ACB18 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 211

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ACB18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 211

File number:

SYG 48 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

18 February 2025

Catchwords:

 MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise (class XE) (subclass 790) visa – grounds of judicial review not supported by particulars – no illogicality, irrationality or unreasonableness in the Authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(a), 36(2)(aa), 65, 46A(2) 473DC(1), 473DD)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

77

Date of hearing:

3 February 2025

Place:

Parramatta

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Ms Pieri (MinterEllison)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 48 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ACB18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	18 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30.

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

JUDGE D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision made by the Immigration Assessment Authority (“Authority”) on 4 December 2017. The Authority affirmed a decision made on 24 February 2017 by a delegate of the then Minister for Immigration and Border Protection (“delegate”) to refuse to grant the applicant a Safe Haven Enterprise (class XE) (subclass 790) visa (“SHEV”).

2. For the reasons outlined below, the application must be dismissed.             

   BACKGROUND

3. The applicant is a male citizen of Iraq. He first arrived in Australia on 26 January 2013 as an unauthorised maritime arrival.

4. On 27 January 2016, the Minister exercised his power under sub-s 46A(2) of the Migration Act 1958 (Cth) (“the Act”) to allow the applicant to lodge a valid application for a Temporary Protection (subclass 785) visa or SHEV.

5. On 11 May 2016, the applicant made a valid application for the SHEV.

6. On 21 December 2016 the applicant attended a SHEV interview. Following the interview, his representatives provided submissions dated 12 January 2017.

7. On 24 February 2017, a delegate refused to grant SHEV under s 65 of the Act.

8. On 1 March 2017, the matter was referred to the Authority. The applicant provided submissions and additional evidence on 29 March 2017.  

9. On 4 December 2017, the Authority affirmed the delegate’s decision not to grant the applicant a SHEV.

10. On 8 January 2018, the applicant applied to the then Federal Circuit Court of Australia seeking judicial review of the Authority’s decision.

    IMMIGRATION ASSESSMENT AUTHORITY DECISION

11. The Authority had regard to the material given by the Secretary under s 473CB of the Act.

12. The applicant’s representatives provided submissions on 29 March 2017 which contained new information. At [7] the Authority was not satisfied that the new information could not have been provided earlier to the delegate. It was also not satisfied the new information was personal credible information that was not previously known and had it been known, may have affected the consideration of the applicant’s claims. The Authority was therefore not satisfied that there were exceptional circumstances to justify consideration of the information. 

13. The applicant also provided a ‘Summary of Psychological Treatment’ issued by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) dated 7 February 2017. The Authority was satisfied at [8] the report was credible personal information that was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. However, it was not satisfied at [11] that exceptional circumstances existed to justify consideration of the information.

14. An undated letter purportedly from the applicant’s wife was provided which contained a claim that the applicant’s family had been threatened. The Authority stated at [12] that the letter, which was in English except for a footer in Arabic, and the claim was new information. At [14] the Authority was not satisfied the letter and new claim could not have been provided to the delegate before it made its decision, or that the information was credible personal information. In all of the circumstances, it was not satisfied there were exceptional circumstances to justify considering the new information.

15. The applicant claimed, inter alia, to fear harm from militia groups and Iraqi security forces (“ISF”) due to his refusal to work or fight for them. He also claimed to fear harm from the Islamic State of Iraq and the Levant (“ISIL”) and other Sunni militia groups on account of his Shia religion, his profile as a failed asylum seeker from a western country who may be imputed with western opinions, and because he does not support the creation of a caliphate state.

16. The applicant’s claims for protection were summarised by the Authority at [15] as follows:

    •He was born and resided in [redacted] in the south of Iraq. He is an Arab Shia Muslim.

    •He was hit by a car when he was around 12 years old. Although he was not seriously physically injured, he has had trouble sleeping and has felt anxious about future events since the accident. This has affected his memory.

    •One evening in December 2012 at around 7.00pm, he was walking along a street when he was approached by three armed men who got out of a car. The men said they were from the militia. He does not know to which militia group the men belonged. They said they wanted him to help them to kill policemen and soldiers, and to instigate riots. They told him they would kill him if he refused to work for them. They told him they had contacts everywhere in Iraq. The men demanded his mobile phone number and said that they would contact him shortly to tell him a time at which he should attend their office in order to receive his instructions.

    •After this experience, he was very scared and decided to leave Iraq. The next day he took his wife and children to his wife’s family home in Nasiriya, in Dhi Qar province before returning to [redacted] and obtaining a visa for Iran. He drove to Iran that day, then travelled from Iran to Australia via Malaysia and Indonesia.

