Federal Court: IAA accepted Appellant's claims: "murder of his two brothers by the Taliban; the disappearance of a third brother; the appellant having fled the Taliban twice; and the appellant having been beaten and threatened by the Taliban over a period of years". It thus found that there was a real risk that Appellant would suffer significant harm if returned to Afghanistan: s 36(2)(aa). In assessing the reasonableness of relocation under s 36(2B): should the high standard of real risk of significant harm applied to s 36(2)(aa) be applied; although Appellant did not expressly claim that his "traumatic experiences" would be an obstacle to relocation, did that claim clearly arise from the materials before the IAA in that "it was a matter of common sense that no person could have endured what the Applicant had endured over the last 18 years without there being some measure of trauma to the psyche"?
The questions to the Federal Court (FCA) were as follows:
Question 1: Should the high standard of real risk of significant harm applied to s 36(2)(aa) be applied to the assessment of the reasonableness of relocation under s 36(2B)?
Question 2: Although the Appellant did not expressly claim that his "traumatic experiences" would be an obstacle to relocation, did that claim clearly arise from the materials before the Immigration Assessment Authority (IAA) in that "it was a matter of common sense that no person could have endured what the Applicant had endured over the last 18 years without there being some measure of trauma to the psyche"?
The FCA answered those questions as follows: