MZZFM v Minister for Immigration and Border Protection

The FCC decision 9 The grounds of the application before the FCC for prerogative relief relevantly included that: Ground 1: The IMR denied the appellant procedural fairness and/or made an error of law by failing to consider a claim, or an integer of a claim, namely that the IMR failed to review a finding and/or consider whether the appellant's daughter had been assaulted by the Taliban in 2010 and warned not to go to school. Ground 2: The IMR denied the appellant procedural fairness and/or made an error of law by failing to take into account relevant considerations in its assessment of reallocation, namely whether the appellant would be able to house and support his dependents in the context of an acute shortage of housing and high rents; whether relocation for the appellant was safe in Kabul given its very close proximity to the appellant's home region; and/or whether the appellant's children could safely access school, given the daughter's experience. Ground 3: The IMR denied the appellant procedural fairness by failing to provide the appellant with the adverse country information and/or an opportunity to comment upon the adverse country information on which the IMR based his finding that schools operated in Kabul and that the appellant's daughters could access school there. 10 As to ground 1, the FCC held that the IMR did not have to make a finding as to whether the appellant's daughter was assaulted by the Taliban. The reasons for decision record as follows: The main thrust of the Applicant's argument is that the Assessor failed to make a practical finding as to whether the Applicant's daughter was assaulted by the Taliban. However, this is not an application by the daughter, who is not in Australia, nor an applicant. The Applicant's case relies upon the harm that he alleges followed his making a complaint about the daughter's treatment. The Applicant's only knowledge of the incident is what his daughter told him. The claim by the Applicant is based upon the consequences of his complaining to an elder about his daughter's treatment. Whilst one presumes the daughter was truthful, the truth of her allegations is not central to the case, but the consequences to the Applicant (who has no evidence of the incident but his daughter's word). Logically I do not see that the Assessor needed to go beyond considering the potential harm to the Applicant flowing from his complaint. These consequences were dealt with by the Assessor and rejected … Had the daughter been an applicant a finding about the alleged assault would have been needed to deal with her claim, but she is not an applicant. The FCC considered that the real issue appeared to be a complaint about the merits of the finding that the appellant could relocate to Kabul and that his daughter could attend school there. 11 The FCC dismissed ground 2 on the basis that this ground relied on the same argument about whether the IMR accepted that the daughter had been assaulted. 12 The FCC dismissed ground 3 on the basis that the appellant was given an opportunity to comment on country information as set out in the decision. The FCC reasoned as follows: The applicant has identified many details in the reports referred to by the Assessor in footnotes to the decision. It is alleged this was not put to the applicant. There is no transcript of the hearing, and so there is no evidence of what was actually put. Even if all the detail was not put, the Assessor was only obliged to put the substance, and it appears from the decision that the Assessor did that. 13 There was a ground 4 which the FCC dismissed which is not relevant to the present appeal.

The appeal 14 The appellant relies on the following grounds of appeal: (1) The FCC erred in failing to find that the IMR fell into jurisdictional error in not making an express finding in relation to an integer of the appellant's claim: namely that his daughter had been assaulted by the Taliban for attending school. (2) The FCC erred in failing to find that the country information before the IMR that was used as a basis for the recommendation was not put to the appellant. (3) The FCC erred in finding that the IMR did not err by failing to consider whether relocation to Kabul was reasonable given the close proximity between Kabul and the appellant's home province of Logar. (4) The FCC erred in finding that the IMR did not err by failing to consider whether relocation to Kabul was reasonable given the housing shortage in Kabul and the appellant's need to house his wife and children. 15 Following the hearing, the High Court handed down its decision in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 ("SZSCA") and the appellant applied to amend his grounds of appeal to raise two further grounds said to be based on SZSCA, namely: (5) The FCC erred in finding that the IMR did not err by failing to consider whether relocation to Kabul was reasonable given the close proximity between Kabul and the appellant's home province of Logar and the appellant's work history as a travelling salesman. (6) The FCC erred in finding that the IMR did not err by asking whether the appellant could choose to undertake work solely in Kabul, rather than asking whether it was reasonable to expect the appellant undertake work solely in Kabul. 16 These grounds raise new points that were not agitated before the FCC. However, as the Minister accepted that no prejudice would be occasioned to him if leave to amend were granted save with respect to costs, which he acknowledged can be removed by an appropriate order as to costs. In the circumstances, leave will be granted to the appellant to amend the notice of appeal to add the two further grounds.

