Federal Court of Australia

BDU22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 819

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

THOMAS J:

INTRODUCTION

1    The Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) dismissed an application for judicial review of a decision of a delegate of the Immigration Assessment Authority (IAA), which had affirmed a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to refuse the appellant’s application for a Safe Haven Enterprise (Subclass 790) Visa (SHEV).

2    In all, the IAA made three decisions concerning the appellant:

(a)    an application for review of the IAA’s first decision to refuse the appellant’s application was dismissed by the Federal Circuit Court of Australia (as it then was before joining with the Family Court of Australia to form the FCFCOA), but quashed by this Court on appeal and remitted to the IAA for reassessment (CAF17 v Minister for Home Affairs [2019] FCA 2203);

(b)    an application for judicial review of the IAA’s second decision to refuse to grant the appellant a SHEV was, once again, dismissed by the Federal Circuit Court of Australia, but again was quashed on appeal and remitted to the IAA for reassessment (CAF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 356 FLR 298; [2021] FCCA 93); and

(c)    in the current appeal, the IAA again refused to grant the appellant a SHEV and the decision [IAAD] was upheld by the FCFCOA in BDU22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 273.

3    The current appeal focused on findings made by the IAA that it was not unreasonable for the appellant to relocate to Kabul, Afghanistan in circumstances where the appellant would face a real chance of harm if he returned to his “home area” of Parwan.

BACKGROUND

4    The appellant is an Afghan citizen. He is a Hazara person and a Shi’a Muslim. He previously lived in Parwan, Pol-e-Khomri and Mazar-i-Sharif. On each occasion, the appellant relocated along with his family due to experiencing, or a fear of experiencing, violence perpetrated by the Taliban. In 2000, he moved and lived in Pakistan.

5    In 2006, the appellant returned to Parwan where he lived for two years in relative peace until around 2009 when he said the Taliban established a military base in the Ghorband area.

6    In 2010, a Taliban man demanded the appellant make a religious monetary donation to them. The Taliban man threatened him for supporting the Wahdat political party. This arose from the fact that the appellant previously worked for the Wahdat political party delivering food for 14 months to frontline military groups, although none of the deliveries had political overtones.

7    This threat was received in the context of the appellant’s having lost one brother who was shot by the Taliban in 1998 or 1999 and a second brother who went missing when the Taliban occupied the city in which they lived at the time, Mazar. His third and last remaining brother was shot dead in 2010, presumably because the appellant had not paid the religious offering demanded by the Taliban. After unsuccessfully seeking help from the local government, the appellant and his family collected some basic belongings and moved to Kabul. The appellant thought he was still at risk of harm and sought asylum in Australia. He arrived in Australia at Christmas Island as an irregular maritime entrant on 1 November 2012. His family remains in Kabul. He fears that if he is forced to return to Afghanistan he will be harmed or killed by the Taliban.

GROUNDS OF APPEAL

8    The amended grounds of appeal were as follows:

1.    The [FCFCOA] should have found, and erred in failing to find, that the second respondent (the IAA) failed to lawfully consider a claim raised by submissions made to it and the evidence and information before it that the exacerbation of the appellant’s mental health symptoms expected to be caused to his witnessing, hearing about or otherwise being exposed to violent incidents in Kabul, makes it unreasonable for him [to] relocate to Kabul.

Particulars

(a)    deleted

(b)    [not pressed]

(c)    Error in finding, at Reasons for Judgment [42], that paragraph [36] of the report of Dr Oertel, psychologist, dated 29 January 2020 “was not an issue that went to the reasonableness of the relocation”.

(d)    Error in finding, at Reasons for Judgment [43]-[44], that the IAA addressed the issue of whether the distress that would be caused to the [a]ppellant, simply by being in Kabul, made it unreasonable for him to relocate to that city.

2.    The [FCFCOA] should have found, and erred in failing to find, that the IAA fell into jurisdictional error in failing to consider and address a claim arising on the evidence and submissions before it, and on its own findings, that the psychological harm that may be experienced by the appellant, were he to attempt to live in Kabul, would of itself amount to persecution or serious harm.

GROUNDS 1 AND 2

9    The grounds focused on a report dated 29 January 2020 by Dr Ursula Oertel, a psychologist, and also on submissions by the appellant’s representative to the IAA made on 31 March 2021.

10    The relevant part of Dr Oertel’s report stated (at [36]):

If [the appellant] were to return to Afghanistan, this would provide him constant stimuli or cues that symbolise and resemble his past traumatic experiences and consequently prolong and exacerbate his psychological symptoms. It is also likely that if he were to return to Afghanistan that he will be exposed to further social violence and war-related events which will compound his existing psychological symptoms and thus exacerbating his features and associated features of Posttraumatic Stress Disorder and Major Depressive Disorder. As symptoms of Posttraumatic Stress Disorder and Major Depressive Disorder cause considerable distress and impairment, this could significantly interfere with [the appellant’s] occupational functioning when living in Afghanistan including obtaining, undertaking and retaining employment. It is not uncommon for individuals suffering from trauma and depression to exhibit problems with employment due to their fear-based reexperiencing, emotional and behavioural symptoms, dysphoric mood states, arousal and reactive symptoms, and negative cognitions. These symptoms can reduce the efficiency with which tasks are accomplished. They can cause individuals to become easily distracted, experience memory difficulties and struggle with making minor decisions. Their ability to engage in cognitively demanding pursuits can also be reduced. If [the appellant] were to experience significant disability or impairment in occupational functioning, this will subsequently have long-term impacts on his economic achievement and productivity.

11    The relevant submissions made on behalf of the appellant to the IAA dated 31 March 2021 were:

(2)    Whether or not Kabul is to be treated as a place of relocation, [the appellant] has a well founded fear of persecution in that city because …

…

(c)    Were he to return to Kabul, he would very likely be exposed to violence and war-related events targeted at his community (including himself), which would compound his existing symptoms of PTSD and MDD to the extent that it could interfere with his occupational functioning, including obtaining, undertaking and retaining employment.14 Psychological harm can amount to serious harm for the purposes of the former s. 91R(2) of the Migration Act (SCAT v Minister for Immigration (2003) 76 ALD 625), which is now s. 5J(4)(b).

