BIG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-03-15|Before: Nicholas J

The appeal be allowed.
Set aside the orders of the Federal Circuit Court of Australia made on 7 April 2020 and, in their place, order that: (a) writs of certiorari and mandamus be issued quashing the decision made by the second respondent on 23 February 2017 and remitting the matter to the second respondent to be determined according to law; and (b) the first respondent pay the applicant's costs of the application for judicial review to the Federal Circuit Court of Australia.
The first respondent pay the appellant's costs of the appeal to this Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J: 1 Before me is an appeal from a decision of the Federal Circuit Court of Australia of 7 April 2020 dismissing an application for judicial review of a decision of the second respondent ("the IAA") of 23 February 2017. By that decision the IAA affirmed a decision of the delegate of the first respondent ("the Minister") not to grant the appellant a Safe Haven Enterprise visa ("SHEV"). 2 The appellant is a Hazara Shia and an Afghan citizen who entered Australia as an unauthorised maritime arrival on 13 March 2013. He was invited to apply for a SHEV on 28 January 2016 after the Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) ("the Act"). The appellant lodged his SHEV application on 2 June 2016. The appellant's wife and three children currently reside in Pakistan. The appellant's protection claims are based on his fear of harm from the Taliban arising from his ethnicity and religion, his previous work as a taxi driver, his knowledge of English and the previous work of his father for a government official. 3 The appellant's claims in relation to his fear of harm resulting from driving a taxi relate to threats he claims to have received from the Taliban due to driving government officials in the course of his work. The appellant further claims that these threats were acted on, and that his taxi was burned one day while he was at a hotel.

The Relevant Statutory Provisions 4 Sections 5H, 5J and 36 of the Act relevantly provide: 5H Meaning of refugee (1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person: (a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or (b) in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it. Note: For the meaning of well-founded fear of persecution, see section 5J. … 5J Meaning of well-founded fear of persecution (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. … 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 … (2A) A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or …

The IAA's Decision 5 The IAA had regard to the material provided to it by the Secretary pursuant to s 473CB of the Act as well as two sets of submissions provided to it by the appellant. The IAA had regard to these submissions, which it noted contained some pieces of new information which were not before the Minister's delegate at the time of the original decision. 6 The IAA assessed each piece of new information provided to it against the criteria contained in s 473DD of the Act. No submission has been advanced by either party that the IAA erred in its consideration of how s 473DD applied to the new information, some of which it accepted met the s 473DD criteria. The new information the IAA accepted it could have regard to pursuant to s 473DD relevantly included reports from the Norwegian Refugee Council, and the United Nations Office for the Coordination of Humanitarian Affairs ("UNOCHA"). The IAA was not however satisfied that it could consider some other earlier country information that the appellant provided to it as this information predated the delegate's decision and there were not exceptional circumstances to warrant it being considered. The IAA's consideration of the new information will be discussed in more detail later in these reasons. 7 The IAA accepted the appellant's claim that his father went missing while working as a government official. However, it did not accept that there was any chance or risk of harm to the appellant as a result of his father's occupation. The IAA also noted that the appellant was never harmed on the basis of his ethnicity or religion. Instead, according to the IAA's reasons, the appellant departed Afghanistan in response to threats he received due to his work as a taxi driver. While the IAA stated that it was "difficult to understand why a low level taxi driver … would come to the adverse attention of the Taliban" it accepted that the appellant's account was not implausible. 