Abr17 v Minister for Immigration
[2019] FCCA 1428
•29 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABR17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1428 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority considered all claims made by the applicant – whether the Immigration Assessment Authority’s findings were open to it – no jurisdictional error – application dismissed. |
| Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 |
| Applicant: | ABR17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSSESSMENT AUTHORITY |
| File Number: | SYG 30 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 8 May 2019 |
| Date of Last Submission: | 8 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ben Zipser |
| Solicitors for the Applicant: | Stamford Law Firm |
| Solicitors for the Respondents: | Mr Aaron Moss (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 30 of 2017
| ABR17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority dated 29 November 2016 (“the Authority”) which affirmed a decision of a delegate of the first respondent (“the Delegate”) made on 21 October 2016 refusing the applicant a Safe Haven Enterprise Visa (Class XE) (Subclass 790) visa (“SHEV”).
Before this Court, the applicant was represented by Mr Ben Zipser, of counsel.
The background was accurately summarised in the written submissions of Mr Zipser as follow:
“Background
5. On 15 November 2012 the applicant arrived in Australian waters (at Christmas Island) by boat as an unauthorized maritime arrival. (CB 40)
6. On 19 November 2012 the applicant participated in an “Entry interview”. (CB 1-12) Some of the applicant’s claims are recorded in the entry interview record in the Court Book – see CB 8 and 12.
7. Between November 2012 and January 2013 the applicant was in detention centres, following which he was granted a temporary visa and released into the community on the Australian mainland. (CB 46)
8. On 6 March 2016 (CB 19, 62), following the lifting of a bar by the Minister, the applicant lodged an application for a safe haven enterprise visa (“SHEV”). (CB 19-61) The application included an undated statutory declaration from the applicant which set out his claims. (CB 57-58)
9. On 12 September 2016 (CB 71, 83.4) the applicant attended an interview with the Minister’s delegate.
10. On 16 September 2016 the applicant’s agent provided to the Department an Arabic original and English translation of a death threat letter from Asaeb Ahl Al-Haq to the applicant and his uncle dated 20 August 2012. (CB 74-76)
11. On 21 October 2016 the Minister’s delegate made a decision refusing to grant the applicant a SHEV. (CB 80-91)
12. On 31 October 2016 the IAA sent the applicant a letter informing him of the referral of the matter to the IAA and providing information about the IAA and referral. (CB 93-94)
13. On 20 November 2016 the applicant’s agent provided a submission to the IAA. (CB 95-100)
14. On 29 November 2016 the IAA made a decision affirming the delegate’s decision not to grant the applicant a SHEV. (CB 166-183)
15. On 3 January 2017 the applicant filed an application in the Federal Circuit Court for judicial review of the IAA’s decision.”
The applicant’s claims and a summary of the Tribunal’s decision are accurately summarised in the submissions of the first respondent’s solicitor, as follows:
Background and Claims for Protection
6. The Applicant is a (now) 29 year old citizen of the Republic of Iraq (Iraq), is of Arab ethnicity and is a Sunni Muslim. Prior to his departure from Iraq, he resided in Bat'ha, a town in southern Iraq's Shi'a-dominated Dhi Qar Governorate (alternatively transliterated as “Thi Qar” and “Di Qar”).
7. The Applicant claims that if returned to Iraq, he will be seriously harmed by Shi'a militia groups, including Asaeb Ahl Al-Haq (AAH), due to his religion. He also claims that he will face discrimination, significant economic hardship and a denial of his capacity to earn a livelihood of any kind, amounting to serious harm, because of general societal discrimination against Sunnis.