(3)    …

(a)    Exposure to violence and war-related events and the exacerbation of his psychological symptoms would doubtless cause [the appellant] immense distress, even if (contrary to the above submission) it does not result in interference with his occupational functioning to the extent of affecting his ability to obtain, undertake and retain employment.

(b)    This is a case where, given [the appellant’s] personal circumstances, the risk of generalised violence, even if it does not reach the level to induce a well-founded fear of persecution or a real risk of serious harm, makes it unreasonable for him to relocate to Kabul.15 Those circumstances are his mental health and the prospect of his being identified, and harmed, by the Taliban or its associates were he to return.

14    See Dr Oertel’s report 29 January 2020 at [36].

15    See MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191). MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394.

THE IAA DECISION

12    The IAA accepted that Parwan was the appellant’s home area, and the area he would seek to return to live, and that this was the area the appellant’s claims should be assessed against (IAAD [65]).

13    The IAA accepted that, because of the appellant’s profile in the context of the area around Parwan, there was a real risk of him being identified and having his profile re-enlivened and so a real chance that he would be identified, threatened and targeted by the Taliban on the basis of his specific profile. The IAA found that there was a real chance of the appellant facing harm in Parwan if he were to return to live and work there at the time or in the reasonable foreseeable future (IAAD [90]).

14    The IAA recorded (at [109]) that:

There is no disputing that the Taliban was responsible for the systematic persecution of Shia Hazaras in the recent past … Equally, there has been a marked shift in the security environment within Afghanistan since the fall of the Taliban in 2001. The country advice before me indicates that the Taliban does not have an ethno-sectarian agenda, as it did in the past … [B]ased on the weight of country advice before me, I am not satisfied the Taliban is systematically targeting Shias or Hazaras in Afghanistan.

(footnotes omitted)

15    The IAA found that “there is and would be no real chance of the [appellant] facing harm from the Taliban in Parwan, Kabul or elsewhere in Afghanistan, for reasons of his ethnic and religious profile, or on the basis of any related imputed profile, whether now or in the reasonably foreseeable future (IAAD [111]).

16    The IAA did, however, note that the Islamic State Khorasan Province (ISKP) did have a sectarian agenda. The IAA found that the ISKP had posed a credible threat to Shi’as and Shia Hazaras living in Afghanistan over the past five years (IAAD [112]). However, the IAA found that, through 2019-2020, ISKP’s impact in the country, in terms of attacks against Shi’as and other targets, saw a substantial decrease. On 19 November 2020, President Ghani claimed the Afghan security forces had obliterated ISKP in Afghanistan (IAAD [114]). The IAA accepted that ISKP has not been eradicated completely and that it orchestrated or claimed responsibility for attacks in 2019 and 2020, including on a maternity hospital (IAAD [117]). However, looking, as the IAA described, to the reasonably foreseeable future, the IAA found that ISKP remained a credible but diminished threat to Shi’a Hazaras. The IAA considered the chance or risk of harm to the appellant as a Shi’a Hazara in Kabul would be credible, but remote and not a real chance (IAAD [118]).

17    At [160], the IAA confirmed its finding that the appellant “would not face a real risk of harm on the basis of his specific profile, his religious and ethnic profile, his mental health, or in terms of any profile related to his time in the west”. The IAA concluded:

… therefore I consider the [appellant] is very unlikely to have any proximity to violence in Kabul. While I accept there are dangers to low profile civilians living in the capital, I do not consider the country information indicates that generalised violence in Kabul is at such a level where the [appellant] would face anything more than a very remote chance of harm if he were to return to live and work there.

18    The IAA concluded that the appellant’s specific profile did not exist outside the home area of Parwan or that the appellant would face a real chance of harm for those reasons in Kabul or elsewhere in Afghanistan. The IAA found that the real chance of harm was not present in all areas of the receiving country (IAAD [162]).

19    The IAA was not satisfied there was a real chance or risk of the appellant facing serious or significant harm then or in the reasonably foreseeable future and that the appellant’s fears of harm were not well-founded (IAAD [164]). Thus the requirements of the definition of “refugee” were not satisfied by the appellant (IAAD [165]).

20    When discussing the complementary protection assessment, the IAA again repeated that the risk of significant harm was limited and localised to Parwan and that the IAA was satisfied that the appellant would not face a real risk of significant harm in Kabul or elsewhere in Afghanistan for those reasons (IAAD [172]).

21    Having accepted that the appellant would face a real risk of significant harm if returning to live and work in Parwan, the IAA considered whether it would be reasonable for the appellant to relocate to an area in the country where there would not be a real risk that he would suffer significant harm, such as Kabul (IAAD [174]).

22    The IAA noted that a key consideration of the assessment was the appellant’s current mental state (IAA [178]). The IAA considered a number of mental health aspects, including the availability of mental health medical facilities, the negative impact of post-traumatic stress disorder (PTSD) on a person’s employment prospects and also “the insecurity in Kabul and impact on the [appellant’s] mental health and its potential to exacerbate his condition” (IAAD [191]). The IAA noted that Dr Oertel said that, if the appellant returned to Afghanistan, “he will be exposed to further social violence and war-related events which will compound his existing psychological symptoms and thus exacerbate his conditions” (IAAD [191]). The IAA considered this claim in detail in the paragraphs following [191].

23    The IAA accepted that returning to Afghanistan may exacerbate the appellant’s condition, however, it noted that “the context of the security environment in Afghanistan is an important consideration. Afghanistan is not an open conflict” (IAAD [192]).

24    The IAA referred to comments by security advisor Mr Philipp Schweers which the IAA observed “captures the reality of the situation in the country” (IAAD [192]).