8 On this basis, the IAA was satisfied that there was more than a remote chance the appellant would be seriously harmed by the Taliban if he returned to his home area. The IAA did not however accept the appellant's claim that if he returned to Afghanistan he would be recognised and reported to the Taliban, or that he would be recognised as a person who had travelled to a "Western country" and knows some English. Further the IAA did not accept that the appellant would not be able to relocate within Afghanistan to avoid this risk of harm. 9 Relevantly, the IAA said at [28]-[29] of its reasons: [28] … I am not satisfied that in major urban areas like Kabul, or even Mazar-e-Sharif, which have diverse ethnic populations and have seen considerable population growth from returnees and IDPs [internally displaced persons] over the years, that the applicant would face a real chance of being seriously harmed as a returnee from the west (Australia), an asylum seeker or as a person who knows some English. I am satisfied that beyond any incidental and localised association with the government or international community through his taxi service in 2011−12, the applicant has no such association or connection, nor would he likely have any connection if he were to return to the country. I find there is no real chance of him being harmed for these reasons. [29] I have considered the applicant's claims that the risk of harm to him extends beyond his home area due to his profile and the Taliban's network. I note country information indicates the Taliban may seek to track a high profile target elsewhere in Afghanistan, however it appears that the tracking of a low profile person is unlikely, and would also be difficult in a major urban area. The applicant has not convinced me that the weight and gravity of his situation is such that the Taliban or any group or persons would seek to follow or harm him outside of his home area. Given the time that has passed, and the serious but relatively low level nature of the Taliban's grievance with his taxi service, I do not accept he would be identified, followed or targetted [sic] outside of his home area, whether by the Taliban or its informants. I am satisfied the risks to the applicant would only arise if he returned to his home area. (Footnotes omitted) 10 The IAA was ultimately satisfied that there was no chance of the appellant being seriously harmed by virtue of his religion or ethnic group, as a returnee of the west, as an asylum seeker or for "any other profile he may hold" outside of his home region. On that basis, the IAA was not satisfied that the real chance of persecution related to all areas of Afghanistan and as such the requirements of ss 5J(1)(c), 5H(1) and 36(2)(a) were not met. 11 The IAA then considered whether the appellant met the complementary protection criteria by considering the criteria in s 36(2B) of the Act. In making this assessment, the IAA referred to its earlier findings and was satisfied that there was a real risk the appellant would suffer serious harm if he returns to his home area. However, the IAA was not satisfied that there was a real risk or a real chance that the appellant would suffer significant or serious harm if he were to relocate to Kabul or Mazar-e-Sharif. Accordingly, the IAA went on to consider whether it would be reasonable for the appellant to relocate to either of these areas. 12 In making this assessment, the IAA addressed the submissions advanced by the appellant as to why he could not relocate. These submissions were summarised by the IAA at [52] of its reasons where it said: The applicant claims that he cannot safely relocate within Afghanistan. He has raised a number of factors as to why he cannot relocate. The applicant claims that he has a health condition that cannot be adequately treated if he returns to the country. The applicant also submits that given UNHCR has made the decision to halt all repatriations to Afghanistan, and the Afghan government pleading with foreign governments to cease all repatriations to Afghanistan, the IAA should find that it would not be reasonable for the applicant to relocate to an urban area such as Kabul or Mazar-e-Sharif where he would be unable to accommodate for his basic needs, including food, safe water and shelter and be forced into a circumstance of poverty. 13 It is apparent from the IAA's reasons that the appellant's medical treatment was due to conclude shortly after its decision was handed down. For that reason, the IAA was not satisfied that the appellant's medical condition would impede his return to Afghanistan or make it unreasonable for him to relocate within Afghanistan. In relation to the other claims made by the appellant, the IAA considered both the submissions and country information provided to it by the appellant. The IAA said at [61], [63] and [65]: [61] In my assessment, his work experience and skillset, his personal characteristics in terms of resourcefulness and resilience, as well as the initial material and familial support he could obtain from his brother and sister in Kabul, places him in a far superior position to many IDPs, urban poor and other vulnerable persons in Afghanistan. While I accept there remain significant challenges in accessing accommodation, essential services and employment in Kabul, when considering all the circumstances, I am satisfied he would be well placed to overcome these challenges and that he would be able to find stable work and accommodation in Kabul. … [63] The applicant has a wife and children in Quetta. This is a significant factor for me in terms of whether it is reasonable for him to relocate within Afghanistan. The emotional impact of this would be significant. However, there are factors here that indicate that a short or mid-term continuation of these circumstances would be