Alk17 v Minister for Immigration
[2020] FCCA 2230
•13 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALK17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2230 |
| Catchwords: MIGRATION – Application for judicial review – Protection (Class XD) visa – Immigration Assessment Authority – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 |
| Applicant: | ALK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 227 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 5 August 2020 |
| Date of Last Submission: | 5 August 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 13 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr White |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Murano |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,464.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 227 of 2017
| ALK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘IAA’) dated 5 January 2017, affirming a decision of a delegate of the Minister to refuse a Protection (Class XD) visa (‘protection visa’) to the applicant.
The applicant is a citizen of Iraq who arrived in Australia by boat as an unauthorised maritime arrival on 18 March 2013. He is 61 years old. The applicant lodged an application for a protection visa on 23 March 2016 and participated in an interview with a delegate of the Minister on 8 August 2016. The delegate refused his application on 7 October 2016. The matter was referred to the IAA, which affirmed the delegate’s decision on 5 January 2017.
The applicant’s claims
The applicant’s claims to fear harm rest primarily on two reasons: his place of birth in a Sunni area (leading to the imputation that he is Sunni, and not Shia), and his imputed political opinion based upon his son’s service as an interpreter to the United States (‘US’) military in Basra. As the case before the IAA developed, a claim that he was at risk as someone perceived to be a wealthy businessman became apparent too.
The applicant’s claims are summarised as follows (set out in the First Respondent’s Outline of Submissions dated 21 July 2020 at paragraph [5]):
a)after the civil war commenced in Iraq in 2003, the security situation became miserable – ethnic groups started to fight each other and killing people;
b)while living in Nasserya, “the people in Theqar or some “group”” made threats to him that he should “leave the place I was working at and living and just leave everything behind or die” – he said this happened because “I was born in Ramady but I was shiaa though, so the people in Nasserya told me to leave because I was from Ramady and the people in Ramady didn’t accept me either because I was Shiaa”;
c)his son […] worked as an interpreter for the American military in Basra which “was not accepted in Iraq at all” – because of that, his other son […] was kidnapped by “some parties that belonged to some ethnic group”;
d)[his other son] was released after a ransom of $30,000 American dollars was paid; and
e)he decided to “run away from the country, from the situation and from everything that was happening in there”.
IAA Findings
The IAA accepted that the applicant was born in a Sunni area, but found that he had lived in his current Shia area for 30 years and that his family members continue to live there. The IAA was satisfied that “the applicant and his family are Shia and are known to be Shia in their community”: see paragraph [6] to [8] of the decision. The IAA rejected his claim on this basis, saying (at paragraphs [15]-[16]):
15. I accept that a person who is, or who is perceived to be, Sunni, or who is perceived to be sympathetic to Sunni people or issues, may be threatened or harmed on the basis of their religion in Shia-dominated areas of Iraq. However, I do not accept that the applicant, a resident of Nasiriya for around thirty years who is known to be Shia, would be perceived to be Sunni, or sympathetic to Sunni people or issues, solely because of his place of birth or because his identity card records his place of birth as Ramadi.
16. Having regard to all the information before me, I do not accept that the applicant was threatened by masked people in the street, by women or children, or by any Shia group or any other person or group in any other way, on the basis of his place of birth or any related perceived support for, or association with, Sunni Islam. I do not accept that the applicant or his family were or are of any adverse interest to any Shia group, or other group or person, in Nasiriya on the basis of the applicant's place of origin in Ramadi in Al Anbar province.
The IAA accepted that the applicant’s son had worked as an interpreter for the US military up until 2011, but did not accept he had continued since that time: see paragraph [20] of the decision. The IAA also accepted that there were reports of armed Shia groups who had targeted “persons considered to be ‘collaborators’ with the foreign forces, especially the US”: at [21]. However, as the IAA observed at paragraphs [22] and [27] of the decision:
22. The applicant has not claimed that he, or his son who worked as an interpreter with the US military, was subject to any harm or received any threats in relation to his son’s employment with the US military. However, in his TPV application, the applicant claimed that another of his sons was kidnapped in 2011 because of his brother’s perceived cooperation with the US military in his role as an interpreter.
[…]
27. Having considered the evidence before me, I am not satisfied that the applicant, his son who worked as an interpreter with the US military, or any other members of the applicant’s family, are of any current adverse interest to any group or person on the basis of the applicant’s son’s past association with the US military.
