Federal Court of Australia

CXT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 645

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Immigration Assessment Authority be quashed, and a writ of mandamus issued requiring the matter be determined in accordance with the law.

3.    The Minister pays the appellant’s costs below and of the appeal.

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

REASONS FOR JUDGMENT

ROFE J:

Introduction

1    This is an appeal from the Federal Circuit Court (FCC, now the Federal Circuit and Family Court of Australia) dismissing an application for judicial review of the Immigration Assessment Authority’s decision dated 6 September 2016, to affirm the decision of a delegate of the respondent Minister not to grant the appellant a protection visa.

2    The Authority found the appellant would face a real risk of significant harm in his home area of Logar as a returned asylum seeker but that he would not face a real risk of significant harm if returned to Kabul.

3    The appellant raises two grounds of appeal, both relating to whether the appellant could reasonably relocate to Kabul: s 36(2B)(a) of the Migration Act 1958 (Cth).

4    For the reasons that follow, the appeal is allowed.

Background

5    The appellant is a young man who is a citizen of Afghanistan of Tajik ethnicity and Shia faith. He was born in the Khoshi district, Logar province in Afghanistan and resided there until his departure from Afghanistan in April 2012. In 2010, the appellant’s father, who supplied confectionary to the Afghan National Army, was killed by the Taliban. His mother and siblings now reside in Pakistan.

6    The appellant arrived in Australia via Pakistan, Malaysia and Indonesia and lodged an application for a temporary protection visa on 18 December 2015, claiming he would be harmed by the Taliban on return due to his imputed pro-government profile as his father had supplied goods to the Afghan army. He also claimed that he was at risk of serious harm from the Taliban, associated extremist groups including Islamic State and the Sunni majority due to his Shia faith and as a returnee from the West.

7    The delegate refused to grant the protection visa on 19 July 2016, and on 6 September 2016, the Authority affirmed that decision under review.

Information before the Authority

8    The appellant attended an interview to discuss his protection visa application on 10 May 2016. The appellant’s lawyers provided a submission in support of that protection visa application. In lengthy and detailed submissions in support of his visa application made 24 May 2016, the appellant’s lawyers drew attention to the security situation in Kabul and submitted that the appellant would be at risk of harm if forced to reside in Kabul. The appellant’s lawyers specifically noted that:

Recently, the Taliban perpetrated a ruthless attack in Kabul. We submit that this attack indicates the Taliban’s power in Kabul is increasing. Further, the attack demonstrates that the Afghan Authorities are not in a position to prevent atrocities from occurring in the nation’s capital.

Afghan Attack, Kabul Suicide Blast, Deaths Rise, BBC News, 20 April 2016

The death toll from a huge explosion in the centre of the Afghan capital Kabul on Tuesday has more than doubled to 64 people, the government says. Interior Ministry spokesman Sediq Sediqqi tweeted that 64 “innocent Afghans” were killed and 347 wounded.

A suicide attacker detonated a vehicle and a fierce gun battle followed in one of the deadliest attacks in Kabul for years. A Taliban spokesman said the group carried out the attack.

It came a week after it said it was launching its “spring offensive”, warning of largescale attacks, although the group fights all year round.

Tuesday's bombing happened during the morning rush hour in Pul-e-Mahmud, a busy neighbourhood where homes, mosques, schools and businesses nestle close to the ministry of defence, other ministries and military compounds.

The blast shattered windows up to 1.6km (one mile) away. A police officer told the Associated Press it was one of the most powerful explosions he had ever heard, and he could not see or hear anything for 20 minutes after.

It appears the initial blast cleared the way for Taliban fighters to enter the area - a commonly used tactic.

It had previously been reported that at least 28 people had been killed and 329 injured.

Mr Sediqqi told reporters that most of the 64 now reported dead were civilians. He said most of the wounded were in a stable condition.

At least 71 Shia worshippers were killed in 2011 in a rare attack on a Shia shrine in Kabul. Afghan security forces regularly foil similar attacks, correspondents say, but with explosives easily available and bomb-making skills common, it is difficult to prevent all of them

(Emphasis added.)

9    The submissions also quoted the following passage from the most recent DFAT Country Information Report (September 2015):

2.5 Insurgent forces are contesting the Afghan Government's control in many areas. No part of the country can be considered totally free from conflict-related violence, which escalated markedly over the course of 2014 and 2015 (see 'Security Situation' below). As a result, economic development, health care and education services are affected in many parts of the country.

2.31 According to the UNAMA Annual Report on the Protection of Civilians in Armed Conflict, the conflict in Afghanistan resulted in 10,548 civilian casualties (3,699 deaths and 6,849 injured) in 2014, a 25 per cent increase in civilian deaths and a 21 per cent increase in civilian injuries compared to 2013.

The number of civilian casualties is the highest recorded since the UN began tracking civilian casualties in 2009. According to the UN, anti-government elements were responsible for 72 per cent of civilian casualties in 2014, with 12 per cent attributed to the ANDSF, two per cent to international military forces, and 14 per cent to a mixture of incidents where casualties could not be attributed to a particular party to the conflict (this includes unattributed incidents caused by explosive remnants of war, and cross-border shelling from Pakistan into Afghanistan). In its 2015 mid-year update, UNAMA recorded a further one per cent increase in civilian casualties in the first six months of 2015 compared to the same period in 2014. Soon after the release of this update, on 7 August 2015, a series of attacks in Kabul resulted in an estimated 355 civilian casualties (deaths and injuries), which is the largest number of civilian casualties in a single day since data collection started in 2009.

The significant rise in casualties in 2014 reflects an increase in the frequency and intensity of ground engagements across Afghanistan. Casualties from ground engagements increased by 52 per cent in 2014, coinciding with the withdrawal of international military forces and combat air support.

Casualties are expected to continue to rise in 2015. UNAMA reportedly documented 2,937 civilian casualties (974 deaths and 1,963 injured) in the first four months of 2015, a 16 per cent increase on the same period in 2014.

Insurgent forces contest many areas of the country and no part of the country can be considered free from conflict-related violence. The situation remains fluid. While the government retains control of much of the country, particularly in the provincial and district centres, some areas are openly contested, with varying levels of control exerted by the government and by insurgents. The security situation across the country deteriorated significantly over the last 12-18 months, as anti-government groups intensified their efforts and the international military contingent gradually withdrew.

(Emphasis added.)

10    Specifically addressing the prospect of the appellant relocating to Kabul, the submission stated:

We submit that the applicant would be at risk of serious harm in Kabul for reason of his religion, imputed political opinion and membership of a particular social group. The most recent attack in Kabul has claimed many lives of innocent civilians. Accordingly, we submit that the applicant would still be at risk of harm upon relocation.

11    On 19 July 2016, a delegate of the Minister of Immigration and Border Protection refused the visa:

I also note that s 5J(l)(c) of the Act requires that the real chance of persecution relate to all areas of the receiving country. Given that Kabul is the logical point of any future return by the applicant to Afghanistan from Australia, and ‘provides the most viable option for many people for internal relocation and resettlement in Afghanistan’ due to it [sic] mixed ethnic and multi-faith composition, I consider that an assessment of the applicant’s claims vis a vis Kabul forms a natural starting point for considering the existence of whether a well-founded fear of persecution exists throughout the country.

12    Since the delegate’s decision there had been a number of reports of a suicide bombing targeting peaceful Shia Hazara demonstrators in Kabul on 23 July 2016. These reports indicated at least 80 people were left dead, with hundreds injured.

13    The Authority decision noted that on 11 August 2016, the Authority invited the appellant to comment on information in relation to the suicide bombing and to provide information as to the reasonableness of the appellant relocating to any other areas in Afghanistan “other than Kabul”. One wonders why further information was sought from the appellant as to the reasonableness of locating to areas other than Kabul, when the delegate had found the appellant, “given his low profile, did not face a real chance of persecution or a real risk of significant harm in Kabul” and that it was reasonable for the appellant to locate to Kabul.

14    The terms of the Authority’s request for further information were as follows:

You are invited to comment on the following information that may be the reason, or part of the reason for affirming the decision of the Department of Immigration and Border Protection:

•    Commentary from Afghanistan Analysts Network in respect to the regional group, Islamic State in Khorasan Province (ISKP) which claimed responsibility for the bombing of Shia demonstrators in Kabul on 23 July 2016 states:

“In terms of taking over territory, ISKP's attempts to expand beyond Nangarhar have failed miserably. However, it does seem to enjoy an appeal much beyond Nangarhar and as far as Kabul in part due to the defection of militants who were previously Taleban, as well as to the presence of a more radical Salafi-jihadist cell in the largest urban centre in Afghanistan. There, it seems to be capable of planning and executing occasional operations against not so-fortified targets, with the help of local recruits, that can cause mass casualties, such as the 23 July 2016 attack. The prospect of ISKP establishing a territorial foothold in Kabul is, however, a distant one.”

•    Commentary from HIS Jane's Intelligence Weekly in respect to the regional group affiliated to the Islamic State, Wilayat Khorasan (WK), (the other name for ISKP) which states:

“Despite the Kabul attack, WK is unlikely to gain substantial strength in Afghanistan in at least the one-year outlook. WK has largely struggled to control territory, even in Nangarhar where its influence is strongest. The Taliban has been aggressive in eradicating any WK supporters and factions, and government counter-terrorism efforts have disproportionately targeted WK fighters in relation to the group's operational strength. Moreover, WK's leadership is dominated by former Tehrik-e-Taliban Pakistan (UP) commanders, which alienates local communities and undermines recruitment.

Nevertheless, WK is clearly operating per the Islamic State’s guidelines for evolving operations and building capacity. The group is currently operating in an insurgent mode – in which it is unable to seize and hold territory – and is therefore focused on building strength and conducting asymmetric operations to cause maximum casualties and damage. WK fighters are consequently likely to infrequent “one-off” attacks in urban areas, primarily in Jalalabad and Kabul. Likely targets include foreigners, religious minorities (mainly Shia Hazaras), security forces, and assets associated with the Pakistani state.”

This information is relevant to your case because it may lead the IAA to conclude that future attacks upon Kabul’s Shia population are likely to be infrequent, and not to such an extent as to pose a real chance or risk of harm to you. This may form part of the reason for affirming the decision under review.

You are invited to provide the following information in writing:

•    Information as to why it would not be reasonable for you to relocate to any other areas of Afghanistan apart from those places you claim you will suffer harm.

You are also invited to comment on the following information that may be relevant to your case:

•    Country information that Tajiks form one of the majority ethnic groups in Balkh province. Mazar e Sharif has in the last decade, been relatively isolated from the conflict. It is reportedly one of the safest cities in Afghanistan, much more so than Kabul. Mazar e Sharif's economy is reportedly growing stronger.

•    Country information that Herat city is a Tajik-dominated enclave in a Pashtun-majority province, which has a large Shia population of Tajik and Hazara origin.

•    Country information indicates there are international airports in Mazar e Sharif and Herat accepting flights from Kabul and international locations.

15    The appellant’s lawyers responded on 25 August 2016, noting specifically:

We note the Authority has contended that the country information forwarded may indicate that future attacks upon Kabul’s Shia population are likely to be infrequent and not to such an extent as to pose a real chance or real risk of harm to the applicant. With respect, we submit that reliance should not be placed on commentary which merely predicts whether future attacks will occur in Kabul. The reality of the situation is that only a few weeks ago, an attack was deliberately perpetrated against the Shia Muslim Community in Kabul resulting in the death of at least eighty people and leaving hundreds more injured. The recent attack is categorical evidence, the Shia Muslim Community are at risk of harm in Kabul, Afghanistan. Further as outlined within the commentary of William Maley dated 24 July 2016 and attached, DFAT reports that the ‘frequency of attacks in Kabul have increased significantly’. Further, the US Department of State have stated on 22 June 2016 that ‘the extremists associated with various Taliban networks, Islamic State of Iraq and Levant and members of other armed opposition groups are active throughout the country’. These sources coupled with information from a wide variety of independent sources previously forwarded to the Department and the Tribunal indicate that there is a real chance the applicant would face harm no matter where he resides in Afghanistan.

We note that the information forwarded from the Afghanistan Analyst Network notes that ISKP have not been able take over territory and therefore it seems unlikely they will establish a territorial foothold in Kabul. It is highly evident however that the report indicates that they are able to plan and execute operations which cause mass casualties. Given the most recent attack was specifically perpetrated against the Shia Muslim Community and Islamic State and associated groups have shown an ongoing disdain for the Shia Muslim Community, the fact they have the capacity to commit such atrocities is in itself enough to indicate there is a real chance the applicant may face serious harm from Islamic State in the future. Islamic State backed groups have demonstrated that they do not require territory in order to pose a serious threat to the communities including the Shia Muslim Community.

…

We conclude that it is not relevant nor reasonable for the applicant to relocate to Kabul, Herat or Mazar-e-Sharif. It is our submission the applicant is at a real risk of serious harm no matter where he resides in Afghanistan.

Conclusion

The above country information coupled with the applicant’s claims for protection indicate that there continues to be a real risk that the applicant would suffer significant and serious harm if returned to Afghanistan.

(Citations omitted and emphasis added.)

16    The appellant’s response also reiterates that it would not be reasonable or relevant to expect the appellant to relocate to Kabul. The response extracted the following section of the UNHCR Guidelines:

Moreover, the presence of members of the same ethnic background as the applicant in the proposed area of relocation cannot by itself be taken as evidence that the applicant would be able to benefit from meaningful support from such communities in the absence of specific pre-existing social relations connecting

The extent to which applicants are able to rely on family networks in the proposed area of relocation also has to be considered in light of the reported stigma and discrimination against those who return to Afghanistan after spending time abroad. Where the proposed area of relocation is an urban area where the applicant has no access to preidentified accommodation and livelihood options, and where he or she cannot reasonably be expected to be able to fall back on meaningful support networks, the applicant would likely find him- or herself in a situation comparable to that of other urban IDPs.

To assess the reasonableness of such an outcome, adjudicators need to take into account the scale of internal displacement in the area of prospective relocation, and the living conditions of IDPs in that location. Relevant considerations in this regard include the fact that IDPs are considered to be among the most vulnerable groups in Afghanistan, many of whom are beyond the reach of humanitarian organizations; as well as available information to the effect that urban IDPs are more vulnerable than the non-displaced urban poor, as they are particularly affected by unemployment; limited access to water and sanitation; and food insecurity

(Emphasis in original.)

17    The appellant’s response cites Professor William Maley, Professor of Diplomacy at the Australian National University, who had provided information indicating it is not safe to return ethnic minorities to Kabul. The response extracts the following passage:

The mere fact that there may be people of similar ethnic background living in a potential relocation destination does not overcome this problem, since ethnic identities do not in and of themselves give rise to the ties of personal affinity and reciprocity that arise from family connections. Indeed one mistake observers, including Afghan Observers on occasion make is to underestimate the degree of differentiation amogs [sic] groups such as the Hazaras, including distinctions between elite and non-elite figures, distinctions based on district of origin and tribe and distinction based on values and ideology.

18    The appellant’s response also attached a recent commentary of Professor Maley. After outlining his experience, Professor Maley’s report stated:

2.     Western governments continue to paint a very grim picture of the dangers affecting those in Afghanistan. The Australian Department of Foreign Affairs warns as of 24 July 2016 of ‘the extremely dangerous security situation and the very high threat of terrorist attack’. It goes on that the ‘frequency of attacks in Kabul has increased significantly’, that ‘Terrorist attacks can occur anywhere, anytime, and are particularly common in Kabul, and the southern and eastern provinces’, and that ‘Lawlessness exists in rural areas’. The US Department of State warns as of June 22, 2016 that ‘Travel to all areas of Afghanistan remains unsafe’, that ‘Extremists associated with various Taliban networks, Islamic State of Iraq and the Levant - Khorasan Province (ISIL-KP), and members of other armed opposition groups are active throughout the country’.

3.     It is essential to appreciate that the situation in Afghanistan is extremely fluid, and assessments of the situation made even a year ago do not necessarily provide an accurate picture of the situation in the first half of 2016. Roads that may have been safe to traverse in 2012, 2013, 2014 or 2015 may be unusable in 2016. In February 2016, the United Nations Assistance Mission in Afghanistan reported that ‘In 2015, UNAMA observed a sharp increase in the abduction and killing of civilians of Hazara ethnicity by Anti-Government Elements. Between 1 January and 31 December, Anti-Government Elements abducted at least 146 members of the Hazara community in 20 separate incidents. All but one incident took place in areas with mixed Hazara and non-Hazara communities, in Ghazni, Balkh, Sari Pul, Faryab, Uruzgan, Baghlan, Wardak, Jawzjan, and Ghor provinces’ (Afghanistan: Annual Report 2015 - Protection of Civilians in Armed Conflict (Kabul: UNAMA, 2016) p.49). With the withdrawal of foreign forces, there is a great deal of apprehension amongst Afghans about the future of the country, and there is a grave risk that Afghanistan will fall victim to what social scientists call a ‘cascade’, where even people who despise the Taliban decide to shift support to them because they think they are going to come out on top anyway. This is a well-recognised phenomenon (see Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2005) pp.94-98) and it would likely create especially grave risks for people of Hazara ethnicity since targeting Hazaras could be a device by which other groups might seek to establish their credentials in the eyes of the Taliban.

4.    Given this fluidity, it is a serious mistake to conclude that Afghanistan is safe for Hazaras. The disposition of extremists to strike at them has not disappeared. This was tragically demonstrated on 6 December 2011, when a suicide bomber attacked Shiite Afghans, most of them Hazaras, at a place of commemoration in downtown Kabul during the Ashura festival that marks the anniversary of the Battle of Karbala in 680 AD. Almost simultaneously, a bomb in Mazar-e Sharif also killed Afghan Shia. The Kabul bomb killed at least 55 people, and the Mazar bomb four more (see Hashmat Baktash and Alex Rodrigues, ‘Two Afghanistan bombings aimed at Shiites kill at least 59 people’, Los Angeles Times, 7 December 2011). The Afghan photographer Massoud Hossaini was awarded the 2012 Pulitzer Prize for his photograph of the aftermath of the Kabul atrocity: see <www.pulitzer.org/works/2012-Breaking-News-Photography>. A claim of responsibility was made by the Pakistani Sunni extremist group Lashkar-e Jhangvi, which has a long history of sectarian violence against Shia (see Muhammad Qasim Zaman, ‘Sectarianism in Pakistan: The Radicalization of Shi'i and Sunni Identities’, Modern Asian Studies, vol.32, no.3, 1998, pp.689-716). The key point to note is that no one with any knowledge of Afghanistan could seriously doubt that Hazara Shia were specifically targeted on this occasion. To depict this attack as an isolated incident misses the underlying history of antagonism towards Hazaras that is pertinent to assessing what the future holds. It is the kind of reasoning that would have defined the 1938 Kristallnacht experience in Germany as an isolated incident. The same conclusion flows with respect to the attack on peaceful Hazara demonstrators in Kabul on 23 July 2016, discussed in paras.8-9 (below).

…

8.     This was brutally demonstrated on 23 July 2016, when a peaceful demonstration by Hazaras associated with the so-called ‘Enlightening Movement’ (Jumbesh-e Roshnayi) over the routing of a proposed electricity system was struck by a suicide bombing. At least 80 people were left dead, and hundreds injured; ISIS claimed responsibility for what it called ‘a “martyrdom attack” on Shiites’ (Mujib Mashal and Zahra Nader, ‘ISIS Claims Suicide Bombing of Protest in Kabul, Killing at Least 80’, The New York Times, 24 July 2016, p.A6). The implications of this attack are profound. It demonstrates a capacity on ISIS’s part to strike targets in the heart of the Afghan capital, where the presence of Afghan security forces is relatively strong; in the light of ISIS’s claim of responsibility, it puts on display a commitment to attack on the basis of religious identity, plainly engaging one of the bases of refugee status under Article 1.A(2) of the 1951 Convention Relating to the Status of Refugees; and it highlights particular dangers for Hazaras, who are overwhelmingly Shiite, are physically distinctive because of their East Asian phenotypes, and make up the vast bulk of the Shiite component of the Afghan population.

(Emphasis added.)