    •He fears he will be killed by the militia for refusing to work for them. They will see him as a traitor for fleeing Iraq.

    •He is part of a particular social group of persons who have been forcibly recruited and personally threatened by Shia militia groups.

    •A fatwa was issued in June 2014 by Shia cleric Grand Ayatollah Ali al-Sistani, calling on Shia civilians to volunteer to fight against ISIL. If he returns to Iraq, he may be forced to join the fight against ISIL.

    •He may be perceived by Shia militias and the Iraqi Security Forces (ISF) as politically opposed to the Shia militias and the ISF because he refused to work for the militias and / or because he did not respond to the 2014 fatwa by volunteering to join the fight against ISIL. He may also be persecuted by the ISF and Shia militias because he does not support their sectarian agenda and violent practices.

    •The authorities will not protect him because the militias are part of the authorities.

    •He will be persecuted by ISIL and / or other armed Sunni groups because he is a Shia Muslim, he does not support the creation of a caliphate state and because as a Shia Muslim, he may be perceived to be a supporter of Shia militia and the ISF.

    •He may be harmed by Shia and Sunni militias because, as a returned failed asylum seeker who has lived in a western country, he will be perceived to have western opinions.

    •The security situation in [redacted] has deteriorated as a result of the diversion of security forces and Shia militia to the fight against ISIL. He will not be safe there.

    •As a result of the humanitarian situation in Iraq, he may experience living conditions amounting to degrading treatment if he returned to Iraq.

17. The Authority instructed itself at [16] – [17] as to the relevant refugee assessment criteria in s 5(H)(1) and meaning of well-founded fear of persecution in s 5J of the Act.

18. The Authority accepted at [18] that the applicant is a citizen of Iraq, has no right to enter or reside in any other country, Iraq is the receiving country and that he is an Arab Shia Muslim.

19. The Authority found it difficult at [20] to accept that the men who approached the applicant would share information about their aims and demand the applicant do work for them, without any reference to their motivations, affiliations or the identity of the group to which they belonged.

20. At [22] it accepted the applicant’s claims that he had no weapons training and has not had any other involvement with militia groups.

21. At [29] the Authority did not accept the following claims:

    ·The applicant was approached by members of any Shia militia group, members of ISIL or any other armed Sunni group, or members of any other group, and asked to kill policemen and members of the military, instigate riots, or to undertake any other type of work for them.

    ·The applicant left Iraq because of any fear related to a request to undertake work for any Shia militia, armed Sunni group, or any other group.

    ·The applicant left Iraq because of any fear of any militia or other armed group for any reason, or that his wife and children moved to Nasiriya because of any such fear.

    ·The applicant’s wife and child moved to Iran for the reasons claimed.

22. The Authority found that the applicant was not of any particular adverse interest to any Shia or Sunni armed group, any other group, or to the Iraqi authorities, for any reason at the time he left Iraq.

23. It did not accept at [33] the applicant would be of any adverse interest to Shia militia, armed Sunni groups, criminals, or any other group or person, on the basis that he will be returning to Iraq having unsuccessfully sought asylum and lived in Australia for a number of years. It was not satisfied there was a real chance of harm to the applicant on this basis in Iraq, now or in the foreseeable future.

24. The Authority was willing to accept at [34] the applicant was opposed to the involvement of the ISF and Shia militia groups in sectarian and violent activities.

25. At [35] it found the applicant had not engaged in any activity in Iraq or Australia that might be perceived to be political in nature. It also did not accept that the applicant would publicly express his opposition to the agenda and activities of the ISF or Shia militia, or engage in any other activities that might be perceived to be political in nature on his return to Iraq.

26. It did not accept at [37] that the applicant would be pressured to join the Popular Mobilisation Force (“PMF”) or any Shia militia group, or pressured to fight ISIL, or that he would be perceived to be opposed to the PMF, to Shia militia, or to the ISF, if he did not join the PMF or the fight against ISIL.

27. It did not accept at [38] that the applicant would be of any adverse interest to any Shia militia group, or to the ISF, for any reason on his return to Iraq. It was not satisfied that there was a real chance of harm to the applicant from Shia militia groups or the ISF in the applicant’s home city, now or in the foreseeable future.

28. At [40] the Authority accepted the applicant’s parents and brother continue to live in the city the applicant was born in. It was satisfied the applicant could safely return to his home city by flying to the relevant airport.  

