Federal Court of Australia

FZF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1032

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The costs of the appeal be reserved.

3.    The appellant file and serve any written submissions limited to two pages as to what, if any, costs orders are appropriate having regard to the outcome of the proceeding and the possibility of an order under the Federal Proceedings (Costs) Act 1981 (Cth) by 24 August 2023.

4.    The first respondent file and serve any written submissions limited to two pages in reply by 31 August 2023.

5.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”

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

REASONS FOR JUDGMENT

(Revised from the transcript)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing the appellant constitutional writ relief in respect of the decision of the Immigration Assessment Authority made on 19 October 2018 to affirm a decision of a delegate of the Minister not to grant the appellant a protection visa: FZF18 v Minister for Immigration [2020] FCCA 830.

2    The sole ground of review before his Honour was that the Authority made a jurisdictional error by failing to consider the general security situation in Kabul for the purposes of evaluating the appellant’s claim to refugee or complementary protection under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth), as to whether it was unreasonable for the appellant to relocate there were he returned to Afghanistan, of which he is a national. The appellant’s sole ground of appeal is that the trial judge erred in failing to find that that ground of review below succeeded. The facts are not relevantly in dispute

The legislative scheme

3    Relevantly, s 36(2) of the Migration Act provided:

36    Protection visas – criteria provided for by this Act

...

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

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(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; or

...

(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;

...

Protection obligations

(3)    Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(emphasis added)

4    As is well understood, the Parliament chose to define in the Act its understanding of Australia’s non-refoulement obligations in public international law, including by definitions of “refugee” and “well-founded fear of persecution” in ss 5H and 5J and the concept of complementary protection in s 36(2)(aa). The latter concept is that Australia must afford protection to persons in respect of whom the Minister is satisfied that Australia has protection obligations because he has substantial grounds for believing that, as a necessary and reasonable consequence of the non-citizen being removed from Australia (relevantly here, to Afghanistan), there is a real risk that a person (such as the appellant) will suffer significant harm, as defined in s 36(2A) and (2B).

Background

5    The Authority found that the appellant was a national of Afghanistan from Paktia Province. It rejected his claims that he only spoke Pashto and could not read or write any language. It found that he ran his own business in his home village’s bazaar providing services in respect of electronics in motor vehicles.

6    In March 2021, this appeal first heard by another Judge of this Court who since has retired and thus was unable to give judgment. At that time, the governance of Afghanistan was very different to its current situation, and these reasons are not concerned with whatever may be the position the appellant is now in or which the Minister in the future may be asked, or wish, to consider for the purpose of ss 48A and 48B of the Migration Act.

The Authority’s decision

7    The Authority accepted the appellant’s claims that he faced a real chance of both serious harm from the Taliban, within the meaning of s 5J(5), and significant harm, within the meaning of s 36(2A), if he returned to his own area or to the district in his home province in which that was located. It then proceeded to consider, for the purposes, first, of his refugee claim under s 36(2)(a) and, secondly, his claim for complementary protection under s 36(2)(aa), whether there would be a real chance of him suffering the harm that he claimed to fear to which he would be exposed both in his home province (as it found he would be ) or by reason of, among other matters, the general security situation in Kabul at that time.

8    The appellant’s migration agent made a detailed written submission to the delegate which the Authority addressed in its reasons. The migration agent submitted that:

    the appellant could not relocate from his home province to any other region within Afghanistan, including to Kabul;

    Kabul was not a safe or reasonable area for him to relocate to, even though it was comparatively safer than some other areas in Afghanistan because, at that time, it was still subject to insurgent attacks, violence and sectarian tensions and the then continuing influence of the Taliban there posed a significant threat to his life and security, placing him in grave danger were he to return;

    the Taliban had made a number of attacks in Kabul in recent times against agencies and individuals which it considered either to support the then Afghani government or pose a threat to the Taliban;

    those attacks demonstrated the general fragility of the situation and the wide-ranging influence of the Taliban in Kabul and elsewhere;

    the security situation in Kabul was deteriorating;

    based on country information, there was inadequate access to electricity, water, sanitation facilities and employment in Kabul for a person in his position;

    the appellant had no relatives, friends or contacts in Kabul upon whom he could rely if required to relocate there; and

    he would be exposed to the likelihood of being homeless, starving and unable to survive were he to relocate to Kabul.

