Federal Court of Australia BXF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 289 Appeal from: BXF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 573 File number(s): VID 461 of 2022 Judgment of: O'BRYAN J Date of judgment: 3 April 2023 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit and Family Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority – whether primary judge erred in finding that the Authority did not misconstrue or misapply relevant statutory tests in ss 5H, 5J and 36 of the Migration Act 1958 (Cth) – whether primary judge erred in finding that the Authority decision was not illogical, irrational or unreasonable – reasonableness of relocation – no error shown – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 24 Migration Act 1958 (Cth), ss 5H, 5J, 36, 46A, Pt 7AA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Cases cited: AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457 CGA15 v Minister for Home Affairs (2019) 268 FCR 362 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 CRI028 v The Republic of Nauru [2018] HCA 24 CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 FCS17 v Minister for Home Affairs (2020) 276 FCR 644 In Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 61 Date of last submission/s: 10 March 2023 Date of hearing: 6 March 2023 Counsel for the Appellant: A Krohn Solicitor for the Appellant: AUM Lawyers Pty Ltd Counsel for the First Respondent: V Murano Solicitor for the First Respondent: Clayton Utz ORDERS VID 461 of 2022 BETWEEN: BXF17 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: O'BRYAN J DATE OF ORDER: 3 April 2023 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 O'BRYAN J: Introduction 1 This is an appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 18 July 2022, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made under Pt 7AA of the Migration Act 1958 (Cth) (Act) on 30 March 2017. The Authority had affirmed a decision of a delegate of the first respondent (the Minister) made on 21 September 2016 refusing to grant the appellant a safe haven enterprise visa. 2 The appellant is a 41 year-old Shia Hazara citizen of Afghanistan. He arrived in Australia by boat on 23 August 2012. On 14 November 2015, the Minister lifted the statutory bar under s 46A(2) of the Act which allowed the appellant to apply for a protection visa. On 1 December 2015, the appellant applied for the visa. 3 The delay between the decision of the Authority (on 30 March 2017) and the determination of the application for judicial review (on 19 July 2022) was inordinate. The effect of the delay is that the primary judge, and this Court on appeal, must consider the Authority's decision to refuse the appellant a protection visa on the basis of facts and circumstances that existed in Afghanistan more than five years ago. 4 The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the primary judge was correct to find that the decision of the Authority was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541. 5 At the hearing of the appeal, the parties were invited by the Court to make further submissions concerning the meaning and effect of s 36(2B)(c) of the Act as it related to the danger of violence faced by all residents of Kabul. Each of the parties filed a short submission addressing that question seven days after the hearing. It has not been necessary to refer to that issue in the resolution of the appeal. 6 For the reasons that follow, I consider that there is no error in the decision of the primary judge and I dismiss the appeal with costs. Background 7 The appellant's claims for protection were contained in a statutory declaration made by him on 27 November 2015 which accompanied the application. The declaration included the following information and claims: (a) The appellant is a citizen of Afghanistan. His race is Hazara and his religion is Shia Muslim. (b) The appellant is married with three children. His wife and children are currently living illegally in Quetta Pakistan. (c) The appellant's mother died in 2011 from cancer. After his mother's death, the appellant's father relocated to Iran and disappeared. (d) The appellant left Afghanistan in 1997 and went to Iran (where he resided illegally). At that time, the Taliban were in control of Afghanistan and the situation for Hazara and Shia Muslims was very dangerous. The appellant stayed in Iran for 4 years and then returned to Afghanistan to get married before returning to Iran. The appellant then lived in Iran for a further 7 years where life was difficult. The appellant was deported to Afghanistan regularly, but the appellant had to return to Iran because the situation in Afghanistan was not stable for Hazara and Shia. (e) Around 2009, two girls from his village became pregnant. The father of one of the girls (M), who is also the father-in-law of the other girl, accused the appellant of raping both girls. The appellant's family had a history of disputes with M and his family over land. M is a powerful man and said he wanted to kill the appellant. (f) In order to avoid harm, the appellant moved with his family to Ghazni. The appellant worked there in a welding shop. He was attacked by three men and was badly beaten. The appellant believed that the men had been sent by M. The next day, the appellant travelled with his family through Kandahar to Quetta. While in Kandahar, the appellant received a call from M saying that he will not be able to escape forever and that M would kill him. (g) The situation for Hazara and Shia was very difficult in Quetta. There were many killings and suicide bombings. The appellant kept moving between Iran and Pakistan as he had no legal right to reside in either country. The appellant could not return to Afghanistan on a permanent basis. He returned to Kabul for a very short period of time to obtain a passport, and witnessed the very poor security situation in the city. (h) The appellant claimed that if he were returned to Afghanistan he would face persecution, harassment and serious harm including torture. (i) The appellant fears harm from M because of the serious offence that M has accused him of. M has a history of conflict with the appellant's family and is well-connected with the government and the Taliban. (j) The appellant also fears harm due to the fact that he is Hazara and Shia. Extremist groups are continually perpetrating serious harm against Hazaras. If the appellant were to travel back to his village, he would be at risk of harm while travelling on the roads. (k) The appellant also fears harm because of the amount of time he has spent abroad in a western country. The Taliban are against the West and the appellant would be considered to be an affiliate of the West. (l) The appellant cannot relocate to another area to avoid harm because M has the resources to find and kill him and because he would be at risk of exploitation and serious harm (as a Hazara and Shia) if he relocated to Kabul. 