The harm that the applicant said he had suffered was the kidnapping of another son, and payment of a ransom of USD $30,000 to obtain his son’s return. The IAA accepted that his son “was kidnapped and released after the applicant paid a ransom of USD $30,000 in 2011” (at paragraph [25]), and that it was, “highly probable that the applicant’s son was targeted for kidnap because the applicant was known to be a successful business man who would be able to pay a ransom, and that the motivations of his son’s abductors was financial gain”: at paragraph [26] of the decision. The IAA also accepted that “violent crime, including kidnap for ransom, is common in Iraq”, as outlined in reports by the Department of Foreign Affairs and Trade (‘DFAT’) and the United Nations High Commissioner for Refugees (‘UNHCR’): see paragraph [25].
However, the IAA concluded that the applicant would not be perceived to be a successful businessman if he were to return to Iraq, as he has not operated his business for four or five years, is now an older man, and would be returning as an unsuccessful asylum seeker: see paragraphs [29] and [40] of the decision. Further, the IAA was not satisfied that there is a real chance the applicant would be harmed on the basis of returning to Iraq as an unsuccessful asylum seeker who had lived in Australia for some years.
Grounds of Judicial review
In the Amended Application filed on 18 May 2020, the applicant sets out two grounds of judicial review.
Ground 1
The first ground is framed as follows:
1. The Authority constructively failed to exercise its jurisdiction by failing to consider a claim clearly arising on the materials and based on established facts that the Applicant would be at risk of extortion or kidnapping for ransom in Iraq against the criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
Particulars
A. The Applicant claimed (CB87), and the Authority accepted (CB345 at [25]), that in 2011 his son was kidnapped in Iraq and released after he paid US $30,000 ransom.
B. The Authority relied upon a report of the Department of Foreign Affairs and Trade (DFAT) which indicated that violent crime was common in Iraq and found that it was highly probable that the abductors were motivated by financial gain and not a Convention reason.
C. A claim of the Applicant clearly emerged on the materials that the Applicant would be at risk of extortion or kidnapping for ransom in Iraq for a non-Convention reason.
D. The Authority assessed the Applicant’s case against the complementary protection criterion in s 36(2)(aa) of the Act entirely by reference to its findings in relation to harm for discriminatory reasons under the refugee criterion in s 36(2)(a) of the Act: (CB349-350 at [52]).
E. Consequently, the Authority failed to consider the Applicant’s claim described in particular C against the complementary protection criterion in s 36(2)(aa) of the Act.
The thrust of the applicant’s argument is that the decision of the IAA was based upon a finding that the kidnapping was likely motivated by profit and not for a Convention reason. As a result, it is argued that the IAA failed to consider the risk of harm through the lens of the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’). Counsel specifically referred to paragraph [52] of the IAA’s reasons, where the IAA said:
52. I have concluded that the applicant does not face a real chance of harm as a Shia Muslim who was born in a Sunni-dominated area and has lived in a Shia-dominated area for approximately 30 years, as the father of a person who previously worked as an interpreter for the US military, as a non-practising Shia Muslim who prefers not to identify himself as Shia, as a person who previously operated a successful business or was perceived to be a successful business man, as a person who will be returning to Nasiriya as an unsuccessful asylum seeker after living in Australian for approximately three and a half years, as a result of the security situation in Iraq, or as a result of any combination of these factors. As ‘real risk’ and ‘real chance’ involve the application of the same standard [FN: MIAC v SZQRB (2013) 210 FCR 505], I am also not satisfied that the applicant would face a real risk of significant harm for the purposes of s.36(2)(aa) on these grounds.
There is no jurisdictional error in a decision maker relying upon earlier findings of fact. Whilst there are differences between Convention claims and complimentary protection claims, the most significant being the need for a convention reason in convention claims, both rely upon a finding of a risk of harm. Thus, as the Full Court said in SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32]:
32. … We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.
Similarly, as Robertson J said in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]:
56. There is … no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were … no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.
The same point was made by Katzmann J in SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252 at [41] that:
41. … a finding for the purposes of the refugee criterion that that a visa applicant has not been, or would not be, harmed may plainly be relevant to a claim for complementary protection based on fear of the same alleged harm: cf. SZSHK at [32]…
In this case, whilst accepting that the kidnapping had occurred, the IAA was satisfied that it was for profit, but rejected the proposition that the applicant would still be considered a successful businessman (the fact which underpinned the kidnapper’s profit motive), saying (at paragraph [40]-[41] of the decision):
[40] As discussed, violent crime is reported to be prevalent in Iraq and I have accepted that the applicant’s son was kidnapped for ransom in approximately 2011 for financial gain as a result of the applicant's past profile as a successful business man in Nasiriya. I have found that the applicant will no longer be perceived to be a successful business man in Nasiriya if he returns to Iraq. The applicant has not claimed that he or any member of his family have been harmed or threatened on the basis of his past status as a successful business man apart from his son's kidnap in approximately 2011. I am not satisfied on the evidence before me that the applicant or any other members of the applicant's family, would be of any future adverse Interest to any group or person for this reason.
