FEDERAL COURT OF AUSTRALIA AIP18 v Minister for Home Affairs [2020] FCA 258 Appeal from: AIP18 v Minister for Home Affairs and Anor [2019] FCCA 2088 File number: NSD 1344 of 2019 Judge: RARES J Date of judgment: 24 February 2020 Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 35A, 36 Migration and Maritime Powers Legislation (Resolving the Asylum Caseload) Act 2014 (Cth) United Nations Convention relating to the Status of Refugees done at Geneva on 28 July 1951 Protocol Relating to the Status of Refugees done at New York on 31 January 1967 Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 Date of hearing: 24 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 44 Counsel for the Appellant: Mr D Hughes Solicitor for the Appellant: D'Ambra Murphy Lawyers Counsel for the First Respondent: Mr B Kaplan Solicitor for the First Respondent: HWL Ebsworth Counsel for the Second Respondent: The second respondent filed a submitting notice. ORDERS NSD 1344 of 2019 BETWEEN: AIP18 Appellant AND: MINISTER FOR HOME AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: RARES J DATE OF ORDER: 24 FEBRUARY 2020 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT REVISED FROM THE TRANSCRIPT RARES J: 1 This is an appeal from the decision of the Federal Circuit Court that refused the appellant's claim for Constitutional writ relief in respect of the decision of the Immigration Assessment Authority, made on 20 December 2017, to affirm the decision of the Minister's delegate made on 17 March 2017 to refuse his application for a safe haven enterprise (class 790) visa: AIP18 v Minister For Home Affairs [2019] FCCA 2088. The Issues 2 The central facts the subject of the proceeding below and the appeal are in a narrow compass and the case has been well argued by counsel for both parties. The appellant contended that in substance, the trial judge erred in finding that the Authority had correctly applied the real chance test in s 5J of the Migration Act 1958 (Cth) in two respects, namely because the Authority failed, first, to treat its own findings, that the appellant faced risks of serious or significant harm that it had accepted were "credible", but remote, were he to return to his home area in the Ghazni province in Afghanistan, as findings that there was a real chance that those risks were sufficient to warrant the grant of the visa, and secondly, to engage in speculation as to what might happen to him in the reasonable foreseeable future. Background 3 The appellant is a citizen of Afghanistan whom the Minister permitted to apply for the visa in 2015. He claimed to be single, of Hazara ethnicity and of the Shia Muslim religion. He had been born in Kabul, and his family had moved with him, when he was a child, to Ghazni province. He claimed to have left Afghanistan in August 2012, at the age of 17, due to the ongoing insecurity in the country. He claimed that there are a lot of Taliban in the area of his home who are targeting Shia Muslims and Hazaras, and that he had experienced attacks on his high school that the Taliban had perpetrated. He claimed to fear being killed by the Taliban or Islamic State, also known as 'Daesh', and that, were he to return to Afghanistan, neither relocation within Afghanistan nor the Afghan authorities would offer him appropriate protection. He claimed to fear harm for reasons of his ethnicity as a Hazara, his Shia Islamic faith, his perceived support for Western governments through his work in Afghanistan, his being a returnee from the West, and also the cumulative effect of that profile. The Legislative context 4 Relevantly, s 5H of the Act provides that, for the purposes of the Act, a person is a refugee where if, he or she has a nationality, was "…outside the country of [that] nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country..." 5 The expression "well-founded fear of persecution" is defined in ss 5J(1) and (4), relevantly, as follows: 5J Meaning of well-founded fear of persecution (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. Note: For membership of a particular social group, see sections 5K and 5L. … (4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a): (a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and (b) the persecution must involve serious harm to the person; and (c) the persecution must involve systematic and discriminatory conduct. (emphasis in original) 6 The Parliament introduced a statutory clarification of Australia's protection obligations to replace what was the previously uncodified application of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the 1967 Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously Refugee Convention) in the Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment Act) that, among others, introduced ss 5H and 5J and the new criteria for a protection visa in ss 35A and 36 of the Act. The Authority's decision 7 The Authority accepted that the appellant was a Shia Hazara who lived in Ghazni province. It found that that province was "one of the most volatile provinces in Afghanistan", and that security in it was fragile, so that anti-government elements (AGEs), including the Taliban, posed a major challenge. It found that the Taliban operated actively in several districts, were capable of conducting co-ordinated attacks, and the main targets in Ghazni province had been military and security forces, government and tribal leaders, NGO workers. It also found that civilians had suffered heavy casualties, including within schools. 