19    The appellant sought judicial review of the Authority’s decision.

20    The appellant’s submissions dated 6 February 2020, before the primary judge, included the following:

3.    The Authority failed to properly complete its statutory task of considering the applicant’s personal circumstances in assessing the reasonableness of relocation including: discrimination he may face [as] a returnee from the west, the likelihood of the applicant obtaining employment in Kabul and the nature of that employment or accommodation; and the risk of harm posed by sectarian and terrorist violence to the applicant in Kabul.

…

Discrimination and stigma for returnees from the west

12.     The risk of stigma was raised in both the applicant’s submissions. In the SHEV submissions it was argued the applicant would be at risk of harm anywhere in Afghanistan because he could be identified as a returnee from the west (CB 159 – 160). In relation to relocation the submission noted the applicant’s risk of harm in Kabul would be “exacerbated” by the fact he was returning from a western country (CB 173).

13.     The applicant’s IAA submission extracted the following quote form the updated UNHCR guidelines in relation to relocation:

The extent to which applicants are able to rely on family networks in the proposed area of relocation has to be considered in light of the reported stigma and discrimination against those who return to Afghanistan after spending time abroad (CB 221).

[emphasis in original]

The excerpt was taken from a section of the UNHCR guidelines dealing on the capacity of returnees could rely on family networks upon return to Afghanistan.

Risk of harm in Kabul

14.     The applicant claimed he faced a real risk of serious harm in Kabul due to the rise of the Islamic state. As a Shi’a Muslim, Tajik, and returnee from the west the applicant would be particularly at risk of sectarian violence from the Islamic state and other extremist groups (CB 173 – 174; 217 – 218). The applicant also relied on the expert opinion by William Maley regarding the fluid security situation in Kabul.

…

19.     The Authority made no positive findings that the applicant would obtain employment or what type of employment the applicant may obtain. Further, the Authority made no findings as to the nature of accommodation available to the applicant. Additionally, the Authority made no reference to the risk of sectarian and militant violence in Kabul or discrimination against returnees from the west in its analysis of relocation.

…

Grounds of Review

…

23.     It can be inferred that the issue of discrimination against returnees from the west was not considered for the following reasons:

a.     The issue was potentially relevant to the key issue in the Authority’s assessment of relocation: the applicant’s capacity to obtain employment and accommodation.

b.     The Authority expressly considered the submission in relation to refugee assessment at [28], but not in relation to relocation. The omission suggests the Authority only considered the issue in relation to whether any discrimination constituted persecution.

c.     The Authority expressly summarized the applicant’s submissions in relation to relocation at [38] of its reasons. The summary of the submissions was fulsome but omitted the applicant’s status as a returnee.

…

27.     The Authority has made an error of the type identified in MZACX. The applicant was at some risk of violence on account of being a Shi’a Muslim, and a civilian caught up in insurgent attacks. Had the Authority considered the risk of harm, it may have found that it was unreasonable for the applicant to relocate to Kabul given the challenging economic circumstances coupled with the risk of violence he would have to face. The Authority gave no weight to the risk of harm in its relocation analysis. The Authority asked itself the wrong question in relation to relocation: whether the applicant faced a real risk of significant harm in Kabul, and thereby overlooking the relevance of a lesser risk to the question of relocation.

(Emphasis added, citations omitted.)

21    On 1 April 2021, the FCC dismissed the appellant’s application for review, finding the Authority decision was not affected by an error of law and did not deny the appellant procedural fairness.

Legislative context

22    Section 5H(1) of the Act provides:

5H Meaning of refugee

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

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

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

23    A person has a “well-founded fear of persecution” if, relevantly, the real chance of persecution relates to all areas of his or her receiving country: s 5J(1)(c).

24    Sections 36(2) and 36(2B) of the Act relevantly provides:

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

…

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

…

(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.

25    It is well established that s 36(2B)(a) involves two questions. First, whether objectively there is a place within the relevant country where there would not be a real risk that the non-citizen will suffer significant harm and, secondly, whether it would be reasonable for the non-citizen to relocate to that place: MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 161 ALD 73 at [35], applied in CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156.

26    In MZACX at [35], Kenny J contemplated that in dealing with the second question, of the reasonableness of relocation:

[I]t may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry.

27    In the present case it is not alleged that the Authority conflated the two stages of the inquiry but, rather, that it failed to recognise that the risk of harm was relevant to the second stage of the inquiry and that, within that stage, a risk of harm that is not able to be characterised as significant harm may also be relevant.

28    The error, the appellant submitted, was of the kind found by Wheelahan J in CXO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 17 in which his Honour was satisfied that it should be inferred the decision maker did not consider the general security situation in Kabul when assessing the reasonableness of the non-citizen relocating there.

29    Justice Greenwood in DQA17 v Minister for Home Affairs [2020] FCA 864 set out the relevant principles guiding “reasonableness” of relocation at [106]. In setting out the thirty forth principle his Honour, cited Kenny J in MZACX and said:

… in the relevant case, subject to the content of the claims of an applicant and the way in which the particular circumstances of the visa applicant are framed and identified, it may be relevant to consider a question of whether the visa applicant is exposed to, or at risk of, a class of harm which may not fall within the description ‘significant harm’, in the proposed place of relocation. That consideration is engaged by the question of what would be ‘reasonable’.

30    The question whether it is necessary to consider whether the non-citizen is exposed to a risk of harm other than significant harm in the place of relocation depends on the facts and, in particular, how the non-citizen framed their claims for protection: CSZ16 at [10]. The appellant’s objections to relocation form the framework for the analysis: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at 439, [124].

31    In the context of the second question: the reasonableness of relocation, Mortimer J (as she then was) stated in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [51], [55] and [56]:

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. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. …

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.

32    The question whether the Authority did in fact consider whether the appellant was exposed to a risk of harm other than significant harm in the place of relocation depends on the inference that should be drawn from the decision-maker’s reasons as a whole, read fairly, and in the context of the claims as made.

Authority decision

33    The Authority’s reasons (A) record at A[4] to [7] the exceptional circumstances enabling it to consider new information, not before the delegate, being the information provided by the appellant in response to the Authority’s request for comment and new country information on the targets of the Taliban in 2012 and the Taliban presence in Logar.

34    At A[12] to [19], the Authority considers the appellant’s perceived affiliation with the Afghan government and is ultimately satisfied there is a real chance of the appellant being physically harmed if he returns to his home village due to an imputed political opinion.

35    At A[20] to [30], the Authority concludes it is not satisfied that the appellant faces a real chance of persecution upon return to Kabul in the reasonably foreseeable future.

36    The Authority then considers at A[32] to [41], for the purpose of the complementary protection criteria per s 36(2B) of the Act, that there is no real risk that the appellant would suffer significant harm as it would be reasonable for him to relocate to Kabul.