Ground 1 of the appeal 17 It was submitted that the IMR fell into jurisdictional error by failing to make a finding on the appellant's claim that his daughter had been attacked and warned by the Taliban on her way to school. It was submitted on the authority of NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922 at [25] (Tamberlin J) ("NBCY") that this claim was an integer of the appellant's claim to fear persecution because "persecution" can arise from a threat to a person's family, and that the claim is relevant to the question of relocation. 18 The jurisdictional error in NBCY was held to be the failure of the Tribunal to take into account, and give weight to, the likely danger to the applicant's family. Tamberlin J reasoned that both in principle and on authority "persecution", in the sense of serious detriment or harm to a person, can arise from a threat to their family and those to whom that person is strongly attached by bonds of kinship, love, friendship or commitment. 19 In the present case, I do not accept the submission that there was jurisdictional error because the IMR did not make an express finding to whether the alleged incident concerning the daughter had actually occurred. It was unnecessary for the IMR to make that finding because it is clear from a fair reading of the IMR's reasons that the IMR considered the risk to the daughters in attending school, as an integer of the appellant's claim to fear persecution for a Convention reason. The IMR accepted, and made the finding of fact, that the appellant genuinely held the view that his daughters should receive schooling. The IMR also accepted that his view conflicted with the views of the insurgency which put him at risk of persecution by the Taliban and gave rise to a well-founded fear of persecution. Tellingly, the IMR then took into account as a relevant consideration in assessing whether it is reasonable to expect the appellant to relocate to Kabul, whether the daughters could access schooling there without risk to them. At para 189, the IMR made the express finding that: … [the appellant's] daughters could access schooling [in Kabul] without facing in Kabul more than a remote chance of serious harm amounting to persecution, and without the [appellant] as their father facing more than a remote chance of serious harm amounting to persecution. 20 It is plain from this finding that the IMR had regard to the risk of harm to the appellant's daughters as a relevant factor to be taken into account. It is also implicit that the IMR accepted that the daughters are at risk from the Taliban, without the need to make any specific finding that the daughter had been threatened as the appellant claimed. Accordingly this ground has not been established.

Ground 2 of the appeal 21 As Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41 makes clear at [91], procedural fairness required the IMR to put to the appellant for comment the substance of adverse of country information which the IMR considered might bear upon the appellant's claims. "Adverse country information" which must be disclosed is that information which is of crucial importance, or determinative, or decisive to the application: Muin v Refugee Review Tribunal (2002) 76 ALJR 966; [2002] HCA 30 at [133]-[137] (McHugh J), [229]-[236] (Kirby J), [263]-[268] (Hayne J, with whom Gummow J agreed dissenting on this point), at [30] (Gleeson CJ) and [64] (Gaudron J); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [97]-[99] (Gaudron J), [140]-[141] (McHugh J), [193]-[194] (Kirby J). 22 The Minister conceded that the FCC wrongly held that the IMR had put the substance of the country information to the appellant but contended that the IMR's failure to give the appellant an opportunity to comment on that country information did not materially bear upon the outcome of the review because the only finding referrable to the country information was the finding that schools continue to operate in Kabul and the appellant's daughters could access schooling there. It was contended that the appellant's own country information likewise formed a basis for this finding. It was also submitted that there was no practical injustice to the appellant because the appellant had not shown that he would have been in a position to refute that schools exist in Kabul and that children are attending schools in Kabul. 23 In my view this ground has been established. A critical finding on the question of relocation was that the appellant's daughters could access schooling in Kabul. That finding was based on the country information contained at [156]-[157] of the IMR's decision which states: A profile for Kabul posted on the website of the World Food Programme states that as of 2005, there were 347 primary and secondary schools in Kabul province. This source did not specify how many of these were in Kabul city. A 2006 United Nations Development Programme (UNDP) profile of Kabul province stated that Kabul city has been an educational centre in Afghanistan since the 1970s and "[s]ince the fall of the Taliban in 2001, the city's numerous schools and universities are again becoming accessible for women". Two December 2010 reports regarding a UNICEF project to support schools in Afghanistan indicate that there are at least 58 schools in and around the nation's capital: Girls and boys were thrilled with the recent inauguration of a new high school in the Afghan capital, built as part of a major project in which the government will construct over 1,000 new classrooms in 58 schools in and around Kabul. A number of reports or internet sources were found to mention specific schools in Kabul such as Ghazi Boys' High School, Sardar Kabuli Girls' High School, Mohamed Mussa Shafiq High School, the International School of Kabul which takes both Afghan and expatriate students, the Franco-Afghan Lycée Esteqlal, and Habibia High School. As of December 2010 the city was still considered by UNICEF to have a "scarcity of adequate teaching and learning spaces". Reports refer to a specific Hazara school in Kabul. These include a January 2010 New York Times article on a "Marafet School" that described it as "a refuge for 2,500 Hazaras" in "Dasht-i-Barchi, a vast, poor Shite enclave in western Kabul of potholed dirt streets, unheated homes and tiny shops." [citations omitted] 24 Contrary to the Minister's submissions that country information did materially bear upon the outcome of the review. As stated above, an integer of the appellant's claims was the view that he holds that his daughters should receive schooling and the IMR accepted that it was relevant to consider, and to take into account, in the assessment of the reasonableness of relocation to Kabul, the ability of his daughters to attend schooling there. Furthermore, that country information dealt specifically with the situation in Kabul and was totally new material, whereas the country information relied on by the appellant dealt with the situation around Kabul. Procedural fairness required the IMR to put to the appellant for his comment and response, the substance of the matters that the IMR considered may bear upon whether to accept the appellant's claims. The IMR did not do so, and in failing to do so fell into jurisdictional error. In so concluding, I do not accept that it can be said that there has been no practical injustice to the appellant. The country information that was not put to the appellant was adverse, credible, relevant and significant. As counsel for the appellant pointed out, it could not be said that the country information on which the IMR based his decision was not open to comment on whether such information relevantly applied to the daughter's circumstances. Fairness required the substance of that country information to be put to the appellant for comment and it could not be concluded that the IMR's failure to allow the appellant to be heard on that country information could not have impacted on the IMR's decision.

