observed that:

It is essential to appreciate that the situation in Afghanistan is extraordinarily fluid, and assessments of the situation made even quite recently do not necessarily provide an accurate picture of the situation going into 2018 and beyond. Roads that may have been safe to traverse in 2012, 2013, 2014, 2015, 2016 or 2017 may be unusable in 2018, and towns and cities that appear ‘safe’ in 2017 may be extremely unsafe in 2018. The notion that it would be a safe option for an Afghan Hazara to fly to Bamiyan and proceed by road to Jaghori fails in the face of this fluidity.

16    An alternative argument that counsel relies upon is that even if the IAA did consider and assess the risk of harm in the reasonably foreseeable future, it ignored or misunderstood this material which, it is said, is evidenced by the fact that the statement of reasons do not demonstrate engagement with the appellant’s assertions that country information may not accurately predict the internal security situation, areas that were once safe may rapidly become unsafe and the withdrawal of foreign forces may exacerbate the risks faced by Shia Hazaras.

17    In contrast, counsel for the Minister submits that a fair reading of the IAA reasons as a whole demonstrates that there was no failure to assess the reasonably foreseeable future which included an assessment and understanding of the fluidity of the situation in Afghanistan but which limited the ability to engage in reasonable speculation over any particular period of time. It is further submitted that the analysis by the IAA demonstrates that as a matter of substance an assessment was undertaken of the events as they may ultimately unfold in the reasonably foreseeable future. Emphasis is placed on particular findings that the question of generalised violence and deterioration in the security situation in Afghanistan had been considered. In answer to the alternative submission, the Minister makes the point that the IAA was not obliged to consider every piece of information and every contention put to it and that there is no basis for the appellant to discharge his onus that it ignored or misunderstood relevant material.

Consideration

18    The refugee and complementary protection criteria each require an assessment of the risk of harm faced by an applicant in the reasonably foreseeable future. By s 5J(1)(b) of the Act a person has a well-founded fear of persecution if, inter alia:

[T]here 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).

19    By s 36(2)(aa) of the Act, the criteria is expressed as satisfaction that:

…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.

20    As explained by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [33] per Kenny, Griffiths and Mortimer JJ, the assessment which s 36(2)(a) of the Act requires is:

The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.

21    The operation of the complementary protection regime was explained by the Full Court in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211; [2012] FCAFC 147 at [18]-[20] per Lander, Jessup and Gordon JJ. The “real chance” and “real risk” tests are the same: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [246], Lander and Gordon JJ, [296], Besanko and Jagot JJ and [342] per Flick J; DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38 at [43] per Banks-Smith and Jackson JJ.

22    It is an error for a decision-maker to put aside reasonable speculation if there is probative supporting material: Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595; [2019] FCAFC 132 at [107]-[108] per Mortimer J (Moshinsky J concurring). Each counsel accepts that the presently relevant principles were set out by Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60] as to what is meant by the phrase “reasonably foreseeable future”:

The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.

23    The task required by s 36(2)(aa) of the Act is prospective and assessed by reference to the consequences of removal: DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10 (DQU16) at [18]-[19] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ. A “real chance” or “real risk” requires consideration of prospects that are neither remote nor far-fetched: DQU16 at [10].

24    The IAA was conscious of the material relied on by the appellant as to the risk he claimed he would face if returned to Afghanistan and at the hands of the Taliban. It was accepted that his father was killed by the Taliban and his brother had been missing since 2011. However, the appellant did not claim to fear harm directly in connection with those events, beyond “the general risk from the Taliban or other armed groups”. The appellant’s account that he was abducted by the Taliban while working on a road construction project in 2012 was found to be plausible. The IAA accepted that this event was consistent with country information “about insurgent groups targeting people associated with the government and the international community, particularly on the roads, and conflict related abductions.” However, the IAA concluded on this aspect that the appellant was not at risk of any “ongoing threat from the Taliban in his home area” by reason of the fact that he had returned to work as a road worker after this incident.

