CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The appellant contends that the primary judge erred in not setting aside a decision of the Immigration Assessment Authority (the IAA) for jurisdictional error on a single ground. According to the appellant the IAA made a fundamental conceptual error. It considered the risk of violence in Kabul relevant to the question whether the appellant had a well-founded fear of significant harm in Kabul but failed to consider that same risk of violence in Kabul as relevant to the question whether it was reasonable for the appellant to relocate there. 2 We have concluded that it cannot be inferred that the IAA made the jurisdictional error attributed to it. On a fair reading of the IAA's reasons, in the context of the claims made by the appellant, it should not be inferred that the IAA, as the appellant put it in the notice of appeal: stopped its evaluation of the general risk of violence that the [appellant] would face in Kabul after considering whether the appellant had a well-founded fear of significant harm, and did not complete the necessary consideration of whether the risk of violence in Kabul made it unreasonable to conclude the appellant could relocate to Kabul. 3 Our reasons follow. 4 The key statutory provision is s 36(2B)(a) of the Migration Act 1958 (Cth) (Migration Act). Under that provision "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 … 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". 5 It is well established that s 36(2B)(a) involves two questions, first, whether there is a place within the relevant country where there would not be a real risk that the non-citizen will suffer significant harm and, secondly, whether it would be reasonable for the non-citizen to relocate to that place: MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 161 ALD 73 (MZACX) at [35], applied in CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150; (2018) 265 FCR 572 and referred to in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526. 6 In MZACX at [35] Kenny J contemplated that in dealing with the second question, of the reasonableness of relocation: it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry. 7 In the present case it is not alleged that the IAA conflated the two stages of the inquiry but, rather, that it failed to recognise that the risk of harm was relevant to the second stage of the inquiry and that, within that stage, a risk of harm that is not able to be characterised as significant harm may also be relevant. 8 The error, the appellant submitted, was of the kind found by Wheelahan J in CXO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 17 (CXO16) in which his Honour was satisfied that it should be inferred the decision-maker did not consider the general security situation in Kabul when assessing the reasonableness of the non-citizen relocating there. 9 That this kind of error may arise was also accepted by Greenwood J in DQA17 v Minister for Home Affairs [2020] FCA 864 at [106 (34)] where his Honour said: in the relevant case, subject to the content of the claims of an applicant and the way in which the particular circumstances of the visa applicant are framed and identified, it may be relevant to consider a question of whether the visa applicant is exposed to, or at risk of, a class of harm which may not fall within the description 'significant harm', in the proposed place of relocation. That consideration is engaged by the question of what would be 'reasonable'. (Emphasis in original). 10 In other words, the question whether it is necessary to consider whether the non-citizen is exposed to a risk of harm other than significant harm in the place of relocation depends on the facts and, in particular, how the non-citizen framed their claims for protection. The question whether the decision-maker (in this case the IAA) did in fact consider whether the non-citizen was exposed to a risk of harm other than significant harm in the place of relocation depends on the inference that should be drawn from the decision-maker's reasons as a whole, read fairly, and in the context of the claims as made. The primary judge was not satisfied that an inference of a failure of consideration should be drawn as the appellant's claims had drawn no distinction between the claimed risk of harm he would face in Kabul and the claim that it would be unreasonable for him to relocate there and that, as the IAA found there was no real risk of significant harm in Kabul, there was no need for the IAA separately to express a conclusion that it would be safe for the appellant to relocate to Kabul: CSZ16 v Minister for Immigration & Anor [2020] FCCA 772 at [50]. 11 It is convenient to start with the IAA's reasons. 12 The IAA noted at [6] that the appellant had disputed the finding of the delegate that he would "not face a real chance of serious harm in Kabul" and asserted that the delegate had "failed to take into account the [appellant's] personal circumstances when assessing whether it was reasonable for him to relocate to Kabul." 13 The IAA decided that it should take into account information submitted on behalf of the appellant from Professor Maley about the situation in Afghanistan and Kabul albeit that that report related to return by Hazaras when the appellant is a Shia of Tajik ethnicity: [9]-[10]. The IAA also took into account subsequent information provided on behalf of the appellant in relation to recent suicide bombings in Kabul: [11]. 