8 On 5 April 2016, the appellant participated in an interview with the Minister's delegate. 9 On 21 April 2016, the appellant's legal representative provided written submissions. Those submissions reiterated the claims made by the appellant in his statutory declaration, stating that the appellant feared harm on the bases of his Hazara race, Muslim Shia faith, the false allegations of rape, and being a returnee from the West as a failed asylum seeker. The submissions addressed the question whether the appellant could relocate to Kabul to avoid harm. The submission claimed that the appellant would face a real risk of harm due to his race and religion, because foreign forces are leaving, and because the Taliban and Islamic State are becoming more prominent in the area surrounding Kabul. The submission made reference to a large number of sources of information concerning the dangerous security situation in Afghanistan including: the most recent report from the Australian Department of Foreign Affairs and Trade (DFAT); a BBC news article dated 20 April 2016 recording a suicide bombing in Kabul carried out by the Taliban in which 64 people were killed and 347 wounded; a Human Rights Watch report from 2014; the UK Home Office's Operational Guidance Note on Afghanistan; a United Nations Assistance Mission in Afghanistan report published in July 2014; and the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan as at April 2016. 10 On 27 July 2016, the appellant's legal representative also provided a statement of Prof William Maley (Professor of Diplomacy at the Australian National University) dated 24 July 2016 concerning the risk to Hazaras in Kabul. 11 On 21 September 2016, the delegate refused the visa application. 12 On 28 September 2016, the delegate's decision was referred to the Authority for review under Pt 7AA of the Act. 13 On 21 October 2016, the appellant's legal representative provided the Authority with a submission which contained further reports regarding attacks upon Shias and/or Hazaras in Afghanistan which post-dated the decision of the delegate. 14 On 30 March 2017, the Authority made a decision affirming the delegate's decision and provided a statement of reasons for that decision (Reasons). Authority's Reasons 15 In its Reasons, the Authority confirmed that it had taken into account the further information provided by the appellant's representative concerning attacks upon Shias and/or Hazaras in Afghanistan, and that the Authority had itself obtained new information, specifically reports addressing the security situation in Afghanistan for Shia Hazaras (Reasons [3]-[4]). 16 The Authority accepted that the appellant is a national of Afghanistan and that he is a Shia Hazara who originates from the Almeto area of Jaghori District. 17 The Authority did not accept any aspect of the appellant's claims regarding M. By his written submissions, the appellant withdraw particular (a) of ground 3 of the appeal which concerned the claims regarding M. Accordingly, that aspect of the Authority's decision is not relevant to the issues raised on this appeal. 18 In relation to the appellant's claims to fear harm as a Shia Hazara, the Authority was satisfied that the appellant would face a real chance of being abducted and killed if he attempted to return to his home area in the Almeto area of Jaghori District in Afghanistan's Ghazni Province by reason of his being a Shia Hazara (Reasons [13] and [14]). However, the Authority observed that, pursuant to s 5J of the Act, the real chance of persecution must relate to all areas of the receiving country. The Authority therefore considered whether the appellant would face a real chance of persecution if he were to return to Afghanistan and reside in Kabul (Reasons [15]). Specifically, the Authority considered whether the appellant would face a real chance of serious harm in Kabul from the Taliban or Islamic State or some other extremist group, and from the Pashtun and Sunni community more generally, for the reasons that: the appellant is a Shia Hazara; he will be perceived as an affiliate of the West having sought asylum in, and spent time in, a western country; and he would be a returnee from the West and a failed asylum seeker (Reasons [16]). 19 The Authority recounted a series of reports concerning mass casualty attacks in Kabul between 2011 and 2016 (at Reasons [17]): While members of local Taliban networks have been accused of abducting or otherwise attacking Shia Hazaras travelling roads through insecure rural areas, credible sources do not suspect the Taliban of having perpetrated attacks against the Shia Hazara community in major cities like Kabul in recent years. Afghanistan's major cities have, however, seen occasional mass casualty attacks perpetrated against Shia Muslim and/or Hazara gatherings by other groups. Prior to 2016, the most significant attack of this kind was the December 2011 bomb attack upon Kabul's Abu Fazl Mosque during Shia Muslim Ashura commemorations perpetrated by the Pakistani militant group Lashkar-e-Jhangvi (LeJ). In February 2014 there was an attack on an lsmaili (Shia) cultural centre in Kabul which killed one security guard. In March 2015 gunmen entered a Sufi mosque in the Kabul suburb of Company and killed 11 worshippers. In the preceding year there had been reports of men distributing Islamic State propaganda in the same locality. In October 2015, in the lead up to Ashura, one person was killed and several wounded at a Shia place of worship in Chandawal. On 23 July 2016 two explosions occurred in central Kabul targeting a peaceful demonstration of Hazaras, killing at least 85 people and wounding over 400 others. The attack was the single most deadly incident in Kabul since the fall of the Taliban in 2001, and the largest single attack on Hazaras since the Ashura Day attack in 2011. The Taliban was quick to deny any involvement and to condemn the attack. The Islamic State in the Khorasan Province (ISKP) claimed responsibility, identifying the intended targets as "Shia" (of which most Hazara are adherents and stating that it would continue to target Shia groups. Some two months later, on 11 October 2016 on the eve of the Shia holy day of Ashura, a gunman killed some 18 Shia Muslims and wounded over 50 at the Kabul's Kart-e Sakhi Shia shrine. A month later, on 21 November 2016 on the Shia holy day of Arbaeen, a bomb attack on a Shia Mosque in the west Kabul suburb of Char Qala, in the Darulaman area, killed some 30 worshippers and wounded more than 80. Islamic State again claimed responsibility while the Taliban condemned the attacks. 