FZF18 v Minister for Immigration, Citizenship and Multicultural Affairs

Background 5 The Authority found that the appellant was a national of Afghanistan from Paktia Province. It rejected his claims that he only spoke Pashto and could not read or write any language. It found that he ran his own business in his home village's bazaar providing services in respect of electronics in motor vehicles. 6 In March 2021, this appeal first heard by another Judge of this Court who since has retired and thus was unable to give judgment. At that time, the governance of Afghanistan was very different to its current situation, and these reasons are not concerned with whatever may be the position the appellant is now in or which the Minister in the future may be asked, or wish, to consider for the purpose of ss 48A and 48B of the Migration Act.

The Authority's decision 7 The Authority accepted the appellant's claims that he faced a real chance of both serious harm from the Taliban, within the meaning of s 5J(5), and significant harm, within the meaning of s 36(2A), if he returned to his own area or to the district in his home province in which that was located. It then proceeded to consider, for the purposes, first, of his refugee claim under s 36(2)(a) and, secondly, his claim for complementary protection under s 36(2)(aa), whether there would be a real chance of him suffering the harm that he claimed to fear to which he would be exposed both in his home province (as it found he would be ) or by reason of, among other matters, the general security situation in Kabul at that time. 8 The appellant's migration agent made a detailed written submission to the delegate which the Authority addressed in its reasons. The migration agent submitted that: the appellant could not relocate from his home province to any other region within Afghanistan, including to Kabul; Kabul was not a safe or reasonable area for him to relocate to, even though it was comparatively safer than some other areas in Afghanistan because, at that time, it was still subject to insurgent attacks, violence and sectarian tensions and the then continuing influence of the Taliban there posed a significant threat to his life and security, placing him in grave danger were he to return; the Taliban had made a number of attacks in Kabul in recent times against agencies and individuals which it considered either to support the then Afghani government or pose a threat to the Taliban; those attacks demonstrated the general fragility of the situation and the wide-ranging influence of the Taliban in Kabul and elsewhere; the security situation in Kabul was deteriorating; based on country information, there was inadequate access to electricity, water, sanitation facilities and employment in Kabul for a person in his position; the appellant had no relatives, friends or contacts in Kabul upon whom he could rely if required to relocate there; and he would be exposed to the likelihood of being homeless, starving and unable to survive were he to relocate to Kabul. 9 Next, the submission addressed the reasonableness of relocation for the purposes of the appellant's complementary protection claim, arguing that: the guidelines of the United Nations High Commissioner for Refugees (UNHCR) suggested that the threshold for safety and security in any relocation assessment required that a claimant be free from any danger or risk of injury in the locality and that Gummow, Hayne and Crennan JJ stated a test in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at 27 [24] which, the submission asserted, was consistent with the understanding of the UNHCR guidelines; the violence that had occurred in Kabul before and after the dates referred to in country information to which the submission referred made it imperative that ongoing violence "must not exist" in a region for it to be considered safe for relocation and that this was the standard to be met for any relocation assessment; it would be unreasonable to require the appellant to relocate in his particular circumstances because of his limited ability to find work in other areas of Afghanistan (including Kabul) lack of any relatives or family in other areas and the significant hardship he would face in re-establishing himself; life in Kabul would not be affordable for a person in the appellant's position and so it would not be reasonable or feasible for him to relocate there and re-establish himself and his family without due hardship so that they could subsist; the addressee should apply Kenny J's reasons in MZACX v Minister for Immigration and Border Protection (2016) 161 ALD 73 at 83 [35], where her Honour distilled a requirement for a decision-maker considering the possibility of relocation within a person's country of nationality as raising two questions, namely: [T]he first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk, of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is "reasonable", in the sense of "practicable", having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, 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 enquiry has a different focus. (emphasis added) the addressee was obliged to consider the practical reality for the appellant in determining whether it was reasonable to expect him to relocate; relocation to another area of Afghanistan was not practicable because of, first, the risk of harm were he required to return to his home town to take his family with him to another area, including the danger of his travelling to or from there and anywhere else, and secondly, the absence of stable accommodation and a job to protect and provide for his family. 10 The submission asserted that the evidence of deteriorating security, together with the increasing violence and attacks by militants in Kabul, made clear that the chance of the appellant being seriously harmed or killed were not remote, and as such, relocation to Kabul or anywhere else in Afghanistan was not a feasible or reasonable option. It submitted that, if forced to relocate to Kabul, his family and he would be in danger in a city infiltrated by the Taliban and he would have to compete with hundreds of thousands of other displaced persons for housing employment and basic necessities of life. 11 Importantly, the Authority found that the appellant faced a real chance of serious and significant harm were he to return to his home area. 12 However, the Authority also found that: the appellant had not claimed, and there was no evidence, that persons from whom he feared harm, namely a cousin and the Taliban, had harmed anyone else in his immediate or extended family; the actions of his cousin, or the cousin's associates, had involved an opportunistic act based on the cousin's jealousy of the appellant's business success; his family did not fear harm in their home area because after they had relocated to Peshawar in Pakistan in 2013, presumably after the appellant's departure, they had returned there at different times to obtain identity documents; it might be that other relatives had remained in his home area, such as an uncle who lived next door to his former home; and there may be other reasons why his family had relocated to Peshawar. 