14 The IAA was satisfied that the appellant faced a real chance of being physically harmed if he returned to Logar due to an imputed political opinion: [24]. The IAA then considered the appellant's claim to fear harm throughout Afghanistan. At [31] the IAA noted that "the Afghan government maintains effective control over Kabul, although insurgent and criminal violence is common." At [32] the IAA rejected the appellant's claim of rising sectarian violence. At [36] the IAA accepted country information which indicates "that insurgent groups continue to target high profile groups and places in Kabul" but noted that the appellant did not have any profile or associations which are likely to bring him to the attention of insurgents. At [37] and [38] the IAA explained that as a returnee to Kabul it was unlikely that the appellant would be discriminated against or subject to violence on the basis of ethnicity or religion. At [40] the IAA said that there was no evidence that returnees to Kabul are targeted by insurgents or that the appellant would be so targeted. Accordingly, the IAA concluded that the appellant did not face a real chance of persecution if he returned to Kabul and thus was not a "refugee" as defined in s 5H(1) of the Migration Act. 15 The IAA then conducted a complementary protection assessment and it is here that, as noted, the jurisdictional error is said to have arisen. After referring to s 36(2B) of the Migration Act at [47] the IAA then said this: 48. I have found that there is not a real chance that the applicant will face serious harm in Kabul due to his imputed political opinion as a returnee from the West, as a Tajik Shia or due to his previous employment. As the 'real risk' test imposes the same standard as the 'real chance' test, for the reasons stated above I am also not satisfied that there is a real risk of the applicant suffering significant harm on the return to Kabul for those reasons. Given the current security situation in Afghanistan, I have given consideration to whether there is a real risk of significant harm due to generalised violence in Kabul. Country information indicates that there was a marked increase in security incidents in Kabul in 2015, however DFAT assesses that the primary targets are government institutions, political figures, the Afghan National Defence and Security forces (ANDSF), personnel associated with NATO's Resolute Support Mission and other coalition forces, other security services, international organisations and diplomatic representatives of some countries. Despite this, these attacks cause significant casualties among civilian bystanders in addition to those being targeted. The Afghan government maintains effective control over Kabul and a range of counter-measures have been put in place to prevent and respond to insurgent attacks. Although these measures provide a deterrent and ANDSF are quick to respond, attacks are still common. People associated with the government or the international community are at a significantly higher risk than ordinary Afghans in Kabul. The applicant does not have a profile or association with any of these targets and the security situation for Tajiks in Kabul does not differ from that of the general population. I am therefore not satisfied that there is a real risk of him facing significant harm on the basis of the general security situation in Kabul. 49. I have therefore considered the reasonableness of the applicant relocating to Kabul on return. The applicant's representative submits that the applicant's personal circumstances were not previously considered when assessing the reasonableness of relocation, claiming that the volatile situation, the applicant's unfamiliarity with and lack of support network in Kabul or other areas, no access to accommodation, limited life experience and lack of formal education would make him vulnerable to serious harm and exploitation upon return. The applicant has, until 18 August 2016 claimed that his family remain in Logar, however he states they have now relocated to Pakistan and he would not have any family in Afghanistan on return. UNHCR advised that many internally displaced people end up in large urban centres which have limited absorption capacity and where access to services remains a major concern. Kabul has seen the largest population increase with 70% of the population being estimated to live in informal settlements which are poorly located and under-serviced. UNHCR advises that relocation is reasonable where an individual has access to shelter, essential services, livelihood opportunities, and the traditional support network of extended family members or members of the larger ethnic community who are willing and able to provide support. The only exception to the requirement of external support are single able bodied men and married couples of working age without identified specific vulnerabilities. Such persons may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control. DFAT has also advised that traditional extended family and tribal community structures are the main protection and coping mechanisms for people in Afghanistan, who rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence. In practice, lack of financial resources and employment opportunities are the greatest constraints to successful internal relocation which is generally more successful for single men of working age although lack of family or tribal networks for single men can impact on their ability to reintegrate into the Afghan community. However the financial situation of Kabul residents and their employment opportunities are also reportedly worsening. 50. The applicant is an able bodied male of working age. He is unmarried and has no children. Although he claims that he has no formal education in Dari I am satisfied that his social media account indicates that he has some basic literacy despite his claim at the protection interview that he receives assistance, and he has gained a basic knowledge of English in Australia. The applicant has limited work experience in construction and as an assistant truck driver in Afghanistan. He has demonstrated resilience in travelling from Afghanistan to Australia as an 18 year old and does not present with any health problems or other specified vulnerabilities identified by UNHCR as requiring durable support. Whilst I accept that living conditions in Kabul would be difficult on return and he may face challenges in establishing himself, particularly as the applicant claims that he has no family links in Kabul which he would be able to utilise, I am not satisfied that the applicant would be unable to obtain accommodation or employment. Although unemployment and underemployment is common reportedly due to the influx of returnees and internally displaced people which has put pressure on the local labour market, Kabul offers a greater range of employment opportunities particularly in the service sector, including in small businesses and in the construction industry. Taking into account the applicant's personal circumstances I find it reasonable for the applicant to relocate to Kabul. (Citations omitted). 