difficult, but not unreasonable. The applicant has already spent several years away from his family while in Australia, and they have been able to remain in Quetta, his wife working there. A further factor is that the applicant's family appears to have the support of his mother (who also lives and works in Pakistan), and an uncle and aunt who also live in Quetta. The applicant highlighted the security concerns in Pakistan, but did not indicate that his family is otherwise vulnerable or at risk. I have found that the applicant has family support in Kabul, and would be able to find work and accommodation there. It follows that while I acknowledge that a further separation from his family would be difficult, I am also confident he could establish himself in Kabul and would be able to bring his family there in due course. … [65] I accept relocating would be challenging, and that there are significant pressures in his home country, however having regard to his individual circumstances, including his past work experiences and skills, his age, his demonstrated resourcefulness and resilience, his past experiences in travelling to Australia, Iran and Pakistan, his familial connections in Kabul, I am satisfied he is well−equipped to find work and accommodation. I consider that the applicant's advantages will enable him to earn a livelihood and establish himself within Kabul, which would provide him with access to the necessary infrastructure and essential services to sustain himself and his family and meet the basic necessities of life. 14 Ultimately the IAA was satisfied that the appellant could reasonably relocate to Kabul and that therefore there was not a real risk that the appellant would suffer significant harm in all parts of his returning country. The IAA found that the requirements in s 36(2)(aa) of the Act were not met and affirmed the decision under review.

THE Primary Judge's Decision 15 Before the Federal Circuit Court, the appellant raised two grounds of judicial review: 1. The Independent Assessment Authority ('IAA') fell into jurisdictional error by failing to take into account and/or properly consider the submission made at CB158 that it would be unreasonable for the applicant to relocate given poor sanitation and water when conducting its assessment pursuant to s.36(2B) of the Migration Act 1958 (Cth) and in doing so erred in the same manner as the IAA did in DIJ17 v Minister for Immigration [2018] FCCA 2407. 2. When concluding at paragraph [63] of its reasons, the IAA, failed to take into account a mandatory relevant consideration namely whether it would be reasonable for the applicant's wife and children to relocate to Kabul and in so failing fell into jurisdictional error: see MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [62]. 16 After summarising the IAA's decision, the primary judge considered ground 1 at [40]-[43] as follows: [40] Mr Robertson, counsel on behalf of the applicant, submitted that there had not been a real and genuine consideration of the applicant's submissions in relation to the poor sanitation and water limitations in relation to the reasonableness of the relocation in respect of complementary protection. Mr Robertson submitted that the Authority had been cognisant of the claim, but did not actively engage with it. That submission is without substance. [41] The Authority's reasons reflect a real and meaningful engagement with the applicant's submissions, and in particular, his concern relating to the issue of the health conditions and whether he would be able to accommodate his basic needs, including food, safe water and shelter, and be forced into circumstances of poverty. The Authority's reasons as summarised above do not reflect a mere cognisance of the applicant's claims, but reflect a real and meaningful engagement with the same. [42] There is no basis to find that the Authority did not take into account the applicant's submissions in relation to the poor sanitation and water. The Authority made adverse findings in relation to the complementary protection open to it for the reasons it gave. [43] No jurisdictional error as alleged in ground 1 is made out. 17 His Honour then went on to consider ground 2 at [44]-[47] as follows: [44] In relation to ground 2, Mr Robertson submitted that the Authority had failed to take into account a mandatory relevant consideration, being whether it would be reasonable for the applicant's wife and children to relocate to Kabul. [45] The applicant's wife and children were identified by the Authority as being in Pakistan. In those circumstances, there was no need for the Authority to make findings about the reasonableness of their relocation back to Kabul. [46] Mr Robertson contended that, because the Authority made reference to the fact that his family may join him in the future, the Authority was required to consider the reasonableness of whether in those circumstances the applicant as a single man, would then be in a position where he might face the risk of significant harm. No such issue was advanced before the Authority and no such issue fairly arose on the material before the Authority. [47] No jurisdictional error as alleged in ground 2 is made out.

