AHM18 v Minister for Home Affairs

[2018] FCCA 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHM18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2016

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority misapplied s 36(2)(aa) and s 36(2B)(a) – whether the Authority conducted its review in breach of Practice Direction 2 issued under s 473FB – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473FB, 476

Cases cited:

CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14

Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317

Applicant: AHM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 161 of 2018

Judgment of: Judge Street

Hearing date: 25 July 2018

Date of Last Submission: 25 July 2018

Delivered at: Sydney

Delivered on: 25 July 2018

REPRESENTATION

Counsel for the Applicant: Mr T Liu

Solicitors for the Applicant: D'Ambra Murphy Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the amended application dated 25 July 2018 and the Court dispenses with the need for the electronic filing of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 161 of 2018

AHM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 22 December 2017, affirming a decision of the delegate not to grant the applicant a Temporary Protection visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Christmas Island as an unauthorised maritime arrival on 21 January 2013. The applicant lodged her application for a Temporary Protection visa on 28 July 2016. 

3. On 23 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. The applicant was found to be an Arab Shia Muslim from Najaf who served as a military police officer in the Iraq Army in Baghdad from approximately May 2005 until December 2009. The applicant worked with members of the US Military in Baghdad and travelled home to Najaf once a month. The applicant claimed that Islamic elements and militia infiltrated the military and obtained the personal details of Iraqis working for American forces. The applicant claimed that in 2009 a written threat was left at his family home in Najaf, demanding that he stop working for the US forces or be killed. The applicant alleged that three months later, another note was left at his family home, giving him a final warning and that the applicant subsequently resigned from the military job and started working at a café in Najab.  In 2012, the applicant claimed that a note from the Shia militia, Asaib Ahl Al-Haq (“the AAH”) was left at the applicant’s family home, threatening to kill him as a spy and a stooge for the Americans.

4. On 12 October 2012, the applicant departed Iraq.  The applicant claimed that he had destroyed the written notes to hide his work for the Americans. The applicant claimed to fear harm in Iraq by Shia militia or arms selling groups who saw him as a traitor and American collaborator. The Sunni armed group, Islamic State allegedly saw the applicant as a heretic Shia while the Shia militia perceived him as a secular infidel due to his American associations. 

5. The applicant claimed that Shia militia dominated life in Najaf and were becoming more powerful in Iraq. The applicant feared he would be perceived as a moderate, secularised Shia with an independent mind who was hostile to both radical Sunni Islamists and Shia fundamentalist Islamists, and an enemy of Islam who did not comply with religious edicts and should be put to death. As a person who left Iraq, the applicant also feared he would be perceived as hostile to the goal of establishing an Islamic state in Iraq under Sharia law. The applicant claimed that the security situation in Iraq was fragile and that violent attacks occurred n Najaf. The applicant claimed he could not relocate anywhere else in Iraq and had suffered psychological harm. 

The Authority’s decision

1. Following the delegate’s decision on 28 March 2017, the Authority wrote to the applicant, informing the applicant that the application had been referred to the Authority for review. The letter explained the limited circumstances in which the Authority could consider new information.  The letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on submissions and new information. The applicant on 5 April 2017 provided a statement to the Authority which engaged with the delegate’s decision and, insofar as it did, the Authority had regard to the same. The Authority referred to a new claim advanced in that regard by the applicant and the Authority was not satisfied there were exceptional circumstances to justify consideration of the new information.

2. The Authority summarised the applicant’s claims and evidence. The Authority accepted the applicant was threatened by Shia militia and accepted that the applicant experienced a level of distress as a result of this experience.

3. The Authority identified concern in relation to the applicant’s alleged third threat due to the varying and vague nature of the applicant’s evidence in that regard. The Authority found it difficult to accept the applicant continued to work as a military police officer after receiving the first threat because he enjoyed his work and did not want to leave the military. The Authority referred further to the alleged third threat claimed to have been received at some point in 2012. The Authority accepted the applicant received some form of threat from a Shia militia group while employed. The Authority had significant concerns in relation to the evidence regarding the third threat in 2012. The Authority did not accept the applicant received this threat or any other threat relating to his past employment or association with US forces after he resigned from his employment as a military police officer.  The Authority did not accept the applicant was of any adverse interest to any Shia militia group or any armed group for any reason relating to his former employment at the time he left Iraq.  The authority did not accept the applicant was perceived to have defied Shia militia groups. The Authority found the applicant was not of adverse interest to Shia militia groups or any other armed group for any reason relating to his former employment at the time he left Iraq. 

