Adj18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 216
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ADJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 216
File number(s): SYG 89 of 2018 Judgment of: JUDGE LAING Date of judgment: 8 March 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to give genuine and realistic consideration to the applicant’s claim to face harm due to his former occupation as a police officer – whether the IAA failed to give genuine and realistic consideration to country information – application dismissed Cases cited: Myoung v The Northern Land Council [2006] FCA 1130; (2006) 154 FCR 324
Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21; (2010) 264 ALR 447
SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779; (2020) 82 AAR 518
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 23 February 2024 Place: Sydney Counsel for the Applicant: Mr P Bodisco Solicitor for the Applicant: Abu Legal Counsel for the First Respondent: Ms K Hooper Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 89 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING:
Before the Court is an application for judicial review of a decision made by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise Visa (protection visa).
BACKGROUND
The applicant is a citizen of Iraq, who arrived in Australia some time ago. He applied for the protection visa that is the subject of the current proceedings on 13 September 2017.
On 31 October 2017, the Delegate refused the application. The decision was referred to the IAA for review.
On 15 December 2017, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA summarised the history of the matter and the material before it at [1]-[8] of its decision.
The IAA’s findings regarding the applicant’s claims may be summarised as follows:
(a)The IAA found that the applicant was “not a witness of truth”, having regard to his admission that he had fabricated claims, over many years and including to a mental health professional, about his mother being a prostitute and the persecution and discrimination he experienced as a result (at [10]-[11]).
(b)The IAA did not accept, on the basis of its credibility finding and country information indicating the applicant’s surname as Shia, that the applicant was of Sunni faith or that he was discriminated against by his Shia neighbours because of his religious beliefs or practices. However, the IAA did accept that the applicant was non-practising (at [12]).
(c)The IAA did not place any weight on a fatwa claimed to have been issued against the applicant. This was on account of limitations in the evidence before the IAA and credibility findings that the IAA had made regarding the applicant’s related claims (at [13]).
(d)The IAA accepted that the applicant was employed by the Iraqi Police Force for some years and that US and/or coalition forces were involved with the training of the Police Force. However, the IAA did not accept that the applicant was abducted or “tortured” by the militia group Asa’ib Ahl Al-Haq (AAH) as claimed (at [14]).
(e)The IAA accepted that the applicant may have conducted raids and arrested militia members in the course of his duties as a Police Officer. However, the IAA did not accept that the applicant was specifically of interest to the AAH or any other militia group, or that his mother or friend were killed due to his actions. In the absence of documentary evidence, the IAA also did not accept that the applicant deserted the Police Force or that he had been charged for the manner in which he left (at [15]).
(f)The IAA did not accept that, as a result of the data disclosed on the Department’s website in February 2014, the applicant’s information would have been accessed by the AAH, any other Iraqi militia group or the Iraqi authorities before it was removed from the website some eight days later. The IAA nonetheless accepted that the applicant may be identifiable to the Iraqi authorities on re-entry as a person who sought asylum in Australia (at [16]).
As [20]-[21] of the IAA’s reasoning is the focus of the applicant’s ground of review, it is appropriate to set them out fulsomely (footnotes omitted):
20. Country information indicates that the risk faced by individuals associated with the Government has increased with the emergence of ISIS/Daesh which has systematically targeted Government employees, particularly members of the Iraqi Security Forces (ISF).3 The referred information does not however support a conclusion that former members of the ISF are targeted, particularly in areas not controlled by ISIS/Daesh such as Wasit province. Moreover, given the passage of time since he ceased this work, I am not satisfied the applicant would now be regarded as being associated with the ISF or US Forces. I consider it remote that he would be the subject of any adverse actions in the future, particularly given that the AAH and other militias are now part of the Popular Mobilisation Forces, an umbrella group of mostly Shia militias over which the government claims control4, and it is now nearly eight years since he ceased working for the police. I have not accepted the applicant's claim that he was of interest or remains of interest to any militia groups or that his friend [redacted] was killed after the applicant's departure from Iraq, due to any actions of the applicant. On the basis of the evidence before me, I am not satisfied that there is a real chance of harm to the applicant on return to Iraq due to his former employment as a police officer and/or any imputed political opinion due to this former employment or association with US Forces.