8 The Authority accepted that the appellant had witnessed violence, including bombings, while living in Ghazni, including experiencing attacks on his school, although it also was satisfied that he was neither threatened, nor harmed, directly. The Authority found that the appellant had completed his schooling, and, for reasons unrelated to his claims, he was not interested in undertaking further studies. The Authority accepted that the appellant had a subjective fear of the Taliban and other AGEs, and that his claims in that respect were consistent with the country information before it. It found that the appellant did not have a high profile, and would not have one, were he to return to Afghanistan. 9 It accepted that the appellant had witnessed violence by the Taliban. But, it also accepted what it characterised as his express and unequivocal evidence, that he had not faced harm in the past, and that his family had not faced any harm in the years since he had left Afghanistan, and were "fine there". It found that one of his brothers, who did not live discreetly, had continued to run a business selling clothes, and that those factors strongly indicated that, in his home area of Ghazni, the appellant and his family did not share the risk profile of persons who were at risk. It found, accordingly, there was no real chance of him being seriously harmed on the basis of his claimed risk profiles. 10 The Authority also found that the situation in Afghanistan in relation to generalised and insurgent (i.e. by AGEs, including the Taliban and Islamic State) violence was serious. However, it found that, based on country information, the proportion of civilians directly affected by violence had remained low. It cited a report by the United Kingdom Home Office, that about .03 per cent of the population were physically directly affected by violence in the period preceding July 2014. It reasoned (IAA 55): that in light of that analysis, and to the appellant's lack of both any risk profile or proximity to persons with a risk profile and of country information to suggest that a person with his profile: …would be at a real chance or real risk of harm, I find the chance or risk of the appellant being seriously harmed in generalised or insurgent violence within Ghazni province is credible, but remote. (emphasis added) 11 Next, the Authority found, as a separate and independent ground, that the chance of harm to the appellant from generalised and insurgent violence was remote, and that he would not face any such harm on any ground attracting Australia's protection obligations (namely for the purposes of s 5J(1)(a) and (4)(a) for the essential and significant reason of one or more of his race, religion, nationality, membership of a particular social group or particular opinion). Rather the Authority found, the chance of him facing such harm was simply a consequence of the insurgency and ongoing insecurity experienced in Ghazni and the country overall. 12 It found that country information did not indicate any escalation in attacks against Shias or a rise in sectarianism against Shias more generally in Ghazni province, whether from the Taliban or Islamic State. The Authority was satisfied (in [60]) that, weighing the information before it and the appellant's "limited profile as a low-adherent Shia", there was no real chance of him being seriously harmed on the basis of his Shia religion in his home area. 13 The Authority then assessed the appellant's claims to fear harm as a Hazara and Shia Muslim in respect of the security situation in two contexts at locations, first, other than on the roads (at [61]-[65]), and secondly, on the roads (at [66]-[72]). 14 The Authority's reasons indicated that it had accepted, implicitly, the delegate's finding that the area in which the appellant lived in Ghazni province was one in which Hazaras constituted an ethnic minority. This appears from its discussion of the position of Hazara minorities in its reasons, (including at [61], [64] and [71]). 15 It accepted the advice of the Department of Foreign Affairs and Trade (DFAT) that members of minority ethnic groups in areas in Ghanzi province faced a medium risk of societal discrimination based on ethnicity that was unlikely, in most cases, to include targeted violence on the grounds of ethnicity alone ([61]). 16 The Authority repeated that country information confirmed that Ghazni was a volatile and insecure province in which insurgents operated in various districts and frequently carried out activities resulting in high numbers of security incidents. It found that country information did not indicate that Hazaras or Shias were being systematically targeted for harm in the Ghazni area or that there was "a real chance or real risk" of the appellant being seriously harmed on the basis of his ethnic or religious profile in that area ([63]). 17 The Authority considered the appellant's claim that the Taliban had not distanced itself from its previous violent activities against the Hazara population or expressly changed its policy in relation to them. It found that, despite its significant presence in Ghazni province, there was little evidence in his home area of the Taliban engaging in systematic or other attacks against the Hazara population. The Authority accepted that there were risks to Hazaras and that DFAT had assessed that Hazaras living in areas, where they were a minority, faced a higher risk of being affected by conflict-related violence than those living in Kabul or Hazarajat but said ([64]): However, I also give weight to the absence of recent reporting of attacks or other systematic conduct against the ethnic group in the [appellant's] home area of Ghazni whether by the Taliban or otherwise. 