37    It is convenient at this stage to set out the paragraphs of the Authority’s reasons relating to its consideration of the first and second questions and where the Authority concludes it is reasonable for the appellant to relocate to Kabul. These paragraphs are at the heart of the appeal:

36.    I have found that there is not a real chance that the applicant will face serious harm in Kabul due to his imputed political opinion as a returnee from the West, as a Tajik Shia or due to his father's previous employment. As the ‘real risk’ test imposes the same standard as the ‘real chance’ test, for the reasons stated above I am also not satisfied that there is a real risk of the applicant suffering significant harm on the return to Kabul for those reasons.

37.    Given the current security situation in Afghanistan, I have given consideration to whether there is a real risk of significant harm due to generalised violence in Kabul. Country information indicates that there was a marked increase in security incidents in Kabul in 2015; however DFAT assesses that the primary targets are government institutions, political figures, the Afghan National Defence and Security forces (ANDSF), personnel associated with NATO’s Resolute Support Mission and other coalition forces, other security services, international organisations and diplomatic representatives of some countries. Despite this, these attacks cause significant casualties among civilian bystanders in addition to those being targeted. The Afghan government maintains effective control over Kabul, and a range of counter-measures have been put in place to prevent and respond to insurgent attacks. Although these measures provide a deterrent and ANDSF are quick to respond, attacks are still common. People associated with the government or the international community are at significantly higher risk than ordinary Afghans in Kabul, but I have concluded the applicant does not have such a profile in Kabul. I am therefore not satisfied that there is a real risk of him facing significant harm on the basis of the general security situation in Kabul.

38.    I have therefore considered whether it is reasonable for the applicant to relocate to Kabul on return. The applicant’s representative submits that the applicant has no extended family or tribal links in Kabul, as his immediate family are currently living in Pakistan. The applicant would be vulnerable to exploitation and harm as he would have no access to accommodation or a support network; as the oldest male member of his family he would not be afforded financial support from his family to enable him to subsist in Afghanistan, nor would he be able to provide for his family; he has limited work experience and no formal education and it would be difficult to obtain services and employment as unemployment is very high and without connections or a network he would find it difficult to subsist. The applicant’s representative cites the UNHCR guidelines and excerpts from Professor Maley in relation to the reasonableness of relocation.

39.     UNHCR advised that many internally displaced people end up in large urban centres which have limited absorption capacity and where access to services remains a major concern. Kabul has seen the largest population increase with 70% of the population being estimated to live in informal settlements which are poorly located and under-serviced. I have had regard to the representative's submissions based on the UNHCR recommendations for considering the reasonableness of relocation. I also note that UNHCR advises that the only exceptions for the requirement of external support are single able bodied men and married couples of working age without identified specific vulnerabilities. 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. DFAT has also advised that traditional extended family and tribal community structures are the main protection and coping mechanisms for people in Afghanistan, however in practice, lack of financial resources and employment opportunities are the greatest constraints to successful internal relocation which is generally more successful for single men of working age although lack of family or tribal networks for single men can impact on their ability to reintegrate into the Afghan community. However the financial situation of Kabul residents and their employment opportunities are also reportedly worsening.

40.     The applicant is an able bodied male of working age. He is unmarried and has no children. Although I accept that he may feel obligated to provide financial support to his mother and siblings, I note that the applicant stated at interview that his mother provided for the family after his father’s death and after his departure from Afghanistan she continued to manage the family land. Although his family have now moved to Pakistan there is no further information in respect to their circumstances in Pakistan. He has completed education to Year 8 level, is literate in Dari, and he has gained a basic knowledge of English in Australia. The applicant has limited work experience in farming and is working as a forklift driver in Australia. He has demonstrated resilience in travelling from Afghanistan to Australia as an 19 year old and does not present with any health problems or other specified vulnerabilities identified by UNHCR as requiring durable support. Whilst I accept that living conditions in Kabul would not be without difficulties and he may face challenges in establishing himself, particularly as he has no family links in Kabul which he would be able to utilise, I am not satisfied that the applicant would be unable to obtain accommodation or employment. Although unemployment and underemployment is common reportedly due to the influx of returnees and internally displaced people which has put pressure on the local labour market, Kabul offers a greater range of employment opportunities particularly in the service sector, including in small businesses and in the construction industry. Although the applicant is not currently involved in these industries he has demonstrated resourcefulness in his ability to adapt and acquire new skills, a quality which would assist him in establishing himself on return to Kabul. Taking into account the applicant’s personal circumstances I find it reasonable for the applicant to relocate to Kabul.

(Footnotes omitted.)

Primary judge’s reasons

38    The appellant pressed two grounds of review before the FCC in relation to the reasonableness of the appellant relocating to Kabul, both of which were rejected by the primary judge:

1.    The Immigration Assessment Authority’s (Authority) decision is affected by jurisdictional error as the Authority failed to consider the applicant's objection to relocation - or a matter arising from the material - that it was not reasonable for the applicant to relocate to Kabul having regard to the discrimination the applicant would face being a returnee from a western country.

2.    The Authority’s decision is affected by jurisdictional error as the Authority asked itself the wrong question in not considering the risk of harm falling below the “real risk” threshold in assessing the reasonableness of the applicant relocating to Kabul.

39    With respect to the first ground, the primary judge accepted the potential for discrimination and the related impact on relocation was either raised by the appellant or arose from the materials (Reasons for Judgment (J), [22]–[26]).

40    Similarly, his Honour accepted at J[47] that the impact of generalised violence in Kabul on relocation had emerged or been raised by the appellant.

41    In relation to discrimination, his Honour observed that the Authority plainly considered the difficulties that may be encountered by persons returning to Kabul. The primary judge considered that the express references to “difficulties” at A[28] was broad enough to encompass discrimination faced by a returnee.

42    His Honour also referred to A[40] where the Authority references “difficulties” and “challenges” that may be faced by the appellant in Kabul which he considered similarly encompasses difficulties arising from discrimination.

43    His Honour found that the Authority made findings about whether the appellant could obtain employment and accommodation in a sufficiently broad manner as to cover the appellant’s concern whether relocation, as a potentially relevant factor, was taken into consideration: J[33].

44    His Honour also considered that the Authority was cognisant of the discrimination the appellant claimed he would face when it reached its conclusions at A[37]–[40].

45    His Honour also refers to the Authority’s consideration of the UNHRC guidelines to support its conclusions at J[34]–[35]:

34     There is one further matter which I regard as of some significance in relation to the matters set out above. At paragraph [38] of the reasons, the Authority refers to the Applicant's representative citing ‘the UNHCR guidelines and excerpts from Professor Maley in relation to the reasonableness of relocation’. The UNHCR Guidelines are contained within a submission of the Applicant set out at Court Book 221. I have extracted part of Court Book 221 earlier in these reasons that contains the UNHCR Guidelines. It can be seen from that extract, and from the reference in paragraph [38] of the reasons, that the Authority was cognisant and had in mind the discrimination the Applicant claimed he would face when it reached its conclusions in paragraphs [37] – [40].

35     For the above reasons, in my view, the Authority did not fail to consider in its analysis of relocation, the impact of discrimination the Applicant would face as a returnee from the West on the Applicant's capacity to relocate, or on the likelihood of him obtaining employment or accommodation in Kabul.

