ABB18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 516
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 516
File number(s): SYG 25 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 7 June 2024 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision made by Immigration Assessment Authority (Authority) – whether Authority failed to correctly apply the “real chance” test – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5(H)(1), 36(2)(aa), 467
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 2, Sch 2
Cases cited: CID15 v Minister for Immigration, Citizenship and Border Protection [2017] FCA 780
SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403
Division: General Number of paragraphs: 18 Date of hearing: 29 May 2024 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Unisaj Legal Solicitor for the First Respondent: Mr M Vethecan of Clayton Utz ORDERS
SYG 25 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABB18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Subject to order 3, the applicant pay the first respondent’s costs set in the amount of $8,371.30.
3.The parties have liberty to apply within 35 days after these orders are pronounced to vary or discharge order 2.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The question that arises on this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Authority), in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV), made a jurisdictional error by failing to apply correctly “the real chance test”.
CLAIMS FOR PROTECTION
The applicant stated his claims for protection on a number of occasions. One was in the statutory declaration that formed part of his application for a SHEV, where the applicant claimed as follows:[1]
(a)The applicant is a national of Sudan, and a Sunni Muslim of the Misseriya Tribe. The applicant was born in the province of West Kordofan.
(b)The applicant was subjected to violent attacks by the government, which began 15 years before the applicant made his statement, when the applicant was 9 or 10 years old. The applicant was burnt on his tummy and shot at by the government. This occurred at the applicant’s house. The government came into Babanusa and attacked everyone in the village.
(c)The applicant received a call up for military service when he was 18 to 20 years of age. This occurred when “the Army” came to the applicant’s house and asked for him. The applicant was not at home. The applicant avoided being called up. The applicant escaped Sudan as soon as he could.
(d)The applicant fears for his life if he were to return to Sudan. He fears he will be imprisoned, interrogated, and tortured because he has avoided military service. The applicant says that he will be subjected to military service. The applicant’s area, Kordofan, is a war area; there is always uprising and civil war, and the government is causing conflict between tribes.
[1] CB63
The applicant also stated claims for protection in a statutory declaration he made after the delegate refused to grant the applicant a SHEV. The applicant there claimed as follows:
(a)The applicant continues to state that officials from the Sudanese government came to the applicant’s house in Babanusa on more than one occasion to ask about the applicant and his brothers.
(b)In the main part of town, the government would sometimes have a “mobile recruitment” drive. The government “had a bus or van and they would simply grab people of a certain age off the street, demanding ID and if they did not have ID we would be taken away for military service”.
(c)Additionally, the non-government militias would also grab and forcibly recruit young men.
(d)There is a lot of military activity in the area in which the applicant lives. There is a military base in Babanusa; and “we ourselves had been personally affected by the conflict, including when our house was attacked and when I was burned. We also saw and heard regular military activity, shooting etc”.
(e)The applicant belongs to the Awlad Sorour clan of the Falaiyta clan of the Humr group of the Messeriya tribe. There is a lot of conflict between the various sub-clans, with most of the problems revolving around land and revenge attacks. The Sudanese government actively makes trouble between the various clans. Between 2010 and 2012 “our area experienced one of the worst times of inter-clan conflict”.