20 The Authority then summarised the most recent DFAT report and the report of Prof Maley dated 24 July 2016 (Reasons [18]). On the basis of that material, the Authority concluded as follows (at Reasons [19]): I consider that the emergence in Afghanistan of groups pledging support to Islamic State and conducting occasional mass casualty attacks against the Shia Hazaras in Kabul and elsewhere has raised the overall level of risk faced by Shia Hazaras in Afghanistan. Within the foreseeable future there may be further occasional mass casualty attacks in Kabul like those which occurred on 11 October and 21 November 2016 at Kabul Shia mosques, and at the Kabul Shia Hazara demonstration of 23 July 2016. However, I am not satisfied that the overall increased level of risk will mean that the applicant will face a real chance of harm within the foreseeable future for reason of his being a Shia Hazara. The applicant does not claim to have ever been politically active and there is no evidence before me to indicate that upon return to Afghanistan he would, in the future, have any interest in attending a public demonstration like that which was attacked in central Kabul on 23 July 2016. I accept that the applicant is a Shia Muslim, and although the applicant indicated at his SHEV interview that he does not regularly attend mosque he did state that he attends Muharram (which includes the commemoration of Ashura). I accept that where attacks have been staged against the Shia Hazara population in Kabul they have most often been staged during Muharram. Nevertheless, given the current and foreseeable extent of the attacks perpetrated against Shia Muslims and Shia Hazaras in Kabul, given the size of Kabul's Shia Hazara population (estimates of the Hazara population in Kabul vary between around 1.6 million to two million, or 40-50 per cent of Kabul's population), and the dispersal of this community and its places of worship across many suburbs in western and south-western Kabul, and given that I do not accept that the applicant is currently of specific interest to Islamic State or any other insurgent group as an individual, I am not satisfied on the evidence that, for the foreseeable future, the prospect of the applicant suffering harm in Kabul from an insurgent group, like Islamic State or the Taliban, for reason of his being a Shia Hazara, reaches that of a real chance. 21 The Authority concluded that the evidence does not indicate that the appellant would face a real chance of suffering serious harm from any other actor in Kabul for reason of his being a Shia Muslim and/or a Hazara (Reasons [20]). 22 With respect to discrimination, the Authority recounted a series of reports commenting on the nature and extent of societal discrimination faced by Shia Hazaras in Afghanistan (Reasons [21] to [23]). The Authority concluded, however: 21 … the available reporting does not indicate that Shia Hazaras in Kabul have been affected by illegal taxation, forced recruitment and forced labour, physical abuse, or detention. Nor does the evidence suggest that Shia Hazaras who are young men are at risk in any such regard in Kabul. DFAT assesses that, because of Kabul's size and diversity, returnees are unlikely to be discriminated against or subjected to violence on the basis of ethnicity or religion. I am not satisfied that there is real chance that the applicant would face a real chance of harm of this kind for reason of being a Shia Hazara and/or for reason being a young man in Kabul. 22 … DFAT assesses that any discrimination faced by Shias in Afghanistan, including the Hazara community, is more likely to be societal in nature, primarily as a result of the important role played by ethnic, tribal and familial networks in Afghan society and the dominance in many areas of the Sunni majority, and that discrimination generally occurs as a result of a positive preference for members of one's own family/tribal/ethnic/religious group, rather than negative discrimination against others. DFAT has also observed that in Kabul returnees generally have lower household incomes and higher rates of unemployment than established community members. However, again, the implication is that Kabul returnees have lower household incomes and higher rates of unemployment not because they are returnees from western countries but because they are new to the city and are, in many cases, without the connections that established Kabul residents generally have. 23 In January 2012 Professor Alessandro Monsutti advised that a Hazara who does not have family support in in Kabul will be vulnerable as the Afghan government does not provide services and a social network a Hazara may become the victim of violence. In July 2016 Professor Maley expressed the view that any Hazara with no social connections in Kabul would likely be rendered destitute or vulnerable to gross exploitation by discrimination of this kind. However, the view that there is a real chance of this occurring is not supported by the most recent assessments of UNHCR and DFAT where relocation to urban centres like Kabul is considered viable for single able-bodied men in some circumstances, even when without social connections. Further to this, the IOM has observed that young men arriving in Kabul will usually find their own ethnic community when they come to the city, and that the ethnic community tends to integrate the newcomers within the group and provide protection for them. 23 The Authority noted that the appellant's family are currently residing unlawfully in Pakistan, where they have resided unlawfully since mid-2009. The Authority reached the following conclusion with respect to the appellant's family (Reasons [24]): While I accept that the applicant genuinely wishes to see his family, it is nonetheless the case that the applicant's family have remained in Pakistan while the applicant has worked in Iran and sought asylum in Australia. Recent years have seen occasional drives by Pakistan authorities to compel some Afghans to return to Afghanistan, but there is no evidence to indicate that the applicant's family have been identified by the Pakistan authorities for return in this way, or that they are suffering any harassment in Pakistan to compel their return to Afghanistan, and more than a million Afghans continue to reside in Pakistan. On the evidence, I consider that if the applicant were to return to Afghanistan his family would remain in Pakistan. 