AGU16 v Minister for Immigration and Border Protection

THE TRIBUNAL'S DECISION 4 The appellant applied to the Tribunal for review of the delegate's decision. He filed a written submission prepared by his solicitors/migration agents dated 1 September 2015 ("the pre-hearing submission") and appeared before the Tribunal on 4 September 2015 to give evidence and make submissions. 5 The appellant claimed to fear harm by reason of his ethnicity, being a Hazari, his religion, being a Shia Muslim, and his imputed political opinion as a teaching student and his membership of a particular social group consisting of failed asylum seekers who have returned to Afghanistan from a Western country. The appellant claimed to fear persecution by the Afghan Government, the Taliban, Islamic State or Daesh, or other insurgent groups. 6 On 7 January 2016, the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. The Tribunal was not satisfied that the appellant is a person in respect of whom Australia has protection obligations. In particular, the Tribunal found that the appellant did not satisfy the criteria for the grant of a visa in either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). 7 The appellant claimed, amongst other things, that if he was deported to Afghanistan he would be in danger because he would be met at the airport by reporters who would want to know why he had been deported. This would be broadcast on television and he would then be targeted by the Taliban as a person who had been deported from a Western country. He claimed that he would be in extreme danger. He also claimed that it would not be safe for him to return to Zardalu. He claimed that the roads between Kabul and Zardalu are dangerous and that people using them were killed or abducted. 8 The Tribunal did not accept there was a real chance that the appellant would be discriminated against if he was to return to his home in Zardalu now or in the reasonably foreseeable future or that there was a real chance that he would be persecuted by the Afghan Government, the Taliban, Islamic State or Daesh, or other insurgent groups, or by the Pashtun or Tajik groups, for reasons of his ethnicity (Hazara), his religion (Shia Muslim) or his membership of a particular social group (failed asylum seeker).

The APPLICATION FOR JUDICIAL REIVEW 9 The appellant relied on various grounds of review pleaded in an amended application filed on 19 May 2016. The grounds of review relevant to the appeal are as follows: The Migration and Refugee Division of the Administrative Appeals Tribunal (the Tribunal) failed to exercise its jurisdiction under the Migration Act 1958 (Cth) (the Act) and/or its decision the subject of this application is affected by jurisdictional error because: 1. […] 2. […] 3. The Tribunal failed to apply the correct legal test when determining the location of the applicant's "home region" or "home area". · Particulars (a) At [17], [25], [34], [49] and [51] of its decision, the Tribunal asked itself where the applicant "came from" and considered the present whereabouts of his family. (b) The Tribunal was required but failed to apply the test as stated in SZQEN v MIAC [2012] FCA 387 at [38]. · 4. Having regard to its findings and reasons, the Tribunal misapplied or misconstrued Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (Appellant S395/2002). Particulars (a) The Tribunal erred because the principles from Appellant 8395/2002 did not apply given the applicant's claims and the circumstances as found by the Tribunal. (b) Alternatively, the Tribunal failed to consider how the applicant would modify his behaviour or the reasons for it. 5. The Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth). Particulars (a) The Tribunal considered the following issues to be dispositive to the review: (i) The motivation of insurgent groups to conduct kidnappings (at [40], [42] and [46] of its decision); and (ii) The risk of harm arising from Islamic State, Daesh or affiliated groups (at [36]). (b) The applicant had not been invited to give evidence and present arguments in relation to either of these issues. 10 In relation to each of the relevant grounds of review: Ground 3 (home area) - The primary judge held that the Tribunal applied the correct legal test and its finding in relation to the appellant's home area "was open on the evidence before the Tribunal" (at [21]-[22]). Ground 4 (Appellant S395/2002) - The primary judge held that "[t]he taking of a precaution to maintain a low profile is not an assumption of the kind identified in Appellant 395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473" (at [28] and, generally [24]-[29]). Ground 5 (s 425 of the Act) - The primary judge was satisfied that the appellant received a genuine hearing and that the Tribunal complied with the requirements of s 425 of the Act (at [34]). 11 The primary judge was not satisfied that the Tribunal made any of the jurisdictional errors postulated by the appellant and dismissed the application: see [11]-[34] of his Honour's reasons.