18 The Authority found that it was likely that the appellant would return to live with his family and work in his home area. It repeated its findings that neither he nor his family had been targeted for harm in Ghazni in the past, and that he did not have any links to government, security forces, media or the international community and had no higher profile than that derived from his ethnic and religious background. It found that there was no reason to consider that he would gain a higher profile or proximity to any person with such a profile were he to return to Afghanistan and said ([65]): I accept there remain credible risks to him as a low-profile (Shia) Hazara, but weighing all the information, before me I consider the chance that the [appellant] being seriously harmed on the basis of his ethnicity is remote. (emphasis added) 19 Next, the Authority considered the situation on the roads, which it treated as an exception to the risks for Hazaras in Ghazni province generally. It referred to DFAT's assessment that there had been incidents where Shia Hazaras might have been targeted on the roads in part due to their ethnic background, and that Hazaras travelling by road between Kabul and the Hazarajat faced a greater risk than other ethnic groups. It said that it was unclear whether that greater risk was due to ethnic targeting or simply was a result of the high numbers of Hazaras travelling on the route, but it accepted that ethnicity could be a contributing factor, particularly in the choice of victim in some circumstances, including where an abduction was in progress. It found that Hazaras remained likely to be selected for abduction or violence if a vehicle carrying a mix of ethnic groups was stopped. It found, based on DFAT's assessment, that Hazaras travelling in and out of the Hazarajat were particularly at risk in that regard ([67]). 20 The Authority accepted that there had been attacks on the roads, and the security situation on the roads in Afghanistan remained a serious issue but gave "...weight to the fact that there had been no reports of abductions of Hazaras (or other persons) within Ghazni province or in Kabul, through 2016 and 2017" ([69]). It also found that there was little clear evidence that Hazaras involved in attacks reported in 2015 had been systematically targeted for harm for reasons of their ethnicity. 21 The Authority gave weight to the fact that, if the appellant were returned to Kabul or returned to his home village in the Ghazni district, he would travel through one province where Hazaras had been targeted on the roads in the past, namely, Wardak province, and that the latest incidents had occurred in 2016 but involved no reported fatalities. It found that the chance of the appellant being targeted on the roads during a short transit through Wardak province on his way to Ghazni to be remote and was also satisfied that he would be able to access his home area safely ([70]). 22 The Authority found that the appellant would not be travelling through the Hazarajat or other provinces where attacks and abductions on the roads had occurred in the previous two years and accepted DFAT's assessment that ethnicity can play a role in the targeting of Hazaras on the roads if an attack took place. It gave significant weight to the lack of recent incidents on the roads in Ghazni and the infrequency with which the appellant would need to travel on those roads. It considered that, except for his trip to return home from Kabul to Ghazni after he would arrive from Australia, he would not have any other reason to travel into or out of Kabul, Ghazni or into the Hazarajat which further decreased the potential for him to be involved in any incident on the roads. It found that country information did not indicate that the appellant would face risks on the roads in his home are, and, although it accepted that the Taliban was active there, it was not satisfied that they sought to target low-profile Hazaras there. It said ([72]): While the absence of recent attacks against the Hazara population in Ghazni province does not preclude the possibility of future attacks, I consider the chance of the [appellant] being involved in an incident or attack on the roads, or put at additional risk because of his ethnic or religious profile in such an attack, to be credible, but remote. I again consider those risks are further reduced by the limited frequency he would travel on the roads, and his past familiarity with making the trip between Ghazni and Kabul. (emphasis added) 23 It found that there was only a remote chance of the appellant facing serious harm in ethnically or religiously motivated violence from Islamic State, the Taliban or any other AGE, and accordingly, was satisfied that there was not a real chance that he would face serious harm in his home area in Ghazni on the basis of his ethnicity or religion or other profile as a Shia Hazara. The Authority found significant the fact that the appellant and his family had faced no harm or mistreatment during their time living in Ghazni. It gave weight to the fact that, in the past, he had not faced difficulties in accessing employment, schooling or accommodation and, based on country information before it, was not satisfied there was any chance of him being prevented from finding work or accommodation. 24 It accepted that it would be likely that the appellant would be returned to Kabul and that the security situation there was serious, involving high casualty attacks on the Shia population in the city perpetrated by Islamic State. It found that, while there were elevated risks for Shia Hazaras in Kabul, the appellant would stay only briefly there, probably for less than a few days, for the purpose of facilitating his travel to Ghazni, and, in that context, there was "…no real chance or risk of the [appellant] being seriously harmed during his brief stay in Kabul prior to returning to his home area in Ghazni." 