21.I have not accepted that the applicant is a Sunni and conclude that he is a non-practising Shia Muslim. I have considered whether this, and the security situation in southern Iraq more generally, would give rise to protection obligations. Considering whether the applicant faces a real chance of harm from Shia militias or Shia armed groups due simply to being a non-practicing Shia, the material before me does not support the applicant's claim that that this is the case. The DFAT Country Report notes generally that the security situation in Iraq is fragile and susceptible to rapid and serious deterioration with large scale conflict in some areas5. Violence between opposing Shia militias occurs and is more pronounced in Shia areas including the Southern provinces. This is sometimes linked to other criminal activities, including robberies and kidnappings. However, the DFAT report suggests that the risk of being caught up in this is predominantly borne by those who are actively involved in the militia or tribal group, rather than ordinary civilians.6 There is no suggestion the applicant is involved in such groups. I am not satisfied that the applicant faces a real chance of harm from Shia militias, Sunni groups or otherwise arising from sectarian violence. Although violent crime, including kidnappings and killings, does occur in Wasit province, on the basis of the material before me I conclude that it is not at a level that would give rise to a real chance that the applicant would face harm, should he return.
Footnote 3 referred to [3.48] of a report by the Department of Foreign Affairs and Trade dated 26 June 2017 (DFAT Report). Footnote 4 referred to [2.29] of that report, footnote 5 referred to [2.33] and footnote 6 referred to [3.33].
Having regard to country information, the IAA was not satisfied that the applicant would face a real chance of harm on account of his residence and/or asylum applications in Australia (at [22]-[23]). The IAA also did not accept that the applicant was owed protection obligations on account of any mental health conditions (at [24] and [28]).
Considering the above, the IAA concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, the IAA affirmed the Delegate’s decision (at [25]-[29]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 11 January 2018. The applicant ultimately relied upon the following ground contained in an amended application filed on 28 February 2024:
Sole Ground:
The IAA has failed to give genuine and realistic consideration to the applicant’s claim.
Particulars:
The IAA has failed at paragraph 20 and 21 of the decision, to give genuine and realistic consideration of the DFAT Country Report 2017.
At the hearing of this matter, the applicant submitted that the claim relied upon under the ground was the claim that he was a former police officer who would face harm through attacks by ISIS, Daesh or other non-state actors. This was said to have been inadequately considered by the IAA on account of a failure to consider the material in the DFAT Report. As I understood it, this was based upon the applicant’s contentions that the IAA reasoned in a manner that was not open in relation to the DFAT Report, resulting in a failure to give the requisite consideration to the material contained therein.
The applicant relied upon what was said by Allsop CJ in SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779; (2020) 82 AAR 518 at [141]:
141.Another way of putting the matter may be that the Tribunal failed to have regard to Dr Lee’s report or, at least, the information in it. The obligation to have regard to relevant information before it is both implicit and explicit (see for example s 424) in the task of review under Part 7. This obligation carries with it a meaningful content: see for example Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 at 163–165 [52]–[59]; Tickner v Chapman [1995] FCA 987; 57 FCR 451 at 462 and 495; Jia Legeng 205 CLR at 540 [105]; Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 at 271 [61]–[62]. The necessity for realistic or genuine consideration, or intellectual engagement with the information that the words and structure of the Act require, is not limited to a rejection of insouciant, careless or superficial examination of information. Information should be taken to mean here that which it is not open for a tribunal to misunderstand from a report such as that of Dr Lee. Dr Lee’s report, that is the information in it, cannot be said to have been considered and it cannot be said that the Tribunal has had regard to it, in circumstances where it has been fundamentally misunderstood in a way that was not reasonably open. Another example might illustrate the point: If an important piece of information – a document – clearly contained a statement of fact X and a tribunal read the document but did not see the statement and thereafter used the absence (wrongly thought, from clear misreading) of the statement of fact X in the document as the or a reason for disbelieving the applicant on an important issue, it could not sensibly be said that the tribunal had had regard to the document or to the information in it. So here: where Dr Lee’s report has been completely misunderstood, in a way that was not reasonably open.
