SZSJB v Minister for Immigration and Border Protection

Federal Court of Australia|2017-03-10|Before: Perry J

The appeal is allowed.
The orders of the Federal Circuit Court made on 12 July 2016 are set aside.
The first respondent is to pay the appellant's costs in the Federal Court and in the Federal Circuit Court as agreed or assessed.

THE COURT NOTES THAT: 4. The parties are to provide short minutes of order to otherwise give effect to these reasons within 7 days hereof. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J: 1 INTRODUCTION [1] 2 BACKGROUND [5] 2.1 The ITOA [5] 2.2 The decision below [11] 3 CONSIDERATION [12] 3.1 The issues [12] 3.2 Relevant principles: relocation [17] 3.3 Relevant principles: the obligation to correctly construe and consider an applicant's claims [24] 3.4 Proper characterisation of the appellant's claims [31] 3.5 Consideration of the appellant's claims by the assessor [46] 3.5.1 The assessor's findings [46] 3.5.2 Did the assessor consider the appellant's claims? [55] 4 CONCLUSION [59]

INTRODUCTION 1 The appellant is a citizen of Afghanistan. He arrived as an Illegal Maritime Arrival at Christmas Island on 11 January 2010. Christmas Island is an Australian external territory to which the Migration Act 1958 (Cth) (the Act) applies (s 7) and forms part of the migration zone as defined by s 5(1) of the Act. The appellant claimed to fear persecution by reason of his Hazara ethnicity, his religion as a Shia Muslim and as a failed asylum seeker from a Western country. By an International Treaties Obligations Assessment (ITOA) made by the second respondent (the assessor) on 18 May 2015, the assessor concluded that Australia does not have non-refoulement obligations with respect to the appellant. 2 This is an appeal from a decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the ITOA. The appellant seeks declaratory relief to the effect that that ITOA was legally flawed and an injunction restraining the Minister from relying upon the ITOA. In the event that the appeal was allowed, the Minister did not make any submissions resisting the grant of relief sought. 3 The appeal raises the correctness of the primary judge's finding that the assessor did not fall into legal error in concluding that it would be reasonable to require the appellant to relocate to another part of Afghanistan. Specifically, two issues arise on the appeal: (1) What is the correct characterisation of the appellant's claims that it would not be reasonable for him to relocate to Kabul? (2) Did the assessor consider those claims? 4 For the reasons given below, the appeal is allowed and the declaratory and injunctive relief sought should be granted.