8. The IAA summarised the Applicant's factual claims at DR [6]-[7]. In short, the Applicant claims:
(a) he struggled to obtain employment and was discriminated against because he was Sunni;
(b) the Applicant and his uncle were persecuted by Shi'a for “[a]ll of his life”. The Applicant received verbal threats, and the situation was deteriorating as “by 2012 there were only a handful of people left that would attend [mosque] due to fear of the Shia militias”;
(c) country information indicates an increase in violence towards Sunnis since 2013, including targeted assassinations of young Sunni males; and
(d) On 20 August 2012, the Applicant and his uncle received a letter, which purported to be from AAH, indicating that they would be killed if they did not leave Bat'ha; and
(e) The Applicant's uncle, and his siblings, left Bat'ha the following day and relocated to Hilla, south of Baghdad. After accompanying his uncle to Hilla, the Applicant returned to Bat'ha for a period of two months, as he had to sell his house to fund his departure from Iraq.
9. With respect to the procedural history of the Application, the First Respondent adopts the background set out at [5]-[15] of the Applicant's Submissions, and adds that the Applicant lodged his SHEV Application with the assistance of a solicitor and migration agent, and has been represented at all times by the same representative before the Delegate, the IAA and the Court.
IAA Decision
10. The IAA accepted the Applicant's “general claims of persecution against Sunnis by Shia militia groups” in Dhi Qar Governorate, where the population is predominantly Shi'a. The IAA also accepted that “militia activity has increased significantly since the Applicant left Iraq in 2012”.
11. Regarding the Applicant's claims to have suffered discrimination, the IAA accepted that the Applicant “did suffer some prejudice due to his religion which affected his ability to secure employment and consequently support himself'. It did, however, note that the Applicant "appears to have earned enough to support himself in the two years prior to leaving Iraq".
12. However, the IAA did not accept that the Applicant and his uncle received a letter containing a death threat from AAH in August 2012. In this regard, the IAA noted that:
(a) the Applicant stated in his entry interview that Jaish Al-Mahdi were operative in his area and this led to his decision to depart, but there "was however no mention at all of a death threat or any specific attention from any militia group, including [AAH]";
(b) the Delegate identified that the Applicant gave inconsistent evidence as to the date the threat letter was allegedly received, and the period of time it gave for the Applicant to depart. The Applicant's representative's explanation for this inconsistency (that the Applicant was illiterate) was itself inconsistent with the Applicant's evidence about his education; and
(c) "[f]urther discrepancies relate to the timing of the alleged death threat", specifically regarding when the Applicant's uncle planned his family's move, and the Applicant's decision to remain in Bat'ha for two months after the threat letter was allegedly received.
13. In light of these findings, the IAA accepted that the Applicant genuinely holds a subjective fear of persecution from Shi'a militia groups. However, the IAA did not accept that this fear of harm was objectively "well-founded", as the IAA was not satisfied that there was a "real chance" that the Applicant would face serious harm for this reason in Dhi Qar.
14. Furthermore, the IAA accepted the "societal prejudice and nepotism" which the Applicant suffered was discriminatory, and caused him "some difficulty in obtaining or sustaining employment". However, as the Applicant "maintained a level of employment and was self-supporting until he left Iraq" despite this treatment, the IAA was not satisfied that any discrimination the Applicant may suffer on his return would "threaten his capacity to subsist or otherwise constitutes serious harm".
15. In applying the complementary protection criterion, the IAA relied upon the equivalence between the "real risk" and "real chance" thresholds to find that the Applicant would not face a real risk of significant harm from Shi'a militias, or on the basis of his status as a Sunni Muslim in Dhi Qar.
16. Similarly, it reasoned that the societal discrimination, prejudice and nepotism which the Applicant may suffer, "although regrettable", did not constitute "significant harm" as defined by s 36(2A).”
At the outset of the hearing Mr Zipser confirmed that the applicant no longer relied on any of the grounds of the initiating application filed on 3 January 2017.
Mr Zipser sought leave to rely on an Amended Application filed on 2 April 2019. Those grounds are as follows:
“1. The applicant’s SHEV application lodged in March 2016 included an undated statutory declaration of the applicant which included the following claim at [6]: “In October 2012 I left Iraq as there were some Sunnis who got killed because they received similar threatening letters.” The Immigration Assessment Authority (“the IAA”) did not deal with, or make a finding which otherwise disposed of, this claim. The IAA’s failure to deal with the claim involved a jurisdictional error.
