Federal Court of Australia

DVF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 247

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

introduction

1    The appellant, who is a Shia Hazara from Jaghori District in the Ghazni Province of Afghanistan and a citizen of that country, arrived at Christmas Island as an unauthorised maritime arrival on or about 29 October 2012.

2    On 2 March 2016, the appellant applied for a protection visa subclass XD-785 Temporary Protection Visa (TPV) under the Migration Act 1958 (Cth). On 4 November 2016, the application for the TPV was refused by a delegate of the first respondent. On 26 June 2018, the Immigration Assessment Authority acting under Part 7AA of the Act affirmed the decision of the delegate.

3    In a further amended application for review, the appellant sought judicial review of the Authority’s decision before the Federal Circuit Court and Family Court of Australia (Division 2).

4    Before the primary judge, the appellant advanced three grounds of review:

(a)    The Authority failed to consider whether the appellant faced a real risk of significant harm on the roads outside Kabul, including in accessing his home area, as a necessary and foreseeable consequence of his removal from Australia;

(b)    The decision of the Authority was based on an irrational finding in relation to the risk of harm in Jaghori, or alternatively a finding based on no evidence, or alternatively an assessment reached by asking the wrong question; and

(c)    The outcome of the decision of the Authority was unreasonable, or alternatively, the task of the Authority remains unperformed, because the country of reference in the Authority’s decision has been displaced by the Islamic Emirate of Afghanistan.

5    The primary judge found that none of the three grounds of review were made out and on 13 October 2021 dismissed the application. It is from that judgment the appellant now appeals.

The Authority’s decision

6    The Authority summarised the appellant’s claims; recorded the appellant’s explanation for “significant shifts in his evidence”; made adverse findings about the appellant’s credibility and rejected the appellant’s various claims to have any further relevant personal profile.

7    After considering the country information before it, the Authority found that:

(a)    If returned to Afghanistan, the appellant would return to his home area in the Jaghori District, but would be first returned to Kabul and would need to travel on the roads between Kabul and Jaghori District in Ghazni Province. However, the Authority was not satisfied the appellant would face a real chance of serious harm because of his ethnic or religious profile when travelling by road: Authority’s Reasons [80];

(b)    Although there was a level of insecurity on the roads, it was not satisfied that the appellant would face a real chance of serious harm because of his ethnic or religious profile or any other related profile if he were to travel on the roads in returning to the Jaghori District: Authority’s Reasons [80]-[83];

(c)    There was no real risk or chance of the appellant facing serious harm for any reason during his brief stay in Kabul: Authority’s Reasons [84]; and

(d)    There was “not a real chance or risk of the appellant facing harm on the basis of his religious, ethnic profile or any other profile in his home area of Jaghori District, or Ghazni Province overall, whether from Islamic State, the Taliban or any other person or group: Authority’s Reasons [85].

8    The Authority was also not satisfied that there was a real chance of the appellant facing serious harm by reason of him returning to Afghanistan from Australia; or being an asylum seeker; or on any imputed profile related to those factors: Authority’s Reasons [86]-[89].

9    With respect to generalised insurgent and criminal violence, based on the country information before it, the Authority found that the chance or risk of the appellant being seriously harmed in his home area to be remote: Authority’s Reasons [90]-[91].

10    The Authority concluded that the appellant did not meet the definition of a refugee in s 5H(1) of the Act and did not meet the criteria in s 36(2)(a) of the Act.

11    As to the complementary protection criteria in s 36(2)(aa) of the Act, the Authority referred to its previous findings and for the same reasons and based on the same assessment and evidence, was satisfied there was not a real risk that the appellant would face significant harm. The Authority found the appellant did not meet the complementary protection criteria: Authority’s Reasons [95]-[98].

12    As to relying on the same material, the Authority referred to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505.

The primary judge’s consideration

13    In considering the application for judicial review, the primary judge summarised the Authority’s reasons in detail, noting the Authority set out the relevant background together with the relevant country information: Reasons at [8]-[16].

