3.2 Did the IAA fall into jurisdictional error
22 The appellant submitted that he raised as an impediment to relocation the fact that his family were at risk of harm in his home district where they lived and may attempt to travel to see him if he were returned, or that he may travel to see them. Specifically, the delegate's reasons record that the appellant's registered migration agent made an oral submission after the interview which included the following claims:
• His wife and children are in danger of being harmed by the Taliban.
• The applicant could be similarly harmed if he returns to his home village…
• If the applicant were to return to Afghanistan and relocate to Kabul, then either he would have to travel to [his home region] to see his family or they would have to travel to see him. The journey is dangerous due to roadblocks set up by insurgent groups.
(emphasis added)
23 The migration agent also sent the delegate a written submission on 19 January 2017 which alleged, among other things, that it was not feasible for the appellant to go to his home village or for his family members to travel to Kabul, and the appellant "would be unreasonably expected to avoid travelling to his home village..."
24 The appellant submitted that two risks of harm arose squarely from these submissions if the appellant's family attempted the journey from their home region to Kabul, as the appellant contended "would occur", or were harmed in undertaking that journey:
16. First, the IAA needed to consider and assess the risk that the appellant would leave Kabul to assist his family should they make the journey, or should they come to any harm where they lived or on the road. That would require the appellant to travel on the road where the real risk of harm existed.
17. Secondly, if the appellant's family came to harm or attempted the dangerous journey, the IAA needed to consider whether harm to the family counted as persecution against the appellant. As Tamberlin J said in NBCY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 992; (2004) 83 ALD 518 at [25]:
"severe harm to a member of an applicant's family can amount to persecution of an applicant and is clearly relevant to the question of whether an applicant can be said to be in danger of persecution. Threats and harm to family members, as a matter of common sense, may cause considerable injury and harm to close members of that family."
18. The IAA failed to consider either of these impediments to the appellant's relocation to Kabul. It therefore failed to consider matters that it was legally obliged to take into account, and so made a jurisdictional error.
(emphasis in the original)
25 In support of this submission, the appellant pointed to the fact that the IAA accepted that the appellant's family reside within his home region and accepted country information that there are significant risks of harm to Hazaras travelling by road between many areas of Afghanistan, with the roads linking his home region and Kabul in particular suffering from a high level of insecurity. The IAA also accepted that the appellant would be required to travel on roads throughout his region at least once in order to return to his home area and that he faced a real chance of serious harm if he did so (IAA reasons at [19]). These findings by the IAA did not foreclose the risk of harm to the appellant or his family if they travelled between his home district and Kabul in an attempt to see each other. Rather, the Minister submitted the IAA implicitly rejected the claim that the appellant or his family "would" travel these roads in order to meet up if he relocated to Kabul, as the primary judge held below.
26 There are two critical passages in the IAA's reasons. First, the IAA at [41] described the submission of the applicant's agent on the relocation issue as being "that the applicant and his family could not travel to see each other as the roads are not safe" (emphasis added). Secondly, the IAA considered this claim at [43], finding that:
I accept that the applicant's immediate family reside within [his home district]. I have given careful consideration to this in terms of the emotional and practical impact of a continued separation, and because I accept that his wife and children are his dependents and he would need to support them. However, the applicant has already spent years living apart from his family during two significant periods in Iran … and since leaving Afghanistan in 2012. There is no evidence before me to indicate the applicant has been previously unable to support his family in the past and I find he could establish himself in Kabul.
27 The IAA concluded at [48] that:
I have noted the applicant and his representative's concerns about the reasonableness of relocation to Kabul. However, in considering the applicant's personal circumstances and the country information relating to Kabul, including the social, economic and security situation, I am satisfied it is reasonable for the applicant to relocate to and remain in Kabul.
28 The Minister submitted that the IAA at [43] implicitly rejected the claim that the appellant or his family would travel on the roads to meet up, as the primary judge held.
(1) First, the Minister submitted that the argument that the IAA mischaracterised the appellant's claim that he or his family "would travel" as a claim that they "could not travel" was semantic. In his submission, the primary judge correctly held at [38] that the description by the IAA of the appellant's claim "does not reflect any misunderstanding of the applicant's claims or any misunderstanding of the applicant's contention identified in the delegate's reasons that either he would travel to a particular place to see his family or they would travel to see him."
(2) Secondly, the Minister submitted that the primary judge correctly held at [39]-[40] that, having regard to the appellant's claims to have been separated already for significant periods from his family, the IAA implicitly "found by reference to the continued separation that the applicant and his family would not travel on the roads." In other words, the IAA was said to have proceeded on the basis that the appellant and his family would continue to be apart because of the dangers in travelling, if the appellant relocated to Kabul.
29 Having therefore implicitly rejected the factual premise of the appellant's claim, the Minister submitted that it was unnecessary for the IAA to go further and make additional findings as to the alternative and potential consequential risks of harm, relying upon Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (the Court). In the Minister's submission, the IAA considered the practical effect on the applicant of the "continued separation", consistently with the decision in SZATV at [24] (Gummow, Hayne and Crennan JJ).
30 It is important to bear in mind the oft-quoted caution emphasised by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 "the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." As such the IAA's reasons are "not to be construed minutely and finally with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 (the Court) (approved in Wu Shan Liang at 272).
31 However, even bearing that caution in mind, in my view fairly read the appellant has established that the IAA failed to consider his claim that either he or his family would have to travel to see each other. First, the IAA does not expressly deal with the claim. The IAA considers only the reasonableness of the appellant's relocation to Kabul by reference to the impact of the continued separation from his family (at [43] - [44]). Secondly, I agree with the appellant that the description of his submission at [41] of the IAA's reasons, that the appellant and his family could not travel to see each other as the roads are not safe, does not reflect an understanding of the fact that the appellant's claim was that they would do so. This counts strongly, in my view, against inferring from [43] of the IAA's reasons that the IAA considered but rejected this claim. Thirdly, neither the fact that the appellant has already spent years living apart from his family in different countries, nor that he has been able nonetheless to continue to support them, necessarily answer the proposition that, were they to be closer in the same country, the appellant or his family would travel to see each other despite the dangers in doing so. This also tells against drawing the inference urged by the Minister.
32 Given the conclusion which I have reached, it is unnecessary to consider the second way in which the appellant put his case, namely, whether the IAA was required to, but did not, consider whether harm to the family can amount to persecution of the appellant (see the submission quoted at [25] above). It suffices to say that the IAA failed to consider a claim or integer of the appellant's claims as to why he could not reasonably relocate to Kabul for the purposes of considering his complementary protection claim and thereby failed to consider a mandatory relevant consideration on the review. It follows that I consider that the primary judge erred in finding to the contrary, notwithstanding the careful submissions by the Minister's counsel.