2.1 The ITOA 5 The assessor explained in her reasons that the purpose of the assessment was to assess whether Australia has non-refoulement obligations to the appellant under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), or the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol, aimed at the abolition of the death penalty. Consequently, while she stated that the ITOA employs certain concepts relevant to assessing whether Australia under the Act owes protection obligations to the appellant, the assessor explained that the assessment was not an assessment of a protection visa application. The ITOA is a process which is preparatory to a decision required to be made under the Act, namely, whether or not the appellant should be removed from Australia under s 198 of the Act: SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143; (2014) 231 FCR 285 (SZSSJ) at [40] (the Court). 6 In their pre-hearing submission dated 27 January 2015, the appellant's migration agents summarised his claims as follows: • [the appellant's] father was killed on his way to Uruzgan Province by the Taliban • [the appellant] owned a passenger car in Ghazni , transporting goods and passengers along the route from [the appellant's home town] to Ghazni City. [The appellant] was stopped by the Taliban many times, had his goods confiscated and was pressured by the Taliban to be an informant for them. • [The appellant] has received threats from [a] Taliban-aligned Hazara commander … and the Taliban. He has been accused of stockpiling weapons and his family were forced to leave Afghanistan due to their fear of harm. [The appellant] has been threatened in both [the appellant's home town] and Kabul. • [The appellant] fears harm because of recent threats from neighbouring Kuchis to harm residents of his village… • [The appellant] fears harm because the identity verification process has made it more likely that he will be identified as having returned from Australia. 7 The appellant attended an ITOA interview on 3 March 2015 conducted in the presence of his migration agent and with the assistance of an accredited Hazaragi interpreter. He was afforded a further two weeks within which to provide information following the interview and a post hearing submission. This material was submitted on 18 March 2015. 8 The assessor found that the appellant is a citizen of Afghanistan. The assessor found that the threat level in the Hazara majority districts of Ghazni remains low and accepted the assessment by the Department of Foreign Affairs and Trade (DFAT) that there is a low risk of violence for Hazaras in this area. Accordingly, the assessor found that the body of evidence did not support a finding that all Hazaras face a real chance of persecution throughout the entirety of Afghanistan on account of their race and/or religion. However the assessor stated that: The [appellant] contended that it would be unreasonable for him to live in his home district because in order to survive he would need to travel to other districts that do not have a Hazara majority in order to purchase food and work as a driver. On his way to these other districts he might be caught by the Taliban, recognised as a Hazara and possibly be killed. 9 While the assessor found that most ordinary residents may not need to travel to places outside the Hazara-dominated districts of Ghazni which had a good security environment: [The appellant's] circumstances can be considered different because he has previously worked as a driver in the Ghazni province and would therefore have a need to travel to subsist. As the information above suggests, as well as information provided by the [appellant's] migration agent, travel may be risky for the [appellant] as security on roads from the Hazara districts of Ghazni to Kabul and other areas of Afghanistan is less safe. Moreover, Ghazni Province where [the appellant's home town] is located, is considered a volatile province where anti-government and armed insurgent groups are actively operating in various districts and frequently carry out insurgency activities. 10 The assessor also accepted that: The Taliban's perception of Hazara's affiliation with the government or international community may be sufficient for a Hazara to be mistreated in a persecutory way should they be found by the Taliban on the road or on other places especially outside the Hazara dominated areas. As stated above, the [appellant] may inevitably find himself away from areas deemed to be safe for Hazaras in order to search for work or to engage in employment activities. The chance of the [appellant] encountering the Taliban and be [sic] recognised as a Hazara Shia is not remote. The chance of him being harmed in a persecutory manner when travelling on the roads from [the appellant's home town] to other districts cannot be dismissed as insubstantial but must be regarded as real based cumulatively upon his race, religion and imputed political opinion against the Taliban. In those circumstances, the assessor found that the appellant could not return to his home town. However, for reasons I later explain, the assessor found that "relocation to Kabul is both relevant and reasonable for the claimant". As a result, the assessor found that the appellant did not have a real chance of being persecuted for a Refugees Convention reason and his fear of persecution was not well founded, with the result that Australia did not have a non-refoulement obligation under the Refugees Convention. Nor was the assessor satisfied that the appellant has a real chance of being subject to significant harm should he be returned to Afghanistan and accordingly was not satisfied that he was a person in respect of whom Australia has non-refoulement obligations under the CAT or the ICCPR.

2.2 The decision below 11 The primary judge dismissed the application for judicial review on 12 July 2016. While the respondent did not seek to rely upon the whole of the reasons below, the respondent contended that in dismissing the application, the primary judge rightly held that: 28. On a fair reading of the applicant's submissions [before the assessor], the applicant's claims were that he would be specifically targeted and not merely that he would face the same risk of harm as the population generally. There was no failure by the assessor to address the integers of the claim advanced by the applicant in relation to his fears in respect of relocation. There was no failure by the assessor to apply the correct relocation test or to take into account the particular circumstances of the applicant in determining whether relocation was reasonable. The submission that the assessor applied the wrong test in finding the applicant could relocate to Kabul is not made out.