2. The IAA at [16]-[18] considered whether the applicant, as a Sunni Muslim returning to Di Qar province which had a predominantly Shia population, would face a real chance of serious harm. The IAA had before it a UK Home Office report which assessed that “in general a Sunni will not face a real risk of persecution or serious harm in the southern governorates”, and a DFAT report which “concluded that overall Sunnis in Shia dominated and mixed provinces face a high risk of violence from Shia armed opposition groups”. The IAA, after expressing a "preference" for the UK Home Office report over the DFAT report, concluded at [I8] that the applicant did not face a real chance of serious harm on return to Di Qar province. A fair reading of the IAA's reasons indicates that the IAA had a real doubt that the assessment in the UK Home Office report concerning the risk of harm to Sunnis returning to Dhi Qar province and the southern governorates more generally was correct. In the circumstances, the IAA was obliged to take into account the possibility that the DFAT assessment was correct. Its failure to do so involved a jurisdictional error: see Minister v Rajalingam (1999) 93 FCR 220 at [60]-[67].
3. The applicant claimed he received a death threat from Asaeb Ahl Al-Haq in August 2012. The IAA at [13] rejected the claim. One reason the IAA rejected the claim was because (at [10]) "In his arrival interview of 19 November 2012 ... there was however no mention at all of a death threat or any specific attention from any militia group including Asaeb Ahl Al-Haq”. However:
a) Contrary to the IAA's finding at [10], the applicant expressly stated in his arrival interview that a militia group threatened him, the threat was that he would be killed, and he had received attention from a militia group. The IAA overlooked or misunderstood the applicant's evidence, giving rise to a jurisdictional error.
b) The IAA, by placing significant weight on an omission by the applicant in his arrival interview, contravened the principle explained in Minister v MZZJO (2014) 239 FCR 436 at [55]-[571, giving rise to jurisdictional error.
4. One claim of the applicant before the IAA was that, if the applicant was required to return to Iraq, no-one would employ him because of his Sunni background. The IAA, in the course of rejecting the claim, found at [19] that the applicant “was self-supporting until he left Iraq”. However, the applicant did not claim, and there was no evidence before the IAA, that the applicant was self-supporting until he left Iraq. ln the circumstances:
a) The IAA made a finding of fact when there was no evidence to support the finding. This was a jurisdictional error.
b) The IAA did not give proper and genuine consideration to the evidence before it in a manner which constituted jurisdictional error.”
I said that if the grounds did not have reasonable prospects of success, I was unlikely to give leave for those grounds to be relied upon. Following some detailed exploration between myself and Mr Zipser, Mr Zipser withdrew reliance on Grounds 2, Ground 3(b) and Ground 4 of the Amended Application.
In the circumstances, leave was granted to the applicant to rely on Ground 1 and Ground 3(a) of the Amended Application as follows:
“1. The applicant’s SHEV application lodged in March 2016 included an undated statutory declaration of the applicant which included the following claim at [6]: “In October 2012 I left Iraq as there were some Sunnis who got killed because they received similar threatening letters.” The Immigration Assessment Authority (“the IAA”) did not deal with, or make a finding which otherwise disposed of, this claim. The IAA’s failure to deal with the claim involved a jurisdictional error.
…
3. The applicant claimed he received a death threat from Asaeb Ahl Al-Haq in August 2012. The IAA at [13] rejected the claim. One reason the IAA rejected the claim was because (at [10]) "In his arrival interview of 19 November 2012 ... there was however no mention at all of a death threat or any specific attention from any militia group including Asaeb Ahl Al-Haq”. However:
a) Contrary to the IAA's finding at [10], the applicant expressly stated in his arrival interview that a militia group threatened him, the threat was that he would be killed, and he had received attention from a militia group. The IAA overlooked or misunderstood the applicant's evidence, giving rise to a jurisdictional error.”
Ground 1
Ground 1 asserts that the Authority failed to consider a claim made by the applicant that he left Iraq because there were other Sunnis who were killed because they received similar threatening letters to the letter received by the applicant and his uncle.