The Appeal 18 The appellant's notice of appeal contains two grounds of appeal: 1. The learned primary judge erred in law in failing to find that the Independent Assessment Authority ('IAA') fell into jurisdictional error by failing to take into account and/or properly consider the submission made at CB158 that it would be unreasonable for the applicant to relocate given poor sanitation and water when conducting its assessment pursuant to s.36(2B) of the Migration Act 1958 (Cth) and in doing so erred in the same manner as the IAA did in DIJ17 v Minister for Immigration [2018] FCCA 2407. 2. The learned primary judge erred in law in failing to find that the IAA fell into jurisdictional error when it failed to take into account a mandatory relevant consideration, namely whether it would be reasonable for the applicant's wife and children to relocate to Kabul. (Emphasis in original) 19 As can be seen from the notice of appeal, the appellant's appeal focuses on two aspects of the IAA's decision, first, the IAA's consideration of the appellant's claim that he would not have access to (clean) water and second, the IAA's consideration (or lack thereof) of whether the appellant's family could relocate with him to Kabul. 20 Relevant to ground 1 of the appeal, the respondent handed up an aide memoire indicating which parts of the appellant's submission relating to clean water the IAA disregarded on the basis that it was excluded from its consideration as the requirements of s 473DD of the Act were not satisfied. There was no objection by the appellant to the aide memoire, which his counsel accepts accurately indicates which parts of the appellant's submission to the IAA were excluded from consideration. 21 The critical paragraph in the appellant's submissions to the IAA is at [14] which is headed "Issues with access to adequate housing and safe water". As reproduced in the aide memoire [14] states: Access to safe water is a general challenge across Afghanistan. Even the most developed region in Afghanistan, Kabul, 'almost half of the capital's residents lacked regular access to water'. AI's 2016 field visit found that '[i]n all displaced communities' visited in Kabul, Mazar-e-Sharif and Herat 'access to water was a critical issue' - especially in Kabul and Mazar-e-Sharif where '[p]eople were often forced to make long, daily trips to gather water from wells located far away from their homes'. In 2015, the OCHA reported that 'millions of already vulnerable people in Afghanistan are at risk from contracting diarrhea, typhoid, polio and other water-borne and contagious diseases due to poor hygiene and lack of access to clean water and sanitation'. In fact, access to adequate housing is a problem for most Afghans, with UNHABITAT claiming that '[t]he vast majority of urban Afghans live in under-serviced, informal housing with little tenure security and very poor access to basic services such as water and sanitation. This is particularly so in Kabul, where 66% of the dwelling stock is comprised of irregular housing'. However, the situation for returnees is even worse with the OCHA stating in September 2016 that '[s]helter is one of the main concerns for returnees' in Afghanistan. AL's 2016 field report found that the clay houses used by the displaced populations in Afghanistan were 'overcrowded, damp and facilitate the spread of diseases' and that they 'did not protect the families from the winter cold or summer heat, and they are full of dust and mosquitoes in the summer." 22 In his submissions counsel for the appellant focused on the claims made by the appellant to the IAA concerning lack of access to clean water and sanitation. I understood him to accept (in my view correctly) that the IAA had given consideration to claims made in relation to the difficulties likely to be experienced by the appellant in securing accommodation in Kabul which it considered in light of its finding that the appellant's brother and sister lived there. 23 The appellant relied on the judgment of Mortimer J in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 ("MZANX"). That also was a case involving the question of whether a claim made by a national of Afghanistan that it would not be reasonable for him to relocate to Kabul was properly considered by the relevant decision-maker. Her Honour identified the relevant issue in her reasons at [45] as whether "the reviewer was obliged, but failed, to consider and determine the reasonableness and practicability of the appellant relocating to Kabul, in terms of his individual circumstances and by reference to the relocation objections he expressly raised." 