3.1 The issues 12 Initially the appellant contended that, when assessing whether it was reasonable for him to relocate, the assessor failed to consider the impact of the general security situation and the risk of random or non-targeted harm (referred to as "generalised harm"), as opposed to his specific claims to fear persecution for a Refugees Convention reason or serious harm attracting complementary protection ("serious harm"). In order to establish that ground, the appellant accepted that it was necessary for him to establish in line with the principles set out below that: (1) the risk of the appellant being affected by generalised violence in Kabul was a claim expressly made by him and/or which squarely arose on the material before the assessor (the characterisation issue); and (2) it is apparent from the assessor's reasons that she failed to take into account the risk of generalised violence when determining that it would be reasonable for the appellant to relocate to Kabul. 13 As such, the appellant submitted that this case was analogous to that in MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191 (MZYQU). In that case, Dodds-Streeton J held that the Independent Merits Reviewer fell into jurisdictional error not merely in considering whether there was a risk of "serious harm" as defined in s 91R of the Act in applying the relocation test, but in implicitly treating such harm as the only level or kind of harm that could affect the reasonableness of the relocation: MZYQU at [61]. 14 The respondent initially contended that: (1) the appellant did not make a claim that he feared generalised violence (in the sense referred to) but rather that "the nub of the appellant's claim was that he feared harm in Kabul because he is a Hazara Shia."; and (2) to the extent that a claim of generalised violence arose on the materials, it was dealt with by the assessor in any event. 15 However, the parties' respective characterisation of the appellant's claims shifted during the course of the hearing of the appeal. Ultimately in his oral submissions, the Minister submitted that the appellant raised concerns as to his safety by reason of being caught up in insurgent attacks in Kabul (but not random or generalised violence) if he were to relocate to Kabul, as well as his specific claims to fear persecution on Convention grounds or serious harm. It was apparent from the appellant's submissions in reply that broadly speaking he accepted that characterisation of his claims on the issue of relocation although there remained significant differences. This is apparent from the following exchange with counsel for the appellant in reply: MR JACKSON: Well, the good news, as far as I can see, is that we basically agree, my learned friend and I, that what was raised on the evidence was the possibility of random - being caught up in insurgent attacks for no particular reason other than he was in Kabul or West Kabul. Now, where we probably disagree is on there being any particular magic to the word "insurgency" or "insurgent group", because basically, in my submission, it really just means anyone who's trying to disrupt the orderly business of government and day-to-day living in Kabul, which is really pretty much every sort of attack of generalised or, for that matter, targeted violence that might occur in Kabul. HER HONOUR: Is that so when the word "insurgent group" is spoken of? MR JACKSON: Well, there's also reference to suicide bombers, who may or may not be a part of a group, and there's reference to more than 100 insurgent groups. So apart from someone who's just generally discontent and is unhappy with the state of politics, either in Kabul or in Washington, and just decides to randomly blow themselves up, it seems to cover, in my submission, pretty much any form of any group that might wish to disrupt action in Kabul. So I don't think there's any magic. I would submit there's no magic to the word "insurgency" or "insurgent group", but I'm not too troubled with it as a concept either, but I would just probably define it a bit more - I would define it broadly in the way that I suggested. 16 It follows that the parties remained apart to some degree in their characterisation of the appellant's claims and it is therefore necessary to consider the materials to determine precisely what claims were raised. First, however, it is helpful to summarise the applicable principles.