24 The Authority concluded that, if returned to Kabul, the appellant would arrive as a single able-bodied man without vulnerabilities and that he would not be without family connections as he has a paternal cousin residing in Kabul. The Authority further concluded that (Reasons [25]): On the evidence, I accept that in Kabul the applicant may face a real chance of experiencing some discrimination in the employment market for reason of being a Shia Hazara and/or as a consequence of not being a member of a particular family or tribal group. However, on the evidence, I am not satisfied that in Kabul the applicant would, on this basis, face a real chance of suffering discrimination of a level that would result in his becoming destitute or that would threaten his capacity to subsist (such as through a denial of a capacity to earn a livelihood of any kind or to access basic services). Nor does the evidence suggest that, for reason of being a Shia Hazara, the applicant would face a real chance in Kabul of being harmed in any other way by either an insurgent group like the Taliban or Daesh, or by Pashtuns or other non-Hazaras, or from the Sunni majority community, or any other actor. 25 The Authority also considered the appellant's claim to fear harm because he will be perceived as an affiliate of the West because he has sought asylum in, and spent time in, a western country, and because he would be a returnee from the West and a failed asylum seeker (Reasons [26]). The Authority recounted a number of reports that addressed that issue, including the most recent DFAT report (Reasons [27]-[28]). On the basis of that evidence, the Authority was not satisfied that the appellant would face a real chance of discrimination in Kabul on the basis of being a returnee from the West who has spent time in, and sought asylum in, a western country (Reasons [28]). 26 The Authority also considered whether the appellant would face a real chance of harm as a consequence of generalised violence such as being killed or injured as a bystander to an attack perpetrated by an insurgent group against another target or as a victim of a criminal act (Reasons [29]). The Authority referred to the following aspects of the most recent DFAT report: 30 DFAT assesses that security conditions in Afghanistan continued to decline nationwide in the first eight months of 2016. Civilian casualties as a result of ground engagements between pro-government forces and AGEs increased, with fighting occurring in and around several major provincial population centres. High-profile suicide and complex attacks continued, particularly in Kabul, with most attacks carried out by the Taliban against targets linked to the Afghanistan government or international security forces. Afghanistan's decline in security during 2015 showed no evidence of reversal during the first half of 2016, and civilians continued to suffer unprecedented harm during this period. Ground engagements between pro-government forces and AGEs caused the highest number of civilian casualties in the first half of 2016. Suicide and complex attacks carried out by AGEs, primarily the Taliban, were the second leading cause of civilian casualties by mid-2016 (precluding the 23 July attack on Hazara protesters in Kabul). Nearly two-thirds of casualties from such attacks took place in Kabul. … 31 DFAT's reporting acknowledges that Kabul remains one of the most dangerous cities in the world. Nevertheless, and although civilian casualties have risen in Kabul in recent years, DFAT assesses that Kabul has a higher level of government control and a greater level of security than other parts of Afghanistan. While high-profile attacks, including those that target civilians, are common in Kabul, the city has a large population compared to other areas of the country, so there are fewer civilian casualties per head of population. Significantly, DFAT and other credible sources have reported that militant attacks are concentrated in the western, central and eastern sections of the city where the international presence is most visible and where key highways link the city to the international airport and outlying provinces. The Hazara community is concentrated in suburbs scattered across the western and south-western part of Kabul. Most are located in outlying suburbs such as Dasht-e Barchi, Afshaar and Qalai Shada, and even those closer to the centre of the city, such Kart-e Sakhi and Chandawal, are spaced around the city centre rather than in the heart of the city where the government and security institutions are located which have been the main target of insurgent attacks in Kabul. As has been noted above, there have been occasional attacks in Kabul's Hazara suburbs which have specifically targeted Hazara places of worship; such as the October 2015 attack in Chandawal, the October 2016 attack in Kart-e Sakhi, and the November 2016 attack in Char Qala. However, the reporting of DFAT and other credible sources on security indicate that the overwhelming majority of attacks perpetrated by insurgent groups, and the overwhelming number of civilian casualties resulting from these attacks, have occurred and will likely continue to occur, in those central areas of the city where Afghan and international government and security personnel work, reside and frequent. … 33 … DFAT's reporting is frank about the deterioration of the security situation in Afghanistan since the 2014 drawdown and transition, and about the problems faced by the Afghan government and its security forces. In September 2016 DFAT assessed that Afghanistan's decline in security during 2015 showed no evidence of reversal during the first half of 2016. Nevertheless, given the manner in which Afghan security forces have proven able to maintain effective control of major urban areas, and given the ongoing support provided by international forces, I am not satisfied that the prospect of the applicant suffering harm in Kabul from generalised violence, reaches that of a real chance for the foreseeable future. 