The claim is said to arise in the statutory declaration provided by the applicant in support of his SHEV as follows:
“6. on the 20-8-2012, my uncle found a letter issued by a group called (asaeb ahl alhaq), threatening to kill us if we (me and my uncle) don't leave the houses we lived in Ba’tha , this threatening letter was part of campaign to evict Sunnis in the south, my uncle ran away to the city of hilla south of Baghdad, while I stayed in the house in order to sell my house so I can use the money from the proceed of the sale to escape Iraq, in October 2012 I left Iraq as there were some Sunni's who got killed because they received similar threatening letter.”
Mr Zipser, submitted that the applicant’s claim to fear harm because some other Sunnis received threatening letters similar to the letter received by the applicant and his uncle, was a claim independent of the applicant’s claim that he personally received a threatening letter.
It is well settled that in considering whether a claim has clearly emerged from material cannot be assessed in a vacuum and that consideration must be given to the way an applicant’s claims are presented over time (see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18] per Collier, McKerracher and Banks-Smith JJ).
The applicant was represented before the Department and the Authority by the same solicitor.
At his entry interview the applicant did not claim to have left Iraq because other Sunnis had received threatening letters. Other than the bare claim above, there is no evidence before this Court of any further elaboration of such a claim or any material provided to the Delegate in support such a claim.
In a submission to the Authority, the applicant’s representative confined the applicant’s claim in relation to the threatening letter that the applicant left the area two months after receipt of the threatening letter.
In my view, the statement relied on (and cited above in support of the applicant’s contention that in October 2012 the applicant left Iraq as there were some Sunnis that got killed because they received similar threatening letters) was intended to be no more than a corroborative statement by the applicant. This is so, particularly having regard to the way in which the applicant’s claims to have received a threatening letter was developed by him before the Delegate and before the Authority.
It was not a separate claim. It was not a claim in which the Authority was required to make a finding, particularly in light of the Authority’s finding that the applicant was not the recipient of a death threat in August 2012, as claimed.
Accordingly, the Authority was not required to consider whether some Sunnis in Iraq were killed because they received similar threatening letters to those received by the applicant in circumstances where the Authority rejected the applicant’s claim to have received a threatening letter at all.
The statement that some Sunnis were killed because they received similar threatening letters was either corroborative of the applicant’s claim to have received a threatening letter, or was subsumed in the Authority’s finding of greater generality in relation to the applicant’s assertion of having received a threatening letter himself (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91] per McHugh, Gummow and Hayne JJ; and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 per French, Sackville and Hely JJ).
Moreover, the Authority considered in some detail the general security situation for Sunnis in Shia dominated areas of Iraq and, based on country information before it, ultimately found that although incidents of violence against Sunnis do occur, there was not a real chance that the applicant was at risk of significant or serious harm.
The Authority accepted that the applicant held a subjective fear of persecution. The Authority also recognised that earlier country information provided in a Department of Foreign Affairs and Trade report on Iraq, dated 13 February 2015 disclosed that Sunnis did face a high risk of violence from Shia armed opposition groups. However, the Authority also had regard to the more recent country information dated August 2016 from the UK Home Office which it found concluded that in general a Sunni will not face a real risk of persecution or serious harm in the southern governorates, from which the applicant came. The Authority stated that, whilst both sources were credible sources, it preferred the more recent information provided by the UK Home Office. It is well settled that the country information to which the Authority has regard and the weight it gives that information is a matter for the Authority (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
In relation to the applicant’s overall evidence, the Authority found inconsistencies in discrepancies in relation to the timing of the applicant’s claimed death threat and ultimately did not accept that the applicant was a recipient of a death threat as claimed, having taken into account all the information before it.
Those findings were open to the Authority on the evidence and material before it and for the reasons it gave (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). In the circumstances, the Authority’s findings were not without an intelligible justification and were probative of the evidence before the Authority (see Minister for Immigration v Li (2013) 249 CLR 332 at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ).
Accordingly, Ground 1 is not made out.