3.2 Relevant principles: relocation 17 Turning to the principles governing relocation, first, the notion of "relocation" and of the "reasonableness" of relocation is inferred from the definition of "refugee" in the Refugees Convention. That inference is drawn by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department [2006] 2 AC 426 (Januzi) at [7], namely that: The [Refugees Convention] does not expressly address the situation… where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference is been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. 18 This passage was approved in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (SZATV) at [19] (Gummow, Hayne and Crennan JJ) (Callinan J relevantly agreeing at [105]; see also Kirby J at [69]-[70] (subject to the caveat that, unlike the majority, Kirby J did not consider that the reference by Lord Bingham to "protection" should be read as a reference to diplomatic protection abroad)). 19 Secondly, the fact that the well-founded fear of persecution may not extend to the whole of the country of nationality is not necessarily determinative of the existence of a well-founded fear of persecution. As the UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1979) states (quoted with approval in Januzi at 440 and SZATV at [21]): The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of great disturbances involving Civil War conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations a person will not be excluded from refugee status merely because he could have sought refuge in another part of the country, if under all the circumstances it would not have been reasonable to expect him to do so. 20 Conversely, a person will be excluded from refugee status if in all of the circumstances it would be reasonable to expect her or him to seek refuge in another part of the same country: Januzi at 440; SZATV at [22]. 21 Thirdly, reasonableness in this context is used in the sense of "practicable" which, in turn, "must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.": SZATV at [24] (Gummow, Hayne and Crennan JJ). Kirby J in SZATV elaborated upon the requirement that relocation be "reasonable" as follows: 80. A review of the literature suggests that this conclusion will not invariably follow, either as a matter of fact or law. Thus, internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven [European Council on Refugees and Exiles, Research Paper, pp 8-9]. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation [The Michigan Guidelines on the Internal Protection Alternative, agreed to at the First Colloquium on Challenges in International Refugee Law, 9-11 April 1999, para [13]]; or where safety could only be procured by going underground or into hiding [Hathaway and Foster, "Internal protection/relocation/flight alternative as an aspect of refugee status determination" in Feller et al (eds) Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (2003) pp 384-385]; or where the place would not be accessible on the basis of the applicant's travel documents or the requirements imposed for internal relocation [Hathaway and Foster, p 391]. 81. An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another part of that country [Hathaway and Foster, p 383]. In some circumstances, having regard to the age of the applicant the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable [Hathaway and Foster, pp 386-387]. In each case, the personal circumstances of the applicant [UNHCR, Guidelines, p 6 [25]]; the viability of the propounded place of internal relocation [European Council on Refugees and Exiles, Research Paper, pp 12 [8.1], 52]; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution [UNHCR, Guidelines, p 6 [26]], will need to be weighed in judging the realism of the hypothesis of internal relocation. 22 In short, the concern is with the "practical realities facing" an applicant if she or he relocated within her or his country of nationality: NAIZ v Minister for Immigration and Indigenous Affairs [2005] FCAFC 37 at [22] (Branson J (North J agreeing)); see further the illustrations given in the helpful discussion in MZYQU at [67]-[79] (Dodds-Streeton J). 23 Fourthly, the factors identified by Kirby J in SZATV do not constitute a list of considerations which must necessarily be taken into account in every case: MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 (MZYPW) at [9] (Flick and Jagot JJ). Rather, the extent of the decision-maker's task in assessing the reasonableness of relocation will largely be determined by the case sought to be made out by the applicant, both in terms of personal circumstances and country conditions: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443 (Black CJ) and 453 (Whitlam J). As Tracey and Foster JJ explained in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [124], the answer to the question of whether relocation is practicable in the particular circumstances of the particular applicant "depends upon the framework set by the particular objections raised to relocation".

3.3 Relevant principles: the obligation to correctly construe and consider an applicant's claims 24 It follows from the focus upon the framework set by an applicant's objections to relocation that those objections must be correctly construed and considered: MZYPW at [20]-[24] (Flick and Jagot JJ). While the ITOA is preparatory only of a decision, nonetheless the parties rightly assumed that any failure by the assessor to consider the appellant's claims (and their component integers) to fear persecution or harm apparent from the materials before the assessor would constitute a legal error, given that the authorities have held that an equivalent failure by a decision-maker will result in jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) at 394 [24] (Gummow and Callinan JJ (Hayne J agreeing at 408 [95])); Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun) at [42] (Allsop J (as his Honour then was)). It is helpful therefore briefly to consider the principles as they apply to the consideration by the decision-maker of a visa applicant's claims. 25 In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE), the Full Court identified two elements as pivotal to demonstrating whether a Tribunal has failed in the discharge of its duty under s 414 of the Act to conduct a review of the decision, namely: 45. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material... 26 Their Honours emphasised that "[t]his is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision." (at 604 [45]). However, as the Full Court then explained, the Tribunal's obligation did not require it to address every contention: 46. …there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. 27 Bearing these considerations in mind, the Full Court expanded upon when an inference may be drawn that the Tribunal had failed to consider an issue: 47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 28 A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a "substantial, clearly articulated argument" that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 at [81]-[82] (Griffiths J). 29 Equally, as the Minister accepted, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which "squarely" arises on the material before the Tribunal in the sense that "it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [58] (the Court). 30 As Allsop J (as his Honour then was) explained in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15] (affirmed on appeal in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124): Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. See also Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 (SZRMA) at [70].