24 After referring to the plurality's reasons in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and the decision of Black CJ as a member of the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Mortimer J said at [55]-[56]: [55] In the context of relocation, detailed consideration of the circumstances "on the ground" in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship … Likewise, the circumstances of that individual - her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is "practicable" and "reasonable" for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope … [56] Otherwise, the risk is that the assessment becomes formulaic, and removed from any real factual basis relevant to an individual person arriving in a place such as Kabul: in this case, to live with a partner and young child. That is, in fact, what will occur and there must be a considered attempt to assess what, in a real and practical sense, will happen to that individual and her or his family in those circumstances. 25 The appellant also placed reliance on the decision of the Federal Circuit Court of Australia in DIJ17 v Minister for Immigration and Anor [2018] FCCA 2407 (Judge Smith). In DIJ17 Judge Smith found that the IAA had committed a jurisdictional error by failing "to grapple with the essential element of the applicant's objections to relocation, namely, that the reality in those cities [which included Kabul] was that the basic resources were meagre and there was stiff competition for them". A similar conclusion was reached in CMV18 v Minister for Immigration & Anor [2019] FCCA 2522 (Judge Driver). 26 The Minister referred me to [8] of the IAA's reasons in which the IAA noted that two reports upon which the appellant sought to rely, which included the UNOCHA Report referred to in [14] of the appellant's submissions to the IAA, had a significant bearing on whether the applicant can reasonably relocate within the country in the future. The Minister referred to the statement in [58] of IAA's reasons indicating that country information indicates that the influx of returnees and IDPs have placed significant pressures on, amongst other things, access to essential services. The Minister submitted that the reference in [58] of the IAA's reasons to "essential services" should be understood as referring to (inter alia) access to safe water. He further submitted that the IAA's reasons demonstrated that it had accepted that one of the problems faced by the appellant, as identified by the country information and as submitted to it by the appellant, was that of access to safe water, and that this was a problem for millions of people in Afghanistan, but that when the IAA had regard to the appellant's particular circumstances, it considered that relocation to Kabul would be reasonable. The Minister sought to distinguish MZANX as a case which depended on its own facts and, in particular, the nature of the claims and the extent to which the decision-maker engaged with them in that particular case. 27 In relation to ground 2 counsel for the appellant relied on MZANX in support of his submission that the authority was required to consider when determining whether or not it was reasonable for the appellant to relocate to Kabul, whether his wife and children could reasonably be expected to relocate there. The appellant submitted that the question of whether it would be reasonable for the appellant to relocate his family to Kabul was a matter that squarely arose on the material before the IAA and that it did not adequately grapple with that question. He drew attention to the IAA's finding that "a short or mid-term continuation" of the family's separation would be "difficult, but not unreasonable" and the later finding that the appellant "would be able to bring his family there in due course". The appellant submitted that in making these findings, the IAA failed to provide any meaningful indication as to what is meant by "short or mid-term" or in "due course" and that this reflected a failure on the part of the IAA to properly consider the issue. 28 In his submissions counsel for the appellant submitted that the IAA's assessment was made on the basis that the appellant would be relocating to Kabul as a single man. The appellant submitted that there was no consideration as to what hardships might be faced by the appellant in providing for his family when the separation ends and whether as a matter of practical reality his wife and young children could also relocate to Kabul and have their basic needs met in the reasonably foreseeable future. 29 The Minister submitted that the IAA was not required to take into account, as a mandatory relevant consideration, whether it would be reasonable for the appellant's wife and children to relocate to Kabul. The Minister submitted that the appellant made no submission to the IAA that it would be unreasonable for him to relocate with his wife and children to Kabul. Counsel for the respondent sought to distinguish MZANX on the basis that in that case the appellant had submitted that it would not be reasonable to expect him to relocate with his family. The Minister further submitted that even if the IAA was required to take this into account in this case, the IAA had in fact done so and given it "considerable weight".