9    Next, the submission addressed the reasonableness of relocation for the purposes of the appellant’s complementary protection claim, arguing that:

    the guidelines of the United Nations High Commissioner for Refugees (UNHCR) suggested that the threshold for safety and security in any relocation assessment required that a claimant be free from any danger or risk of injury in the locality and that Gummow, Hayne and Crennan JJ stated a test in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at 27 [24] which, the submission asserted, was consistent with the understanding of the UNHCR guidelines;

    the violence that had occurred in Kabul before and after the dates referred to in country information to which the submission referred made it imperative that ongoing violence “must not exist” in a region for it to be considered safe for relocation and that this was the standard to be met for any relocation assessment;

    it would be unreasonable to require the appellant to relocate in his particular circumstances because of his limited ability to find work in other areas of Afghanistan (including Kabul) lack of any relatives or family in other areas and the significant hardship he would face in re-establishing himself;

    life in Kabul would not be affordable for a person in the appellant’s position and so it would not be reasonable or feasible for him to relocate there and re-establish himself and his family without due hardship so that they could subsist;

    the addressee should apply Kenny J’s reasons in MZACX v Minister for Immigration and Border Protection (2016) 161 ALD 73 at 83 [35], where her Honour distilled a requirement for a decision-maker considering the possibility of relocation within a person’s country of nationality as raising two questions, namely:

[T]he first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk, of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it 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 enquiry has a different focus.

(emphasis added)

    the addressee was obliged to consider the practical reality for the appellant in determining whether it was reasonable to expect him to relocate;

    relocation to another area of Afghanistan was not practicable because of, first, the risk of harm were he required to return to his home town to take his family with him to another area, including the danger of his travelling to or from there and anywhere else, and secondly, the absence of stable accommodation and a job to protect and provide for his family.

10    The submission asserted that the evidence of deteriorating security, together with the increasing violence and attacks by militants in Kabul, made clear that the chance of the appellant being seriously harmed or killed were not remote, and as such, relocation to Kabul or anywhere else in Afghanistan was not a feasible or reasonable option. It submitted that, if forced to relocate to Kabul, his family and he would be in danger in a city infiltrated by the Taliban and he would have to compete with hundreds of thousands of other displaced persons for housing employment and basic necessities of life.

11    Importantly, the Authority found that the appellant faced a real chance of serious and significant harm were he to return to his home area.

12    However, the Authority also found that:

    the appellant had not claimed, and there was no evidence, that persons from whom he feared harm, namely a cousin and the Taliban, had harmed anyone else in his immediate or extended family;

    the actions of his cousin, or the cousin’s associates, had involved an opportunistic act based on the cousin’s jealousy of the appellant’s business success;

    his family did not fear harm in their home area because after they had relocated to Peshawar in Pakistan in 2013, presumably after the appellant’s departure, they had returned there at different times to obtain identity documents;

    it might be that other relatives had remained in his home area, such as an uncle who lived next door to his former home; and

    there may be other reasons why his family had relocated to Peshawar.

13    The Authority dealt with the issue of relocation in two parts of its reasons, namely when dealing with his claims under each of s 36(2)(a) and (aa). In dealing with his refugee claim, the Authority considered whether, as required by s 5J(1)(c), there was a real chance of persecution, as defined, that related to all the areas of Afghanistan, including whether that would be so were he to relocate to Kabul. It did not accept that he faced any risk from his cousin should he relocate to Kabul. It had regard to country information and found that the appellant did not have such a profile that the Taliban would look for him more than five years after he had left Afghanistan, or that he was of sufficient interest for the local Taliban in his home area to pursue him to Kabul. It found that the chance was remote that the Taliban operating in Kabul would have any knowledge of the appellant or become aware of him or work he had done more than five years before, or of targeting him because of any actual or imputed political opinion. It was not satisfied that he faced a real chance of harm in Kabul from the Taliban or other extremist groups. It then found at par 27:

I acknowledge the complex and highly fluid security situation in Kabul and in Afghanistan generally. I note that Kabul had the most civilian deaths (479) in the country in 2017. Most of these were as the result of suicide attacks or deliberate and targeted killings. For the reasons given above, I do not accept however that the applicant faces a real chance of being targeted. Whilst I cannot guarantee the applicant will not be inadvertently caught up in a suicide bombing or other random violent act, I consider his chance of this, in a city of 5 million people, is too low to amount to a real chance. I am not satisfied the applicant faces a real chance of harm due to the general security situation in Kabul.