3.4 Proper characterisation of the appellant's claims 31 The appellant submitted that his claim to fear harm from insurgent attacks in Kabul (comprised of various integers as I explain) was clearly articulated and squarely raised. 32 First the appellant contended that this claim was specifically raised by the passages identified in bold and italics at [3] and [6] of the submission from his migration agent dated 27 January 2015. Specifically, and placing those paragraphs in context, the migration agent submitted under the heading "Fear of persecution" that: 2. [The appellant] fears serious harm and persecution at the hands of the Taliban and [a particular individual]. [The appellant] also fears serious harm at the hands of a variety of Afghani and Pakistani, as well as other foreign anti-Shia groups now known to operate in Afghanistan. [The appellant] fears persecution and serious harm as a returnee from Australia. 3. Since the applicant's last ITOA was conducted, there has been a significant deterioration in security in Afghanistan and in particular an increase in religiously and ethnically-motivated killings targeting Hazaras, in Kabul, in the Hazarajat and on the roads in between. 4. Independent country information confirms a dramatic deterioration in security, in the last three years, specifically and relevantly, in areas in which [the appellant] lives and must travel and in Kabul, a relocation alternative considered by the Department in limited circumstances. Our submissions will include a detailed reporting on not only Taliban attacks, but the rapidly proliferating threats of direct and personal relevance to the applicant… 5. The threat to the Applicant in Kabul is not one faced by the population generally, though the extreme deterioration in security in the capital since 2011 is of course relevant. [The appellant] has been directly threatened in Kabul by the Taliban. The threat to the Applicant is personal and particularised given his status as a returnee - in particular a returnee from Australia - and the shifting strategy of the insurgency: a demonstrable shift in the tactics of the Taliban towards targets in West Kabul and specifically in the Hazara-dominated suburbs of the capital. 6. [The appellant] fears harm from the Taliban and Taliban affiliates and fears harm from generalised as well as targeted violence in Kabul. This submission will also address increasing criminality in Kabul and factors personal to the applicant likely to make him a target of such criminality and harm. The extreme instability in the capital due to the contested Presidential election result is of relevance to the Applicant's reassessment. We note the serious deterioration of security in November and December 2014 - we note in particular the daily warnings issued by DFAT to on December 1st, 2nd and 3rd 2014 and in particular the attack on the French Cultural Centre in Kabul on December 11th, an attack directed not at foreigners, but it ordinary Afghans watching a play condemning suicide bombings. (Emphasis in italics and bold added; emphasis otherwise in the original) 33 The submission from the migration agent then referred to a speech by the Acting Head of the National Directorate of Security to the Afghan lower house on December 17, 2014 that there were more than 100 armed groups operating in Kabul in order to destabilise it, and stated that: 8. We seek to emphasise that in the particular circumstances of this applicant, high levels of generalised violence in Afghanistan are relevant to an assessment of the risk of serious harm. (emphasis added) 34 The migration agent's submission continued then to refer to a December 2014 briefing to the UN Security Council confirming that the insurgency had shifted from targeting foreigners to targeting Afghan civilians, including by increased targeting of marketplaces and sporting and cultural events. 35 The Minister submitted that while the migration agent's submission referred to generalised violence in the sense of indiscriminate attacks, nonetheless what was feared was that there would be insurgent attacks in Kabul in which the appellant may be caught up but which did not necessarily target him. I accept that characterisation of the submission. Further integers of the claim, however, were that insurgent groups were targeting ordinary Afghans and that the security situation was deteriorating. In addition, notwithstanding that the submissions were made under the heading "Fear of persecution", it is apparent from the submission at [4] that the claim was made also with reference to Kabul as a possible relocation alternative. 36 Secondly, the appellant relied upon the same submission from his migration agents at [122]-[123], while acknowledging that the focus of this part of the submission was upon the primary question of the fear of serious harm or persecution (referring to the heading "2.5) Fear of persecution, serious harm in Kabul - level of violence particular to Hazara areas of West Kabul"). The submission at [122] reads: 122. Since late November 2014, there has been a campaign conducted against Afghan National Army personnel on their way to work as well as campaigns targeting ordinary Afghans who express their opposition to the Taliban's suicide bombing campaign [quoting from an SBS news article dated 12 December 2014]: A 17- year-old suicide bomber carried out the attack on Thursday night's performance. Earlier on Thursday bombers targeted a bus carrying Afghan troops in Tangi Tarakhil on the outskirts of the capital. "As a result of the (first) attack, six Afghan army staff were martyred and 10 others were wounded," senior Kabul police official General Farid Afzail said. Taliban spokesman Zabihullah Mujahid claimed both bombings in separate email statements sent to media. He said the theatre show was "desecrating Islamic values" and "propaganda against jihad", particularly suicide attacks. Afzali and the interior ministry said one foreign national was killed, without giving further details. But French Foreign Minister Laurent Fabius said the "barbaric" attack had left several people dead. "I firmly condemn this terrorist act which caused the death of several people and left many injured. There were no French victims," Fabius said in a statement. French President Francois Hollande condemned the bombing as "heinous" and said it was an assault on "culture and creativity." "It is a place of tolerance, of dialogue between the cultures and it is this symbol that the terrorists wanted to target," said Romain Nadal, French Ministry of Foreign Affairs. "But as the French President and Prime Minister stated, France will not give up its cultural and educational