25    The IAA further found that the appellant did not have a profile with the Taliban “beyond being able-bodied and Hazara”. Moreover, the IAA found that if the chance of harm “faced by the applicant is more than remote, I am satisfied the applicant could take reasonable steps to modify his behaviour to avoid a real chance of harm on the basis of” a profile that he was a person who had worked for the Afghan government or the international community. To this end, it was open to the appellant to modify his work patterns and travel or to engage in other forms of work, particularly as a tiler which was at times his occupation in Australia.

26    The risk to the appellant from Islamic State Khorasan Province (ISKP) was also considered. The IAA accepted a growing risk to Afghanistan’s Shia population from ISKP but that the territorial reach of this group was limited. There was no evidence of past attacks by ISKP in the home area of the appellant nor intelligence which confirmed that it was active in his area. Accordingly, the IAA concluded that “there is only a very remote, and therefore not a real chance, of the applicant facing harm” from ISKP in the Jaghori area of Ghazni. By way of conclusion relating to the appellant’s claims of risk of harm based on his religion and ethnic profile, the IAA found:

Weighing everything before me, I find there is not a real chance of the applicant facing harm from the Taliban, ISKP or any other armed group or person, within his home region in Jaghori, in Ghazni, the neighbouring Hazara-dominant districts, or on the roads, for reasons of his religion, ethnic or related profile. Even when I consider these factors cumulatively, in terms of profile, potential risk factors, and analysis/data about attacks, I am satisfied there is no real chance of harm. I consider his fears for these reasons are not well founded.

27    Next the IAA considered the appellant’s claims that he fears harm if returned to Afghanistan, having spent time in Australia. He contended that he would be treated as an infidel or as a spy. The IAA did not accept this claim as unsupported by the material submitted by the appellant and available at the time. Country information published by the Department of Foreign Affairs and Trade on 18 September 2017 for Afghanistan did not provide useful information as to the claimed risk. The IAA then referenced the Maley report by way of a footnote to the final sentence at paragraph [58]:

Outside of two reports of returnees from Australia being targeted in Ghazni in 2014, there is little in the way of recent and specific information, examples of attacks, or other clear advice available that indicates that persons with the profile of living in or returning from the west (Australia), and/or who sought asylum in Australia, have been targeted for serious harm for those reasons on return to the country, or because of an imputed political opinion or other profile. Other reports do not highlight this as a risk profile or provide recent examples or data of persons being targeted on the basis of such a profile. Indeed, over three years after the two incidents in 2014, a report cited by the applicant provides no further examples of returnees being targeted on the basis of such a profile

(Footnotes omitted.)

28    The IAA noted that the appellant had not provided “much detail” as to why he feared harm if removed from Australia and returned to Afghanistan. The IAA noted a report from the United Nations Office for the Coordination of Humanitarian Assistance published in 2016 that more than 600,000 documented and undocumented people had returned to Afghanistan by the end of that year, and on average 4,300 persons had returned per day since mid-July 2016. In considering all of this material, the IAA concluded that the appellant’s status as a returnee from Australia “would be unremarkable”, he being one of many Afghans returning to their home country from elsewhere. In the appellant’s case he would return to Jaghori, where he is already known and where his family lives - an area with limited Taliban activity.

29    The IAA then turned to the appellant’s claims of generalised and insurgent violence in consequence of insecurity in Afghanistan. The IAA accepted that the security situation in Afghanistan had deteriorated in recent years, that a number of anti-government elements, most notably the Taliban and Islamic State, had engaged in a violent armed insurrection, but attacks are generally targeted though often result in indiscriminate civilian casualties. Although Islamic State had targeted the minority Shia Hazara population, it did not appear that this group had been active in Jaghori or Hazarajat. The security deterioration was most notable in Kabul, in contrast to the more secure situation in Jaghori and other Hazara dominated regions. The risk likely to be faced by the appellant in consequence of the generalised and specific violence in Afghanistan was addressed by the IAA at [67] as follows:

I acknowledge parts of Ghazni are insecure, that parts of the province are under Taliban control and there are civilian casualties from insurgent attacks and ground engagements. However, I do not consider the country information before me indicates that insurgent or generalised violence is at such a level, scope or frequency, that the applicant would face a real chance of harm as a civilian if he returned to live in Ghazni, particularly if he returned to live in his home area of Jaghori and the surrounding Hazara areas in the Hazarajat. No area in Afghanistan is immune from violence, and this includes Jaghori and Ghazni, however, when having regard to the low number of security incidents in his home district, the favourable security situation in the Hazarajat, the applicant’s lack of any active profile or proximity to those with a risk profile, and given the lack of advice to suggest that a civilian with the applicant’s experience and profile would be at a real chance of harm, I find the chance of the applicant being harmed in generalised, or insurgent violence is present, but remote.