[41] In considering the chance of harm to the applicant as a Shia, including as a Shia who was previously known to be a successful business man, and as a result of the security situation in Iraq, I place particular weight on DFAT’s 2015 assessment that Thi Qar and the other southern provinces of Iraq have remained significantly more secure than central Iraq in recent years, and that Shias in southern Iraq face a low risk of generalised violence [FN: omitted]. Having regard to all the information before me, while I accept that there are instances of violence in Thi Qar, including violent crime such as kidnap, I find the chance that the applicant would be harmed on this basis to be remote and less than the real chance of persecution required to meet s.5J(l)(b).
It is clear from this paragraph of the reasons that the applicant’s past profile as a successful businessman was the basis for the kidnappers considering that they could obtain a ransom from him, but that the applicant will no longer be perceived as such, nor have there been any incidents since 2011. Thus, on a fair reading of the reasons, the IAA concluded that there was no longer a real risk of harm, which is the foundation for their findings at paragraph [53] of the decision, that:
53. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).
In substance, the applicant argues that the IAA had failed to consider the risk to the applicant as a result of generalized criminal activity ‘including kidnap for ransom’, even though all of the factors that the applicant pointed to as showing that these risks were real risks in his particular circumstances were rejected by the IAA. It is clear that the IAA did not consider that the applicant was at real risk of harm in circumstances where none of the matters raised by the applicant were accepted as reasons of him or his family to be targeted at the time of the decision.
I therefore find that the applicant has not made out this ground.
Ground 2
The second ground is framed as follows:
2. The Authority failed to properly consider a critical document corroborating the Applicant’s claim to be at risk of harm in Iraq on the basis of his son’s work as an interpreter for the US forces, namely a report published by the UNHCR which indicated that families of civilians affiliated with the US forces were at risk of being targeted by non-state actors for their (imputed) political opinion. The Authority thereby constructively failed to carry out its statutory task or failed to properly consider the Applicant’s claim.
Particulars
A. The Applicant claimed (CB87), and the Authority accepted (CB344 at [20]), that his son worked as an interpreter for the US forces in Iraq.
B. There was evidence before the Authority in the form of a report published by the UNHCR (UNHCR report) which indicated that families of civilians affiliated with the US forces were at risk of being targeted by non-state actors for their (imputed) political opinion: CB 344 at [21].
C. There was no evidence before the Authority to contradict the UNHCR report, nor did the Authority express any reservation about the content of the UNHCR report.
D. The Authority did not accept that the Applicant suffered any past harm in Iraq on account of his son’s work for the US forces: CB346 at [33].
E. The Authority concluded that there was no credible evidence to suggest that the Applicant or any other members of his family would be of any future adverse interest to any group or person for this reason: CB346 at [34].
F. By its conclusion described at particular E above, it is to be inferred that the Authority failed to consider the UNHCR report to the relevant legal standard in its assessment of the Applicant’s claim.
G. Further or in the alternative to particular F above, by failing to meaningfully engage with the UNHCR report, the Authority did not properly undertake the predictive or speculative task required by s 36(2)(a) of the Act.
In this case, the IAA accepted that the applicant had a son who had worked as an interpreter for the US Military prior to 2011. The IAA also specifically referred to the UNHCR report the subject of this ground at paragraph [21], saying
21. The United Nations High Commissioner for Refugees (UNHCR) reported in 2012 that civilians affiliated with the former multinational or US forces or foreign governments, NGOs or international companies, as well as their families, were at risk of being targeted by non-state actors for their (imputed) political opinion [FN: omitted]. According to UNHCR, form 2003, both Sunni and Shia armed groups were known to have threatened, kidnapped and killed interpreters, embassy workers, drivers, subcontractors, and others affiliated with multinational or US forces, foreign governments, international companies or organizations, reportedly to deter others from working for them [FN: omitted]. UNHCR reported that armed Shia groups had been reported to target persons considered to be ‘collaborators’ with the foreign forces, especially the US [FN: omitted].