cooperation with the Afghan people and they expect our support." NATO forces are preparing to pull out of Afghanistan within weeks. Kabul has been hit by a spate of deadly attacks in recent weeks, heightening concerns that Afghanistan could tip into a spiral of violence as the US-led military presence declines." (emphasis in the submission) 37 Particular emphasis was placed by the appellant upon the last sentence in bold. 38 Paragraph [123] of the submission then set out a list of 41 attacks which were described as "the most relevant attacks in terms of target and location in Kabul in 2013-2015". The appellant submitted that these raised the issue of generalised violence as well, with some attacks being specific but not all. The respondent, however, submitted that the list of attacks did not suggest random acts of violence but was generally suggestive of the targeting of individuals or institutions. In this regard, the attacks described included attacks on members of Parliament, on Kabul airport and other institutions such as the Ministry of Defence, the Supreme Court, the US embassy and a Shiite cultural centre, attacks in West Kabul (which is said to be an Hazara majority or dominated area) and other locations, attacks on foreigners or hotels, and so forth. This suggests a high level of targeted attacks. However, the list of attacks also described civilian casualties. So understood, I consider that the migration agent's submission was supportive of a fear that the appellant may suffer harm in attacks directed to other targets as effectively "collateral damage" or in attacks on Afghan civilians. That being so, and given that Kabul had (correctly) been identified as a possible place to which the assessor may consider that the appellant might relocate, the migration agent's submission squarely raised the issue of whether these fears might render unreasonable the proposition that Kabul was a place to which the appellant could safely relocate. 39 Thirdly, the appellant relied upon part of a lengthy quotation at [168] of the submission under the heading "5) Relocation to Kabul", albeit accepting that it raised the issue somewhat transcendentally. The quotation is from a decision of Member Corrigan in relation to a different case given on 11 October 2012 and the part relied upon read: Notwithstanding, Kabul is safer than other parts of the country there is evidence of a number of insurgent attacks including the Ashara Day attacks. Though this is not sufficient in itself to establish a real risk that the applicant would suffer significant harm, the existence of these attacks and the limited danger they pose to the applicant contributes to the unreasonableness of relocation. (emphasis in the migration agent's submission) 40 However, I do not consider that a phrase in a lengthy passage quoted from a decision in another case in 2012 lends any real support to the appellant's submissions as to the proper characterisation of his claims. 41 Fourthly the appellant relied upon the report of Dr Schuster, School of Social Sciences, City University London, which was attached to the post-hearing submission from the appellant's migration agents. In the first passage on which the appellant relied, Dr Shuster stated at [32] of her report under the heading "Internal Relocation to Kabul" that: In February 2013, current Presidential Candidate Ashraf Ghani referred to Kabul as the most insecure capital in the world, citing the presence of insurgents from Al Qaeeda, Hizb-e-Islami and a host of other insurgent groups in Logar, Wardak, Parwan, Kapisa and Laghman provinces, which surround Kabul. In March 2013, a group of 30 Afghan MPs wrote to the Australian government urging it to abandon plans to return asylum seekers to Kabul, saying that the security situation in the Afghan capital is getting worse. As noted by Fabrizio Foschino of the Afghan Analysts Network in 2013 "day-to-day existence - work, school and free time - is threatened by an armed insurgency which views Kabul with… strategic and symbolic value and is willing and able to strike inside the city". (emphasis in the original) (weblinks omitted) 42 I accept the respondent's submission that this passage suggests again that the risk of harm in Kabul is from the presence of insurgents but also consider that it suggests that the security situation is deteriorating and that Kabul is not safe for ordinary civilians. 43 The appellant also sought to rely upon the following additional passages in Dr Schuster's report where she expressed the opinion that: 38. To sum up - While the majority of Kabul citizens go about their everyday lives accustomed to the risk of being in the wrong place at the wrong time, if family affiliations or destitution forced someone to live in certain parts of the city, he would be at greater risk from those who would recognise him, although my own view is that he would be at greater risk from those who would see him as contaminated by his time in the West, or assume that time spent abroad would mean that he or his family would be able to buy a ransom. Neither the Afghan government forces or the International Forces are in a position to offer protection to individuals. CONCLUSION 39. In conclusion, the situation in Kabul means that it should not be assumed that it is safe to forcibly return people there. Only those who have strong networks may have a chance to reintegrate. (emphasis in bold and italics added) 44 I accept the appellant's submission that the report, which deals with the security situation generally in Kabul, suggested that the extent of the security issues and uncontrolled attacks are such that Kabul is not a reasonable place to which people could safely relocate save that the risks may be less where individuals have strong networks. 45 To conclude, therefore, the claim that relocation to Kabul was not reasonable because of the risk that the appellant may be "caught up" in attacks by insurgent groups present in Kabul, given the scale, frequency and increasing number of such attacks on many and varied targets, including against Afghan civilians, arises sufficiently clearly from the material such that a reasonably competent assessor (or decision-maker) would appreciate its existence: NAVK at [15]. This characterisation of this aspect of the appellant's claims is also consistent with his claim at the ITOA interview in response to the proposition that it was unlikely that low level targets would be pursued and targeted by the Taliban in Kabul, that "conflict and killing are a part of daily life". As such, I agree with the characterisation of the claims as I understand it ultimately to have been put by the appellant.