The grounds of appeal 12 The appellant now appeals against the primary judge's judgment. His grounds of appeal are as follows: 1. The Federal Circuit Court (the Court) erred by not finding that the Administrative Appeals Tribunal (the tribunal) failed to comply with s 425 of the Migration Act 1958 (Cth) (the Act) as construed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (SZBEL). Particulars (a) At [30] of its judgment, the Court considered that: (i) a claim relating to Islamic State, Daesh or affiliated groups was only raised before and dealt with by the tribunal, and (ii) there was no finding by the delegate in relation to the Islamic State, Daesh or affiliated groups "that relied on any obligation of the kind identified in SZBEL". (b) The Court was required to consider whether the appellant had been invited to appear before the tribunal to give evidence and present arguments in relation to an issue arising in relation to the decision under review. (c) The Court ought to have found that the tribunal failed to comply with s 425 of the Act. 2. The Court erred by failing to find that the tribunal misapplied or misconstrued Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Appellant S395/2002). Particulars (a) At [28] of its judgment, the Court did not accept "that the reference to the need to take precautions to maintain a low profile coming from a western country in the context of the quoted country information involved an assumption of the kind identified in Appellant S395/2002". (b) A need to take precautions was an assumption of how the appellant might avoid a risk of persecution. (c) The Court ought to have found that the tribunal misapplied or misconstrued Appellant S395/2002, having regard to the tribunal's finding and reasons. 3. The Court erred by not finding that the tribunal failed to ask itself the correct question when determining the location of the appellant's "home area". Particulars (a) At [21]-[22] of its judgment, the Court considered: (i) that the tribunal took into account where the appellant had "come from" (ii) the appellant's evidence about the "proper place…to live", and (iii) that the appellant "would return via Kabul". (b) The Court erred because it and the tribunal were required to apply the test as stated in SZQEN v MIAC [2012] FCA 387 at [38].

Ground 1 13 The first ground of appeal advanced by the appellant is that the primary judge erred by failing to find that the Tribunal did not comply with s 425(1) of the Act. Section 425(1) of the Act states that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. In support of his submissions the appellant referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ("SZBEL"). 14 In SZBEL the High Court was concerned with an application for a protection visa made by a seaman employed by an Iranian shipping company. In support of his application the seaman made a statutory declaration in which he explained that he jumped ship in Port Kembla because his captain knew of his interest in the Christian religion and that this led him to fear for his safety. His application for a protection visa was refused by a delegate of the Minister on the basis that he had not satisfied the delegate that he had "a genuine commitment to Christianity." In particular, the delegate did not consider that the seaman's decision to return to his ship on a prior occasion was consistent with the actions of a person who feared being mistreated or killed by other crew due to his interest in Christianity. 15 There were other important elements in the seaman's account of events that were not referred to in the delegate's reasons. In particular, the delegate's reasons made no mention of the seaman's additional claims that he met with friends in his home town and discussed with them his interest in Christianity or that he was called before his captain to explain this interest. These additional claims, which were not dealt with by the delegate, were rejected by the Tribunal as implausible. It was against that background that the High Court quashed the Tribunal's decision on the ground that the Tribunal did not afford the seaman procedural fairness in accordance with s 425(1) of the Act. 16 The High Court said at [32]-[35]: [32] In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Full Court rightly said (27): "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." (Emphasis added.) [33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review" (s 425(1) (emphasis added)). The reference to "the issues arising in relation to the decision under review" is important. [34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. [35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. (Emphasis original) 17 In relation to the particular matters upon which the Tribunal relied in refusing the seaman's application for review, the High Court said at [43]: The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review. The Court held at [44] that the Tribunal did not accord the appellant procedural fairness as it did not give the appellant "a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review." 18 Two other general points made by the High Court are also relevant to this appeal. The Court said at [47]-[48]: [47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. [48] Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [[1975] AC 295 at 369], "the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. (Emphasis original) 19 Mr Tully, counsel for the appellant, submitted that SZBEL at [35] recognises that issues may change during the course of a review and the Tribunal is under an obligation to put new issues to an applicant for review if it considers that the issue was not one the delegate identified as determinative against the applicant. 20 Mr Tully submitted that whether or not the appellant feared harm from ISIS, Daesh or affiliated groups was an issue not considered by the delegate but was a matter first raised in the Tribunal. He submitted that the Tribunal failed to provide the appellant with an opportunity to be heard in relation to this issue. 21 Mr Reilly, counsel for the Minister, submitted that there is nothing in SZBEL that requires the Tribunal to raise with an applicant every detail of his or her submissions for comment or expansion and that it is for the appellant to put to the Tribunal whatever submissions he wished in support of his case (citing Abebe v Commonwealth (1999) 197 CLR 510 ("Abebe") at [187] per Gummow and Hayne JJ). He submitted that there was no breach of s 425 of the Act in this case and thus the first ground of appeal should be rejected. 22 It is clear from the Tribunal's reasons and the transcript of the Tribunal hearing that the Tribunal provided the appellant with an opportunity to be heard in relation his fear of harm from ISIS, Daesh or affiliated groups and he was aware they were relevant to the determination of his application. The transcript of the Tribunal hearing shows that the appellant was given an opportunity to expand upon his pre-hearing submission. The appellant and his representative made statements to the Tribunal during the course of the hearing explaining why it was not safe for him to return to Afghanistan. 23 During the hearing the Tribunal raised with the appellant and his representative a report relating to the security situation in Afghanistan suggesting that violence in Kabul was mostly targeted at government officials and that the risk to the civilian population in Kabul province was "relatively low". After the appellant had responded (through an interpreter), the Tribunal asked the appellant's representative whether "there was anything you thought we hadn't covered?" He answered that there was nothing he thought had not been covered. Later, toward the end of the hearing, the appellant was also asked whether there was anything more that he wanted to say before the close of the hearing. He then made a further statement in which he explained that Afghanistan was not safe and that he felt he would be in danger there. 24 In Abebe Gummow and Hayne JJ said at [187]: The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out. 25 The threat to the appellant's safety posed by ISIS, Daesh or affiliated groups was first raised by the appellant in his pre-hearing submission to the Tribunal. There is no suggestion that the appellant was denied the opportunity to be heard in relation to that matter because he did not understand it would be a matter that the Tribunal would wish to consider. What happened here is that the appellant was in fact heard on the relevant issue by way of his pre-hearing submission but that, for whatever reason, he chose not to expand or elaborate upon that submission. In my opinion, there was no denial of procedural fairness or any breach of s 425(1) of the Act.

