ABR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1933
•19 November 2019
FEDERAL COURT OF AUSTRALIA
ABR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1933
Appeal from: ABR17 v Minister for Immigration & Anor [2019] FCCA 1428 File number: NSD 917 of 2019 Judge: SNADEN J Date of judgment: 19 November 2019 Date of publication of reasons: 25 November 2019 Catchwords: MIGRATION – protection visa – appeal from the Federal Circuit Court of Australia (the “FCCA”) – application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) – whether the IAA decision was affected by jurisdictional error – whether the IAA failed to address a material contention – judgment delivered ex tempore – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 473CA Cases cited: ABR17 v Minister for Immigration & Border Protection & Anor [2019] FCCA 1428
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780
Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252
Date of hearing: 19 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 33 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms S A Burnett of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 917 of 2019 BETWEEN: ABR17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
SNADEN J
DATE OF ORDER:
19 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.
4.Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.
5.In the absence of any such agreement:
(a)within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the court’s Costs Practice Note (GPN-COSTS);
(b)within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and
(c)in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)SNADEN J:
The appellant is a citizen of Iraq. He is a Sunni Muslim and hails from Dhi Qar province in southern Iraq. In approximately October 2012, he flew from Iraq to Indonesia (via Abu Dhabi). There, he paid a smuggler to transport him by boat to Australia. He was taken to Christmas Island in November 2012 as an irregular maritime arrival (within the meaning now attributed to that phrase by the Migration Act 1958 (Cth)—hereafter, the “Act”). On 19 November 2012, he completed an “Irregular Maritime Arrival Entry Interview” (hereafter, the “Entry Interview”) with a representative of what was then the Department of Immigration and Citizenship (hereafter, the “Department”). He remained in immigration detention for a few months before being granted a temporary visa.
On 6 March 2016, the appellant applied for a safe haven enterprise visa under the Act (hereafter, the “Visa Application”). In support of his Visa Application, he provided an undated statutory declaration, in which he outlined why it was that he felt that he satisfied the criteria upon which the success of his Visa Application depended. Amongst other things, the appellant stated as follows (errors original):
3-my parents passed away long time ago , my sister wadha passed away as well in Iraq , i have one sister live in Dhi qar , at very young age my uncle took care of me because I was an orphan , i and my other sisters used to live in a small house adjacent to my uncle’s house
4- as a sunn ii suffered great deal of persecution in Iraq , the people in the south are controlled by their Shiite militia groups which restricted us from doing our religious rituals , i avoided going to the mosque because there were a lot of targeted killings against Sunnis in the south , I used to hear insults to my reHgion every day of my life in Iraq .
…
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 .
It was that claimed receipt (via his uncle) of a threatening letter from the group identified as Asaeb Ahl Al-Haq (hereafter, the “Threat Letter”) that formed a crucial pillar upon which the appellant’s Visa Application was premised. It was, so he claimed, because of it—and because, more generally, of the prevalence of anti-Sunni sentiment in the region where he lived (including sentiment that, from time-to-time, translated into Shia-led violence against Sunnis)—that the appellant fled Iraq. In those circumstances, he claimed to satisfy either or both of the criteria set out in ss 36(2)(a) and 36(2)(aa) of the Act (which are often, conveniently and respectively referred to as the refugee criterion and the complementary protection criterion). He submitted (amongst other things) that, if he returned to Iraq, he would be exposed to risks to his personal safety, either because of his adherence to the Sunni faith or because of his non-compliance with the Threat Letter (or both).
On 12 September 2016, the appellant attended an interview with a delegate of the first respondent (hereafter, the “Minister”) to advance his Visa Application. On 21 October 2016, the Minister’s delegate dismissed the Visa Application on the basis that the appellant did not satisfy either of the refugee criteria or the complementary protection criterion.
That decision (hereafter, the “Delegate’s Decision”) was then referred to the second respondent (hereafter, the “Authority”) for review in accordance with s 473CA of the Act (hereafter, the “IAA Review”). On 29 November 2016, the Authority affirmed the Delegate’s Decision.