14    The primary judge initially dealt with ground three, finding that the decision in EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 was plainly wrong, such that the Authority could not find that the existence or otherwise of a changed regime in Afghanistan was relevantly a jurisdictional fact. Consequently, the primary judge dismissed ground 3. There is no appeal against that part of his Honour’s judgment.

15    As to the first ground before the primary judge, his Honour found that the Authority was entitled to have regard to all of the country information before it collectively when concluding that, as a necessary and foreseeable consequence of being returned from Australia to Afghanistan, there was no real risk that the appellant would suffer significant harm. The primary judge concluded that the Authority had engaged with the appellant’s claims appropriately and had not erred in finding that the appellant did not satisfy the relevant complementary protection criteria: Reasons [43]-[50].

16    When considering the appellant’s second ground, the primary judge observed that it was common ground that the choice and weight to be given to country information was a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, and that whether or not a finding is factually based or not is a question of law: Reasons [48]-[49]; Rawson v Federal Commissioner of Taxation [2013] FCAFC 26; (2013) 59 AAR 221 at [83]-[84] (Jagot J).

17    The primary judge found there was a basis for the Authority’s findings that the Jaghori District was an area that saw little in the way of insurgent or other security incidents and it was open for the Authority to so find: Reasons [49]. The primary judge held: Reasons [50], that there was also no merit to the claim that the Authority’s findings as to there being little in the way of insurgent or other security incidents were irrational and that the findings were open on the evidence before the Authority: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130], [131] and [135] (Crennan and Bell JJ).

18    The primary judge referred to the Authority’s finding at [90], that although there had been a deterioration in the security situation in the country, notably within Kabul, and that the Jaghori District is not immune from violence and insecurity, the country information showed that the security situation is markedly better in the Jaghori District and other neighbouring Hazara-dominant areas in the Hazarajat. The primary judge found no merit to the claim that the reasons of the Authority were internally contradictory so as to render them irrational, finding that the criticism made of the Authority’s wording was one made with an eye too keenly attuned to error.

19    Finally, the primary judge found there was no merit to the claim that the Authority fell into error by assessing the question of whether there was a real risk that the appellant would suffer significant harm under s 36(2)(aa) of the Act on a comparative basis, rather than confining its assessment of risk to the appellant's home area of the Jaghori District alone: Reasons [55]-[56]. The primary judge also held that the decision of the Authority could not be considered legally unreasonable, or one lacking an evident and/or intelligible justification: Reasons [57].

20    The application was dismissed.

Notice of appeal

21    The appellant filed and served a notice of appeal on 8 November 2021. The notice of appeal specifies two grounds of appeal which are substantially the same as grounds one and two before the primary judge:

(1)    The primary judge erred in failing to find that the decision of the Authority was affected by jurisdictional error in that it failed to consider whether the appellant faced a real risk of significant harm on the roads outside Kabul, including in accessing his home area, as a necessary and foreseeable consequence of his removal from Australia.

(2)    The primary judge erred in failing to find that the decision of the Authority was based on an irrational finding in relation to the risk of harm in the Jaghori District, or alternatively an assessment reached by asking the wrong question.

Parties’ submissions and consideration

Ground 1

22    The appellant submits that the Authority considered only the appellant’s claim under the refugee criterion in s 36(2)(a) of the Act of a well-founded fear of persecution from the Taliban and other insurgent groups based on his ethnicity and religion. The appellant submits that the Authority failed to consider the risk of harm under the complementary protection criterion in s 36(2)(aa) of the Act, which focuses on the consequences of removal, not on persecution for a particular reason. The appellant refers to the statement by the High Court in DQU16 v Minister for Home Affairs (2021) 95 ALJR 352, [2021] HCA 10 at [18] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) that:

As is self-evident, the text of s 36(2)(a) and s 36(2)(aa) is different and therefore, unsurprisingly, the statutory questions are different: they are not interchangeable. And they are different because the purpose of the inquiry under each provision is different. Determining whether a person has a well-founded fear of persecution for a Convention reason under s 36(2)(a) is a fundamentally different inquiry to the question in s 36(2)(aa). Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non-citizen’s removal to a particular State.