Ground 3(a)
Ground 3(a) asserts that the Authority erred in finding that there was no mention at all of a death threat or any specific attention from any militia group, including Asaeb Ahl Al-Haq (“AAA”) made by the applicant at his entry interview.
The relevant paragraph is as follows:
“10.Turning then to the death threat allegedly received by the applicant and his uncle, there is some inconsistency in the applicant's evidence relating to this. In his arrival interview of 19 November 2012, the applicant states that the militia group Jaish Al-Mahdi were operative in his area and this led to his decision to depart. There was however no mention at all of a death threat or any specific attention from any militia group, including Asaeb Ahl Al-Haq.”
It is accepted by the first respondent that the words, “or any specific attention from any militia group”, cited above was an incorrect statement by the Authority of the applicant’s entry interview.
However, the first respondent submitted that the Authority did correctly note the applicant’s claim that a Shia militia group, Jaish Al-Mahdi, were operating in the area where the applicant lived and that the applicant left Iraq because, “They put my life in danger, because I am Sunni they said they have to report me to Shia in other areas.” The applicant also stated at his entry interview that if he returned to Iraq, he may be killed because he was under threat and that the militias would kill him.
A fair reading of the Authority’s decision record makes clear that the Authority considered the applicant claims to fear harm from Shia militia and that the applicant genuinely held a fear of persecution, as stated above.
As stated above, the Authority considered in some detail country information before it. The Authority referred to a UK Home Office report that asserted that a Sunni may be able to demonstrate a real risk of persecution or serious harm from the Shia militia, but that the risk would depend on the personal profile of the Sunni, including family connections, profession and origin. The Authority noted that the UK Home Office Report concluded that in general a Sunni will not face a real risk of persecution or serious harm in the southern governorates. The Authority found that the applicant had lived and worked in Di Qar all his life as an unskilled worked and still has family in the area. The Authority rejected the applicant’s claim to have been singled out and received a death threat.
The Authority noted the applicant’s evidence that after receipt of the death threat (which it rejected), the applicant remained in the area until his house was sold, a period of some 2 months. The Authority noted that the applicant stated his reason for doing so was because he had nowhere else to go. However, the Authority found that given the applicant’s claim of death threats to himself, his uncle and all members of their families if they did not leave the area, the conclusion could be drawn that, by remaining in Bat’ha, the applicant was not concerned for his own safety or the safety of his sisters and their families who also lived in the area.
As stated above, a fair reading of the Authority’s decision record makes clear that the Authority considered in detail the applicant’s fundamental claim to fear persecution from Shia militias because he was a Sunni, was considered in detail by the Authority but, ultimately, found not to be well-founded based on country information before it.
In relation to the particular error in the Authority’s decision as identified in Ground 3(a), there was no mention at the entry interview of a death threat from any militia group, including AAA. However, the applicant’s claims at interview do assert that militia had threatened to kill him and identified the Shia group Jaish Al-Mahdi. There is no other mention throughout the applicant’s claims of Jaish Al-Mahdi. To the extent that the entry interview statements could be said to mention a fear of harm because of specific attention from any militia group, I accept that is an erroneous finding of fact and therefore made within jurisdiction.
In the circumstances, the Authority has not misunderstood the applicable legal criteria and has considered the relevant claims made by the applicant in determining whether the applicant meets the refugee criterion or the complementary criterion. There is no error of law in simply making a wrong finding of fact (see Waterford v Commonwealth of Australia (1987) 163 CLR 54, 77; Re Minister for Immigration and Multicultural Affairs; ex parte ApplicantS20/2002 [2003] HCA 30; 77 ALJR 1165 at [116] per Kirby J).
Whilst the Authority did not accept that the applicant was a recipient of a death threat AAA in August 2012, partially because he did not mention any such death threat in his entry interview, that finding also took into account other concerns that the Authority had about the applicant’s claims. In any event, the applicant did not make mention of a death threat from the AAA in his entry interview.
In the circumstances, Ground 3(a) does not establish any jurisdictional error on the part of the Authority.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 29 May 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Jurisdiction
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