27 The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(l) of the Act (Reasons [35]). The Authority reached much the same conclusions with respect to the complementary protection criteria. The Authority observed that, pursuant to s 36(2B)(a) of the Act, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm (Reasons [39]). The Authority reiterated its earlier conclusions with respect to the risks to the appellant if he were to relocate to Kabul (Reasons [40]-[44]). In relation to the appellant's family, the Authority made the following findings (Reasons [45]): It has also been submitted that the applicant has a large family which he needs to support. I note, however, that the applicant has previously proven willing and able to support his wife and three children by living and working apart from his family and that he has done this from Iran and from Australia. Given the applicant's demonstrated ability to find accommodation and employment in places like Iran where he worked unlawfully, and to nonetheless provide the necessary support to his family in Pakistan, I consider that the applicant will similarly prove able to provide support of this kind to his family from Kabul and that it would be reasonable for him to do so. In his SHEV application the applicant has stated that he finds it difficult to speak with his family by telephone as they are upset by the time he has been living apart from them. At the SHEV interview he said they are always asking him when he will come back and he has told them that it is in the hands of the Australian authorities and that when the Australian authorities accept him or whenever they give him some documents he will return. Even so, by travelling to Australia alone and then by applying for temporary protection in Australia, the applicant has demonstrated that he is willing and able to continue to live apart from his family for extended periods of time. This is also something he has done in the past by travelling to Iran and remaining there from January 2009 to December 2011, before returning to Pakistan in December 2011, when he also departed for Kabul before travelling onwards (spending some eight months in Indonesia), arriving in Australia in September 2012. 28 The Authority concluded that, having regard to the appellant's overall circumstances and the livelihood and security situation in Kabul more broadly (including the overall situation regarding generalised violence in Kabul), it would be reasonable for the appellant to relocate to, and remain in, Kabul, an area of the country where there would not be a real risk that the appellant will suffer significant harm (Reasons [46]). On that basis, the Authority concluded that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the appellant will suffer significant harm (Reasons [47]). Decision of the primary judge 29 Although expressed in a somewhat complex manner, the grounds of judicial review raised before the primary judge can be reduced to the following principal contentions: (a) that the Authority misconstrued the definition of "refugee" set out in ss 5H and 5J(1)(b) of the Act (a "real chance" of persecution), and the definition of "real risk of significant harm" in ss 36(2)(aa) and 36(2B)(a) of the Act, and thereby failed to exercise its jurisdiction (ground 3, which was addressed first); (b) that the Authority misapplied ss 5J(1)(c) (the real chance of persecution relates to all areas of the receiving country) and 36(2)(aa) and 36(2B)(a) (it would be reasonable to relocate to an area of the country where there would not be a real risk of harm) and thereby applied an incorrect test as to whether those criteria were satisfied (ground 2, which was addressed second); and (c) that the Authority's decision was legally unreasonable (ground 4). 30 The primary judge concluded that none of the grounds were established and dismissed the application. 31 On the appeal, the appellant largely re-argued the grounds which had been raised before the primary judge, contending that the primary judge erred in failing to find that the Authority's decision involved jurisdictional error. Appeal grounds 2 and 3 – the level of risk required to establish a claim to protection Appellant's contentions 32 Ground 2 of the appeal replicated review ground 3 before the primary judge. As occurred before the primary judge, the appellant addressed this ground first. The ground was expressed as follows: The Federal Circuit and Family Court at first instance erred in not finding that the Authority misconstrued the definition of "refugee" set out in s 5H and 5J(1)(b) of the Migration Act 1958, and the definition of "real risk of significant harm" in sections 36(2)(aa) and 36(2B)(a) of the Act and thereby failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of a delegate of the First Respondent, by failing to consider the Appellant's claims by reference to the "real chance" or "what if l am wrong?" test. 33 By its written submissions, the appellant withdrew any reliance on the contention that the Authority had failed to consider the appellant's claims by reference to the "what if I am wrong?" test. 34 The appellant submitted that a real chance of persecution (within s 5J(1)(b)) or a real risk of significant harm (within s 36(2)(aa)) is sufficient to establish a claim for protection. Following Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan), a real chance is one that is not remote, regardless of whether it is less or more than fifty per cent. A "real chance" thus may be small. It is because the intention of ss 36(2)(a) and 36(2)(aa) is to protect against serious or significant harm that, even if the Authority may be in great doubt about whether a person is at risk, if it thinks there is a "real chance", it must still find that the requirements for protection are met. 35 The crux of the appellant's case is that, given the material before the Authority, including the material which it noted of recent attacks in Kabul, including attacks on Shias at a religious celebration, and many deaths as a result, it could not reasonably come to the conclusion that it did by applying the "real chance" test required by ss 36(2)(a) and 36(2)(aa). 