ETC17 v Minister for Home Affairs

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

JAGOT J: 1 This appeal should be dismissed for the following reasons. 2 The appellant is a Hazara Shia from Afghanistan who claimed to fear persecution if he was required to return to Afghanistan. Amongst other things he contended that systemic discrimination against Hazara Shias existed to such an extent that there was no place within Afghanistan to which he could relocate. 3 A delegate of the Minister refused the appellant's application for a protection visa. The refusal was then referred to the Immigration Assessment Authority for review. The Authority affirmed the decision not to grant the appellant a protection visa. The appellant applied to the Federal Circuit Court for judicial review of the Authority's decision. The Federal Circuit Court rejected the appellant's sole ground of review that the Authority misapplied the relocation test in s 36(2B)(a) of the Migration Act 1958 (Cth). Accordingly, the Federal Circuit Court ordered that the application be dismissed, with costs. 4 The appellant's notice of appeal in this Court raises the same ground of review and contends that the Federal Circuit Court erred in failing to find jurisdictional error by the Authority in its consideration of the reasonableness of the appellant relocating within Afghanistan. The appellant also contends that the primary judge's reasons were inadequate, so that no order for the costs below should be made against him if his appeal fails. 5 Section 36(2B)(a) of the Act provides that 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. 6 The Authority accepted that there was discrimination from which the appellant may suffer in Afghanistan including in Kabul in the form of nepotism in employment by ethnic groups in areas those groups dominated. The Authority did not consider this risk of discrimination itself amounted to serious harm so as to constitute a well-founded fear of persecution for the purpose of the appellant's claims to be a refugee: at [29]. It also did not consider that this risk constituted significant harm for the purpose of the appellant's claim that he could not relocate to Kabul. The Authority then turned to the question whether it would be reasonable for the appellant to relocate to Kabul: s 36B(2B)(a) of the Act. It is here where the appellant contended error arose. 7 In dealing with this question the Authority did not mention the discrimination to which the appellant may be subject to by other ethnic groups by reason of the nepotism which affects employment opportunities. Rather, the Authority considered the appellant's personal circumstances including his family ties in Kabul, and concluded that he would be able to obtain support by accessing his family and tribal links in the Hazara community in Kabul. As such, the appellant, as an able bodied male of working age, would be able to obtain employment in Kabul. 8 The asserted error was said to mirror that found by Dodds-Streeton J in MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191 in which her Honour found that the decision-maker, in considering whether it was reasonable for the applicant in that case to relocate to another part of Afghanistan, had treated all harm which could not be characterised as serious harm as irrelevant to the issue. This was in error as non-serious harm could be relevant to the reasonableness or otherwise of an applicant relocating within their country of nationality. 9 I am not persuaded that the same or any error was made by the Authority in the present case. I accept that the Authority did not refer to the discrimination by nepotism findings it had made when it came to consider the reasonableness of the appellant relocating to Kabul. However, the substance of the Authority's consideration discloses that it was evaluating whether the appellant would be able to find employment and establish himself in Kabul, by implication, despite the discrimination by nepotism which existed there. In other words, the very purpose of the Authority's findings about the personal circumstances of the appellant and their relevance to his capacity to find support from his family and tribal links in Kabul was to explain why, despite the discrimination against Hazara Shias by other ethnic groups in respect of finding employment, the appellant would be able to find employment and establish himself in Kabul. It follows that it must be inferred that the Authority did engage in a process of weighing the appellant's personal circumstances against and in the context of a society in which systemic discriminatory nepotism on familial and tribal lines is practised. The Authority did not assume that the appellant would not be at risk of such discrimination when seeking employment. Rather, it assumed he would be subject to such a risk but that his familial and tribal links would enable him to find employment. 10 The appellant also claimed that, if unsuccessful, no order should be made against him to pay the Minister's costs below because, as in CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150, the reasons of the primary judge are inadequate and to have his ground of review properly examined the appellant had to prosecute this appeal. 11 The primary judge dealt with the claim in [29] of the reasons for judgment in ETC17 v Minister for Immigration & Anor [2018] FCCA 2654 in these terms: The Authority's reasons are not to be read with a keen eye for error. The Authority's reasons should be read as a whole. It is apparent from the Authority's reasons, as summarised above in paragraphs 15 to 17, that the Authority took into account the applicant's claims to fear harm by reason of discrimination being a Shia Hazara. Those claims were, on a fair reading, subsumed within the Authority's reasons in referring to the applicant's personal circumstances, as summarised in paragraphs 21 to 24 above, and the ultimate finding that it was reasonable for the applicant to relocate. No jurisdictional error as alleged in ground 1 is made out. 12 I do not have any concern about the brevity of the primary judge's reasons at [29]. The point put below and on appeal was confined in its scope. Elaborate reasons for judgment were not required. This said, it was the ultimate finding that it was reasonable for the appellant to relocate which was said to have miscarried because of a failure to weigh in the balance the systemic discrimination to which the appellant might be subjected. It is not immediately apparent how [29] resolves that contention. The case, however, is not similar to CIT17. The case involved a single ground of review. The primary judge's reasons for rejecting the ground are obscure but it is not apparent that the appellant would have foregone the right of appeal had the primary judge's reasons been a model of clarity. As a result, the usual order for costs before the primary judge should not be disturbed on appeal. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.