4. The Authority did not accept that the applicant was perceived to be opposed to Islam, to have failed to comply with conservative religious edicts or that he was of any adverse interest to Sunni or Shia armed groups, or any other group or person, as a non-practising moderate Shia Muslim who is privately opposed to extreme Shia and Sunni Islam at the time he left Iraq. The Authority did not accept the applicant was of any specific adverse interest to any Shia militia group, or any other armed group, for any reason at the time he left Iraq.

5. The Authority was not satisfied there was a real chance of harm to the applicant in Iraq for any reason related to his past employment now or in the reasonably foreseeable future, even having regard to his past receipt of threats from Shia militia groups. 

6. The Authority was not satisfied there was a real chance of harm to the applicant now or in the reasonably foreseeable future from Shia militia groups or armed Sunni groups on the basis of his moderate Shia beliefs, his failure to actively practise his Shia religion, or his private opposition to extreme Islam, even having regard to his past employment.

7. The Authority was not satisfied there was any chance of harm to the applicant now or in the foreseeable future, from any Shia or Sunni armed groups, or any other group or person, or as a result of criminal attacks on the basis he left Iraq and will be returning to Iraq, having unsuccessfully applied for protection and lived in Australia, a western country, for approximately five years. 

8. The Authority referred to the applicant having lived for most of his life in Iraq, that his mother and siblings still reside in Najaf and that his mother and sister still reside in Najaf, with the exception of a sister who lives in Kufa. The Authority was satisfied the Applicant would return to Najaf to live with his family if he returned to Iraq. The Authority was satisfied the Applicant would be able to safely return to Najaf by travelling via Baghdad Airport. The Authority was not satisfied there is a real chance of harm to the Applicant from Shia militia groups in Najaf for any reason now or in the foreseeable future.

9. The Authority found there is not a real chance of harm to the applicant from any armed group for any reason related to his past employment as a military officer, including his past interaction with members of the US forces. The Authority found there is not a real chance the applicant would be harmed by armed Sunni groups having regard to his former employment now or in the foreseeable future.

10. The Authority referred to country information in relation to the security situation and was not satisfied that any combination of the applicant’s circumstances having been a former military officer who worked with US forces, a non-practicing moderate Shia Muslim who is privately opposed to extreme Shia and Sunni Islam, on the basis he will be returning to Najaf having left Iraq, unsuccessfully sought asylum and lived in Australia for approximately five years, or as a result of the security situation in Najaf, would combine to expose the applicant to a real chance of harm in Najaf.

11. The Authority found the Applicant did not meet the criteria for the definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

12. The Authority referred to having concluded in respect of complementary protection that there was no real chance of harm to the applicant in Najaf as a former military officer who worked with US forces, as a non-practising moderate Shia Muslim who is privately opposed to extremist Shia and Sunni Islam, on the basis that he left Iraq and will be returning having unsuccessfully sought asylum and lived in Australia for approximately five years, as a result of a security situation in Najaf, or any combination of these matters. The Authority referred to “real risk” and “real chance” involving the application of the same standard and was not satisfied the applicant would face a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.

13. The Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Iraq from Australia, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision on review.

Before this Court

1. The grounds in the amended application are as follows:

   1. The IAA misapplied s 36(2)(aa) and s 36(2B)(a).

   Particulars

   (a) The IAA found that the applicant did not meet the criterion in s 36(2)(aa) because there was not a real chance he would face harm in the city of Najaf: [49]-[50].

   (b) In so holding, the IAA proceeded on the expectation that the applicant would return to, and remain in Najaf, without considering whether that expectation was reasonable. Sections 36(2)(aa) and s 36(2B)(a) requiring the IAA to consider whether the expectation was reasonable.

   2. The IAA proceeded to conduct its review on material provided by the Secretary in breach of Practice Direction 2 issued under s 473FB.

   Particulars

   (a) The delegate considered country information which was not available to the IAA on CISNET (being the country information referred to in footnotes 41 and 42).

   (b) In breach of Practice Direction 2, the Secretary did not cause copies of that country information to be given to the IAA.

Ground 1

1. Mr Liu of counsel for the applicant, took the Court to the applicant’s employment history as a military officer and identified the applicant having moved to an army, to Al-Taji, being an army base in Baghdad, and the employment details provided the applicant. Consistent with living outside Najaf whilst he was in the army, Mr Liu submitted that the Authority in relation to complementary protection had failed to consider whether it was reasonable for the applicant to remain in Najaf. In that regard, Mr Liu took the Court to the decision in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317, particularly at [20], [29] and [33].