16 The appellant submitted that while it was clear that the IAA had dealt with the risk of generalised violence in Kabul when assessing whether the appellant would be at significant risk of harm should he return there at [48], when the IAA came to consider the question of the reasonableness of the appellant relocating to Kabul on his return, the IAA failed to consider the impact of the generalised violence in Kabul in answering that question. According to the appellant the reference by the IAA in [49] to the "volatile situation" making the appellant "vulnerable to serious harm" should not be understood as encompassing the risks of harm from generalised violence in Kabul; the reference was insufficient to amount to the required consideration of the issue of generalised violence in Kabul in evaluating the reasonableness of the appellant relocating there. 17 We are unable to accept this contention. 18 First, read fairly and in the context of the reasons of the IAA as a whole, it is reasonably clear that the IAA's reference to "the volatile situation" is the situation it had described throughout its reasons (as referred to above) and, in particular, in the immediately preceding paragraph at [48]. This is supported by the fact that in [48] the IAA discusses what it described as the "current security situation" in Kabul and in [49] it refers to the "volatile situation" in Kabul. 19 Second, the IAA did not merely refer to "the volatile situation". It referred to the "the volatile situation" and other matters making the appellant "vulnerable to serious harm and exploitation upon return". In our view, it cannot be open to serious doubt that the harm the IAA had in mind was the kind of harm which it had discussed throughout its reasons in describing circumstances in Kabul, and which it had specifically identified in [48] as the risk of being a civilian casualty of attacks in Kabul which were characteristic of what it described in [48] as the "current security situation in Kabul". 20 Third, the reference in [49] to the volatile situation in Kabul is a reference to the one of the submissions made on the appellant's behalf. In a submission dated 20 July 2016 it was put for the appellant that "extremist groups [had] the capacity to perpetrate attacks throughout [Afghanistan]" including in government controlled areas and that "the security situation in Kabul is in rapid decline". The submission also referred to the report of Professor Maley to the effect that it is not safe for ethnic minorities to return to Kabul. In this context, the submission said that given the volatile situation in Kabul the appellant would be vulnerable to serious harm and exploitation upon return. The IAA has picked up that phrasing in [49] of its reasons. As such, and again, it cannot seriously be doubted that the IAA considered the primary thrust of this part of the submission for the appellant, that is, that it was unsafe for him to return to Kabul given the adverse security situation there. 21 Fourth, none of the submissions made on behalf of the appellant drew any distinction between the type of harm to which the appellant would be exposed if he were to return to Kabul for the purposes of, first, determining if he would be at a real risk of significant harm there and, secondly, determining the reasonableness of the relocation. In these circumstances the IAA's reference to the "volatile situation" in Kabul making the appellant vulnerable to harm encompasses all of the facts on which the appellant relied in his claims. It was not necessary for the IAA to identify other facts as relevant to the reasonableness of the appellant relocating to Kabul as no other or different facts had been asserted as relevant to that issue. 22 Fifth, the IAA's reasons contain numerous express references to the issue of generalised violence in Kabul and the appellant's submissions of the associated risk of harm to him: [6]-[12], [23], [29]-[40], [48]. It is unlikely that in evaluating the reasonableness of the appellant relocating to Kabul the IAA would have excluded from its consideration the issue to which it had given such extensive consideration. Nothing in the IAA's reasons suggests that the IAA believed that the issue of harm, be it significant harm or not, from generalised violence in Kabul was not relevant to its evaluation of the reasonableness of the appellant relocating to Kabul. Accordingly, it should not be inferred that the IAA "stopped its evaluation of the general risk of violence" that the appellant would face in Kabul after considering whether the appellant had a well-founded fear of significant harm. 23 The present case, given the claims the appellants made and the expression of the IAA's reasons, is distinguishable from CXO16. In CXO16 there was no reference in that part of the IAA's reasons dealing with the reasonableness of relocation to Kabul to the "volatile situation" in Kabul. For the reasons his Honour gave at [50] in CXO16, the reference to "harm" in that part of the IAA's reasons dealing with the reasonableness of relocation to Kabul was made in the context of an incapacity to find work. The same cannot be said in the present case where the IAA's reference is to "serious harm" in the context of, amongst other things, the volatile situation in Kabul. Each case turns on its own facts. In the present case, for the reasons we have given, the inference of a failure of consideration as alleged should not be drawn. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Jagot, Charlesworth and Snaden.