30    The IAA separately considered the risk that the appellant will suffer significant harm as a necessary and foreseeable consequence of removal from Australia at [71]-[75]. Relying upon the earlier findings that the appellant “could safely access and return to his home area”, together with the relative stability of security in Jaghori and surrounding districts, the IAA found at [73] as follows:

I have found above there is not a real chance of the applicant facing harm for any reason related to the two abduction incidents with the Taliban in 2012; as a person associated with, or perceived as supportive of, the Afghan Government (or any actual or imputed political opinion related to those factors); for reasons of his religious, ethnic or any related profile; as a returnee from the west (Australia) or an asylum seeker (or any related political opinion or other profile); his health; through generalised or insurgent violence; or on the basis of any other related profile arising or considered above. I have also found that he would not face any chance of discrimination on the basis of his ethnic or religious profile in his home area in Jaghori. For the same reasons, and having regard to the same information, I am satisfied there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to his home area in Afghanistan, the applicant will face a real risk of significant harm.

31    This review of the reasons of the IAA reveals, contrary to the appellant’s submissions, that consideration was given to the risk faced by the appellant from generalised or insurgent violence in accordance with the refugee and complementary protection criteria in the reasonably foreseeable future. The IAA at [64] accepted that security in Afghanistan in consequence of generalised and insurgent violence had deteriorated in recent years. This finding when read with those at [67] is redolent of consideration by the IAA of the future risk that the appellant may suffer from insurgent or generalised violence, which risk was found, on the country information then available, not to be of a level, scope or frequency that the appellant “would face a real chance of harm as a civilian” if returned to live in Ghazni. This assessment was not limited to prior risk. The IAA acknowledged at [14] that the security situation in Afghanistan was fluid, had deteriorated in recent years (at [64] and [65]) but that in comparison, the regions of Jaghori and Ghazni being in Hazara dominated areas were relatively secure: at [66], [67] and [68]. It is the risk faced by the appellant if returned to these areas of Afghanistan that were focused on.

32    The appellant criticises the IAA for undertaking “a relatively curtailed assessment of the risk of harm in the future”. I reject that submission. The IAA acted upon the materials as then presented, was conscious that the security situation was fluid and ultimately found that the appellant’s return to a Hazara dominated area would not likely present any material risk of harm from generalised or insurgent violence.

33    The second way in which the appellant’s argument is put is that the IAA ignored or misunderstood the difficulty of assessing the likely future security situation in Afghanistan by reference to the Maley report. This submission at once faces a significant hurdle: the Maley report is referenced directly by the IAA at [58] and indirectly at [64] where footnote (22) is a reference to the appellant’s post interview submission which, in turn, quotes extensively from the Maley report at page 5.

34    As counsel for the appellant acknowledges, the onus of establishing a basis to draw an inference that the IAA overlooked or misunderstood this material is not lightly discharged: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [48] per Griffiths, White and Bromwich; EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796 at [44]-[49] per Perry J.

35    The appellant has failed to discharge that onus in this case. As these reasons demonstrate, the IAA was cognisant of the difficulty of predicting the likely future security situation in Afghanistan, in the knowledge that it had deteriorated in recent years. However, the IAA focused upon the relative security likely to be encountered by the appellant in Jaghori and the surrounding Hazara areas in Hazarajat, which were found to be the traditional homeland of the Hazaras: a mountainous region consisting of a number of provinces where Hazaras make up approximately 40% of the estimated population of 1.2 million people and that Hazaras are visually distinct, with the consequence that non-Hazaras are likely to find it difficult to infiltrate these areas without detection: at [66]. These findings specifically address the likely risk that would be faced by the appellant, in contrast with the more generalised assessment in the Maley report.

36    For these reasons, the appeal fails and I order as follows:

Associate:

Dated:    22 May 2023