25    Mr Schweers had said (IAAD [192]):

Conflict in Afghanistan is not open like in Syria. It’s a low-intensity conflict – the situation escalates sporadically and there are occasional incidents in individual provinces. … There is hardly any continuous open fighting. It’s a latent instability that dominates the picture. In many parts of the country, everyday life and trade go their normal course, though interrupted again and again with isolated incidents.

(italics and footnote omitted)

26    The IAA went on to observe (IAAD [193]):

[I]n my assessment it is not a city paralysed by violence, war or the insurgency. As noted above, there are many countermeasures against the threat of violence. [EASO, ‘Country Guidance: Afghanistan - Guidance note and common analysis’, 1 June 2019] notes that while indiscriminate violence is taking place in the city, it is not at a high level. [UNAMA, ‘Afghanistan, Protection of Civilians in Armed Conflict - Annual Report 2020’, 23 February 2021] also documented a substantial decrease in violence in Kabul through 2020. And, perhaps most significantly, the one group (ISKP) posing a threat to the [appellant’s] own profile and community in Kabul has been significantly reduced by Afghan military operations.

(footnotes omitted)

27    The IAA concluded that “the [appellant] would not face a real chance or risk of harm in terms of generalised violence in Kabul” (IAAD [193]).

28    The IAA again referred to observations made by Dr Oertel noting the evidence that, if the appellant returned to Afghanistan, “this would provide him constant stimuli or cues that symbolise and resemble his past traumatic experiences and consequently prolong and exacerbate his psychological symptoms” (IAAD [194]). This was accepted, but the IAA noted that, in relocating to Kabul, the appellant would be in a city with significant security measures and he would be away from the areas of his past trauma (Parwan, Mazar and Pol-e-Khomri). The IAA gave this some weight (IAAD [194]).

29    The IAA accepted, given the overall situation in Afghanistan, there might be a deterioration in the appellant’s circumstances due to insecurity, or at least the threat of insecurity, in the context of a country in which the appellant had a difficult history. However, the IAA concluded ((IAAD [195])):

Even if there were to be a deterioration in his mental health, I do not consider that would mean relocation to Kabul is not reasonable. I do not consider it would put him at risk of harm or destitution. While it may impact his employment at some point, I again consider he would have the support of his family and at least proximity to access the best version of health care available in Afghanistan.

30    The IAA again concluded: “I am not satisfied that any of these health conditions or medicine requirements would make relocation to Kabul not reasonable” (IAAD [197]).

31    The IAA concluded that it considered the situation in Kabul could be reconciled with the appellant’s mental and other health concerns. The IAA said (IAAD [198]):

While I have accepted the security situation in Kabul may exacerbate his mental health concerns to some degree, I again give weight to the fact that violence in the city is not at a high level, and he would not obviously have proximity to the violence that does occur against high profile targets. In that context, I consider the impact of the insecurity in the city would be present, but limited. Moreover, … in Kabul the [appellant] will have access to the support of his family, accommodation and employment, and at least some capacity to access the mental health care that is available. I consider each of those factors would further mitigate the impact of the security environment.

THE PRIMARY JUDGE

32    In relation to ground 1, the primary judge concluded that the IAA had considered this aspect and made particular reference to [157] and [158] of the IAA’s decision. The primary judge set out [36] of the report of Dr Oertel.

33    As to whether a relocation was reasonable, the primary judge concluded that there must, first, be a finding that there is an area within the receiving country where an applicant would not suffer significant harm and then, secondly, whether it would be reasonable for the applicant to relocate to that area.

34    The primary judge noted that the IAA outlined its reasons at [187] and following of its decision. The primary judge considered specifically [187], [190]-[192], [194] and [195]. The primary judge noted the appellant’s submission that the IAA had misconstrued Dr Oertel’s assessment. At [38], the primary judge disagreed with this submission. He noted that Dr Oertel “clearly” said that “if the [appellant] were to return to Afghanistan, very broadly, that just being in Afghanistan would provide him constant stimuli or cues that symbolize and resemble his past dramatic experiences, that such exposure would consequently prolong and exacerbate his psychological symptoms”. The primary judge went on to record (at [39]) that Dr Oertel said:

[I]t is also likely that, if he were returned to Afghanistan generally, he would be exposed to further social violence and war-related events which would compound his existing psychological symptoms, thus, exacerbating his features and associated features of PTS[D] and MDD, and it was that if the [appellant] were to experience significant disability or impairment in occupational functioning that this would subsequently have long-term impacts on his economic achievement and productivity.

35    The primary judge concluded that the IAA had to compare the appellant’s home area (Parwan) with Kabul, and that what the IAA did was to look at the difference. The IAA (at [194]) had given greater weight to the fact that Kabul was different from Parwan, Mazar or Pol-e-Khomri when looking at the individual circumstances of the appellant (reasons at [40]). The IAA looked at what would occur in Kabul and came to the conclusion that this did not mean that relocation was not unreasonable. The IAA specifically found that relocation to Kabul would not put the appellant at risk of harm or destitution (reasons at [41]).

36    The primary judge concluded that, having looked at Dr Oertel’s report in the way in which the IAA did, that aspect of the report was not an issue that went to the reasonableness of the relocation and, in that respect, the IAA had addressed the claim as made (reasons at [42]).

37    As to the second aspect of ground 1, that the IAA did not address the issue of whether the distress that would be caused to the appellant, simply by being in Kabul, made it unreasonable for him to relocate to that city, the primary judge concluded that the IAA explicitly did refer to this aspect in [191] of the IAA’s decision. The IAA specifically said that it had regard to a further consideration, that the insecurity in Kabul would impact the appellant’s mental health and lead to a potential to exacerbate his condition, which was one of distress (based on Dr Oertel’s report) (reasons at [43]).

38    The primary judge concluded that this claim was “exactly articulated at paragraph 191” and that it was dealt with in [192] and [193] as well as [194] and [195] (reasons at [44]).