25 It then found ([76]): Weighing all the information before me, I am satisfied there is no real chance of the applicant suffering serious harm on the basis of his religious and ethnic profile, as a Shia Hazara. In terms of road security, I accept the risks to Hazaras travelling on the road are credible, but the chance of the applicant being seriously harmed on the roads is remote. I again consider the applicant's specific circumstances, his limited need to travel, and his past experience travelling between Ghazni and Kabul, would reduce those risks even further. I find there is no real chance of him being seriously harmed for reasons of his ethnicity and religion, and I am satisfied [the] applicant's fears for these reasons are not well founded. (emphasis added) 26 The Authority concluded (in [85]) that, based on all the evidence before it, there was no real chance of the appellant being seriously harmed for reasons of his religion, ethnicity, actual or imputed political opinion, as a returnee from the West, as an asylum seeker in generalised violence or on the basis of any other related profile. Accordingly, it rejected his claim to be a refugee within the meaning of s 5H of the Act. The proceeding before the trial judge 27 The appellant advanced before the trial judge grounds raising the subject matter of his two grounds of appeal. His Honour's reasoning was not extensive on those grounds. He found that the Authority's use of the expression "…a credible, but remote risk…" in its reasons was consistent with the High Court's language in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and amounted to a factual finding that there was not a real chance of persecution. His Honour said this was because, as Toohey J noted in Chan 169 CLR at 407, the real chance test did not weigh the prospects of persecution, but equally, it discounted what was remote or insubstantial. His Honour rejected the other ground the subject of this appeal on the basis that the Authority had not misapplied the real chance test, but had assessed what was likely to happen to the appellant in the future by reference to what had happened in the past to both him and his family, to which it had given considerable weight. His Honour concluded that neither ground gave rise to a jurisdictional error. 28 The trial judge said that the Authority had considered the appellant's claims "…in terms of the fluidity and volatility [of the overall security situation in Afghanistan] but [these] were found to be insufficient to constitute a well-founded fear." The appellant's submissions 29 The appellant argued, as to the first ground, that the expression "real chance", as it appears in s 5J, has the same meaning as in the previous case law, derived from Chan 169 CLR 379. He relied on the Explanatory Memorandum issued by the Minister in support of the Bill that became the 2014 Amendment Act, including the statement on page 10, that the proposed s 5J(1)(b) was "a statutory implementation of this test", as expressed by McHugh J in Chan 169 CLR at 429. 30 The appellant argued that, as Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ had said in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572: A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. (italicised emphasis in original) 31 He argued that the Authority's reasoning misapplied the real chance test. That was because, he contended, once it had found that the appellant faced risks of very serious harm, including each of those it identified in [65], [72] and [75] of its reasons, that it characterised as a "credible risk", it necessarily must have arrived at the conclusion that the occurrence of that risk was a real chance, within the meaning of the test. He argued that the Authority's qualification that each such credible risk as found in those paragraphs, was "remote", was inconsistent with the evaluation of the real chance test in Chan 169 CLR 379, and Guo 191 CLR 559. He submitted that the operation of the test in refugee law effectively did not entitle the Authority to engage in an impermissible weighing exercise as to the prospects of the feared persecution occurring. Rather, he argued, the Authority's task was to consider whether the risk of persecution, which it found to be credible, was not "far-fetched" as McHugh J had described an insufficient risk in Chan 169 CLR 429. 32 The appellant based his second ground of appeal on the Authority's mode of evaluating the volatility and fluidity of the situation in Afghanistan. He noted that, in the review, he had relied upon an expert report by Professor Maley that had been before the delegate. In that report Prof Maley had opined that the situation in Afghanistan was "extraordinarily fluid" and that assessments of the situation, that were even quite recent, did not necessarily provide an accurate picture of what might happen in the immediate future and beyond. The appellant argued that the Authority's reasoning in evaluating the risk to him was deficient because it did not look towards the reasonably foreseeable future and evaluate what might happen in light of the volatile and fluid situation that it recognised obtained in Ghazni province when assessing whether there was a real chance that the appellant was at risk of persecution, as he claimed. He based that contention on the reasoning of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 279. The appellant submitted that the Authority's references to the current situation being, in effect, relatively stable, failed to go on to analyse, as it should have, what might happen in the future in the context of continuing instability and volatility and the consequences for him that could occur, if a feared risk of harm eventuated, and that, accordingly the Authority had not engaged in its statutory task of assessing the appellant's claims. Consideration 33 The Authority's reasons equated "chance" and "risk" as equivalents. Thus at [55] it found that the appellant would not be at "a real chance or real risk of harm" by reason of his profile. It found that while credible, that chance (or risk) was remote. It applied the same process of reasoning in the substantive areas concerning the other credible risks that it found the appellant would be exposed to which, however, it determined were remote. 