36 The appellant acknowledged that the primary judge was correct in observing that the appellant cannot establish that the Authority reached a conclusion that was unreasonable, or otherwise misunderstood or misapplied the statutory tests, simply by identifying some information before the Authority that favoured his case. The appellant also acknowledged, correctly, that the Court on review is not to substitute its view of the facts for that of the Authority. The appellant submitted, however, that it is proper for the Court to ask whether the evidence and material before the Authority could reasonably have founded its findings and decision. The appellant submitted that the primary judge erred in concluding that the findings of the Authority were open to it based on probative evidence and did not involve the illogicality or irrationality necessary for a decision to be affected by jurisdictional error. 37 By ground 3 of the appeal, the appellant also contended that the Authority's decision was legally unreasonable. Particular (c) of ground 3 referred to the Authority's application of the "real chance" test in s 5J(1)(b) and "real risk" test in s 36(2)(aa). The appellant argued that, by misinterpreting or misapplying the "real chance" and "real risk" tests, the decision of the Authority was also legally unreasonable. Consideration 38 In its Reasons, the Authority did not explain its understanding of the expressions "real chance" as used in s 5J of the Act and "real risk" as used in s 36(2)(aa). It is therefore necessary to assess whether the Authority misunderstood and/or misapplied those tests by reference to its reasoning process and ultimate decision. In doing so, the Court must avoid the risk of engaging in merits review of the Authority's assessment. As the Full Court explained in CGA15 v Minister for Home Affairs (2019) 268 FCR 362 (a decision which has similarities to the present case) at [25]-[26]: 25 The question as to whether the Tribunal's reasons disclose a misunderstanding or misapplication of the "real chance" test depends on the particular facts of the case and on a fair reading of the reasons, read as a whole and without an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The Court's focus must be whether having regard to the Tribunal's reasons in this case it is more probable than not that the Tribunal misunderstood or misapplied the test. The appellant has the onus to show jurisdictional error: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4] and [41] (SZMTA) (Bell, Gageler and Keane JJ). 26 The mere fact that a decision-maker expresses his or her ultimate conclusions in terms which reflect the visa criterion (as the Tribunal did in this case) does not definitively show that it applied the correct test. In many cases the substantive part of the decision-maker's reasons, rather than recitations in the introduction or conclusions, will be a more reliable guide as to whether the Tribunal applied the correct test. It is the reality not the appearance which matters: SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723 at [30] (Mansfield J); see also Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595 (Kirby J). 39 The appellant did not criticise the Authority's summary of the material before it describing the security situation in Afghanistan, and specifically Kabul, in the period from 2011 to 2016. The Reasons of the Authority show that the citizens of Afghanistan faced high levels of violence in that period, including by way of abductions, bombings and shootings. This included mass casualty attacks directed against Shia Muslim or Hazara people. At Reasons [17] (reproduced above), the Authority records such events occurring in December 2011, February 2014, March 2015, October 2015, July 2016, October 2016 and November 2016. There was nothing in the material before the Authority that suggested that the level of violence directed against Shia Muslim or Hazara people would decrease in the foreseeable future. To the contrary, the Authority concluded (at Reasons [19]) that: (a) the emergence in Afghanistan of groups pledging support to Islamic State and conducting occasional mass casualty attacks against the Shia Hazaras in Kabul and elsewhere had raised the overall level of risk faced by Shia Hazaras in Afghanistan; and (b) within the foreseeable future, there may be further occasional mass casualty attacks in Kabul like those which occurred on 11 October and 21 November 2016 at Kabul Shia mosques, and at the Kabul Shia Hazara demonstration of 23 July 2016. 40 Despite the level of violence in Kabul directed at Shia Muslims and Hazaras, and the ongoing threat of similar violence, the Authority was not satisfied that "the overall increased level of risk" will mean that the appellant will face a real chance of harm in Kabul within the foreseeable future by reason of his being a Shia Hazara (Reasons [19]). The Authority's reasons for reaching that conclusion appeared to have three elements: (a) First, the appellant does not claim to have ever been politically active. The Authority reasoned that there is no evidence to indicate that upon return to Afghanistan the appellant would have any interest in attending a public demonstration, and therefore would be unlikely to suffer harm from an attack such as occurred in central Kabul on 23 July 2016 (when a peaceful demonstration of Hazaras was bombed, killing 84 people and wounding over 400 others). (b) Second, the size of Kabul's Shia Hazara population is estimated at around 1.6 to 2 million (or 40-50 per cent of Kabul's population) and the community and its places of worship are dispersed across many suburbs in western and south-western Kabul. By referring to those figures, the Authority appeared to be drawing a comparison with the number of Shia Muslims and/or Hazaras killed or injured in violent attacks over the preceding few years. (c) Third, the appellant is not currently of specific interest to Islamic State or any other insurgent group as an individual. 