39    The primary judge concluded that ground 1 was not made out.

40    The primary judge summarised that the gravamen of ground 2 in this appeal (which had been ground 3 before the primary judge) was that, were the appellant to return to Kabul, he would be very likely to be exposed to violence and war-related events targeted at his community, including himself, which would compound his existing symptoms of PTSD and MDD to the extent that it would interfere with his occupational functioning, including obtaining, undertaking and retaining employment. He noted that psychological harm can amount to serious harm for the purpose of the former s 91R(2) of the Migration Act 1958 (Cth) (Act) (reasons at [48]).

41    The primary judge said that there were a number of premises to this ground. The first premise was a factual one which was, were the appellant to return to Kabul, he would very likely be exposed to violence and war-related events targeted at his community, including himself (reasons at [49]).

42    The second premise was that “attacks that target Shia Hazaras are attacks that necessarily cause psychological harm; that is, if one is living in a city like Kabul and there is an event which (there is no doubt) targeted Hazara Shias, and one is a Hazara Shia, therefore there will be psychological harm felt because of that” (reasons at [49]).

43    As to the first premise, the primary judge concluded that the IAA had made specific findings on the likelihood of the appellant being exposed to violence and war-related events targeted at his community. The primary judge referred to [108]-[118] of the IAA’s decision (setting out [118]) and then referred also to [193], which referred back to [118].

44    The primary judge concluded that the premise of the submission had been “well and truly answered” and the IAA had said that it was not very likely that the appellant would be exposed to violence and war-related events targeted at his community (reasons at [52]).

45    As to the second premise of the submission, the primary judge concluded that the submission “is an attempt to make a general statement a specific fact” (reasons at [53]).

46    The primary judge opined it may be “common sense that if one were a Shia [Hazara] in Kabul and there was an incident that targeted Shia Hazaras, there would be some psychological harm”. As the primary judge put it, the appellant submitted “that if the [appellant] were in that situation, that [it] would be likely that the [appellant] would suffer psychological harm because of the [appellant’s] own personality” (reasons at [53]). The primary judge concluded that there was no evidence of this at all.

47    The primary judge concluded that, the way in which the ground of appeal was put, it would amount to a third aspect to there being some exacerbation of features of the appellant’s PTSD and MDD (reasons at [53]).

48    The primary judge referred to two aspects of Dr Oertel’s report, namely, firstly, that the constant stimuli or cues that symbolise his past dramatic experience would prolong and exacerbate the symptoms; and secondly, that, if he were exposed to further social violence and war-related events, that would compound his psychological symptoms (reasons at [54]).

49    The third aspect, according to the primary judge, was that, if the appellant were to feel that he was targeted because he was a Shi’a Hazara at any generalised violence targeting Shi’a Hazaras, that too would exacerbate his features and associated features of PTSD. The primary judge concluded that this amounted to “another string to the concept of whether he would suffer persecution” (reasons at [54]).

50    As a result, the primary judge concluded that such a claim did not arise on the evidence. The primary judge regarded the proposition as merely a general statement that was made, which general statement did not appear anywhere in the evidence (reasons at [56]). Because the basis of such a claim had not been established, the primary judge concluded that such a claim did not arise on the evidence and there was no jurisdictional error (reasons at [57]).

APPELLANT’S SUBMISSIONS

Legal principles

51    In relation to both grounds, the appellant referred to the decision in Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 (Plaintiff M1) at [23] and [27] (per Kiefel CJ, Keane, Gordon and Steward JJ) in submitting that information and representations must be read, identified, understood and evaluated; that the extent of necessary evaluation or consideration depended upon the nature, form and content of the representations and their importance to the appellant’s case; and that a failure to consider can be jurisdictional error if the information which was not considered or was misunderstood could realistically have made a difference.

Ground 1

52    The appellant submitted that the reasoning of the IAA as to why it was not satisfied that the appellant’s mental health was not a barrier to his gaining employment (at [190]) ignored or misconstrued Dr Oertel’s assessment.

53    The IAA’s reasoning was that, as the appellant had steady work in Australia, his mental health would not prevent him from finding work in Kabul. However, Dr Oertel’s assessment did not relate to whether the appellant’s mental health was at a point where he could not work in Australia, but rather that if he were removed to Afghanistan and exposed to violence, or the atmosphere of violence, his symptoms may be compounded and thus may become a barrier to gaining, undertaking or retaining employment. The IAA did not confront that assessment (at [190] or [191]-[195]).

54    The IAA’s conclusion (at [195]) that, even if there was a deterioration in the appellant’s mental health, he would not be at risk of harm or destitution was linked to the reasoning at [190]. The IAA thus failed to confront and address the gravamen of Dr Oertel’s report at [36].

55    The IAA also failed to confront and address the claim contained in the 31 March 2021 submission ([19(3)] that the exacerbation of the appellant’s symptoms and the distress caused by exposure to violence and war-related events if returned to Kabul would itself make relocation to Kabul unreasonable.

56    The appellant submitted:

(a)    regardless of whether at a reduced rate, or whether there were security measures in place in Kabul, terrorist attacks continued in the city, as the IAA found at [197] and [158]. Those attacks would be the source of the exacerbation of the appellant’s symptoms were he to return to Kabul. Reference to the security measures in place did not confront or address the submission;

(b)    comfort and support of the appellant’s family would also not stop terrorist attacks in Kabul and thus the exacerbation of the symptoms;

(c)    existence of a mental health hospital and superior facilities in Kabul does not change the situation. This is especially so given the IAA’s findings regarding barriers and delays in accessing primary health care;

(d)    referring to [195] of the IAA’s decision and the conclusion that relocation to Kabul was reasonable even if there was a deterioration in the appellant’s mental health, the IAA explained this by saying that it would not put the appellant at risk of harm or destitution and that he would have the support of his family. This explanation does not confront or address the submission that the distress caused by violence and war-related events made relocation to Kabul unreasonable.