That decision of the Authority (hereafter, the “Review Decision”) was then the subject of an application in the Federal Circuit Court of Australia (hereafter, the “FCCA”) for judicial review. By that application (hereafter, the “Judicial Review Application”), the appellant contended that the Review Decision was the product of jurisdictional error and, as such, was liable to correction by a grant of prerogative relief. He sought relief in the nature of certiorari and mandamus to quash the Review Decision and require that the Authority conduct the IAA Review according to law.
On 29 May 2019, the FCCA dismissed the Judicial Review Application with costs. Ex tempore reasons for doing so were provided, which were later reduced to written form: ABR17 v Minister for Immigration & Border Protection & Anor [2019] FCCA 1428 (Judge Emmett). The appellant now appeals from that judgment (hereafter, the “FCCA Judgment”).
He does so on two grounds, namely (errors original):
1- The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (“the IAA”), erred in its decision, AS The [appellant]’s SHEV application lodged in March 2016 included an undated statutory declaration of the [appellant] 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. The primary judge confirmed the IAA decision although an important claim made by the [appellant] was not taken into account
2-The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (“the IAA”), erred in its decision in that The [appellant] 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:
Contrary to the IAA’s finding at [10], the [appellant] 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 [appellant]’s evidence, giving rise to a jurisdictional error, the [appellant] contend that the primary Judge erred in confirming the IAA decision although the authority’s reliance was soley based on an omission in the arrival interview.
Those two grounds align with the two bases upon which the appellant contended, for the purposes of the Judicial Review Application, that the Review Decision was the product of jurisdictional error. His complaint on this appeal, simply put, is that the primary judge erred insofar as she did not agree with either or both of those contentions.
It is not necessary that I should here set out the bases upon which the FCCA dismissed the Judicial Review Application. If, as the appellant contended below (and still contends now), the Review Decision was the product of either of the errors that find expression in his appeal grounds, it will follow that the primary judge erred in concluding otherwise and the appeal will succeed. If, as the Minister maintains, the Review Decision was unaffected by any such errors, it will follow that the primary judge was correct in so deciding and the appeal will fail. Either way, it is upon the Review Decision that this court’s attention must fix.
It is convenient, now then, to turn to why it was that the Authority affirmed the Delegate’s Decision to refuse the appellant’s Visa Application. That is most efficiently done by reciting what it was that the Authority relevantly found. At [8]-[13] of the Review Decision, the Authority said as follows (references omitted):
8. Considering first the [appellant]’s general claims of persecution against Sunnis by Shia militia groups, I accept that this was and still is the case in areas where the population is predominantly Shia, such as Di Qar province. This is well supported by the country information, as pointed out in the submission of 20 November 2016. It is also indicated in the country information before the delegate that militia activity has increased significantly since the [appellant] left Iraq in 2012.
9. The [appellant] further contends that he had trouble securing employment due to discrimination or prejudice against Sunnis, however he appears to have earned enough to support himself in the two years prior to leaving Iraq. I note that in the [appellant]’s arrival interview, conducted on 19 November 2012, he mentioned dislocations of the shoulder as impacting on his ability to work, however this has not been mentioned again in the information provided to me and does not appear to have prevented him working as a builder’s labourer from 2010 to 2012. The [appellant] states on his SHEV application that he has not been employed in Australia. Overall, I accept that the [appellant] did suffer some prejudice due to his religion which affected his ability to secure employment and consequently support himself.
10. Turning then to the death threat allegedly received by the [appellant] and his uncle, there is some inconsistency in the [appellant]’s evidence relating to this. In his arrival interview of 19 November 2012, the [appellant] 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.
11. In her original decision refusing the [appellant]’s SHEV application, the delegate points out discrepancies in the [appellant]’s evidence of the death threat, including the date of the threat (either the 10th or the 20th of August 2012) and the time allowed for the [appellant] and his uncle to leave the area (either 24 hours or 48 hours). The submission of 20 November 2016 addresses this, stating that the [appellant] is illiterate and did not study at all in his life. This information does not however tally with the [appellant]’s oral evidence in his [protection visa] interview of 12 September 2016. In that, the [appellant] states than he can read the Koran and that he learned to read and write in school, although he cannot remember his age when he left school.