41 As submitted by the appellant, the first and third factors have little probative value in the assessment of the risk of harm to the appellant. As to the first factor, the material before the Authority showed that the bombing that occurred on 23 July 2016 took place at a demonstration by Hazaras associated with the routing of a proposed electricity system. The demonstration can only be described as "political" in the broadest sense of that word. The Authority did not appear to turn its mind to whether the appellant might attend demonstrations of that kind (about basic services) in the future. As to the third factor, the material indicated that the violence carried out by Islamic State in Kabul was not directed to individual Shia Muslims or Hazaras, but was directed to them as a group by reason of their race and religion. 42 The central question raised on the appeal is whether, on the material before it, the Authority's assessment of the "real chance" and "real risk" tests demonstrates that the Authority must have misunderstood or misapplied those tests. 43 In Chan, the High Court determined that to satisfy the refugee criterion under s 36(2)(a) of the Act, the applicant must show that he has a "well-founded" fear of persecution for a Convention reason if he returns to his country of origin – a fear of persecution will be "well-founded" if there is a "real chance" that the applicant will suffer the claimed persecution in the reasonably foreseeable future, where a "real chance" is a prospect that is "substantial" and not "remote", even if it is a chance that is less than 50% (per Mason CJ at 389, Dawson J at 398, Toohey J at 407 and McHugh J at 429). Those concepts have since been codified in ss 5H and 5J of the Act (introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). In Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, the Full Court determined that the test of "real risk" in respect of the complementary protection criteria in s 36(2)(aa) is the same as the test of "real chance" in respect of the refugee criterion (Landers and Gordon JJ at [246], with whom Besanko and Jagot agreed at [296] and Flick J agreed at [342]). 44 I am not persuaded that the Authority's reasons demonstrate that the Authority misunderstood or misapplied the "real chance" and "real risk" tests. The application of those tests in the present case required the Authority to assess the level of violence directed at Shia Hazaras in Kabul in the recent past, predict the level of violence likely to occur in the reasonably foreseeable future having regard to past and present circumstances, and make an evaluation whether there is a real chance or real risk that the appellant would suffer that harm if returned to Kabul. The Authority undertook that exercise. Ultimately, it evaluated the risk of harm to the appellant if returned to Kabul having regard to the frequency and impact of acts of violence directed against Shia Muslims and Hazaras in Kabul and the overall population of Hazaras in Kabul (estimated at between 1.6 to 2 million).While minds may differ about the ultimate evaluation reached by the Authority, I consider that the primary judge was correct to conclude that the Authority's evaluation was open to it: at [25] of the primary judgment (PJ). The Authority's reasoning and assessment do not demonstrate that the Authority misunderstood or misapplied the statutory tests. I therefore reject ground 2 of the appeal. 45 It also follows that I reject ground 3 of the appeal in so far as it relates to the Authority's application of the "real chance" and "real risk" tests. Appeal grounds 1 and 3 – avoiding harm by relocation Appellant's contentions 46 Ground 1 of the appeal largely replicated review ground 2 before the primary judge. The ground was expressed as follows: The Federal Circuit and Family Court at first instance erred in not finding that the Second Respondent ("the Authority") fell into jurisdictional error in that it erred in interpreting or applying the law. Particulars a) Given the material and information before the Authority, it was not open to the Authority correctly interpreting and applying the term "real chance of persecution" in section 5J(1)(c) of the Migration Act 1958 ("the Act") to find, as it did, that there was not a real chance of the Appellant suffering persecution in Kabul in the reasonably foreseeable future. b) Further or in the alternative to Particular (a), it was not open to the Authority correctly interpreting and applying the term "real risk" of significant harm in section 36(2)(aa) and 36(2B)(a) of the Act to find, as it did, that "it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm", namely Kabul. 47 Particular (a) to ground 1 is expressed in an opaque manner. However, the appellant's written submissions make clear that ground 1 is concerned with the question of avoiding harm by relocation (in this case, relocation from the appellant's home province of Ghazni to Kabul). 48 In his submissions, the appellant acknowledged that, unlike the previous situation when the Act incorporated the Refugees Convention by reference, the prescriptions of ss 36(2)(a) and 5J(1)(c) of the Act no longer require the Authority to consider whether it may be reasonable, in the sense of reasonably practicable, for the appellant to relocate to another place in his country of nationality, such as Kabul. In contrast, in the assessment of complementary protection under ss 36(2)(aa) and 36(2B)(a) of the Act does require an assessment of whether the Authority is satisfied that "it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm". This requirement requires the assessment to be made by reference to all the circumstances of the appellant and his country. 49 The appellant submitted that, by reference to all the material before it, the Authority was not able reasonably to conclude that there was no real chance of persecution in Kabul for the purposes of its assessment whether the appellant was a refugee under s 36(2)(a), and no real risk of significant harm for the assessment under s 36(2)(aa). That submission replicated ground 2 of the appeal, addressed earlier. 