13 The Authority dealt with the issue of relocation in two parts of its reasons, namely when dealing with his claims under each of s 36(2)(a) and (aa). In dealing with his refugee claim, the Authority considered whether, as required by s 5J(1)(c), there was a real chance of persecution, as defined, that related to all the areas of Afghanistan, including whether that would be so were he to relocate to Kabul. It did not accept that he faced any risk from his cousin should he relocate to Kabul. It had regard to country information and found that the appellant did not have such a profile that the Taliban would look for him more than five years after he had left Afghanistan, or that he was of sufficient interest for the local Taliban in his home area to pursue him to Kabul. It found that the chance was remote that the Taliban operating in Kabul would have any knowledge of the appellant or become aware of him or work he had done more than five years before, or of targeting him because of any actual or imputed political opinion. It was not satisfied that he faced a real chance of harm in Kabul from the Taliban or other extremist groups. It then found at par 27: I acknowledge the complex and highly fluid security situation in Kabul and in Afghanistan generally. I note that Kabul had the most civilian deaths (479) in the country in 2017. Most of these were as the result of suicide attacks or deliberate and targeted killings. For the reasons given above, I do not accept however that the applicant faces a real chance of being targeted. Whilst I cannot guarantee the applicant will not be inadvertently caught up in a suicide bombing or other random violent act, I consider his chance of this, in a city of 5 million people, is too low to amount to a real chance. I am not satisfied the applicant faces a real chance of harm due to the general security situation in Kabul. (emphasis added) 14 After considering other claims the appellant made, the Authority concluded that it was not satisfied that he had a profile that would be of interest to the Taliban or any extremist group operating in Kabul for any of his claimed reasons to be a refugee, including having done work for police or military, being targeted by the Taliban in his home area in 2012, having an actual or imputed political opinion of being an opponent of the Taliban or other extremist groups, or that he would be targeted in Kabul for any of the reasons claimed, individually or considered cumulatively. Accordingly, it did not accept that he had a real chance of persecution that related to all areas of Afghanistan, so that he did not meet the requirements of s 5H(1) or 36(2)(a) for recognition as a refugee. 15 Next, the Authority set out the requirements in s 36(2B), and focused, in particular, on the issue under s 36(2B)(a) as to whether it would be reasonable for the appellant to relocate to an area in Afghanistan where there would not be a real risk that he would suffer significant harm. It repeated its earlier findings that he did not face a real chance of harm in Kabul for any of the reasons that he claimed and then said (at pars 36 to 38): 36. At the interview, when the delegate put to the applicant she would be considering relocation to Kabul, he said it would not be safe for him there. I have found the applicant does not face a real chance of harm from the Taliban, or any other group, in Kabul for any of the reasons claimed. 'Real chance' and 'real risk' has been found to equate to the same threshold. For the reasons given above, I find the applicant does not face a real risk of significant harm in Kabul. 37. The representative provided country information on incidents of targeted and random violence in Kabul. He submits that ongoing violence must not exist at all in a region in order to deem it safe for relocation. I do not accept this is the test. The test is whether there is an area of the country where there is not a real risk he will suffer significant harm. For the reasons given above, I find the applicant does not face a real risk of significant harm in Kabul for any of the reasons he claimed or because of the general security situation. 38. I have considered whether the applicant could reasonably relocate to Kabul. In submissions to the delegate the representative submitted it was not reasonable for the applicant to relocate within Afghanistan because it would be hard for him and his family to subsist, and he would need to have a stable job and accommodation to support his family. The representative also said the applicant would have to return to Paktia to collect his family. (emphasis added) 16 The Authority found that the appellant's family would be able to remain in Peshawar with their current support where they allegedly had lived since 2013, until such time as he was able to secure work and accommodation in Kabul. It did not accept his claim that he would have to travel to his home province to see, or collect, his family, or that they would be at risk from returning to their home area, since they had already done so without harm. It found that his family were capable of travelling to meet the appellant in Kabul. It referred to country information that there were greater opportunities for employment for returnees from western countries who relocated to Kabul. It rejected the appellant's claim to be illiterate and uneducated, finding that he had completed a traineeship, operated his own business, worked in Australia as a courier and shown himself to be a capable and adaptable worker with trade skills. It found that he had some familiarity with Kabul, having travelled there to obtain a driver's licence, and that he had a maternal uncle who lived there. It found traditional extended family and tribal community structures were the main source of protection or coping mechanisms for successful relocation and that the appellant could reasonably obtain assistance from his uncle to help him settle in Kabul, concluding at par 42 that: I am satisfied in all the circumstances that it is reasonable for the applicant to relocate to Kabul, where he does not face a real risk of significant harm. 17 Accordingly, it rejected his claim for complementary protection and affirmed the delegate's decision not to grant him a protection visa.