57    On that basis, the appellant submitted that the IAA failed to lawfully consider the claim raised in the submission.

Ground 2

58    The appellant asserted that the IAA failed to confront and address the claims outlined in the submission made by the representative for the appellant. This submission was that the exacerbation of the symptoms (as described by Dr Oertel) and the distress caused by exposure to violence and all related events if returned to Kabul would itself make relocation to Kabul unreasonable.

59    In relation to ground 2, the appellant referred to a submission sent to the IAA on 31 March 2021 from the representatives for the appellant:

(2)    Whether or not Kabul is to be treated as a place of relocation, [the appellant] has a well founded fear of persecution in that city because …

…

(c)    Were he to return to Kabul, he would very likely be exposed to violence and war-related events targeted at his community (including himself), which would compound his existing symptoms of PTSD and MDD to the extent that it could interfere with his occupational functioning, including obtaining, undertaking and retaining employment. Psychological harm can amount to serious harm for the purposes of the former s. 91R(2) of the Migration Act (SCAT v Minister for Immigration (2003) 76 ALD 625), which is now s. 5J(4)(b).

60    The submission is footnoted to Dr Oertel’s report dated 29 January 2020 at [36].

61    The appellant submitted that the premises relied upon in support of ground 2 were that:

(a)    on return to Kabul, the appellant may be exposed to violence targeted at his community. It was not necessary that exposure be “very likely” (as the primary judge put it in [49]). The reference to “very likely” is inconsistent with the “real chance” test in s 36 of the Act; and

(b)    there was a real chance that attacks of Shi’a Hazaras in Kabul would, on the expert evidence provided, cause the appellant psychological harm. The implication of the primary judge (at [49]) that attacks on the Shi’a Hazara community will need to cause psychological harm to all members of the Shi’a Hazara community in Kabul is incorrect.

62    The appellant submitted that the primary judge applied the wrong test – that there is no requirement that a persecutory event be “very likely”. The test is whether there is a “real chance” of persecution or serious harm. The IAA noted that attacks on targeted groups such as Shi’a Hazaras had occurred in the recent past, although at a reduced rate (at [117]-[118]). The danger to people of the appellant’s religion and ethnicity continued.

63    The appellant referred specifically to the findings made by the IAA at [118]:

When looking to the reasonably foreseeable future, I find that ISKP remains a credible, but diminished threat to Shia Hazaras and other risk profiles in Afghanistan. I acknowledge the chance or risk of harm for Shias is more elevated in a city such as Kabul, however, I consider the group’s ability to orchestrate attacks against Shias and Hazaras and other targeted groups has been substantially reduced throughout the country, including the capital, and that the Afghan security forces continue to work to reduce the group's ability to operate in the country. I consider that was the case through 2020, and I am satisfied this will be the case into the reasonably foreseeable future. I consider the chance or risk of harm to the [appellant], as a Shia Hazara, in Kabul would be credible, but remote and not a real chance.

64    The appellant submitted that this finding was not about whether the risk or exposure to violence and war-like events directed at the appellant’s community was likely, or very likely, to occur or indeed not likely at all. The appellant submitted that there was no assessment of likelihood, and that an event can still be very likely even if the possibility of that event occurring is reduced.

65    Dr Oertel’s opinion was that exposure to violence and traumatic events would cause considerable distress and impairment. The primary judge’s finding (at [53]) – that there was no evidence that, if the appellant was exposed to traumatic events, he would suffer psychological harm – is incorrect. There was evidence before the IAA of violent acts perpetrated against the Shi’a Hazara population in Kabul; the acts were undoubtedly systemic, in the sense used in s 5J(4)(c); they were obviously discriminatory and that they targeted people for reason of their race and religion; and the obvious intention was to injure and kill Shi’a Hazaras. Such attacks would also instil fear in the Shi’a Hazara community and Dr Oertel’s opinion was that they would severely affect the appellant.

66    The 31 March 2021 submission included:

Were he to return to Kabul, he would very likely be exposed to violence and war-related events targeted at his community (including himself), which would compound his existing symptoms of PTSD and MDD to the extent that it could interfere with his occupational functioning …

67    The appellant submitted that the primary judge (at [56]) was wrong in saying that the claim did not arise on the evidence, that is the claim contained in the submission at (2)(c). The appellant submitted that the claim arose on the IAA’s own findings about attacks on the Shi’a Muslim population in Kabul and in Dr Oertel’s report, especially at [36]. Moreover, the submission was that psychological harm could amount to serious harm within the meaning of s 5J(4)(b) of the Act (referring to SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 (per Madgwick, Gyles and Conti JJ)).

68    The appellant submitted that “nowhere does it mention psychological harm in this decision. Nowhere, in my submission, does [the IAA] encompass a finding as to psychological harm”.

69    The appellant continued that mental health, as a risk profile, was considered, but only in the context of “whether he would be persecuted because of his mental health concerns or problems in Kabul”. The submission continued: “there is nothing in this decision which suggests that the [IAA] dealt with the issue of attacks on the community being persecutory for the [appellant] because of the distress and exacerbation of his mental health”.

70    The claim that exposure to violence in Kabul constituted persecution on the basis of race and religion was made explicitly, but not considered or addressed. This amounted to jurisdictional error.

DISCUSSION

The general principles

71    As was submitted by the appellant, jurisdictional error arises from a failure to consider a claim. The appellant has referred to Plaintiff M1 in describing the nature of a failure to consider a claim. The consideration includes information and representations being read, identified, understood and evaluated with the extent of the necessary evaluation or consideration depending upon the nature, form and content of the information and representations and their importance to the appellant’s case.

72    In dealing with the assertion that the IAA failed to consider and address a claim, it is necessary to review the reasons as a whole. The reasons will indicate whether, in the process of review and reasoning undertaken by the IAA, regard was being had to the issue about which the failure is alleged.