AUTHORITY’S DECISION
The Authority:
(a)found the country information does not support the applicant’s claims that the applicant’s home area, West Kordofan, is a conflict zone in relation to government military action, [2] noting that the country information available to the Authority does not indicate that West Kordofan is affected by the conflict in Darfur, or in South Kordofan between the Sudanese government and the SPL-North rebels;[3]
[2] CB152, [25]
[3] CB152, [26]
(b)found that, although independent information indicates that inter-tribal and inter-clan conflict arose in West Kordofan in the early 1990s over land and resource issues,[4] and that such conflict has increased since early 2014, the information does not suggest that government forces are perpetrators of the violence; [5]
[4] CB152, [27]
[5] CB153, [27]
(c)noted that the Department of Foreign Affairs and Trade advised that the government provides effective protection in areas of Sudan other than in Darfur and the Two Areas;[6]
(d)noted that country information details various inter-clan disputes over the last several years, only one of which, however, involved the applicant’s sub-clan, that dispute occurring on February 2016 when two members of the applicant’s sub-clan were killed, along with two from another clan, in an attack from “unknown assailants”; and that the same report refers to other clashes in which the sub-clan membership of those killed is not specified, but the overwhelming majority of violence appears to involve sub-clans other than the applicant’s sub-clan;[7]
(e)found that, although it is possible that the applicant’s sub-clan could be affected by fighting between other groups, the Authority was not satisfied on the basis of the available evidence that there exists a real chance of harm to the applicant, either because of the direct involvement of his sub-clan in conflict, or as a result of violence or conflict between other tribal groups in West Kordofan;[8]
(f)found that , apart from the 1990 incident, the applicant’s family was never targeted, and since 1990, the applicant’s family have continued to farm their crops and land; and the applicant was able to travel around doing his painting work; and the applicant’s account of his and his family’s experience is consistent with the country information indicating that the area of the applicant’s residence has not been substantially affected by violence or conflict, despite ongoing conflict in surrounding regions, particularly South Kordofan, and inter-clan violence within the state;[9]
(g)found there is no country information to support the applicant’s claim that the government views his tribe with suspicion, or that it targets his tribe, noting that country information indicates that for many years the applicant’s tribe supported the government by fighting on behalf of the government against rebels in Darfur and South Kordofan;[10]
(h)accepted there was an attack on the applicant’s village when the applicant was nine or ten, noting that, although the attack most likely occurred in the context of inter-clan conflict, it was possible it was carried out by government forces or a government backed tribal militia; and, in any event, country information does not indicate there is a real chance the applicant would be a victim of a similar attack now or looking to the reasonably foreseeable future;[11]
(i)did not accept the applicant’s claim that he is eligible for military service but has not performed it and, for that reason, may face severe punishment on his return to Sudan;[12]
(j)was not satisfied there is a real chance the applicant will face serious harm on return to Sudan, either because of his place of origin, because of his tribe, as a failed asylum seeker or because he would be imputed to hold an antigovernment political opinion for those or any other reasons;[13]
(k)for these reasons, found the applicant does not meet the requirements of the definition of “refugee” in s 5H(1) of the Act;[14] and
(l)based largely on the matters on which the Authority concluded the applicant was not a “refugee”, 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 the applicant will suffer significant harm and, therefore the applicant did not meet the requirements provided for by s 36(2)(aa) of the Act.[15]
[6] CB153, [27]
[7] CB153, [27]
[8] CB153, [27]
[9] CB153, [28]
[10] CB153, [30]
[11] CB154, [31]
[12] CB154, [32]
[13] CB157, [41]
[14] CB158, [42]
[15] CB159, [49]
GROUND OF APPLICATION
The applicant relies on the following ground of application stated in his amended application:
The Second Respondent (Authority) made a jurisdictional error by failing to apply the real chance test.
The Authority was required to apply the real chance test, meaning a chance that is substantial and not remote or far-fetched, regardless of whether it is less or more than 50 per cent (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 389, 398, 407, 429; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [242]-[247]);
The chance may be well below 50% (Chan at 389, 397-398 and 407; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572) and, indeed, may arise even though it is only a 10% chance (Chan at 429).
The Authority found at paragraph 27 of its decision that there was violence involving the Applicant’s sub-clan, being a specific indicant of death in February 2017 and unspecified clashes where the sub-clan of those killed was not specified;
The Authority found at paragraph 27 of its decision that the “overwhelming majority of violence appears to involve sub-clans other than the applicant’s”;
The Authority found at paragraph 27 of its decision that it was “possible that the applicant’s sub-clan could be affected by fighting between other groups”;
The Authority concluded that there was not a real chance of harm to the applicant “either because of the direct involvement of his sub-clan in conflict or as a result of violence or conflict between other tribal groups”;
The Authority, by relying on an “overwhelming majority” and failing to weigh the possibility of violence based on a certain incident involving the Applicant’s sub-clan and other incidents potentially involving the same, failed to apply the real chance test.