The applicant also relied upon the following passage from Myoung v The Northern Land Council [2006] FCA 1130; (2006) 154 FCR 324 at [102] per Mansfield J:
102.There is sometimes a fine line between a rational finding based upon evidence, and one which is either not supported by evidence at all or by evidence which rationally cannot support the finding. That is a matter for judgment in all the circumstances.
The applicant relied upon the following passages from the DFAT Report:
2.6 In June 2014, the Islamic State of Iraq and the Levant (ISIL), also referred to as the Islamic State (IS) or Daesh, launched a successful assault on Mosul, Iraq’s second largest city. ISIL subsequently took control of other areas including large parts of Anbar, Salah al-Din, Diyala and Kirkuk provinces. The Iraqi Government and the KRG have liberated significant amounts of territory formerly under ISIL control. However, ISIL still holds some areas in Iraq and retains an ability to carry out attacks, including in Baghdad. Conflict with ISIL has significantly damaged Iraq’s economy and created an acute humanitarian situation with more than 3 million Iraqis internally displaced. ISIL continues to commit egregious human rights abuses in areas where it operates…
2.10Pre-2003, different religious and ethnic communities were able to live side-by-side relatively peacefully. Ongoing conflict has seen religiously mixed areas becoming more mono-religious – usually Shia or Sunni. This process sharply accelerated in some areas following the rise of ISIL. Shias typically have communities in most areas of Iraq, but are predominantly located in the south and east, and are the majority in Baghdad. Sunnis are mainly located in the west, north and central areas of Iraq. The number of areas considered mixed in Baghdad is diminishing. Some districts of Baghdad still have significant Sunni communities, including the districts of Mansour and Abu Ghraib. There are also smaller pockets of Sunni communities in the districts of A’adamia, Rusafa, Za’farania, Dowra and Rasheed. Mixed Sunni – Shia communities are mainly located in the districts of Rusafa and Karada, although there are also smaller mixed communities located in the districts of Dowra, Rasheed, Karkh, Mansour and Kadhimiya…
2.33Overall, the security situation in Iraq, including and the Kurdish region, is fragile and susceptible to rapid and serious deterioration with large-scale conflict in some areas. A number of areas remain under ISIL control in the west, north and central areas. According to the UN Assistance Mission for Iraq (UNAMI), there were 18,491 civilian casualties (including 6,773 deaths and 11,718 injuries) in the year to February 2017. UNAMI’s ability to collect data in conflict-affected areas has been hindered by the volatile security situation and DFAT assesses that the number of casualties is likely higher than reported by UNAMI…
3.33Violence between opposing Shia militias (including those that fall under the umbrella of the PMF) does occur and is more pronounced in Shia areas (such as Baghdad and the south). This is sometimes linked to other criminal activities, including robberies and kidnappings. Credible in-country contacts suggest that the risk of being caught up in intra-Shia violence is predominantly borne by those who are actively involved in the militia or tribal group, rather than ordinary civilians who may be perceived to be part of a militia or tribal group’s constituency.
3.34Overall, DFAT assesses that official and societal discrimination against Shias is low, particularly in Shia areas. Shias in Baghdad face a moderate risk of violence, whereas Shias in other Shia areas (such as the south) face a lower risk of violence. Any Shias remaining in ISIL-controlled areas face a high risk of discrimination and violence…
3.48Individuals working in particular areas of the Government can have an increased vulnerability to deliberate targeting, including by ISIL. In-country contacts suggest that some instances of targeting are about power, rather than political opinion. However, the risk faced by individuals associated with the Government has increased with the emergence of ISIL which has systematically targeted Government employees, particularly members of the ISF. For example, DFAT is aware of credible reports that up to 1,700 mainly Shia Air Force cadets were executed by ISIL in Tikrit in June 2014.
3.49All high-level individuals in the Government and the bureaucracy are provided with substantial protective security details. However, the Government does not have the ability to provide protective security for all employees. Overall, DFAT assesses that members of the armed forces as well as senior and mid-ranking officials face a high risk of violence. Other lower-level officials are subject to a low risk of violence. This risk increases significantly in ISIL controlled areas.
3.50DFAT has no evidence to suggest that the families of any individuals associated with the Government are targeted by armed groups as a matter of course. However, there are credible reports of families associated with the Government (such as by having a family member who is a member of the Iraqi Security Forces) being injured or killed during attacks on the individual’s car or home.