46    In relation to the risk of harm that was less than the real risk threshold in respect of relocation, his Honour concluded that the Authority in considering the appellant’s “personal circumstances” was sufficient in the context of the decision. His Honour noted at J[49]–[50] that the Authority’s reasons included discussion of:

    the control by the Afghan government and the presence of insurgent and criminal violence;

    targets of insurgents in Kabul; and

    risks of generalised violence in Kabul, and including as referred to by the UNHCR guidelines and excerpts from Professor Maley.

47    The primary judge concluded at J[51] that when the Authority concluded at A[40] that it had taken into account the appellant’s personal circumstances in concluding that it was reasonable for the appellant to relocate to Kabul, the Authority was referring to, amongst other things, the risks to the appellant arising because he faced a risk of harm that was less than the real risk threshold in respect of relocation.

The appeal

48    The appellant raises two grounds on appeal:

1.    The Federal Circuit Court erred in not finding that the decision of the Second Respondent is affected by jurisdictional error as the Second Respondent failed to consider the Appellant’s objection to relocation – or a matter arising from the material – that it was not reasonable for the Appellant to relocate to Kabul having regard to the discrimination the Appellant would face being a returnee from a western country.

Particulars

a.     The Second Respondent accepted that the Appellant would be at a real risk of significant harm pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) in his home area Khoshi.

b.     The Second Respondent found pursuant to s 36(2B)(a) of the Act that the Appellant could reasonably relocate to Kabul to avoid significant harm.

c.     The Appellant claimed – or alternatively the argument clearly emerged from the material – that it would not be reasonable for the Appellant to relocate to Kabul, because of the discrimination he would face as a returnee from a western country.

d.     The Appellant argued by ground 1 in the Federal Circuit Court that the Second Respondent failed to consider the impact of such discrimination in assessing whether it was reasonable for the Appellant to relocate to Kabul.

e.     The Federal Circuit Court erred in holding at [28] – [39] of the reasons for judgment that the Second Respondent had considered the impact of discrimination in assessing the reasonableness of relocation.

2.    The Federal Circuit Court erred in not finding that the decision of the Second Respondent is affected by jurisdictional error as the Second Respondent asked itself the wrong question in not considering the risk of harm from violence that fell below the “real risk” threshold in assessing the reasonableness of the Appellant relocating to Kabul.

Particulars

a.     The Appellant repeats particulars (a) – (b) of ground 1.

b.     The Second Respondent accepted that there was some risk of harm to Shi’a Muslims and civilians in Kabul, but the Appellant did not face a “real risk of significant harm” in Kabul.

c.     The Appellant argued by ground 2 in the Federal Circuit Court that the Second Respondent failed to consider the risk of harm to the Appellant as a civilian and Shi’a Muslim – albeit lower than a real risk – in its consideration of the reasonableness of relocation under the Act.

d.    The Federal Circuit Court erred in holding at [50] of its reasons for judgment that the Second Respondent had considered the risk of generalised violence in assessing the reasonableness of relocation.

49    In the present appeal, the appellant submits the Authority failed to consider two submissions going to the practicality of relocation, being the presence of discrimination against returnees in Kabul and the presence of generalised or insurgent violence.

Ground 2

50    In written and oral submissions, the appellant’s counsel commenced with ground 2.

51    The appellant submitted that having found that there was a risk of generalised violence in Kabul in the context of assessing the first question: whether there would be a real risk that the appellant would suffer significant harm in Kabul, it was incumbent upon the Authority to take that risk of generalised violence into account in assessing the reasonableness of the appellant’s relocation to Kabul. The Authority’s reasons do not reveal that it engaged in that step.

52    The appellant submitted that the risk of generalised violence in Kabul was one of the circumstances “on the ground” in Kabul, and that the Authority failed to have regard to that risk of generalised violence in its assessment of the reasonableness of relocation.

53    The error, the appellant submitted, was directly analogous to the kind found by Wheelahan J in CXO16 in which his Honour was satisfied that it should be inferred the decision-maker did not consider the general security situation in Kabul when assessing the reasonableness of the non-citizen relocating there.    The appellant observed that the critical four paragraphs of the Authority’s reasons, extracted at [19] to [20] of the judgment in CXO16, are identical in structure and extremely similar to A[36] to [40] in the present case. In CXO16 the Authority found at [63] that generalised violence existed in Kabul but the risk to the visa applicant fell below a “real risk”. In CXO16 the Authority noted the appellant’s objections to relocation at [64]; cited country information including the UNHCR guidelines and DFAT report at [65]; and reached a conclusion at [66] (CXO16, [20]). Wheelahan J held at [50]:

As a matter of text and structure, from [64] onwards the Authority’s reasons switch attention from the question of real risk that the appellant would suffer significant harm in Kabul to the question of reasonableness of relocation. There is nothing in the text of the Authority’s reasons from [64] onwards that addresses expressly the matters to which the Authority referred at [63].

54    His Honour then rejected specific arguments put by the Minister as to why the security situation was implicitly considered. Given the similarity in the reasons the appellant submits that his Honour’s findings are equally applicable to this case.

55    In its consideration of the second question the Authority was required to make a detailed consideration of both the circumstances on the ground at the place of proposed relocation and the individual circumstances of the appellant. The appellant submits that the Authority’s reasons do not reveal how generalised violence was considered, if it was implicitly considered.

56    The appellant submits that the references made by the primary judge to the appellant’s “personal circumstances” to which the Minister refers, do not capture generalised violence. The ongoing risk of violence and fluid security situation in Kabul is not a matter personal to the appellant, the reference to “personal circumstances” was a reference to the appellant’s age, work experience, and family links.

57    The appellant submits that the reference to excerpts from Professor Maley’s opinion related to the need for family networks, and did not suggest generalised violence was considered. The Authority at A[38] detailed the appellant’s submissions regarding his lack of family support in Kabul, and the difficulties in obtaining employment and accommodation in Kabul without a family network. The Authority then noted the appellant’s representative had cited “excerpts from Professor Maley in relation to the reasonableness of relocation”. Logically, the Authority was referring to the fact that Professor Maley had been cited in support of the submissions just outlined, the need for family networks to be able to subsist. This interpretation is reinforced by the Authority’s use of the word “excerpts”. The only excerpts from Professor Maley extracted in the representative’s submission related to whether an Afghan could rely on members of the same ethnic group

58    The Minister submitted that the Authority did not fail to consider the risk of the appellant being harmed as a result of generalised violence in Kabul. Contrary to the appellant’s submissions, the Minister submits that A[40] cannot be read in isolation; as the primary judge reasoned (at J[44]–[51]), regard needs to be had to the whole of those reasons to put A[40] in its proper context.