73    Especially when the decision is a comprehensive one, where issues are addressed in different parts of the reasons, unless the context clearly suggests otherwise, the consideration of an issue in one aspect of the reasons has a strong bearing on the meaning of words used across the reasons and also what was in the mind of the decision-maker when considering the matters under review generally.

74    It is not necessary for the IAA to expressly refer to each contention made by the appellant (Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 (Carrascalao) (per Griffiths, White and Bromwich JJ). This is particularly so where specific findings might have been encompassed in other findings of greater generality (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (per French, Sackville and Hely JJ)).

75    A finding that the IAA has not considered a claim (that is, that the IAA has failed to engage in an intellectual process with respect to the claim – including as identified by the appellant that information and representations are read, identified, understood and evaluated) will not lightly be made and must be supported by clear evidence (Carrascalao at [48]).

76    Consideration of the merits review was a matter for the IAA, which must consider and weigh up all the competing factors and by the very nature of the process of evaluation was not obliged to uncritically accept the evidence or submissions put to it (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 (per Beaumont J). It is, of course, not the role of this Court to re-engage in the merits review.

77    As is often said, in considering administrative decisions such as the IAA decision in this matter, “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (per Neaves, French and Cooper JJ)). As was said in the case of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (per Brennan CJ, Toohey, McHugh and Gummow JJ):

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court …

(footnote omitted)

Ground 1

Dr Oertel’s report

78    The IAA dealt with this issue in [191]-[195]. It was clearly not overlooked or ignored.

79    The appellant made reference to [190]. Paragraph 190 was not central to the analysis undertaken by the IAA in those subsequent paragraphs.

80    Paragraph 190 referred to submissions made by the appellant in general terms as to the negative impact of PTSD and a person’s employment prospects. The IAA concluded that the evidence available did not indicate that the appellant’s mental health situation was at a point where he could not work. In that paragraph, it did not deal with the matters raised by Dr Oertel.

81    Paragraph 191 recorded that a further consideration was the impact on the appellant’s mental health and its potential to exacerbate his condition. The reasons referred to the comments made by Dr Oertel, to which the appellant has referred. They referred to the assertion that, if the appellant returned to Afghanistan, “he will be exposed to further social violence and war-related events which will compound his existing psychological symptoms and thus exacerbate his conditions”.

82    In [192], the IAA accepted that a return may exacerbate the appellant’s condition, however, it concluded that “the context of the security environment in Afghanistan is an important consideration [in that] Afghanistan is not an open conflict”. The IAA made reference to information from a security advisor, Mr Philipp Schweers, which the IAA said “captures the reality of the situation in the country”.

83    In [193], the IAA concluded that Kabul “is not a city paralysed by violence, war or the insurgency”. It continued:

[T]here are many countermeasures against the threat of violence. EASO notes that while indiscriminate violence is taking place in the city, it is not at a high level. UNAMA also documented a substantial decrease in violence in Kabul through 2020. And, perhaps most significantly, the one group (ISKP) posing a threat to the [appellant’s] own profile and community in Kabul has been significantly reduced by Afghan military operations … I have found the [appellant] would not face a real chance or risk of harm in terms of generalised violence in Kabul.

(footnotes omitted)

84    In [194], the IAA referred to Dr Oertel’s observation that, “if the [appellant] returns to Afghanistan, this would provide him constant stimuli or cues that symbolise and resemble his past traumatic experiences and consequently prolong and exacerbate his psychological symptoms”. The IAA accepted this conclusion, but also noted that “in relocating to Kabul, he would be in a city with significant security measures. He would also be away from the areas of his past trauma (Parwan, Mazar and Pol-e-Khomri). I give that some weight” (italics added).

85    Paragraph 195 is not, as the appellant submitted, an extension of [190], dealing with the same matter.

86    Paragraph 195 concluded:

Nevertheless, given the overall situation in Afghanistan, I accept there may be a deterioration in the [appellant’s] circumstances due to insecurity, or at least the threat of insecurity in the context of a country in which the [appellant] has a difficult history. I consider those risks would be present in Kabul, Parwan or Mazar-e-Sharif. Even if there were to be a deterioration in his mental health, I do not consider that would mean relocation to Kabul is not reasonable. I do not consider it would put him at risk of harm or destitution. While it may impact his employment at some point, I again consider he would have the support of his family and at least proximity to access the best version of health care available in Afghanistan.

87    The submission made by the appellant that the IAA did not confront the gravamen of Dr Oertel’s report is not borne out by the content of the reasons. This is obvious from the summary which is set out above.

88    It is clear that the IAA understood and addressed the claim that was advanced based on Dr Oertel’s report. The reasons demonstrate a logical consideration and balancing of all the factors (including the effect of Dr Oertel’s report) seen to be relevant. The conclusion reached was clearly one which was open to the IAA. As was observed earlier, the decision-maker is not obliged to uncritically accept the evidence put to it. Its duty is to consider and understand the claim and to make a ruling. That was done in this case.

89    The primary judge was correct in his conclusion.

The submission dated 31 March 2021

90    The submission was that it would be unreasonable for the appellant to relocate to Kabul because exposure to violence and war-related events and the exacerbation of the appellant’s psychological symptoms “would doubtless cause the appellant immense distress even if it does not result in interference with his occupational functioning”. Dr Oertel had (at [36]) said:

[H]e will be exposed to further social violence and war-related events which will compound his existing psychological symptoms and thus exacerbating his features and associated features of Posttraumatic Stress Disorder and Major Depressive Disorder. As symptoms of Posttraumatic Stress Disorder and Major Depressive Disorder cause considerable distress and impairment, this could significantly interfere with [the appellant’s] occupational functioning …

91    As mentioned earlier, the IAA referred to, and considered, Dr Oertel’s report. The IAA weighed all the factors, including that the appellant would be relocating to an area with significant security measures and away from areas of past trauma (IAAD [194]). Despite accepting there may be a deterioration in the appellant’s circumstances due to insecurity, the IAA concluded that this would not mean relocation to Kabul would be unreasonable (IAAD [195] and [198]).