Ground 2 26 The second ground of appeal is that the primary judge erred by failing to hold that the Tribunal misapplied or misconstrued Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ("S395"). 27 The Tribunal stated at [46]-[48]: [46] I accept that, as mentioned in the report from the Guardian Australia website to which [the appellant's] representatives referred in their submission dated 1 September 2015, an Australian citizen of Afghan origin, Sayed Habib Musawi, was killed when returning to Kabul after visiting relatives in Ghazni Province in September 2014 and that there were also news reports at the time that an Afghan Hazara removed from Australia, Zainullah Naseri, had been abducted and tortured by the Taliban although these reports have not been corroborated. However, as the Australian Department of Foreign Affairs and Trade has observed in relation to kidnappings, the motivations behind such incidents are often unclear. The Department said in its most recent report that returnees from Western countries faced a similar level of risk to other people in Afghanistan who were associated with support for the government or the international community but it assessed that returnees from Western countries were not specifically targeted on the basis of their being failed asylum-seekers and that returnees from Western countries who maintained a low profile did not face a significantly higher risk of violence or discrimination than other people in Afghanistan with a similar ethnic and religious profile. [47] It is well-accepted that people with links to the Afghan Government or the international community are targeted in Afghanistan so that carrying documentation which points to a connection with the Government, for example, is dangerous. As a consequence, as referred to in the Department's most recent report, people with links to the Afghan Government or the international community take precautions such as not travelling with documents or symbols that may reveal that link. It is in this context that the Department assesses that returnees from Western countries who maintain a low profile such as by taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than other people in Afghanistan with a similar ethnic and religious profile. I do not accept that the need to take such precautions in itself amounts to persecution in the sense explained by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. [48] I do not accept on the evidence before me that there is a real chance that [the appellant] will be met by television reporters at the airport if he returns to Afghanistan resulting in him being identified as someone who has been deported from a Western country. There is nothing in the evidence before me to support [the appellant's] claim that this happens a lot with people deported from Europe and Australia and I consider that there is only a remote chance that he will be able to be identified in this way as a person who has been deported from a Western country. Having regard to the assessment of the Australian Department of Foreign Affairs and Trade, I consider that there is only a remote chance that [the appellant] will be persecuted because he will be a returnee from a Western country or specifically because he will be returning from a Western country after having been deported as a failed asylum-seeker if he returns to Afghanistan now or in the reasonably foreseeable future. 28 Mr Tully submitted that there was an implicit assumption in the Tribunal's reasons that the appellant had an ability to conceal his association with Australia so as to avoid persecution by the Taliban. However, he submitted that the Tribunal made no specific findings as to the appellant's ability or willingness to take such precautions. Mr Tully submitted that the Tribunal's failure to address the appellant's particular circumstances with respect to these matters involved jurisdictional error. 29 Mr Reilly submitted that whether particular conduct amounts to persecution is essentially a question of fact and degree for the Tribunal (citing Minister for Border Protection & Anor v WZAPN (2015) 254 CLR 610 at [51]). He submitted that in this case the Tribunal found that the need to take precautions would not in itself amount to persecution and that it was open to the Tribunal to make that finding. 30 The majority judgments in S395 are susceptible to a number of different interpretations. Nevertheless, the majority in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 held that the error in the Tribunal's reasoning in S395 was that it failed to properly consider whether the applicants for protection visas in that case had a well-founded fear of persecution for a convention reason. Their Honours said at [17]: The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed - whether the fear of persecution was well founded - had not been addressed. (footnote omitted) 31 In the present case, it is clear from [47] of the Tribunal's reasons that it considered that the risk of persecution facing a returnee from a Western country was not significantly greater than the risk of violence or discrimination facing other people of a similar ethnic or religious profile if the returnee took steps to conceal his or her association with the Western country by not travelling with documents or symbols that would reveal such an association. Further, the Tribunal was not satisfied that the need to take precautions aimed at concealing the appellant's status as a returnee from a Western country would amount to persecution. 32 I do not consider there is any reason to think that the Tribunal was diverted from the task of deciding whether the appellant faced a real risk of persecution if he were to return to Afghanistan by its consideration of the matters referred to in [46] and [47] of its reasons. The Tribunal's reasons reflect its acceptance of the Department of Foreign Affairs and Trade ("DFATT") assessment that returnees from Western countries do not face any greater risk than other people in Afghanistan with a similar ethnic profile if they take steps to conceal their association with the country from which they have returned. 33 In some situations, the fact that a person may need to take steps to conceal his or her religion, nationality, sexuality, political opinion, or some other such characteristic, in order to avoid serious physical or psychological harm may itself amount to persecution. Whether or not it does so will often involve questions of judgment and degree. In the present case it is apparent from the Tribunal's reasons, especially the last sentence at [47], that it was not satisfied that the need for the appellant to take precautions of the kind referred to in that paragraph amounts to persecution. I do not see any error in the Tribunal's consideration of this issue. 34 The second ground of appeal is rejected.