Whilst the IAA accepted that the applicant’s son is in a group identified as being at risk, the IAA specifically notes (at paragraphs [22] and [33] of the decision) that:
22. The applicant has not claimed that he, or his son who worked as an interpreter with the US military, was subject to any harm or received any threats in relation to his son’s employment with the US military…
[…]
33. Other than his son’s kidnap in approximately 2011, which I have not accepted was related to his other son’s past association with the US military, the applicant has not claimed that he or any other member of his family has been threatened or harmed because of his son’s past employment as an interpreter working with the US military, which I have found ceased some five years ago in 2011.
The IAA went on to consider the issues around the ransom demand and the applicant having been a successful businessman before leaving Iraq, concluding that profit was the motivation of the kidnappers, and not the fact that the other son of the applicant had worked for the US Military: see paragraph [27] as set out above. The IAA ultimately concluded (at paragraph [34]):
34. There is no credible evidence before me to suggest that the applicant or any other members of the applicant’s family would be of any future adverse interest to any group or person for this reason. On the information before me and given the passage of time, I am not satisfied that there is a real chance that the applicant or members of his family will be harmed on this basis now or in the foreseeable future.
In ETA067 v The Republic of Nauru [2018] HCA 46, Bell, Keane and Gordon JJ explained (at [13]-[14]) that:
13. The absence of an express reference to evidence in a tribunal’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.
14. Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim or that would be dispositive of the review.
I am not persuaded that this is a case where the IAA have failed to consider relevant evidence (in the sense discussed in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 and GCRM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 678). Whilst a decision maker referring to a lengthy document indicates consideration of its contents, this does not, however, determine the issue as some parts of a lengthy document may be of such significant as to require specific reference or discussion: see generally BUD17 v Minister for Home Affairs [2018] FCAFC 140 at [62]. In this case, however, the IAA clearly considered and discussed the relevant part of the report.
The applicant’s argument is effectively a challenge to the IAA’s conclusions on this point, relying upon the evidence that assists the applicant (in the UNHCR report). The applicant argues that the findings of the IAA, that there were no facts or circumstances that would presently indicate a real risk of harm (including the lack of threats since the kidnapping; that the kidnapping was for financial gain and not as a result of his other son working for the US prior to 2011; that the applicant would not be perceived to be a wealthy businessman; and the rejection of claims concerning his real or imputed religious beliefs), leave open the question of whether there is a real risk to the applicant on the UNHCR evidence alone. The applicant frames this as in ‘integer’ or issue that had to be specifically addressed in the reasons. The argument draws a fine distinction, as the IAA clearly had in mind the UNHCR report and carefully analysed the applicant’s own circumstances in order to assess whether the applicant was at risk of the potential harm identified in the country information.
As was said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [147]:
147. While an obligation for an administrator to provide reasons does aid the process of curial review, the reasons must be read fairly and as a whole [FN: Wu Shan Liang (1996) 185 CLR 259 at 291]. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang this Court warned against the over-zealous judicial review of decisions of the Tribunal. In recognition of the fact that there is a range of legitimate approaches to decision-making and fact-finding, it was said that the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error [FN: Wu Shan Liang (1996) 185 CLR 259 at 272, 281-282, 291]…
I am not persuaded that the IAA failed to have regard to the nature of the claim. The IAA identified the general risk from country information, and then carefully considered each factor raised by the applicant that may have shown a real risk to him personally (or his family) in Iraq, bearing in mind the circumstances identified in the country information. By rejecting each factor that may have tended to show a particular risk to the applicant and then rejecting the claim generally, it is clear that the IAA did not consider the general risks identified in the UNHCR report rose to the requisite level to satisfy the real risk test set out in the statute.
If the argument is reframed as a claim that the IAA’s findings were illogical or legally unreasonable, it cannot be sustained. There is evidence that forms a basis for the findings of the IAA with respect to the applicant, despite the general risks identified in the UNHCR report.
It is neither illogical nor unreasonable for the IAA to reach the conclusions that they did, in light of the lack of threats since 2011, with respect to the applicant’s son working for the US Military, and the conclusions that the IAA reached with respect to his other son’s kidnapping and the current circumstances of the applicant.
In the circumstances, I therefore find that this ground has not been made out.
Conclusion
As the applicant has not established jurisdictional error, the application must be dismissed.
It was agreed that costs should follow the outcome of the proceedings in the sum of $7,464.00. I therefore order that the application be dismissed and that the applicant pay the respondent’s costs fixed at $7,464.00.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 13 August 2020
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