92    As was said at [198]:

Ultimately, I consider the situation in Kabul, although far from optimal, can be reconciled with the [appellant’s] mental and other health concerns. While I have accepted the security situation in Kabul may exacerbate his mental health concerns to some degree, I again give weight to the fact that violence in the city is not at a high level, and he would not obviously have proximity to the violence that does occur against high profile targets. In that context, I consider the impact of the insecurity in the city would be present, but limited. Moreover, … in Kabul the [appellant] will have access to the support of his family, accommodation and employment, and at least some capacity to access the mental health care that is available. I consider each of those factors would further mitigate the impact of the security environment.

93    At [199], the IAA observed:

[F]or the [appellant], I consider the negatives are well outweighed by the benefits the [appellant] would find in relocating to Kabul. I consider a full assessment of the [appellant’s] circumstances and the prevailing country information reveals that it would be reasonable for the [appellant] to relocate to Kabul to avoid the harm he would face in Parwan.

94    Taking into account all the evidence, and fully considering the submission, the IAA decided that relocation to Kabul would not be unreasonable. The IAA took the evidence into account, but, as said earlier, was not obliged to uncritically accept all aspects of the evidence put to it. Particularly considering the reasons as a whole, it is clear that the IAA did not fail to consider the contents of the submission.

95    Again the conclusion reached by the IAA was clearly open to it.

96    The primary judge found that the IAA had addressed the claims that were made. There is no error in the primary judge’s reasoning.

Ground 2

97    The ground of appeal asserts that the IAA failed to consider and address a claim “that the psychological harm that may be experienced by the appellant, were he to attempt to live in Kabul, would of itself amount to persecution or significant harm”.

98    As was submitted by the appellant, there were two factual premises.

99    The appellant submitted that the articulation by the primary judge at [30] of the first factual premise underlying the ground is incorrect in that it misconstrues the law. The submission continued that the use by the primary judge of the phrase “very likely” at [48], [49] and [52] of the reasons demonstrated that the primary judge misunderstood the statutory test for refugee criteria in s 5J(1)(c) of the Act. The appellant submitted that the test is whether there was a “real chance” of persecution or serious harm.

100    The claim used the words “very likely”. It is not clear that the primary judge misunderstood the statutory test. The use of those words by the primary judge was consistent with him taking up the language used in the submission made by the appellant to specifically deal with that submission, rather than the primary judge intending to describe the statutory test. Use of these words does not establish that the primary judge misunderstood the statutory test.

101    The finding made by the IAA, which was that the chance or risk of harm was not a real chance, means that, even based on this test, the relevant threshold was not met.

102    Referring particularly to [118], the appellant also submitted that the IAA did not make a finding about whether the risk or exposure to violence and war-like events directed at his community was likely or very likely to occur or indeed not likely at all.

103    The appellant referred to [118] of the IAA’s decision. The IAA reviewed the position against various factors. The paragraph concluded with a finding that “the chance or risk of harm to the appellant … would be credible, but remote and not a real chance”.

104    In the context of the submission that there was no finding by the IAA about the likelihood of something happening, the conclusion was that there was “not a real chance”. Those words plainly deal with likelihood. They are the words used in the Act. The submission put by the appellant is reading too finely into the IAA’s decision in circumstances where the finding was that the chance of harm happening is remote and not a real chance.

105    In the context, particularly of the reasons read as a whole, that reference to risk must include psychological risk of harm and physical risk of harm. There is no confinement of the term risk to one or the other. The discussion is about risk of harm generally.

106    In relation to the first premise, the IAA (at [109]) acknowledged the systematic persecution of Shi’a Hazaras in the recent past (sourced from a Department of Foreign Affairs and Trade “Thematic Report - Hazaras in Afghanistan”, 8 February 2016), but noted that there had been a marked shift in the security environment within Afghanistan since the fall of the Taliban in 2001. The IAA further noted that country advice indicated that the Taliban did not have an ethno-sectarian agenda as it had in the past. On the weight of the country advice, the IAA was not satisfied the Taliban was systematically targeting Shi’as or Hazaras in Afghanistan.

107    In [110] the IAA said: “I am not satisfied that ordinary Shia Hazaras are being targeted on the basis … that they are imputed with a profile that is anti-Taliban or pro-Government”. In [111], the IAA found that “there is and would be no real chance of the [appellant] facing harm from the Taliban in Parwan, Kabul or elsewhere in Afghanistan, for reasons of his ethnic and religious profile, or on the basis of any related imputed profile, whether now or in the reasonably foreseeable future”.

108    In contrast, at [112], the IAA noted that the ISKP did have a sectarian agenda. Particularly, the IAA noted that, through 2016 and 2018, there were significant risks to the Shi’a Hazara population in some parts of Afghanistan. However, the IAA concluded, based upon country information, that through 2019/2020, ISKP’s impact, in terms of attacks against Shi’as and other targets, saw a substantial decrease.

109    Having regard to the most recent data and analysis, the IAA found that ISKP’s capabilities had been reduced considerably and that the group was a diminished threat in Afghanistan, which was reflected in a substantial decrease in attacks claimed by the group through 2019 and 2020.

110    At [118], which was referred to by the appellant, the IAA concluded that, looking to the reasonably foreseeable future, the ISKP remained a credible, but diminished, threat to Shi’a Hazaras and that the group’s ability to orchestrate attacks against Shi’as and Hazaras and other targeted groups had been substantially reduced through the country, including the capital, and that the Afghan security forces could continue to work to reduce the group’s ability to operate in the country. The IAA concluded: “I consider that was the case through 2020, and I am satisfied this will be the case into the reasonably foreseeable future. I consider the chance or risk of harm to the [appellant], as a Shia Hazara, in Kabul would be credible, but remote and not a real chance”.