3.5 Consideration of the appellant's claims by the assessor

3.5.1 The assessor's findings 46 Under the heading "Relocation" in her reasons, the assessor found first that: … internal relocation is not available in areas of Afghanistan affected by active conflict. For other areas of Afghanistan not affected by conflict, internal relocation is only available if a person is able to live there in relative safety and security. 47 Secondly, the assessor found, in line with her earlier finding, that the appellant cannot reasonably be expected to return to his home town in Ghazni province and, as a result, relocation to other places must be investigated. 48 Thirdly, the assessor found that: The place of relocation must first of all be not seriously affected by insurgency. According to the Department of Foreign Affairs and Trade (DFAT), "at present, all involuntary and most voluntary returnees from Western countries are to Kabul. A high proportion of returnees choose to remain in Kabul rather than return to other places of origin." As the [appellant's] initial destination should he be returned to Afghanistan is Kabul, it is no longer necessary to determine whether it will be safe for him to travel to Kabul from elsewhere in Afghanistan. I have considered the [appellant's] assertions that he will not be safe if he was returned to Kabul because the Taliban will find him and Islamic State has distributed night letters in Kabul threatening those that follow the Shia faith. 49 After accepting (implicitly by reason of the footnoted reference to a DFAT Country Report to the question asked of the appellant) that it is unlikely that low level targets would be pursued and targeted by the Taliban in Kabul and finding that she did not accept that the appellant was of interest to the Taliban, the assessor continued: I have also considered his migration agent's assertion that there is not durable safety in Kabul and Professor William Maley's view that the fluid situation in Afghanistan means there is no safety for Hazaras. However I place weight on the following statement: 'DFAT assesses that it is relatively safe for Hazaras to return to the Hazara majority areas in Hazara and Kabul as well as commentary from the European Country of Origin Information Network who analysed attacks by insurgents in Kabul in 2014. Their analysis concluded that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies. Importantly I note that the reporting supports the theory that it is relatively safe for Hazara is to return to Kabul, given that with the availability of reporting of events in Kabul that there are no reports of Hazaras being targeted on such a level that it would be unsafe for them to inhabit Kabul. (emphasis added) 50 The assessor also considered whether "the [appellant] fac[ed] harm from the Taliban on account of returning to Kabul from a Western country as a failed asylum seeker", but could not find reports of returnees in Kabul facing any particular harm on account of having spent time living in a Western country or being a failed asylum seeker. Further, the assessor stated that "I have considered the threat of Islamic State to the [appellant] if he relocated to Kabul". However, the assessor found that while there are reports of a rising presence of Islamic state in Afghanistan and the situation is forecast to get worse, "the reporting does not indicate that in the reasonably foreseeable future Kabul would be unsafe to live in, including for Hazara's who are of the Shia faith, because of an ability of the Islamic State to infiltrate Kabul to the extent that they would be a viable threat." 51 The assessor then said that: Having established that return to Kabul would be safe for the claimant, it will now be determined whether Kabul is a reasonable place for relocation. 52 While the appellant places particular emphasis upon this passage, fairly read the assessor understood that the preceding paragraphs under the heading "Relocation" were also considering whether it would be reasonable for the appellant to relocate to Kabul. The sense conveyed by the paragraph was effectively that the assessor intended to move then to the subject of "whether Kabul is [otherwise] a reasonable place for relocation", having essentially addressed whether it was safe by reference to the appellant's specific claims to fear harm. 53 The assessor continued: According to DFAT, 'Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan. This applies to those internally displaced by conflict and national disasters, economic migrants and returnees to Afghanistan." Kabul offers a wide range of employment opportunities, access to education both in government and public institutions, basic health facilities, and electricity and water utilities. While there have been reports of high-profile attacks conducted by insurgents in Kabul, the primary targets are government institutions, political figures, local and international security forces and international organisations. The [appellant] does not fall within any of those groups who are targeted by the insurgents. 54 The assessor then considered a range of factors outlined by the appellant and relied upon by him including his capacity to reintegrate and find employment and, the appellant having a house in Kabul, the possibility for land disputes with an ethnic dimension. She concluded on the issue of relocation that "I find that relocation to Kabul is both relevant and reasonable for the claimant."