34 In Wu Shang Liang 185 CLR at 272, Brennan CJ, Toohey, McHugh and Gummow JJ cautioned against a court on judicial review evaluating the reasons of an administrative decision-maker "minutely and finely with an eye keenly attuned to the perception of error". Their Honours explained (185 CLR at 281) that a decision-maker can weigh material before him or her in arriving at a state of personal satisfaction as to whether there is a real chance that an applicant for a protection visa will suffer persecution in the future in order to be satisfied that that applicant has made out a claim for protection as a refugee under the Act (or under the Refugee Convention prior to the 2014 Amendment Act). Their Honours said in that context (185 CLR at 281-282): The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event. … When it is a question of personal satisfaction, there can be nothing wrong with the attribution of weight. In that context, the attribution of weight may indicate no more than that some material has assisted the decision-maker more than other material in the ascertainment of whether the requisite satisfaction has been reached. For instance, the delegates looked at material which showed examples of the punishment of persons who had returned to the PRC. These "case examples provided by [the respondents] of illegal departees arrested on return" were put alongside other material relating to the treatment of recent returnees whose departure and activities since departure were "very similar" to those of the respondents. More "weight" was given to those closely analogous situations. In other words, the material provided by the respondents did not go very far towards satisfying the delegate that there was a real chance of persecution, because it was contradicted by more relevant material. (emphasis added) 35 In Guo 191 CLR at 572, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said: Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. (emphasis added) 36 Their Honours went on to explain the nature of the real chance test (191 CLR at 574-575) saying: The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. (emphasis added) 37 The appellant's argument conflated the Authority's finding of a credible risk or chance of the persecution that he feared, based on past events, with an ultimate conclusion as to whether the risk or chance of it occurring in the future was sufficiently a well-founded fear within the meaning of a real chance as defined in s 5J(1) of the Act. I reject the appellant's argument that the Authority's use of the expression "credible risk" or "credible chance" suggested that it had arrived at the conclusion that that risk or, in fact, chance amounted to a well-founded fear within the meaning of s 5J(1)(b). In my opinion, reading the Authority's decision as a whole, it used the word "credible" in the sense that it regarded the specific risk or chance as plausible or real in the sense that, based on past events, there was a possibility of its occurrence in the future. However, it then proceeded to consider the degree to which the existence of that plausible chance or risk was sufficient to amount to it having "a real chance" of occurring in the future, that is, one that was not too remote, far-fetched, or speculative or one that "can be safely disregarded." 38 In rejecting each of the appellant's relevant claims, the Authority said that it had weighed all of the information before it and concluded that his chance of experiencing in the future each of the acts or circumstances of persecution that he feared (which it accepted he did fear), past examples of which there were in the material before it, was nonetheless remote. It arrived at that conclusion by engaging in a reasoning process of the nature discussed in Guo 191 CLR at 574-576. The Authority considered what had occurred in the past as being a reliable guide as to what might happen in the future. It concluded that, notwithstanding that there were past examples or instances which demonstrated the credibility of the risks the appellant claimed to fear occurring to him in the future, nonetheless, it concluded, after weighing all of the material before it, that the chance of that risk actually occurring, were he returned to Afghanistan, was remote. 39 For those reasons, I am of opinion that ground 1 fails. 40 Although the Authority did not expressly analyse the volatility or fluidity of the security situation when making each individual finding, it did, in fact, consider those matters in its examination of the current and immediately past situation in Ghazni province, and particular in the area in which the appellant and his family lived. It did so by reference to past events. It then arrived at a prediction of what might happen in the future. It used that analysis to form its prediction as to what was likely to happen to a person such as himself, with a relatively low profile in the areas, who had or manifested each Refugee Convention ground on which he based his claims. 41 In particular, the Authority found, as significant, that, based on his own evidence to it, neither the appellant, in the past, nor his family, to the time of the decision, had faced harm or mistreatment during their time living in Ghazni. It then considered what might happen to the appellant in the future, based on country information and the appellant's account of his own and his family's experiences in the past, that it accepted. 42 In those circumstances, I am not satisfied that the Authority made a jurisdictional error in its approach to the evaluation of the future, in respect of those risks: Guo 191 CLR at 574-577. 43 For those reasons, I am of opinion that ground two must be dismissed. Conclusion 44 The appeal must be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 6 March 2020