Consideration 30 The appellant has not challenged the validity of the IAA's decision on the basis that the decision was legally unreasonable. The sole issue raised by the appellant is whether his claims, or objections, concerning the possibility of him relocating to Kabul were properly considered by the IAA. 31 It is well settled that the obligation of the IAA to consider a matter requires that it bring its mind to bear upon the matter and to engage in an active intellectual process directed at that matter. In Navoto v Minister for Home Affairs [2019] FCAFC 135 the Full Court said at [89]: Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall "on the wrong side of the line", to quote [Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140] at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons. What is required by a court upon judicial review is a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made: [Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643] at [45] per Rares and Robertson JJ. 32 However, as other Full Courts have made clear, a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131. In CAR15 the appellant had claimed that she would be rendered homeless if she was required to relocate to a particular locality within her country of nationality. The Full Court noted at [76] that the Tribunal was not required to record, in explicit terms, whether or not the appellant would be rendered homeless but that it was required to "undertake an active intellectual process directed at that claim".

Ground 1 33 In the present case the appellant claimed that access to safe water and sanitation was a challenge across Afghanistan and that this put the population at risk of contracting serious disease. The appellant's submissions (to the extent they were received) did not explicitly address the situation in Kabul, but since they were directed to the question of whether it was reasonable for the appellant to relocate to Kabul, it is clear that they were understood as such by the IAA. 34 The IAA noted that relocations to Afghanistan are not impossible or undesirable, that it had taken into account the appellant's claims, but that assessment of whether it would be reasonable for the appellant to relocate within the country to avoid significant harm was dependant on the appellant's individual circumstances. The country information before the IAA did not suggest that all persons living in Kabul were unable to access safe water and sanitation and there does not appear to have been any suggestion in the appellant's evidence or submissions to the IAA that his siblings had experienced difficulty doing so. 35 The IAA referred to the appellant's evidence that his siblings lived in Kabul, noting that this was "a significant factor" and that it was satisfied that they would be able to assist him to access the necessary services "at least in the short term". The IAA also referred to the appellant's education and employment history including the different countries in which he worked, rejecting the appellant's contention that his skills were such that he would have no competitive advantage in Kabul. Those observations were explicitly directed not merely to the appellant's employment prospects, but also his ability to access essential services in Kabul. 36 In my view it cannot be said that the IAA has not considered the appellant's claim regarding access to safer water and sanitation. The consideration given to this matter as reflected in the reasons is neither cursory nor formulaic. In my view the IAA actively engaged with the appellant's claim, placing emphasis on his family's connections in Kabul, his qualifications and resourcefulness. The fact that the IAA's assessment of the appellant's ability to overcome the challenges he referred to in his submission, including in relation to water and sanitation, may provoke disagreement or uneasiness concerning the reasonableness of the conclusion reached by the IAA, does not establish that there has been any relevant failure to consider the appellant's submission. In my opinion this ground of appeal should be rejected.