(emphasis added)

14    After considering other claims the appellant made, the Authority concluded that it was not satisfied that he had a profile that would be of interest to the Taliban or any extremist group operating in Kabul for any of his claimed reasons to be a refugee, including having done work for police or military, being targeted by the Taliban in his home area in 2012, having an actual or imputed political opinion of being an opponent of the Taliban or other extremist groups, or that he would be targeted in Kabul for any of the reasons claimed, individually or considered cumulatively. Accordingly, it did not accept that he had a real chance of persecution that related to all areas of Afghanistan, so that he did not meet the requirements of s 5H(1) or 36(2)(a) for recognition as a refugee.

15    Next, the Authority set out the requirements in s 36(2B), and focused, in particular, on the issue under s 36(2B)(a) as to whether it would be reasonable for the appellant to relocate to an area in Afghanistan where there would not be a real risk that he would suffer significant harm. It repeated its earlier findings that he did not face a real chance of harm in Kabul for any of the reasons that he claimed and then said (at pars 36 to 38):

36.    At the interview, when the delegate put to the applicant she would be considering relocation to Kabul, he said it would not be safe for him there. I have found the applicant does not face a real chance of harm from the Taliban, or any other group, in Kabul for any of the reasons claimed. 'Real chance' and 'real risk' has been found to equate to the same threshold. For the reasons given above, I find the applicant does not face a real risk of significant harm in Kabul.

37.     The representative provided country information on incidents of targeted and random violence in Kabul. He submits that ongoing violence must not exist at all in a region in order to deem it safe for relocation. I do not accept this is the test. The test is whether there is an area of the country where there is not a real risk he will suffer significant harm. For the reasons given above, I find the applicant does not face a real risk of significant harm in Kabul for any of the reasons he claimed or because of the general security situation.

38.    I have considered whether the applicant could reasonably relocate to Kabul. In submissions to the delegate the representative submitted it was not reasonable for the applicant to relocate within Afghanistan because it would be hard for him and his family to subsist, and he would need to have a stable job and accommodation to support his family. The representative also said the applicant would have to return to Paktia to collect his family.

(emphasis added)

16    The Authority found that the appellant’s family would be able to remain in Peshawar with their current support where they allegedly had lived since 2013, until such time as he was able to secure work and accommodation in Kabul. It did not accept his claim that he would have to travel to his home province to see, or collect, his family, or that they would be at risk from returning to their home area, since they had already done so without harm. It found that his family were capable of travelling to meet the appellant in Kabul. It referred to country information that there were greater opportunities for employment for returnees from western countries who relocated to Kabul. It rejected the appellant’s claim to be illiterate and uneducated, finding that he had completed a traineeship, operated his own business, worked in Australia as a courier and shown himself to be a capable and adaptable worker with trade skills. It found that he had some familiarity with Kabul, having travelled there to obtain a driver’s licence, and that he had a maternal uncle who lived there. It found traditional extended family and tribal community structures were the main source of protection or coping mechanisms for successful relocation and that the appellant could reasonably obtain assistance from his uncle to help him settle in Kabul, concluding at par 42 that:

I am satisfied in all the circumstances that it is reasonable for the applicant to relocate to Kabul, where he does not face a real risk of significant harm.

17    Accordingly, it rejected his claim for complementary protection and affirmed the delegate’s decision not to grant him a protection visa.

The trial judge’s decision

18    The trial judge set out the facts and accurately summarised the appellant’s submissions. His Honour found that the Authority had dealt with the migration agent’s submissions in its reasons. He crystallised the relevant nub of the appellant’s submissions below as asserting that the Authority had failed to consider whether it was reasonable for him to relocate to Kabul because of the general security situation there. His Honour found that there was some attraction in those submissions, but concluded that they sought effectively to compartmentalise aspects of the Authority’s reasoning process, rather than reading its reasons as a whole.