59    Even if it were assumed that the Authority failed to take into account the risk of generalised violence in assessing the reasonableness of relocation to Kabul, the Minister submitted that any error was not jurisdictional. This submission does not call for an inquiry as to what the Authority could realistically have decided had it taken generalised violence into account at A[38]–[40], but rather involves identification of the jurisdictional restraints on the Authority’s exercise of powers conferred on it. The question of reasonableness involves comparison between the conditions prevailing in the place of habitual residence and those in the putative safe haven. The failure to consider generalised violence alone in the application of s 36(2B)(a) of the Act will not, therefore, sound in invalidity if the visa applicant would not be substantially worse off in the putative place of relocation than in their place of habitual residence.

60    The Minister submits that the Authority’s findings at A[20]–[21], [23], [25] and [37] point strongly against any risk of insurgent or generalised violence in Kabul being a relevant factor. Circumstances in Kabul were found to be markedly better than in Logar: the appellant did not face a real chance of persecution or a real risk of significant harm (A[30], [36]); the Afghan government “maintain[ed] effective control over Kabul” (A[20], [37]); and there was not a real risk of generalised violence confronting the appellant (A[37]). Thus, any non-real (eg remote) risk of generalised violence in Kabul could not be a factor that would make relocation unreasonable. By not giving weight to this factor when assessing the reasonableness of relocation, the Minister submitted that the Authority might have made an error of law but it was within jurisdiction.

Consideration

61    For the first aspect of s 36(2B) the Authority finds that there would not be a real risk that the non-citizen will suffer significant harm in Kabul. In making that finding the Authority had regard to the appellant’s imputed political opinion as a returnee from the West, as a Tajik Shia, or due to his father’s previous employment (A[36]). The Authority also considers the generalised violence in Kabul and similarly concludes it is not satisfied there is a real risk of the appellant facing significant harm in Kabul (A[37]).

62    The Authority says at A[38], after its consideration of whether there is a real risk of facing significant harm, that “[they] have therefore considered whether it is reasonable for the applicant to relocate to Kabul on return”. The Authority in its consideration of whether it would be reasonable for the appellant to relocate to Kabul does not then separately discuss the risks of generalised violence for the appellant personally.

63    I accept that the Authority considers violence against returnees from the West, or those imputed to have pro-Western political opinion, in relation to the first question at A[26], [28] and [29].

64    The Minister says the Authority was under no obligation to expressly refer to the generalised violence. The Authority was entitled to pick up, even if not expressly, its earlier findings that there was not a real risk of significant harm (eg that the risk of such harm was remote) made in the course of addressing the first limb of the relocation test.

65    In the present case, the appellant’s submissions to the Authority squarely raised objection to relocation to Kabul on the basis of the general security situation in Kabul, in addition to the objections that were specific to the appellant’s personal circumstances.

66    The Authority considered the current security situation in Afghanistan and the risk of generalised violence in the course of addressing the first aspect of s 36(2B); whether Kabul was a place where there would be a real risk of the appellant suffering significant harm. After finding, at A[36], there was not a real risk of the appellant suffering significant harm on relocation to Kabul due to his imputed political opinion as a returnee from the West, as a Tajik Shia or due to his father’s previous employment, the Authority turned to consider whether there was a real risk of significant harm to the appellant due to generalised violence in Kabul.

67    At A[37] the Authority observed that country information indicated that there was a marked increase in security incidents in Kabul in 2015, and that despite the primary targets of the attacks being government institutions, political figures, personnel associated with coalition forces and the like, the attacks caused significant casualties amongst civilian bystanders in addition to those being targeted. Not being a member of the targeted groups, the Authority considered that it was not satisfied that there was a real risk of the appellant facing significant harm on the basis of the general security situation in Kabul.

68    Thereafter, from A[38] the reasons switch attention from the question of real risk that the appellant would suffer significant harm in Kabul (question 1) to the question of reasonableness of relocation (question 2). The Authority focussed its considerations on whether it was reasonable for the appellant to relocate to Kabul on return. I am not persuaded that fairly read, the reasons of the Authority indicate that the Authority gave any consideration to the reasonableness of relocation having regard to the general security situation in Kabul including the matters set out at A[37].

69    There is nothing in the Authority’s reasons that reveal how generalised violence was considered, or if it was implicitly considered. The reasons do not reveal whether the Authority disregarded it, gave it some weight but found it would not affect the appellant, or gave it significant weight.

70    A consideration of the specific matters to which the primary judge at J[49] to [51] referred as supporting a conclusion that generalised violence was considered, do not support that consideration:

(a)    The Authority’s findings at A[25] and consideration of relevant matters set out in A[37] relied upon by the primary judge is in precisely the same terms as that in [51] and [63] respectively, of the Authority’s reasons in CXO16.

(b)    The Authority’s findings at A[21] form part of the Authority’s consideration under the heading “Fear of Harm in relation to all of Afghanistan”. A[21] is directed to whether the appellant’s specific circumstances, his Tajik ethnicity, his imputed profile due to his father’s employment, his residence in a Western country, and his own lengthy absence from Logar would bring him to the attention of insurgents in Kabul. It is not a consideration, express or implied, of the risk of generalised violence in Kabul.

(c)    A[25], which duplicates [51] of the Authority’s reasons in CXO16, considers country information, as set out in A[20], which indicates that insurgent groups continue to target “high profile groups and places in Kabul, including government institutions, political figures, ANDSF, personnel associated with coalition forces, other security services, international organisations and diplomatic representative of some countries”. The Authority found that the appellant does not have any profile or association with these groups and his potential to be identified as a Shia Tajik returnee who has lived in a Western country was not likely to bring him to the attention of insurgents. This finding was directed to the question of whether the appellant by reason of his personal circumstances would face a real chance of serious harm in Kabul; eg the first, not the second question.

(d)    The reference to the appellant’s “personal circumstances” in the final sentence at A[40] did not capture generalised violence. The ongoing risk of violence and fluid security situation in Kabul is not a matter personal to the appellant. Rather the reference to “personal circumstances” was a reference to those of the appellant’s circumstances which the Authority expressly addressed in A[40], namely that he was an unmarried, childless, able bodied man of working age with limited work experience and education to Year 8, and no family support in Kabul, although with potential obligations to help financially support his mother and siblings in Pakistan. Contra CXO16, the Authority did not reject any of the appellant’s claims as to his personal circumstances.

(e)    The reference to Professor Maley’s opinion does not suggest generalised violence was considered. The Authority at A[38] detailed the appellant’s submissions regarding his lack of family supports in Kabul, and the difficulties in obtaining employment and accommodation in Kabul without a family network. The Authority then noted the appellant’s representative had cited “excerpts from Professor Maley in relation to the reasonableness of relocation”. Logically, the Authority was referring to the fact that Professor Maley had been cited in support of the submissions just outlined: the need for family networks to be able to subsist in Kabul. This interpretation is reinforced by the Authority’s use of the word “excerpts”. The only excerpt extracted in the submission (set out above) related to whether an Afghan could rely on members of the same ethnic group.