Ground 2 37 The appellant has a wife and three children who live in Quetta in Pakistan. One of his children was born in Pakistan but the others were born in Afghanistan. Apparently they are all Afghani citizens. In the appellant's Statement of Protection Claims prepared in 2016 the appellant notes that he has three children, the youngest of whom was born after he arrived in Australia. Although the appellant notes the existence of his wife and children in the Statement of Protection Claims, there is little said about them in that document. Nor is there anything said about them in the written submissions lodged by his representative with the IAA, although this perhaps reflects the view that s 473CB of the Act precluded the introduction of any further material on the topic. 38 The IAA does not refer to the ages of the appellant's children in its reasons but the material before it indicated that the appellant had a son born in 2009, a daughter in 2011, and a daughter born in 2013 after the appellant had arrived in Australia. At the time the IAA conducted its review in 2017, the appellant's three children ranged between 3 and 7 years in age. 39 As Markovic J noted in SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 at [18], "[w]hether a claimant can reasonably be expected to relocate depends upon the framework set by an applicant's particular objection to relocation." The appellant did not raise any express objection to the IAA concerning the hardship that he and his wife and family would experience if he relocated to Kabul but his family could not relocate there. Although there was no submission made to the IAA in relation to the appellant's family, it is apparent the IAA considered that it was a significant matter that clearly arose on the material before it which required consideration: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60] per Black CJ, French and Selway JJ. The question is whether the IAA gave consideration to this matter in the relevant sense or whether, as the appellant submitted, it failed to have regard to the difficulties that may be encountered by the appellant in relocating his wife and children to Kabul and, in particular, in providing for them there. Counsel for the appellant relied on the decision of Mortimer J in MZANX. 40 The IAA noted at [63], which is extracted above, that the appellant's wife and children appeared to have the support of his mother and other relatives in Pakistan while they were separated from the appellant. It may be inferred that the IAA considered that any short or medium term continuation of the appellant's separation from his family would be difficult but not unreasonable. I think it may also be safely inferred that the IAA considered that any long term continuation of their separation would not be reasonable. However, the high point of the IAA's consideration of the long term impact of the separation appears in the last sentence of [63] in which the IAA says it is confident that the appellant could establish himself in Kabul and will be able to bring his family there "in due course" and that it would therefore be reasonable for the appellant to relocate to Kabul. 41 While the appellant did not raise any explicit objection to relocating to Kabul based on hardship that may be experienced in relocating his family there, the objections he raised relating to living conditions in Kabul, including the availability of safe water and sanitation, were clearly relevant to the question whether it would be reasonable to expect him to relocate his family to Kabul at some time in the future. 42 It does not appear to me that the IAA has considered, in the relevant sense, what the long term impact on the appellant and his family would be if he was to relocate to Kabul or whether the appellant could reasonably be expected to relocate his family to Kabul. Although the IAA stated that it was confident that the appellant could establish himself in Kabul and that he could relocate his family there "in due course", it does not appear to have given any consideration to the difficulties that may be encountered by the appellant, even if he had been able to establish himself in Kabul, in accommodating and providing for his wife and three young children there and whether they could live safely in Kabul and have adequate access to safe water and sanitation. 43 The IAA stated at [65] that the appellant would have access to the necessary infrastructure and essential services to sustain his family and meet the basic necessities of life. To the extent that this finding relates to the appellant's family, it has been arrived at without any adequate consideration of the difficulties that may be experienced in providing for his wife and three young children were they to relocate to Kabul. Of course, it may be that these difficulties are likely to be no greater than those which he would face while living in Kabul either alone or with his brother and sister. On the other hand, the difficulties involved in providing for a wife and three young children by (inter alia) ensuring that they have access to clean water and sanitation and other essential services may be quite profound. In this context it should also be recalled that the IAA stated in relation to the appellant's reintegration that "[t]he applicant is benefitted, somewhat, by the fact that he would be returning to Afghanistan without his family". This rather suggests that the IAA understood that the difficulties likely to be encountered by the appellant would be greater were it also necessary for him to provide for his wife and young children. These matters do not appear to me to have been considered by the IAA even though they were central to the question of whether the appellant's family could eventually join him in Kabul. Ground 2 therefore succeeds.

Disposition 44 The appeal will be allowed. The judgment of the primary judge will be set-aside. There will be orders for the issue of writs of certiorari and mandamus quashing the Authority's decision and remitting the matter to the Authority for determination according to law. The Minister must pay the appellant's costs of the proceeding before the primary judge and of the appeal. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.

Migration Act 1958(Cth)ss 5H, 5J, 36, 46A(2), 473CB, 473DD

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)