(Citations omitted)

23    The appellant submits that while the Authority found that it was not satisfied the appellant would face a real chance of serious harm “because of his ethnic or religious profile if he were to travel on the roads”, the Authority did not explicitly consider whether there was a real risk of significant harm from such road travel that might be unconnected to the appellant’s ethnic or religious profile. The appellant submits that the Authority appears to dismiss the risk of road travel as such attacks were not necessarily motivated by religion or ethnicity.

24    On that basis, the appellant submits that the Authority committed jurisdictional error and it failed to complete its statutory task. The Authority submits that the primary judge erred in finding that the Authority had properly assessed the complementary protection criteria.

25    The first respondent submits that the task before the Authority was to address the statutory question posed by the complementary protection criteria and that to the extent that the premise of the alleged error proceeds from an assumption posed in different and narrower terms, then it is flawed and does not reflect the statutory inquiry.

26    The first respondent submits that the Authority correctly identified the statutory question and the circumstances constituting “significant harm” for the purposes of s 36(2)(aa) of the Act as defined in s 36(2A), and then referred to its earlier findings when considering the relevant criteria, which it was entitled to do.

27    The first respondent submits the Authority considered the appellant’s risk of harm not only by reference to its findings as to the appellant’s religion and ethnicity but also considered that the appellant did not fit within the higher risk categories identified in the country information. On that basis, the first respondent submits the authorities also assessed the appellant’s risk of significant harm against his broader profile.

28    I accept the first respondent’s submission.

29    In DQU16 at [27], the High Court held that Authority is entitled to refer to and rely on any relevant findings it made while considering the refugee criterion under s 36(2)(a) when considering the complementary protection criteria:

Although the statutory questions posed by s 36(2)(a) and s 36(2)(aa) are different, it has long been recognised that, to the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a). The question under s 36(2)(aa) then is whether, in light of those and any other relevant findings, 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 of the kind prescribed in s 36(2A), subject to s 36(2B) and (2C).

(Citations omitted)

30    It is clear that the Authority was conscious of and considered the different criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The primary judge was correct to so find.

31    It follows that the appellant’s contention that the primary judge erred in failing to find that the Authority’s decision was affected by jurisdictional error in failing to consider whether the appellant faced a real risk of significant harm of the roads outside Kabul, including in accessing his home area, as a necessary and foreseeable consequence of his removal from Australia fails.

Ground 2

32    The appellant submits that in considering Refugee Convention criteria for the purposes of s 36(2)(a) or the complementary protection criteria in s 36(2)(aa), the Authority was required to have regard to the most recent country information before it. So much may be accepted.

33    The appellant’s submissions on ground two may be divided conveniently into two parts which are reflected in this ground of appeal and which contend the decision of the Authority was based on an irrational finding, alternatively an assessment reached by asking the wrong question.

34    As to the latter, the appellant submits that the Authority relied on comparative levels of safety and security in different areas of Afghanistan rather than assessing the risk of harm in the appellant’s home area on its own terms. The appellant refers to part of what Moshinsky J said in CID15 v Minister for Immigration and Border Protection [2017] FCA 780 at [35].

35    In CID15, Moshinsky J was considering the High Court’s consideration of the Refugee Convention’s definition of “refugee”, and noted that the High Court has held that a fear of persecution will be “well-founded” if there is a “real chance” that the refugee will be persecuted if returned to their country of nationality. In that context, his Honour referred to the High Court’s explanation that a “real chance” of persecution exists if the chance of persecution occurring in the future can be described as being more than “remote”, or more than “far-fetched”, even though there may be less than a 50% chance of it occurring: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 389, 398, 407 and 429: see CID15 at [34].