PARTIES’ SUBMISSIONS
There was no dispute about what represents the correct statement of what is often referred to as the “real chance” test; and these are stated in the applicant’s written submissions:
10.The case law regarding the “real chance” test is long-standing. It is a chance that is substantial and not remote or far-fetched, regardless of whether it is less or more than 50 per cent (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 389, 398, 407, 429; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [242]-[247]).
11 Of particular significance in the present case is the emphasis in the authorities on the limited assistance of numerical analysis (see, eg, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572). Relevant, and often cited, passages in Chan capture the point:
(a) (per Mason CJ at 389): “[A `real chance’] clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring”;
(b) (per Dawson J at 397-398): “... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent”;
(c) (per Toohey J at 407): “A “real chance” ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial”;
(d) (per McHugh J at 429): “[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded”.
In his written submissions, the Minister also referred to the following passage from the judgment of Moshinsky J in CID15 v Minister for Immigration, Citizenship and Border Protection:[16]
The ‘real chance’ test is an objective one, whereby the decision-maker considers whether there is more than a remote or far-fetched chance of the applicant being harmed in a place. It is not a relative test whereby the decision-maker compares the chance of the applicant being harmed in one place relative to another place. I note that in SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594, Judge Driver said: “The test of whether there is a real chance or a real risk of harm is not a relative one. It is not determinative whether the risk in one place is ‘less severe’ than the risk in another place. What matters is the actual level of risk in any particular place” (at [20]). I respectfully agree with this statement of principle.
[16] CID15 v Minister for Immigration, Citizenship and Border Protection [2017] FCA 780, [35]
In his written submissions the applicant submitted that the Authority’s failure to correctly apply the real chance test is manifested by its relying on an “overwhelming majority” of attacks not involving the applicant’s sub-clan, yet at the same time discounting a certain incident involving the applicant’s sub-clan, and other incidents potentially involving the applicant’s sub-clan. The applicant submits:
It is evident that the real chance may be satisfied notwithstanding the absence of a simple majority in favour of harm to the Applicant, ie 50%. The same may be said where there is absent an overwhelming majority in favour of harm to the Applicant, ie 10%.
The present case is no different. The Authority cited an overwhelming majority of harm not involving the Applicant, while recognising a small minority of harm clearly or potentially involving the sub-clan of the Applicant. It then proceeded to find a real chance to be absent. It thereby made a jurisdictional error.
The effect of these submissions is that the Authority’s finding that the “overwhelming majority of violence” involved sub-clans, other than those of the applicant’s, is consistent with, or necessarily implies, there being violence to a minority members of the applicant’s sub-clan that nevertheless constitutes a substantial number (that could be as low as 10%); and the Authority was bound, but failed, to assess the risk of harm to the applicant by reference to the fact or to the possibility that a substantial number of members of the applicant’s sub-clan were subjected to violence.
In his oral submissions, counsel for the applicant submitted that the nature of the error the Authority made was that which Katzmann J identified in SZSZQ v Minister for Immigration and Border Protection:[17]
On balance, I respectfully disagree with the primary judge on this point. I am of the opinion that the Tribunal member did not turn his mind to the questions posed by the definitions in s 5(1). Strictly speaking, this is probably not a case of the Tribunal misunderstanding the law but of failing to apply itself to it. Either way, it was a jurisdictional error…
[17] SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403, at [69]
Counsel for the applicant submitted that the Authority correctly identified the real chance test, but it did not engage with the question with which the real chance required it to engage. In particular, the Authority did not consider whether the conclusion that “overwhelming majority of violence” involved sub-clans other than those of the applicant’s is consistent with there being a minority of violence to members of the applicant’s sub-clan that is nevertheless substantial; and the Authority, therefore, did not assess the risk of harm to the applicant by reference to that fact.