Grounds 3 and 4 of the appeal 25 The FCC dealt with grounds 3 and 5 (ground 2 below) on the basis that they raised the same argument as ground 1. In fact the ground also claimed a denial of procedural fairness and/or an error of law by the IMR on the question of relocation for not considering whether relocation for the appellant was safe because of Kabul's close proximity to Logar and whether the appellant would be able to support his dependants in the context of an acute shortage of housing and high rents in Kabul. These grounds were not dealt with by the FCC.

Ground 3 26 It was argued for the appellant that the IMR failed to consider the proximity between Kabul and the appellant's home of Logar in considering the reasonableness of the appellant relocating to Kabul. Before the IMR it had been argued that the appellant could not live in Kabul because it was too close to Logar and very unsafe; and that one of the risks of returning to Kabul was that Logar was a mere one hour's drive from Kabul, which made "any prospect of safe relocation to Kabul a fallacy". It had also been submitted that the appellant was at risk of being "spotted in Kabul" by those he was fleeing in Logar province. It was submitted that the IMR failed to take the proximity between the two places into account in his findings about the reasonableness of relocation, merely finding that the insurgency would not search for or target him in Kabul. Further it was submitted that the IMR failed to take into account whether the Logar based persecutors, without searching for him, would "spot" the appellant in nearby Kabul or hear about him. 27 Central to the IMR's conclusion that the appellant could reasonably be expected to relocate to Kabul was: (a) the rejection of the appellant's claim that he has a profile that would lead him to being targeted by the insurgency in Kabul; (b) the rejection of the appellant's claim that the insurgency has a particular adverse interest in him which would motivate the insurgency to search for him and target him in Kabul; and (c) the finding that although the appellant had spent considerable time living and working in Kabul, he has not faced serious harm in the past there. 28 Having made these findings, the IMR did not need to consider either the proximity of the two places or the possibility that the appellant may be spotted or heard about, when assessing the reasonableness of the appellant being relocated to Kabul. In view of the findings made, neither factor materially bore upon the consideration and were not relevant factors that were required to be taken into account by the IMR.

Ground 4 29 It was argued for the appellant that the IMR failed to deal with the submission for the appellant that a matter relevant to the reasonableness of relocation to Kabul was the fact that the appellant did not own land or property in Kabul; that in Kabul there was "an acute shortage of housing and rents are high"; and that the lack of housing would put him and his members under further personal hardship. I do not accept this ground either. 30 Although the IMR did not in terms deal with the housing shortage the IMR did engage with those claims. The IMR accepted country information about the housing problems for displaced families in Kabul but gave weight to the fact that based on the appellant's own evidence, the appellant has significant knowledge of living and business conditions in Kabul and can use that knowledge to establish a household and to conduct a business there. There was no failure to consider the issue of housing in considering the reasonableness of relocation. The IMR had regard to that issue and made a finding based on a consideration of the appellant's particular circumstances.