Ground 3 35 The third ground of appeal asserts that the primary judge erred by failing to find that the Tribunal had not asked itself the correct question when determining the location of the appellant's "home area" as stated in SZQEN v Minister for Immigration and Citizenship [2012] FCA 387 ("SZQEN"). 36 The appellant submitted that the primary judge should have found that the Tribunal erred because it failed to apply the correct test for determining a person's home region or area when applying the relocation principle because it did not consider the appellant's substantial ties to Kabul in circumstances where the appellant had similar and substantial ties to that city. Mr Tully submitted that the Tribunal simply presumed that Zardalu was the appellant's home region and did not give any consideration to the possibility that Kabul was the appellant's home region or that the appellant had more than one home region. 37 Mr Reilly submitted that whether a particular region can be characterised as an appellant's home region is a question of fact and that the appellant's complaint with respect to this aspect of the Tribunal's conclusion does no more than reflect the appellant's dissatisfaction with a factual finding that it was open to the Tribunal to make. 38 The Tribunal found that the appellant comes from Zardalu and that his mother and all three of his younger brothers still lived there. Although the Tribunal referred in its reasons to the time spent by the appellant in Kabul in his later years when he was studying, it is clear that the Tribunal was satisfied that Zardalu was his home region. In SZQEN v Minister for Immigration and Citizenship [2012] FCA 387, having referred to the various authorities concerned with the relocation principle including the judgment of the Full Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, Yates J said at [38]: I propose to apply the statement of principle in Randhawa by Black CJ (at 440-441) which plainly proceeds on the basis that the relocation principle concerns relocation from a claimant's home region to another place in the claimant's country of nationality that is not the claimant's home region. This position is supported by the United Kingdom authorities to which I have referred. In proceeding on this basis I do not think that the reference in the cases to "home region" or "home area" (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a "home region" or "home area" is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately characterise that location as a "home region" or "home area" of the claimant. Whether such ties exist and whether a particular location can be appropriately characterised as a "home region" or "home area" are matters of fact. The Tribunal's findings that the appellant's home region was Zardalu was a finding of fact. 39 There are two further points to make in relation to ground 3. The first is that there is nothing in the Tribunal's reasons to suggest that it was unaware that in an appropriate case a claimant might be taken to have more than one home region. The second point is that even if the Tribunal had concluded that the appellant had two home regions (Zardalu and Kabul) this could not have affected the Tribunal's ultimate conclusion that the appellant would not be discriminated against or persecuted by anyone if he returned to Zardalu where his family continued to live.

DISPOSITION 40 For the reasons I have given the appellant's appeal must be dismissed. The appellant must pay the Minister's costs of the appeal. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.