36    It was against that background that at [35] his Honour said:

The ‘real chance’ test is an objective one, whereby the decision-maker considers whether there is more than a remote or far-fetched chance of the applicant being harmed in a place. It is not a relative test whereby the decision-maker compares the chance of the applicant being harmed in one place relative to another place.

37    However, Moshinsky J continued in this passage from his Honour’s judgment:

I note that in SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594, Judge Driver said: “The test of whether there is a real chance or a real risk of harm is not a relative one. It is not determinative whether the risk in one place is ‘less severe’ than the risk in another place. What matters is the actual level of risk in any particular place” (at [20]). I respectfully agree with this statement of principle.

38    Contrary to the appellant’s submissions, the Authority considered the actual level of risk in the appellant’s home District of Jaghori, finding that for the purposes of s 36(2)(a) that the appellant “… would not face a real chance of harm for reasons of his religion, ethnic or any related profile, and generalised violence, on the basis of his asylum claims, as a result of his time living and returning from the West/Australia, or any related imputed political opinion or profile arising from these factors.”

39    So too, for the purposes of s 36(2)(aa), the Authority found there was no real risk the appellant would face significant harm for the same reasons.

40    The appellant’s contention that the primary judge erred in failing to find that the Authority’s assessment was reached by asking the wrong question cannot be accepted.

41    The second part to the appellant’s submissions on this ground is that the Authority’s findings were irrational.

42    The appellant submits that the Authority’s findings at [83] and [85] of the Authority’s Reasons that the Jaghori District “sees little in the way of insurgent or other security incidents” could not be rationally supported by the country information before it. The appellant submits that the country information points to a deteriorating security situation, abduction and killing of Hazaras by Islamic State members and frequent abductions on the roads in attempting to reach the Jaghori District from Kabul.

43    The appellant also submits that the Authority’s findings at [83] and [85], as well as the Authority’s conclusion at [91] that the chance of the appellant “being seriously harmed in generalised, insurgent or criminal violence in his home area” was remote, is contradictory to its finding at [90], that “Jaghori is not immune from violence and insecurity”, and at [91] that, “there are obvious risks to civilians in the country, including within Jaghori”.

44    The first respondent submits it is not enough for this ground of review for there to be disagreement, even emphatic disagreement, with the Authority’s reasoning: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40], (Gleeson CJ and McHugh J).

45    The first respondent submits there was country information before the Authority which suggested that there were minimal, if any, security incidents in Ghazni province (in which the Jaghori District is located) involving Hazaras as well as information before the Authority that provided a sufficient basis to support its findings. The first respondent submits further that the Authority’s findings to the effect that there was little by way of insurgent or other security incidents in the Jaghori District are not rendered irrational by the Authority’s findings at [90] and [91] that the Jaghori District was not immune from violence and insecurity.

46    I accept the first respondent’s submission. The Authority engaged in a detailed analysis of the country information before reaching its conclusions as to whether the appellant came within s 36(2)(a) and/or s 36(2)(aa). It is clear from its reasons that the Authority relied upon the most recent country information before it in making its decision and that the conclusion that it reached was open to it on the basis of that material.

47    It is well-settled that the choice and weight of country information is a matter for the Authority and the Court cannot substitute its own view of the material, even if it had a different one from that reached by the Authority: NAHI at [13] (Gray, Tamberlin and Lander JJ).

48    It is also well-settled that where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-7 (Mason CJ).

49    On the question of irrationality and illogicality, in SZMDS at [135] (Crennan and Bell JJ) said:

…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. … (See also [130], [131])

50    The appellant’s contention that the primary judge erred in failing to find that the decision of the Authority was based on an irrational or illogical finding fails.

Conclusion

51    It is for these reasons that the appeal must be dismissed.

52    There is no reason why the appellant should not pay the costs of the first respondent.

Associate:

Dated:    15 March 2024