111    At [160], the IAA confirmed its finding that the appellant “would not face a real chance of harm on the basis of his specific profile, his religious and ethnic profile, his mental health, or in terms of any profile related to his time in the west”. The IAA concluded that the appellant would have no other risk profile and would not have proximity to other higher profile risks such as government workers. The IAA concluded: “I consider the [appellant] is very unlikely to have any proximity to violence in Kabul”. It continued: “I do not consider the country information indicates that generalised violence in Kabul is at such a level where the [appellant] would face anything more than a very remote chance of harm if he were to return to live and work there”.

112    Given the earlier reference to mental health in that paragraph and the context in which these comments are made (including the discussion on mental health as a risk profile) in [147]-[156], it seems clear that the reference to harm included psychological as well as physical harm.

113    Based upon the findings outlined above, the IAA also concluded that there was no real chance that the appellant would be exposed to violence and war-related events targeted at Shi’a Hazaras. The first premise was plainly considered by the IAA which, in the context of the submission, concluded it was not the case that, if returned to Kabul, the appellant would be likely to be exposed to violence and war-related events targeted at the Shi’a Hazara community (including himself). It follows that, even based upon the “real chance” test, the finding of the IAA was clearly that this threshold was not met.

114    The IAA also considered the ISKP at [193]. This paragraph has been referred to earlier in these reasons. As to Kabul, the IAA made the finding:

[I]n my assessment it is not a city paralysed by violence, war or the insurgency. As noted above, there are many countermeasures against the threat of violence. EASO notes that while indiscriminate violence is taking place in the city, it is not at a high level. UNAMA also documented a substantial decrease in violence in Kabul through 2020. And, perhaps most significantly, the one group (ISKP) posing a threat to the [appellant’s] own profile and community in Kabul has been significantly reduced by Afghan military operations. I again note … that I have found the [appellant] would not face a real chance or risk of harm in terms of generalised violence in Kabul.

115    As mentioned earlier, the paragraphs preceding those observations referred to the consideration of insecurity in Kabul and impact upon the appellant’s mental health and its potential to exacerbate his condition. Reference was made specifically to the report by Dr Oertel that, if the appellant were to return to Afghanistan, he would be exposed to further social violence and war-related events which will compound his existing psychological symptoms and thus exacerbate his conditions.

116    The analysis undertaken and the conclusions reached by the IAA were plainly against the background of the report by Dr Oertel and paragraph (2)(c).

117    As mentioned earlier in these reasons, this matter was referred to again in [194] in the context of the IAA balancing the various factors, including Dr Oertel’s opinion and the submissions made, and reaching a conclusion.

118    This analysis is indicative of the matters being considered and addressed by the IAA. The conclusion reached by the IAA was open to it.

119    The IAA did not fail to consider the submission at (2)(c). Of course, the IAA did not find that the first premise was made out.

120    The primary judge was correct in the finding made (at [52]). In light of that finding, it was not necessary to consider specifically whether there was a real chance that attacks would cause the appellant psychological harm.

121    The second premise was that there was a real chance that attacks on Shi’a Hazaras in Kabul would, on the expert evidence provided, cause the appellant psychological harm.

122    The appellant asserted that the primary judge implied (in [49]) that attacks on the Shi’a Hazara community “will need to cause psychological harm to all members of the Shia Hazara community in Kabul” and that this is incorrect.

123    The decision of the primary judge focused upon the opinion provided by Dr Oertel’s report at [36].

124    The report at [36] referred to the likelihood that, if the appellant were to return to Afghanistan, the appellant “will be exposed to further social violence and war-related events which will compound his existing psychological symptoms and thus exacerbating his features and associated features of Posttraumatic Stress Disorder and Major Depressive Disorder”.

125    This evidence is preceded by Dr Oertel opining that, if the appellant were to return to Afghanistan, “this would provide him constant stimuli or cues that symbolise and resemble his past traumatic experiences and consequently prolong and exacerbate his psychological symptoms”.

126    At [54], the primary judge referred to these two aspects, namely:

(a)    the constant stimuli; and

(b)    exposure to further social violence and war-related events that would compound his psychological symptoms.

127    The second premise is framed as there is “a real chance that attacks on Shia Hazaras in Kabul would on the expert evidence provided, cause the appellant psychological harm”.

128    The point being made by the primary judge at [54] was that the evidence from Dr Oertel dealt with (and was limited to) exposure to further social violence and war-related events with no mention as to whether that violence or those events involved attacks on Shi’a Hazaras. Hence, the primary judge saying: “The [appellant] is attempting to then put a third aspect on it: that if the [appellant] were to feel that he was targeted because he was a Shia Hazara at any generalised violence targeting Shia Hazaras, that that too would exacerbate his features and associated features of post-traumatic stress disorder”. The primary judge continued (at [55]) that the appellant submitted that “as the IAA did not specifically speak of this particular aspect of persecution, there was a jurisdictional error”.

129    The primary judge concluded that such a claim did not arise on the evidence, which was limited to those two aspects of constant stimuli and exposure to social violence and war-related events.

130    The appellant referred to an implication, as the appellant put it, that the primary judge concluded that attacks on the Shi’a Hazara community would need to cause psychological harm to all members of the Shi’a Hazara community in Kabul. This does not seem to be what the primary judge has concluded in the later paragraphs of the reasons. It was not a matter of whether the attacks would need to cause psychological harm to all members of the Shi’a Hazara community. Rather the primary judge’s decision seems to have been based upon the fact that the appeal, resting on the reference to attacks on Shi’a Hazaras in Kabul and the possible psychological harm arising from those attacks, was not the subject of expert evidence specifically by Dr Oertel. Although a strict interpretation, the view taken by the primary judge as to the scope of the expert evidence is correct.

131    In any event, as observed earlier, there was no need, based upon the outcome of the consideration in relation to the first premise, to consider the second premise.

CONCLUSION

132    I order that the appeal is dismissed.

133    I will hear from the parties regarding costs.

Associate:    

Dated:    19 July 2023