Grounds 5 and 6 of the appeal 31 It was submitted that the IMR fell into error when assessing whether it was reasonable to expect the appellant to relocate to Kabul: (a) by not considering the proximity between Logar and Kabul in light of the appellant's work history as a travelling salesman; and (b) in finding that it was reasonable for the appellant to relocate to Kabul because, amongst other things, he "could" choose to undertake work solely in Kabul. 32 The IMR stated at [199]: I note that whilst [the appellant] spoke of travelling to some provinces to wholesale goods in his last occupation, he also indicated he largely wholesaled in the Kabul market. I conclude he could choose to undertake work solely in Kabul. 33 It was contended that the question that should have been addressed by the IMR was whether it was reasonable to expect the appellant to undertake work solely in Kabul. The appellant relied on SZSCA [2014] HCA 45 for support. The visa applicant in that case was a self-employed truck driver who lived in Kabul. His work as a truck driver required him to drive between Kabul and other places. The Tribunal accepted that the visa applicant was someone who might be harmed if he came to the Taliban's attention because of imputed political opinion. The Tribunal however concluded that it was not satisfied that the visa applicant would face a real chance of persecution if he remained in Kabul. The Tribunal found that the risk of persecution would only arise in areas in which he had been driving outside of Kabul and that he could avoid those areas. The Tribunal accordingly found that the visa applicant did not satisfy the criterion for the grant of a protection visa in s 36(2)(a) of the Migration Act 1958 (Cth). The majority (French CJ, Hayne, Kiefel and Keane JJ, Gageler J dissenting) held that the Tribunal erred by not considering the question of whether the visa applicant could reasonably be expected to remain in Kabul and not transport materials on the roads outside Kabul where he would be at risk of harm. The Tribunal did not consider that the issue of relocation arose as such for the reason that the visa applicant already resided in Kabul where he was considered to be relatively safe. The majority held, however, that the same considerations as are relevant to relocation apply when the Tribunal identifies an area where the visa applicant may be safe, so long as he or she remains there, referring to SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 1; [2007] HCA 40. The majority held that it was necessary for the Tribunal to consider the impact on the visa applicant of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. It was therefore held that without addressing the question of whether it would be reasonable to expect the respondent to remain working in Kabul, having regard to the circumstances in which that would place him, the Tribunal could not make a finding or determination as to whether he could be said to have a well-founded view of persecution and that the failure to address this question constituted an error of law. 34 In SZATV, the plurality concluded that the Tribunal erred in finding that it was reasonable for the visa applicant, whom the Tribunal had found had suffered localised persecution in the past for the convention reason of his political opinions, to relocate elsewhere in the Ukraine. The plurality concluded that the Tribunal in that case effectively required the appellant to move elsewhere in the Ukraine and live discretely, getting work outside his usual profession of journalism, and thus not attract adverse interest from the authorities in his new location. By that reasoning the Tribunal "side stepped consideration of what may reasonably be expected of the appellant with respect to his 'relocation' in Ukraine …" (at [32]). 35 It was submitted for the appellant by parity of reasoning with SZSCA and SZATV that the IMR fell into error by failing to consider the need of the appellant to travel for work as a wholesaler working in and outside of Kabul in assessing the reasonableness of the appellant confining himself and his family to Kabul to avoid persecution. I do not accept this submission. 36 In the present case, I do not consider that the IMR wrongly approached the question of relocation. This is not a case where the IMR wrongly assumed a state of facts, such as in SZSCA and SZATV. One of the issues for the IMR was whether the appellant, who had worked both in and outside Kabul, could work solely in Kabul. The IMR addressed this issue. In distinction to the facts of SZSCA, there was an evidentiary foundation for the IMR's finding that the appellant could work solely in Kabul. The IMR noted, amongst other things, that the appellant had spent a considerable time working in Kabul, that he had resided in Kabul whilst he operated his chicken soup business from a rented shop, his wholesale business was solely operated from Kabul and that he largely wholesaled in the Kabul market. The IMR went on to consider how the appellant might subsist in Kabul and considered that he would seek employment as a wholesaler with which he has past and successful experience, which work had not, and would not, bring him to any adverse attention. 37 In my opinion the errors alleged in grounds five and six have not been established.

conclusion 38 Having regard to my finding on ground 2, the appeal must be allowed. 39 Subject to argument, I consider that it is appropriate to deprive the appellant of a portion of his costs by reason that he has not been successful on either of the grounds advanced by grant of leave which necessitated a further hearing. I propose that a discount of 35% is reasonably proportionate to the new grounds that required the Court's determination. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.