In his written submissions, the Minister submits that when assessing whether the Authority correctly applied the real chance test, the Authority’s reasons and the evidence that was before it must be carefully considered. The Minister further submits that the applicant’s argument relies centrally on the conclusions that (1) one incident of violence in 2016, conducted by unknown assailants, and (2) the possibility that the applicant's sub-clan could be affected by fighting between other groups, was enough to displace a significant body of country information and the applicant's own evidence. These conclusions, however, are not available to be drawn given the country information that was before the Authority and the findings the Authority made on the basis of the country information.[18]
[18] This, at least, is my understanding of the effect of the Minister’s submissions at paragraphs 22-27 of First Respondent’s Outline of Submissions.
DETERMINATION
The applicant does not rely, as the Minister submits, on the contention that (1) one incident of violence in 2016, conducted by unknown assailants, and (2) the possibility that the applicant’s sub-clan could be affected by fighting between other groups, was enough to displace a significant body of country information. The elements of the applicant’s case, which is centred on the Authority’s use of the words “overwhelming majority”, are as follows:
(a)The Authority’s use of the words “overwhelming majority” is consistent with, or necessarily implies, the existence, or at least the possibility of the existence, of a minority of members of the applicant’s sub-clan who have been subjected to violence, but who nevertheless constitute a substantial number of members of the applicant’s sub-clan.
(b)This substantial number of members, although not a majority, and although they may constitute as little as 10% of the applicant’s sub-clan, nevertheless is a matter on the basis of which the Authority could have found the applicant, as a member of the sub-class, faced a real chance of serious harm.
(c)The Authority, however, failed to consider whether:
(i)the “overwhelming majority” of members of the applicant’s sub-clan is consistent with, or necessarily implies, the existence, or at least the possibility of the existence, of a minority of members of the applicant’s sub-clan who have been subjected to violence, but who nevertheless constitute a substantial number of members of the applicant’s sub-clan; and
(ii)this substantial number of members, although not a majority, and although they may constitute as little as 10% of the applicant’s sub-clan, nevertheless could afford a basis for concluding that the applicant faced a real chance of serious harm.
The difficulty with the applicant’s case is that it rests on an assumption that “overwhelming majority” implies or may imply the existence or possible existence of a significant minority of members of the applicant’s sub-clan. It is not, however, a matter of assumption; it is necessary to consider what the Authority intended to convey by the expression “overwhelming majority”. That question must be determined by reading the words “overwhelming majority” in the context of the Authority’s reasons, and in particular the immediate context in which the expression appears. The applicant, however, has not undertaken that task. In particular, he has not pointed to country information that was before the Authority which indicated or ought to have indicated to the Authority that members of the applicant’s sub-clan, other than the two members the Authority identified as having been killed, were affected by clan violence. In these circumstances, it is open to find, and I do find, that the Authority intended to use “overwhelming majority” to denote all members the applicant’s sub-clan other than the two members of the applicant’s sub-clan the reports to which the Authority referred identified as having been killed, along with two from another clan, in an attack from “unknown assailants”.
So construed, the Authority’s use of “overwhelming majority” does not disclose any failure by the Authority to correctly apply the “real chance test” when assessing the risk of harm to the applicant arising from clashes between members of the applicant’s sub-clan and members of other sub-clans; and, therefore, has not made any jurisdictional error.
DISPOSITION
I propose to order that the application be dismissed.
I also propose to order that the applicant pay the Minister’s costs set in the amount of $8,371.30, being the amount provided for in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Divisions 2) (General Federal Law) Rules 2021 (Cth).
Given I did not invite submissions about costs, I will reserve to the parties liberty to apply within 35 days for an order varying or discharging the order for costs I propose to make.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 7 June 2024
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