71    I consider that the Authority failed to consider the risk of harm falling below a “real risk” in assessing whether it was reasonable for the appellant to relocate to Kabul. The primary judge erred in holding at J[50] that the Authority had considered the risk of generalised violence in assessing the reasonableness of relocation.

72    Had the Authority considered the question of reasonableness of the appellant relocating to Kabul, having regard to the general security situation there, there was a realistic possibility of a different outcome on review, and therefore the error was material and jurisdictional: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 at [45].

73    The formulaic nature of the Authority’s consideration fortifies me in my conclusion that the Authority failed to consider the general security situation in Kabul for the purposes of evaluating the reasonableness of relocation. By this I mean that paragraphs A[36], [37] and [39] where the Authority sets out its consideration of the complementary protection issue appear in precisely the same form as paragraphs of the Authority’s decision in CXO16 at [62], [63] and [65] where that issue is considered. Paragraph A[38], like the Authority’s reasons at [64] in CXO16, sets out the appellant’s submissions as to his personal circumstances. Paragraph A[40] shares the identical conclusion to the Authority’s reasons at [66] in CXO16.

74    Paragraph A[34] is in almost precisely the same terms as the Authority’s reasons at [60] in CXO16 except for the bolded words below which are different:

I have found that there is a real chance the applicant may be killed or physically harmed due to his imputed political opinion as a returnee from the West and his father's former employment if he returns to Khoshi district, Logar province. I am satisfied that this harm amounts to significant harm. As the ‘real risk’ test imposes the same standard as the 'real chance' test, I am satisfied for the reasons previously given that the applicant faces a real risk of significant harm in Khoshi district.

75    The “reasons previously given” are those findings made at A[25] to [30], which with the exception of the last two and a half lines of A[29] are also copied from the Authority’s decision in CXO16, including the conclusion that the appellant does not meet s 36(2)(a) at [31] (CXO16 Authority decision at [57]).

76    In SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81, the private contractor acting in the capacity of an independent merits reviewer had adopted a method of cutting and pasting earlier decisions to produce the reasons in the appellant’s applications. The Full Court, provided with copies of 62 decisions from the same hearing officer with many overlapping paragraphs, observed at [19] and [20]:

Our conclusion is that Mr Karas used a method of cutting and pasting earlier decisions to produce his reasons on the appellant’s application. This is probably not surprising where a large number of similar applicants make similar claims. One can perhaps sympathise with the position of a decision-maker who, confronted with the same argument 100 times, opts to copy what he has said on the earlier occasions.

There are, of course, risks with adopting such a practice as the facts of this case bear out. Chief amongst these is that the risk of overlooking the actual submissions made is increased. Allied with that risk, or perhaps overlapping it, is the potential to fail to consider each case on its own merits. It is true that this Court has held that generic reasoning of the kind used by Mr Karas does not, by itself, bespeak ostensible bias: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at 237-239 [43]-[50]. But be that as it may, the practical risks to which we have referred exist.

77    Where, as here, the Authority’s consideration of the relevant question is largely cut and paste from an earlier decision, and the Court has found that consideration to be inadequate for the reasons set out in CXO16, it would be difficult to accept that the identical consideration was adequate in this case. Such a result is one of the practical risks to which the Full Court referred in SZRBA.

78    Ground 2 succeeds.

Ground 1

79    The appellant submits that the primary judge held that consideration in relation to the issue of discrimination was subsumed into findings of greater generality (J[31]–[35]).

80    The appellant submits the primary judge erred in finding the impact of discrimination on stigma against returnees from the west was considered by the Authority in assessing relocation. The appellant considered the Authority gave a fulsome summary of the appellant’s submissions at A[38], which failed to consider discrimination, and then addressed those submissions at A[40].

81    The appellant submits the word “difficulties” in describing living conditions at A[40] is not sufficiently specific to include the impacts of discrimination faced by the appellant.

82    The appellant further submits the Authority’s statements regarding the consideration it had to the UNHCR Guidelines are insufficient and does not reveal consideration of the issues of discrimination.

83    The Minister submits the Authority did not err in its consideration of the appellant’s claim in the course of assessing the reasonableness of relocation. I would agree.

84    The Authority refers to the appellant’s claim to fear harm throughout Afghanistan at the hands of the Taliban and other extremist groups due to “his lengthy residence in a western country which has imputed him with a prowestern political opinion” at A[18].

85    In that context, the Authority at A[21] and [25] found that despite the fact the appellant may be identifiable as a Shia Tajik returnee who has lived in a Western country, this is not likely to bring him to the attention of insurgents in Kabul as he does not have any association with the high profile groups targeted by insurgents there.

86    The Authority at A[26] goes on to consider that if the appellant were to return to Logar, a conservative rural area, there would be a real chance he would face serious harm, including because his western appearance is obvious.

87    It was found by the primary judge that A[27] to [28] evinced consideration of the topic of stigmatisation or discrimination of returnees in Kabul on the basis of their perceived adoption of western values having resided in countries such as Australia.

88    I observe the “difficulties” a returnee may face that the Authority refers to at A[28] arises in the context of Afghanistan remaining conservative in the face of western influence in Kabul. The Authority goes on to conclude there is “no evidence to indicate … that the applicant would be targeted on return to Kabul as a returnee with an imputed pro-Western political opinion”. As above, I accept that discrimination was considered at A[28] in relation to the first question.

89    At A[38], the Authority gives a summary of the appellant’s submissions. The UNHCR guidelines are referred to expressly in the Authority’s consideration of whether it is reasonable for the appellant to relocate to Kabul. There was only one point made by the appellant in its August 2016 response in reliance upon those UNHCR guidelines (as extracted above): that it may be unreasonable to relocate to Kabul because there were reports of stigma and discrimination against those who have lived in western countries for some time and that for that reason it was of little comfort to a returnee to Afghanistan that they may have family connections in the putative place of relocation.

90    The appellant accepts the Authority then addresses those submissions in A[40]. As I have understood, the reference to “difficulties” at A[40] is sufficient to encapsulate the findings as to discrimination earlier in the reasons.

91    The Minister accepts that the reasoning in A[40] is brief, though submits that this is to be understood in the context of the brevity in which the claim is advanced. Of course, brevity is just one consideration in determining the significance of a submission. Justice Beach explains in EHV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 649 at [48]:

I am not dealing with the need to consider a mandatory factor concerning each and every matter raised by the appellant against the reasonableness or practicability of relocation. Further, the level of detail required is partly a function of how the appellant has raised the point and the detail given by him.

92    I accept discrimination was directly relevant to relocation. However, I consider the Authority expressly considered, and rejected, the notion that the appellant would face discrimination as a returnee from the west. The Authority need not have expressly outlined its consideration as to the relevance of discrimination again in the context of whether relocation was reasonable.

93    Ground 1 is dismissed.

Associate:

Dated:    15 June 2023