3.5.2 Did the assessor consider the appellant's claims? 55 The question arose as to whether in posing the question of relocation by reference to "relative safety and security" the assessor had failed to ask the right question (see above at [46]). Specifically, the appellant submitted that the assessor asked whether the appellant would be relatively safe if he relocated to Kabul as opposed to living in other areas of Afghanistan, rather than asking whether it would be reasonable for him to relocate in line with the principles earlier described. However, elsewhere in her reasons the assessor makes it clear that she understood that the test was one of reasonableness (see the passage quoted at [51] above) and as an aspect of that, that it was necessary for her to consider whether it is "safe" for the appellant to relocate (see e.g. the passage quoted at [48] above). Fairly read in the context of the reasons as a whole, therefore, I do not consider that the assessor's reasons should be read as suggesting that she failed to ask whether relocation was reasonable. 56 The question which then arises is whether the particular claim raised by the appellant as described at [45] above, was addressed by the assessor. In my view, it was not for the following reasons. 57 First, in the passage quoted at [48] above, the assessor raised the issue of whether the appellant would not be safe by reason of his religion, in line with his specific claims to fear harm. Secondly, while the assessor said in the passage quoted at [49] above that she had also considered the migration agent's assertion that "there is not durable safety in Kabul", she gives reasons only for not accepting Professor Maley's view that the fluid situation in Afghanistan means that there is no safety for Hazaras. Thirdly, the assessor considered the threat posed by Islamic State in Afghanistan both generally and in relation to the appellant's specific claims to fear harm in the passages described at [50] above. However, she does not consider the risks posed by the presence of other insurgent groups, bearing in mind that the appellant's materials indicated that there were over 100 insurgent groups in Kabul. Fourthly, to accept that Kabul is "the most viable option for many people" is not the same as accepting that it is reasonable (cf the passage quoted at [53] above). Finally, the assessor concludes on this issue by finding that the appellant does not fall within any of the groups who are targeted by the insurgents but does not consider the risks posed for those who, while not targeted, may nonetheless be caught up in the violence or in attacks against Afghan civilians. 58 It follows that the assessor has failed to consider essential integers of the appellant's claims that it was unreasonable for him to relocate to Kabul claim and therefore has fallen into legal error.

CONCLUSION 59 For the reasons set out above, the appeal is allowed with costs. As earlier mentioned, the Minister did not seek to resist the grant of the relief sought in the notice of appeal in the event that the appeal was successful. Accordingly, a declaration should be made that the assessor's ITOA was not made according to law and an injunction should issue precluding the respondent from acting upon the ITOA: SZSSJ at [41] (the Court). I certify that the preceding fifty nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

Migration Act 1958(Cth)ss 5, 7, 91R, 198, 414

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