29. It did not accept at [41] the applicant would express his opposition to ISIL or to ISIL public in the future. It also did not accept that in the applicant’s home city, where his views could be expected to be very widely held, he would be of any particular adverse interest to ISIL on this basis.  

30. The Authority was not satisfied at [42] that the applicant would be of any particular adverse interest to ISIL on his return to Iraq on the basis that he may be perceived to fail to conform to ISIL’s interpretation of Sharia law. It was also not satisfied the applicant would be of any particular adverse interest to ISIL or any other armed Sunni group for any reason on his return to Iraq.  

31. The Authority accepted at [48] the applicant’s claims that he was not involved in tribal or militia activities.

32. While it accepted that violent incidents occurred in the applicant’s home city, it was not satisfied at [50] that criminal activity in the region was at such a level that it would represent a real chance of harm to the applicant. Having regard to the applicant’s individual profile and the country information before it, it was not satisfied there was a real chance of harm to the applicant from ISIL or any other armed Sunni group, or as a result of the security situation in the region, at the time or in the foreseeable future. 

33. The Authority did not consider at [53] that as a person returning to live in the specified city, the applicant will face the same difficulties faced by persons displaced from their homes to other locations in Iraq. It did not consider that the applicant would be unable to access basic services. It was not satisfied there is a real chance of harm to the applicant, at the time or in the foreseeable future, in the city as a result of the humanitarian situation.

34. The Authority stated at [54] it was not satisfied there was a real chance of harm to the applicant returning to his home city for any reason, including as a result of the security and humanitarian situation, at the time or in the foreseeable future.

35. It concluded at [55] the applicant did not meet the requirements of the definition of refugee in s 5H(1) and did not meet s 36(2)(a) of the Act.

36. The Authority considered the complementary protection criterion in s 36(2)(aa) and found at [59] the applicant did not meet the requirements.

    GROUNDS OF JUDICIAL REVIEW

37. The grounds of judicial review are contained in an Originating Application lodged on 8 January 2018. They are as follows:

    1.Asking a wrong question

    2.Relying on Irrelevant material

    3.Ignoring

38. In an affidavit lodged by the applicant on 8 January 2018, the applicant stated:

    1.That I disagree with the IAA decision as it did not consider my claims for protection.

    2.The I rely on my statement of claims and my protection visa application.

39. The applicant also applied for an extension of time in the originating application. However, the application to Court was made within the 35 days from the date of the Authority’s decision. It is therefore within time pursuant to s 477(1) of the Act.

    THE APPLICANT’S SUBMISSIONS

40. The applicant appeared before the Court unrepresented.  He was assisted by an interpreter.  He was also assisted by a support person who was allowed to sit at the bar table and act in a McKenzie friend capacity.

41. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been translated to him.  The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.

42. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

43. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court that he told the Authority the truth about what happened to him, but he was not believed. Although he was a Shia Muslim, he rejected working with the Shia Militia as he did not want to become a murderer. He claimed that one of his neighbours also rejected working with the Shia Militia and was tortured by them.

44. He stated if he did not have a problem in Iraq, he would not have come to Australia and been separated from his wife and children for such a long time. Further, he was suffering from a lot of health problems.

45. The applicant sought to tender a number of psychological reports that post-dated the Authority’s decision. The applicant was advised that, as the Court was undertaking judicial review, not merits review, the Court was unable to receive these reports into evidence.

46. The applicant was then taken to each of the three grounds of judicial review and asked what he specifically meant by them, noting that there were no particulars provided in respect of each of the grounds.

47. In relation to ground one being “asking the wrong question” the applicant stated they did not accept his submissions.

48. In relation to ground two being “relying on irrelevant material”, the applicant stated that they (the militia) asked him to do things that he could not do.  It was for this reason that he sent his family to Iran.

49. In relation to ground three being “ignoring” he answered that he came to Australia as he was running away from people who wanted him to be a murderer. This was not taken into account.

50. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply.  He answered that he has been in Australia for 13 years suffering every day. The Authority did not believe him, but they have not been living with him. He stated that he felt he had been unfairly treated because no one was believing him.

    THE FIRST RESPONDENT’S SUBMISSIONS

51. The first respondent submitted the applicant’s grounds of review are unparticularised, bare assertions of error and should be dismissed.

52. The Authority made findings based on the applicant’s evidence and relevant country information. The choice of country information and weight to be attributed are matters for the decision maker; (see: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [13] per Gray, Tamberlin and Lander JJ).