12. Further discrepancies relate to the timing of the alleged death threat. The [appellant] stated in his arrival interview that he started planning his trip around a year ago, which would have been late 2011. If the [appellant]’s uncle had also started planning his family’s move around that time, this could be consistent with the sale of his house and consequent departure to Hilla in August 2012. The [appellant] contends that after receipt of the death threat he remained in the area until his own house was sold, a period of some two months. His stated reason for doing this was that he had nowhere else to go. Given that the death threat states that the [appellant], his uncle “and all members of your families” would be murdered if they did not leave that area, the conclusion could be drawn that in remaining in Bat’ha the [appellant] was not only not concerned for his own safety, but the safety or lives of his sisters … and their families, who also lived in the area.
13.Taking into account all of the information provided by the [appellant] and his representative, I do not accept that he was the recipient of a death threat from Asaeb Ahl Al-Haq in August 2012.
Those findings led it to conclude that the appellant did not satisfy the refugee criterion for which s 36(2)(a) of the Act provides. It relevantly noted (Review Decision, [16]-[18], references omitted):
16. As discussed at paragraph 8 above, I have accepted that due to increasing activity of Shia militia groups, there is a level of serious harm against Sunnis residing in Shia dominated areas. This includes kidnapping, torture and murder. The [appellant] has consistently stated that he left Iraq due to a fear of the militia groups and I am satisfied that this is the case. In considering however whether this comprises a well-founded fear of persecution, I am not of the view that it is. Although the [appellant] does not claim to have been the victim of any physical violence prior to his departure, he has stated that he received verbal threats over the years and I accept that he genuinely holds a subjective fear of persecution. Considering whether he would be the victim of persecution going forward, there is, as noted above, a level of serious harm against Sunnis in Shia dominated areas with young males in particular targeted by Shia militia. The UK Home Office however assesses in a recent report that: “In general, a person from a religious minority will not be at risk of persecution or serious harm in the southern governorates (Babil, Basra, Kerbala, Missan, Muthanna, Najaf, Qaddisiyah, Thi-Qar and Wasit)...”
17. Another recent UK Home Office report asserts that a Sunni may be able to demonstrate a real risk of persecution or serious harm from the Shia militia, but this will depend on their personal profile, including their family connections, profession and origin. There are a few reports that Sunnis experienced human rights abuses from Shia militias or unknown persons in the southern governorates, including Dhi Qar, however, it does not appear to form part of a consistent or systematic risk to Sunnis. The UK Home Office has concluded that in their opinion in general a Sunni will not face a real risk of persecution or serious harm in the southern governorates. I note that the conclusions of the UK Home Office report differ from the February 2015 DFAT report on this issue. DFAT concluded that overall Sunnis in Shia dominated and mixed provinces face a high risk of violence from Shia armed opposition groups. Both reports are highly credible sources. In considering then the situation as it would presently apply to the [appellant], I prefer the August 2016 UK Home Office report as it is more recent than that of DFAT.
18. In the [appellant]’s case, he has lived and worked in Dhi Qar all of his life, is an unskilled worker and still has family in the area. Having regard to the country information and the [appellant]’s circumstances, I have concluded that although incidents of violence against Sunnis do occur, it does not constitute a “real chance” as required. The [appellant]’s claims that he had already been singled out and had received a death threat have not been accepted, as discussed above.
For equivalent reasons, the Authority determined that the appellant did not satisfy the complementary protection criterion either. It relevantly found (Review Decision, [23]) that (reference omitted):
23. I have concluded above that the [appellant] does not face a real chance of harm on the basis that he is a Sunni Muslim or that he was a Sunni living in a Shia dominated province. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied that the [appellant] would face a real risk of significant harm for the purposes of s.36(2)(aa) on this ground.
I turn, then, to consider the two bases upon which the appellant seeks to impugn those findings.