19    The trial judge found that the Authority had assessed in par 27 not just whether the appellant might be exposed to a real risk of persecution were he to return to Kabul, but in fact had addressed all of the risks to which he had claimed he might be exposed because of the general security situation in Kabul were he to relocate there. His Honour found that what the Authority said in par 37 was a response to the appellant’s claims as articulated to it. The trial judge reasoned that pars 37 and following should be understood as a rejection of the claim that the appellant faced a real risk of significant harm were he to relocate to Kabul for any of the reasons claimed or because of the general security situation there.

20    His Honour found that the Authority’s conclusion in par 42 was a summation of its finding that, in all the circumstances, there was no real risk amounting to serious or significant harm were the appellant to relocate to Kabul.

The appellant’s submissions

21    The appellant argued that his Honour should have found that the Authority committed a jurisdictional error in failing to consider whether it was reasonable for him to relocate because the general security situation in Kabul posed sufficient risk of harm to him, even though this may have fallen short of serious or significant harm as defined in the Migration Act. The appellant acknowledged that his migration agent’s submission to the Authority incorrectly had asserted that, in order for it to be reasonable for a person to relocate within his or her home country, there must be no risk at all of any harm.

22    However, the appellant argued, the Authority had only considered the risk of his being exposed to significant harm were he to relocate to Kabul because of the general security situation, as set out in the last sentence of par 37 of its reasons and that it erred by failing to assess whether any lesser risks posed by the then general security situation in Kabul supplied a basis for concluding that relocation there would not be reasonable or practicable. He contended that this was because he would be exposed to those kinds of risks, even though they did not amount to a risk of the serious or significant harm which the Authority accepted he had a real reasonable basis to fear in his home area.

23    He argued that SZATV 233 CLR 18 and Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 were not applicable to, or were distinguishable from, the current provisions of the Migration Act, because those cases had dealt with the evaluation of the reasonableness of relocation in the context of Australia's international non-refoulement obligations prior to the amendments to the Migration Act in 2014. He argued that the Authority’s reasons, including those in pars 27 and 37, wrongly applied the test under the previous legislation and did not address whether it was reasonable for him to relocate to Kabul because of a lesser risk of harm (than serious or significant), based on the general security situation there. He contended that the decision of the Full Court in CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156 at [5]-[10] encapsulated his complaint that the Authority had committed a jurisdictional error and his Honour erred by failing to identify that the Authority had conflated the two stages of the reasonableness of relocation inquiry that Kenny J had explained in MZACX 161 ALD 73.

Consideration

24    In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ explained that, in reviewing an administrative decision, a court:

should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker” ... "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."

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 beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

(footnotes omitted)

25    Their Honours also held that a judicial review of an administrative decision is concerned with whether the decision-maker acted according to law in making the challenged decision and that this was not a review of the merits of the decision. That is because the merits are the sole concern of the administrative decision-maker under the legislation that the Parliament has enacted. In Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 184-186 [23]-[25] and 195-196 [59]-[60], French CJ, Bell, Keane and Gordon JJ held that a decision-maker’s reasons had to be read fairly, as a whole, and re-emphasised the caution against engaging in merits review the court must adopt in reviewing administrative decisions.

26    Importantly, in SZATV 233 CLR at 27 [24], Gummow, Hayne and Crennan JJ held:

What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

27    In SZSCA 254 CLR at 327 [25], French CJ, Hayne, Kiefel and Keane JJ said:

The factum upon which the principle of relocation operates is that there is an area in the visa applicant's country of nationality where he or she may be safe from harm.

28    They said that the question of what may reasonably be expected of an applicant for protection had to be addressed in the manner that Gummow, Hayne and Crennan JJ had distilled in SZATV 233 CLR at 27 [24]. Their Honours went on to discuss (at 328-329 [28]-[31]) the tests in SZATV 233 CLR 18 and the speech of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] 2 AC 426. They held that a decision-maker had to compare the conditions prevailing in the place of the claimant’s habitual residence and those in the area being considered for relocation, having regard to the impact of relocation on him or her. They held that the inquiry was, namely, not just whether he or she would face a real chance of substantial or significant harm if he or she relocated to that place, but what the impact would be on the person of remaining in the new locale and on his or her ability to earn a living there and to tend to the needs of him, or her and any relevant family members.