53. There is nothing in the Authority’s decision to suggest it asked the wrong question. It considered the relevant criteria in s 36(2)(a) and (aa) of the Act and made findings that were open to it.

1. The assertions raised in the applicant’s affidavit should be treated as submissions.

2. With regard to the first assertion, there is no requirement that the Authority engage in “an uncritical acceptance of any and all allegations made by the applicants”; (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2 per Beaumont J).

3. As to the second assertion, it is clear from the reasons that the Authority had regard to the applicant’s claims as set out in his statement of claims enclosed with his SHEV application. To the extent the applicant is requesting the Court consider these claims, this is inviting the Court to engage in impermissible merits review; (see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 at [31] per Brennan CJ, Toohey, McHugh, Gummow, and Kirby JJ).

4. The first respondent identified a separate issue of whether the Authority failed to consider a claim by the applicant raised in submissions provided on 29 March 2017. The applicant’s fifth claim at paragraph 11 was that “[h]e had previously absconded military service and is likely to be punished upon his return for the same’.

5. The applicant had previously raised before the delegate that he had absconded from military service (CB 132). The first respondent submitted it did not appear the claim was raised before the delegate wherein the applicant feared harm on this basis. Therefore, this was arguably new information pursuant to s 473DC(1) of the Act.

6. The Authority did not refer to this claim in its s 473DD assessment in its decision at [3]-[14]. It appears the Authority accepted the information as a submission.

7. The first respondent submitted that whilst the Authority did not appear to have expressly considered this claim in its reasoning, the Authority’s assessment of the claim was subsumed in findings of greater generality; (see:  Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47] per French, Sackville and Hely JJ).

8. In particular, the Authority considered the applicant's fear that he would be forced to join the fight against ISIL or that he would be perceived to be opposed to Shia militia and the ISF if he did not volunteer to fight against ISIL (at [36]).

9. The Authority noted that there was no independent country information to indicate that Shia men had been forced to join the PMF or harmed or threatened when they did not do so (at [37]).

10. Accordingly, the Authority did not accept that the applicant would be pressured to join the PMF or any Shia militia group, or pressured to fight ISIL, or that he would be perceived to be opposed to the PMF, to Shia militia, or to the ISF if he did not join the PMF or the fight against ISIL. The Authority further did not accept that the applicant would be of any adverse interest to any Shia militia group or to the ISF for any reason on his return to Iraq (at [38]).

11. The legal representative for the first respondent did not seek to make any oral submissions other than noting that the matters raised by the applicant in his oral submissions appeared only to go to the merits and did not articulate any jurisdictional error.

    CONSIDERATION

12. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

13. It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).

14. Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348).

15. It is well settled that the country information and the weight it gives to that information is a matter for the Authority: (see: NAHI).

16. It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510) at [187]).

17. Each of grounds one two and three are bare assertions of jurisdictional error to which the applicant was unable to provide any particulars that might have assisted in identifying either what incorrect question was asked, what relevant materials were relied upon and what relevant material was ignored. The applicant’s answers, such as they were, consisted of vehement disagreement with the factual conclusions arrived at by the Authority. They invited the Court to undertake impermissible merits review. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).

18. The Court has carefully reviewed the Authority’s decision and is not satisfied that there was any matter that was not considered or any material that was simply ignored.

19. The Authority clearly set out the applicant’s claims for protection at [15]. The Court is satisfied there is nothing legally unreasonable, illogical or irrational in the conclusions arrived at by the Authority based on the evidence that was before it and for the reasons it gave. The Authority was not satisfied that the applicant would have any adverse profile were he to return to Iraq for the reasons it gave.

20. The Court notes the proper raising by the Minister of the applicant’s claim to fear harm on the basis that he previously absconded from military service and would be likely to be punished upon return. The Minister notes this did not appear to have been raised before the delegate. The Authority did not refer to this claim in its s 473DD assessment and rather, it appears the Authority accepted the information as a submission.

21. The Court notes that the Authority specifically considered whether or not the applicant would be at risk if he did not volunteer to fight against ISIL at [36]. It concluded he would not be at risk for this reason. The Court is satisfied that this finding is such that it can be regarded as subsuming any claim that he might be at risk in relation to previous military service.

22. Noting that the applicant is unrepresented, the Court has carefully considered the information contained within the Court Book, the Authority’s decision record and other supporting material. The Court is unable to ascertain any other unarticulated jurisdictional error.

    DETERMINATION

23. In these circumstances, the Court has no option other than to dismiss the application.

24. The Court will hear from the parties as to the issue of costs.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       18 February 2025