Before doing so, I should say something about the oral submissions that the appellant advanced before me via his interpreter (for whose expert assistance, occasionally in difficult circumstances, the court was most grateful). For the most part, the appellant’s submissions did not ascend beyond an explanation for why he hoped to remain in Australia. His reasons on that score were explained persuasively and with obvious emotion. The prospect of leaving clearly weighs heavily upon him. That that should be so is hardly surprising: as he explained, the appellant has been in Australia for most of his adult life. The legal processes that he has endured to this point have spanned many years. The appellant’s submissions—and the eloquence with which they were put—are not lost on the court. But they do not afford him the remedy that he hopes to realise. For the reasons that follow, the appeal must be dismissed; and I turn now to address the reasons why.
By his first appeal ground, the appellant submits that the Authority failed to take into consideration a claim that he advanced as to why his Visa Application should succeed; namely, the assertion in the statutory declaration that he provided in support of it that he fled Iraq because “…there were some Sunnis who got killed because they received similar threatening letters” (above, [8]).
The Minister, of course, accepts that the Authority was obliged to consider the claims that the appellant advanced in support of his Visa Application; and that a material failure to do so would amount to jurisdictional error that this court could correct by a grant of prerogative relief. The relevant principles were summarised in that regard in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503, 509 [18] (Collier, McKerracher and Banks-Smith JJ). I need not repeat them.
The Minister maintains, as he did in the FCCA, that the appellant did not claim that he was at risk because some of his Sunni countrymen or women had been killed after receiving threatening letters. Properly understood, he said, the appellant’s claim was that they had been killed after receiving “similar” letters; and that his receipt of the Threat Letter was a reason why he could not safely return to Iraq.
I accept that submission. As is set out above, the Authority did not accept that the appellant had received the Threat Letter. That finding, obviously enough, was fatal to the appellant’s claim that his reason for leaving (and not wanting to return to) Iraq reflected his belief that the Threat Letter was one with which he should, for reasons of personal safety, comply. By this ground of appeal, though, the appellant seeks to constitute the statement about “Sunnis who got killed because they received similar threatening letters” as an independent basis upon which to resist returning to Iraq. He says, in effect, that the Authority was obliged to (but didn’t) consider whether his Visa Application should succeed because some of his Sunni countrymen or women were killed after receiving threatening letters; and, more specifically, that it was obliged to do so regardless of whether it accepted that he also had received such a letter.
That is not the claim that the appellant advanced in support of his Visa Application. His reference in the statutory declaration to the “other Sunnis” who received “similar” letters and who were subsequently killed was, on any view, advanced to explain why it was that he felt that he had to leave (and could not return to) Iraq. It was because, first, he had received the Threat Letter; and, second, because others who had received “similar” letters had been killed. If the appellant had meant to convey that he could not safely remain in Iraq simply because some of his Sunni countrymen or women had received letters and been killed, there would have been no occasion for him to describe those letters as “similar” to the one that he said that he had received. That qualifier necessarily confined attention to what the Authority quite plainly considered: namely, whether the appellant was at risk of the same fate in light of his claimed receipt of the Threat Letter.
Having concluded, as it did, that the appellant did not, in fact, receive the Threat Letter, the Authority must be understood to have considered and dealt with that claim (albeit, of course, not in the manner that the appellant hoped that it would). It was not necessary for the Authority to give separate consideration to whether or not the killings to which the appellant referred were a reason why his Visa Application should succeed.
The first ground of appeal is not made out.
By his second ground of appeal, the appellant advances an argument similar in nature to the first—namely, that the Authority failed to properly consider the claims that he advanced in support of his Visa Application. The claim in question concerns the threats to which the appellant claimed to have been subjected by Shia militia groups in Iraq. As is outlined above, one of the reasons why the Authority was moved not to accept that the appellant had, in fact, received the Threat Letter was because “…[t]here was…no mention at all [during the Entry Interview] of a death threat or any specific attention from any militia group, including Asaeb Ahl Al-Haq”.
As a statement of fact, that conclusion was not accurate. The record of the Entry Interview identifies that the appellant was asked, “[w]ere there any armed groups, political groups, or religious groups operating in the area you lived?” He answered in the affirmative and then particularised that affirmation as follows: “It is a gang called Jaysh Almahdi that is why we leave the area, it is a Shia group.” In answer to a further question about the nature of his “involvement with them”, the appellant stated, “[t]hey are Shia and I am Sunni and because of them I leave the country, they put my life in danger, because I am Sunni they said they have to report me to Shia in other area’s” (errors original).