29    Of course, as Kiefel CJ, Keane, Gordon, Edelman and Steward JJ said in DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at 13 [18], the text of ss 36(2)(a) and (aa) is different and accordingly the statutory questions each section poses are both different and not interchangeable and direct different inquiries for the purposes of each provision. They noted that the question of whether a person has a well-founded fear of persecution under s 36(2)(a) is fundamentally different to that posed in s 36(2)(aa), which required attention for the administrative decision-maker as to whether a person can be returned to a particular State by reference to the consequences of removal to that State. As they emphasised at 13 [19]:

Assessing the risk that a non-citizen will suffer significant harm within s 36(2A) necessarily involves an assessment of the individual circumstances of the non-citizen and the basis on which the non-citizen claims that those circumstances give rise to the requisite degree of risk as a necessary and foreseeable consequence of removal to a receiving country.

30    In CIT17 v Minister for Immigration and Border Protection (2018) 265 FCR 572 at 591 [68], Collier, Markovic and Lee JJ distilled the principles that Kenny J had identified in MZACX 161 ALD at 80 [25]-[26], in the context of assessing the question posed by s 36(2B)(a), as to the reasonableness of relocation having regard to the practicality of the particular applicant doing so. Their Honours held that this was a different question to that raised in relation to his or her fear of substantial or significant harm for the purposes of the two criteria for protection. Their Honours concluded (at 597 [84]-[86]) that the detailed examination in that case as to whether it was reasonable for the person to relocate negated CIT17’s argument that the Authority had failed to address the second limb of the relocation test or erred by not having regard to the practicality of his doing so.

31    Likewise, in CSZ16 [2020] FCAFC 156 at [10], Jagot, Charlesworth and Snaden JJ said:

[T]he 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. The question whether the decision-maker, in this case the [Authority], did in fact consider whether the non-citizen was exposed to 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.

(emphasis added)

32    I am of opinion that the Authority asked itself the correct question in par 37 of its reasons. It correctly rejected the appellant’s submission and used the correct test. It addressed the first aspect of the necessary inquiry, being whether there was an area of Afghanistan where there was not a real risk that he would suffer significant harm. Next, the Authority turned to consider the specific submissions that the appellant’s migration agent had made as to why it would not be reasonable to require him to relocate. Read fairly, the Authority’s reasons in pars 38 to 41 show that it had regard to lesser risks of harm (than serious or significant harm as defined in the Migration Act) based on the general security situation in Kabul, that it had earlier discussed specifically in par 27, and the appellant’s submissions relating to his ability to find work, accommodation and live in Kabul alone or with his family, before concluding in par 42 that, in all the circumstances, it was reasonable for him to relocate to Kabul.

33    The Authority dealt in pars 38 to 41 with each of the appellant’s migration agent’s assertions as to why it was not reasonable or practicable for him to relocate to Kabul, in light of its earlier findings in par 27 that there was no guarantee that he would not be caught up inadvertently by a random act of violence in Kabul, but that that risk was “too low” to amount to a real chance of him suffering any harm (i.e., harm of a general kind), having regard to the general security situation in Kabul.

34    It was open to the Authority to refer to or rely on its earlier findings in relation to his claim to protection as a refugee in its evaluation of his complementary protection claim: DQU16 273 CLR at 16 [27]. As Jagot, Charlesworth, Snaden JJ said in CSZ16 [2020] FCAFC 156 at [10], the question depends on drawing an inference from the decision maker’s reasons as a whole, read fairly and the context of the claims made.

35    Accordingly, I am of opinion that the appellant has not established that the Authority made a jurisdictional error in its evaluation of his claims for complementary protection or in relation to relocation within Afghanistan.

Disposition

36    It follows that his Honour did not err in refusing the appellant’s claim for constitutional writ relief. Accordingly, I am of opinion that the appeal must be dismissed. I will allow the parties to make submissions on costs, including whether there should be any order under the Federal Proceedings (Costs) Act 1981 (Cth).

Associate:

Dated:    29 August 2023