The following part of the DFAT Report is also relevant to the ground, as it was relied upon by the IAA under the impugned passages of its reasoning:
2.29A number of factors influence the current security situation in Iraq including ISIL, armed groups (many of which are part of the Popular Mobilisation Forces (PMF), over which the Government claims control) and historical intra-Shia and intra-Sunni tensions. In the Kurdish region, the security situation is influenced by historical tensions between the Iraqi Government and KRG, and tensions between different Kurdish political blocs, as well as by Turkey and Iran.
The applicant submitted that the IAA fell into error because:
(a)the DFAT Report provided no basis for the IAA’s finding at [20] that former members of the Iraqi Security Forces (ISF) are not targeted by Daesh or other non-state actors in areas not controlled by ISIS/Daesh such as the Wasit province;
(b)the finding that it was “remote” that the applicant would be the subject of any adverse actions because the AAH and other militia are now part of the Popular Mobilisation Forces (PMF) had no basis in the DFAT Report; and
(c)there was no basis for the IAA’s finding that the real risk of robbery and kidnapping was only applicable to those active in a militia or tribal group.
I accept the Minister’s submissions regarding why this ground is unable to succeed.
In relation to the first impugned finding, the IAA found at [20] that the “referred information does not however support a conclusion that former members of the ISF are targeted, particularly in areas not controlled by ISIS/Daesh such as Wasit province” (emphasis added). This was notwithstanding the IAA’s acknowledgment that the risk to (current) government employees had increased with the emergence of ISIS/Daesh. I accept the Minister’s submission that the IAA’s finding, so expressed, was negatively framed. It did not involve any positive finding that the DFAT Report demonstrated that former ISF members were not targeted. Rather, the IAA found that the evidence did not adequately demonstrate that they were. Positive evidence was not required to support such a finding: Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21; (2010) 264 ALR 447 at [43]-[45] per Perram J. The applicant has not drawn attention to any specific part of the country information capable of demonstrating that this reasoning was logically closed to the IAA.
In relation to the second impugned finding, the IAA considered at [20] that it was “remote” that the applicant would be “the subject of any adverse actions in the future, particularly given that the AAH and other militias are now part of the Popular Mobilisation Forces, an umbrella group of mostly Shia militias over which the government claims control” (and also given the passage of time since he had ceased working for the police). The part of the DFAT Report cited by the IAA was [2.29], in which it was stated that many armed groups had become “part of the Popular Mobilisation Forces (PMF), over which the Government claims control”. Other parts of the DFAT Report indicated the prevalence of this incorporation. Whilst [2.29] does not specifically state that the AAH was part of the PMF, I am not persuaded that it has been demonstrated that it was closed to the IAA to have considered that this part of the report (potentially in combination with other information regarding the PMF that was known to or before the IAA) was capable of resulting in the inference drawn. I therefore do not accept that the IAA’s reasoning had “no basis” in the country information. It has not been demonstrated, by reference to the DFAT Report, that the IAA’s finding in this regard was demonstrably inaccurate or otherwise closed. Nor has it been demonstrated that there was some specific part of the information that the IAA failed to consider in this regard.
In relation to the third impugned finding, the IAA did not find in terms that the “real risk of robbery and kidnapping is only applicable to those active in a militia or tribal group”. Rather, the IAA considered at [21] that although violence, sometimes linked to such criminal activities, did occur, the DFAT Report suggested that “the risk of being caught up in this is predominantly borne by those who are actively involved in the militia or tribal group, rather than ordinary civilians”. This was consistent with the cited information contained in [3.33] of the DFAT Report, which is extracted above. It has not been demonstrated, by reference to any of the country information, that it was closed to the IAA to have reasoned that such violence did not give rise to a real risk of harm on the part of the applicant.
Having regard to the above, I do not accept that the applicant has demonstrated that the IAA failed to consider the DFAT Report in the requisite manner. The IAA clearly considered and engaged with the material in the DFAT Report. It has not been demonstrated that the inferences drawn from that material were relevantly closed to the IAA. In these circumstances, the ground relied upon by the applicant is unable to succeed.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 8 March 2024
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