It can be seen, then, that the Authority’s statement that “…[t]here was no mention at all of…any specific attention from any militia group” was not correct. The Minister concedes as much (and properly did so in the FCCA). At issue presently is whether that misstatement bespeaks jurisdictional error by reason of which the Review Decision should be set aside.
I do not accept that it does.
It must, I think, be accepted that the Authority erred insofar as its conclusion that the appellant did not, in fact, receive the Threat Letter was said to have been based upon “all of the information provided by the [appellant]”: Review Decision, [13]. Evidently, that conclusion was not reached upon consideration of all such information. Specifically, the Authority did not have regard to the appellant’s claims that another group, Jaysh Almahdi, had “reported” him to “Shia in other area’s”.
At issue, then, is whether the appellant should be understood to have advanced that contention—namely, that Jaysh Almahdi had reported him as he alleged—in support of his Visa Application. It is not clear that he did. The only mention made of Jaysh Almahdi throughout the appellant’s Visa Application process was the reference that was made during his Entry Interview (more than three years before he made the Visa Application). If the appellant had intended that the attention that he claimed in his Entry Interview to have received from that group should be a reason why his Visa Application should succeed, it might go without saying that that could have been made significantly more clear. There is at least a superficial attraction to the Minister’s contention that the appellant did not, on a fair reading of the material that he advanced in support of his Visa Application, base his application in any way upon his interactions with Jaysh Almahdi. Although the Authority erred in fact by concluding as it did about what was said during the appellant’s Entry Interview, that error was one that it was within its jurisdiction to make. It should not follow that its having been made reflects some broader legal error constituted by a failure to consider what the Authority was bound to consider.
In any event, even assuming that the Authority committed an error of law by concluding as it did, any such error does not rise to the standard of jurisdictional error for the simple reason that it had no material bearing upon its determination of the IAA Review. Legal error on the part of an administrative decision maker will only qualify as jurisdictional error if it is material : Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, 788 [29]-[31] (Kiefel CJ, Gageler and Keane JJ), 790 [46] (Edelman J); Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 (“SZMTA”), 257 [2]-[4], 263-264 [45]-[50] (Bell, Gageler and Keane JJ), 271-272 [89]-[95] (Nettle and Gordon JJ). In order to clear that hurdle, an applicant for judicial review must demonstrate that the error was one whose absence might have resulted in a different outcome: SZMTA, 263 [45] (Bell, Gageler and Keane JJ).
That is not a hurdle that the appellant in this case can clear. The conclusion that the appellant seeks to impugn is the Authority’s conclusion that he did not, in fact, receive the Threat Letter (Review Decision, [13]). Even assuming that an intermediate step in the Authority’s path to that conclusion was the error identified above (about what was or was not said during the Entry Interview) and that it was a legal, rather than factual, error on the part of the Authority, that was only one of a number of bases upon which the Authority was minded to conclude as it did. Moreover, the relationship between the appellant’s reference to “Jaysh Almahdi” having “…said they have to report me to Shia in other area’s” and his more central contention that another group, Asaeb Ahl Al-Haq, had threatened to kill him unless he fled was, to say the least, remote. It is, I think, impossible to see how—and I do not accept that—the Authority might, even conceivably, have been moved to draw a different conclusion about the appellant’s non-receipt of the Threat Letter had it correctly appreciated that the appellant:
(1)had referred during his Entry Interview to another group, of which no further reference was made over the following four years leading up to the determination of his Visa Application process; and
(2)claimed not that that other group had threatened him; but merely that it had “said they have to report me to Shia in other area’s”.
It follows that the appellant’s second ground of appeal is also not made out.
Having failed on both grounds, the appeal must be dismissed with costs.
The Minister also seeks an order the name of the first respondent be amended to reflect a change to the name of his department. Such an order reflects the normal practice of this court and has no bearing on the substance of the appeal. It is appropriate that it be made.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden. Associate:
Dated: 25 November 2019
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