50 The appellant further submitted that it was not open to the Authority, applying s 36(2B)(a), to conclude that it was reasonable for the appellant, a married man, to relocate permanently to Kabul without his wife and children. The appellant argued that, while the Authority did consider from a limited perspective the reasonableness of the appellant relocating to Kabul without his wife and children, it did not consider this deprivation in its entirety (referring to CRI028 v The Republic of Nauru [2018] HCA 24 (CRI028)). The Authority referred to previous long separations, though it noted the difficulty in communications and the upset of the appellant's family. 51 The appellant argued that the relocation to Kabul would be permanent, qualitatively different from his long (but hoped to be temporary) separation from his wife and family while he was seeking protection in Australia. The appellant submitted that the primary judge erred in not finding the Authority's approach a jurisdictional error on this point. 52 As noted earlier, by ground 3 of the appeal, the appellant also contended that the Authority's decision was legally unreasonable. Particular (b) stated that it was unreasonable for the Authority to find that it was reasonable for the appellant, a married man with children, to settle permanently in Kabul alone and without his family, and without seeking to live again with his family. Accordingly, the appellant's contentions were advanced on the basis that the Authority misinterpreted the applicable legal criteria or made a decision that was legally unreasonable. Consideration 53 By reason of s 5J(1)(c), the refugee criterion in the Act requires that the real chance of persecution relates to all areas of a receiving country. It is unnecessary to evaluate whether it would be reasonable for the non-citizen to relocate within the country of the person's nationality to an area where the person would be free from persecution, save that the area must be inhabited or habitable and the person must be able to safely and legally access that area: FCS17 v Minister for Home Affairs (2020) 276 FCR 644 at [20] per Allsop CJ and at [51]-[54] per Colvin and White JJ. In contrast, by reason of s 36(2B)(a), the complementary protection criteria in the Act requires an assessment of whether it would be reasonable for the non-citizen to relocate to an area of the country of the person's nationality where there would not be a real risk of suffering significant harm. 54 Accordingly, in applying the complementary protection criteria, it was necessary for the Authority to consider whether it would be reasonable for the appellant to relocate to Kabul. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZTAV), in the context of the relocation principle for the refugee criterion that was applicable at that time, Hayne, Gummow and Crennan JJ stated that what is reasonable 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 (at [24]). In AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457, the Full Court (Mortimer, Moshinsky and Thawley JJ) explained that how the question is approached will depend to some extent on the framework set by the claims made by the visa applicant about why it is not safe, and/or not reasonable, for her or him to return to a particular location or locations (at [27]). 55 The Authority made a finding that, if the appellant were to be returned to Afghanistan, his family would remain in Pakistan (Reasons [24]). The basis for that finding is not entirely clear from the Reasons. Nor is it clear why the family will not return to Afghanistan. Despite that, no challenge was made to that finding. Rather, the appellant relies on that finding to contend that the Authority erred in concluding that it was reasonable for the appellant to relocate to Kabul notwithstanding that his wife and children would not return to Afghanistan. 56 In my view, the appellant's contention is based on a misapplication of the test of relocation in s 36(2B)(a). The question of reasonableness of relocation relates to the reasonableness of the visa applicant relocating from one part of the receiving country to another. The question does not relate to the reasonableness of relocation from Australia, or any other country, to the receiving country: see generally the discussion of the applicable principles by the High Court in SZATV and by the Full Federal Court in CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134. 57 In the present case, the Authority made a finding, which is not challenged, that the appellant's family will not return to Afghanistan. This means that, if the appellant is returned to Afghanistan, he will be unable to live with his family. That will be the case no matter where the appellant resides in Afghanistan. In those circumstances, the fact that the appellant's family will not return to Afghanistan cannot bear upon the question raised by s 36(2B)(a), whether it would be reasonable for the appellant to relocate to an area of Afghanistan where there would not be a real risk that he will suffer significant harm. 58 It follows that the decision of the High Court in CRI028 is distinguishable. In that case, the relevant decision-maker had failed to consider the claim by the visa applicant (who was a Sunni Muslim of Punjabi ethnicity) that his wife could not relocate to a province of Punjab within Pakistan because she was Shia Muslim. The High Court concluded that the decision-maker erred by failing to discharge its task of considering all of the circumstances relevant to the question of relocation (see at [49]-[53] per Gordon and Edelman JJ). 59 In the present case, the apparent decision of the appellant's family not to return to Afghanistan in any circumstances had the effect that their absence could not weigh in the assessment of relocation within Afghanistan. The Authority otherwise assessed factors bearing upon the question whether it would be reasonable for the appellant to relocate to Kabul. No challenge is made to the assessment of those factors. 60 For those reasons, I consider the primary judge did not err in concluding that the Authority's reasons provide a cogent assessment of the reasonableness of relocation in the performance of its statutory task, and the findings made by the Authority are not unreasonable, illogical or irrational (at PJ [38]-[39]). Accordingly, I reject appeal grounds 1 and 3 in so far as they relate to relocation. Conclusion 61 In conclusion, for the foregoing reasons the appeal must be dismissed with costs. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. Associate: Dated: 3 April 2023