2. Mr Liu submitted that in considering complementary protection, this was a case where the circumstances by reason or reference to the applicant’s employment, meant that the Authority had to consider whether it was reasonable for the applicant to remain in Najaf, notwithstanding that this was not a relocation case. The circumstances identified by Mr Liu in that regard were the applicant’s history in relation to his employment. Mr Liu accepted that there was no claim advanced that the applicant would not remain in Najaf or, for example that the applicant would, by reason of his employment, have to travel outside Najaf. I accept the first respondent’s submission that this is not a case where the Authority in its reasons, has taken into account any assumption or expectation that the applicant would remain in a particular location in relation to the safety of the applicant.

3. Section 36(2B)(a) of the Act was not applicable, as the Authority did not find the applicant could “relocate” to Najaf. Najaf was the applicant’s home city, where he had spent most of his life with his mother and siblings, and where the Authority found he would return. I accept the proposition that “relocate” carries its ordinary meaning, “to move to a different place” and that this would be consistent with the relocation principle under the Refugees Convention.

4. I accept the first respondent’s submission that s 36(2B)(a) of the Act cannot sensibly be said to apply to an applicant who will return to their home city where they have spent most of their life and that the applicant was not found to be a person who would “relocate”. Consistent with CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [47] it is only if the place the applicant is likely to return to, is a place where there is a well-founded fear of persecution or a real risk of significant harm that the decision maker need consider new or unfamiliar places in the country of nationality.

5. Further, the Authority’s reasons must be read with a keen eye for error. The Authority’s reasons in relation to applying the law in respect of complementary criteria clearly took into account the reasonably foreseeable future and in that regard. On the face of the Authority’s reasons the Authority correctly identified and correctly applied the relevant law. The Court finds there was no misapplication of s 36(2)(aa) of the Act. The Court finds there was no misapplication of s 36(2)(aa) or s 36(2B)(a) of the Act by the Authority. No jurisdictional error as alleged in ground 1, is made out.

Ground 2

1. In relation to ground 2, Mr Liu submitted by reference to the statutory provisions in Part 7AA that the Practice Direction made under s 473FB of the Act required mandatory compliance in respect of country information. Mr Liu submitted that in the present case, it is apparent that the delegate referred to country information which was available on the URL, being the general web, with a URL reference cited in footnote 42 by the delegate in respect of an Al Jazeera article dated 17 October 2016. The delegate referred to the article as follows:

   On 17 October 2016, the Iraqi Prime Minister Al-Abadi official announced the start of the military offensive to retake Mosul, Iraq’s second-largest city, which had been under ISIS control since June 2014.

2. Mr Liu referred to the language of the Practice Direction 2 made under s 473FB of the Act, and in particular in respect of country information and that if the document is available in CISNET, it would be taken to be review material given to the Authority, and that if it is not available in CISNET, the reference to, you must give the document to us in electronic form. Mr Liu also focused on the definition of “review material” and what is in the “possession or control” of the Secretary and made reference to the proposition that material available on the website through a URL was not itself in the possession or control of the Secretary and that such articles could be altered or interfered with.

3. In the present case, it is common ground that the Al Jazeera article was not on the CISNET. Mr Liu submitted that it cannot be said to have been given to the Authority consistent with a Practice Direction simply because there is a website reference in the delegate’s decision to the Al Jazeera article. Mr Liu did not submit that it could be said that the particular reference was material in the present case and the document was not put into evidence.

4. The reference to the military offensive to retake Mosul is not, on its face, material to the determination of the applicant’s claims and even if there was a breach of the Practice Direction, it gave rise to no practical injustice to the applicant in the conduct of the review in the circumstances of the present case.

5. Even if there was a breach of the Practice Direction, it did not disable the Authority from conducting a review required under Part 7AA. The first respondent contended that the document had been provided in electronic form, given the URL reference in the delegate’s decision. The Practice Direction should not be read in a manner that is inconsistent with the objects of Part 7AA. Taking into account the provisions that identify the review material, subject to the statutory provisions, the Authority must review the review material without accepting or requesting new information and without interviewing the referred applicant.

6. I accept the first respondent’s submissions that the existence of the URL in the delegate’s decision in the present case is sufficient compliance with 2(b) of the Practice Direction 2. I do not accept that there was any breach of the Practice Direction.  Further, even if there was a breach of the Practice Direction, for the reasons already given, it gives rise to no jurisdictional error in the present case. 

Conclusion

1. No jurisdictional error as alleged in the amended application has been made out. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 September 2018