ANC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FCA 266
•28 March 2023
FEDERAL COURT OF AUSTRALIA
ANC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 266
Appeal from: ANC17 v Minister for Immigration & Anor [2020] FCCA 707 File number(s): NSD458 of 2020 Judgment of: BURLEY J Date of judgment: 28 March 2023 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority to affirm the decision of a delegate of the Minister to refuse to grant the appellant a protection visa – whether primary judge made a jurisdictional error – whether a person’s occupation could be a characteristic fundamental to their identity or conscience for the purposes of s 5J of the Migration Act 1958 (Cth). Legislation: Migration Act 1958 (Cth) ss 5J(3)(c), 473DA(1), Part 7AA Cases cited: ANC17 v Minister for Immigration & Anor [2020] FCCA 707
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 20 Date of hearing: 3, 10 March 2023 Counsel for the Applicant The Applicant appeared in person. Counsel for the Respondents Mr G Johnson Solicitor for the Respondents Australian Government Solicitor ORDERS
NSD458 of 2020 BETWEEN: ANC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESMENT AUTHORITY
Second Respondent
ORDER MADE BY:
BURLEY J
DATE OF ORDER:
28 MARCH 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
1 INTRODUCTION
[1]
2 THE DECISION OF THE PRIMARY JUDGE
[7]
3 THE APPEAL
[12]
4 DISPOSITION
[20]
BURLEY J:
1. INTRODUCTION
The appellant, a citizen of Iraq, appeals from a decision of the Federal Circuit Court of Australia (FCCA) in ANC17 v Minister for Immigration & Anor [2020] FCCA 707 (decision).
The appellant arrived in Australia by boat as an unauthorised maritime arrival in April 2013. On 15 June 2016, he lodged an application for a temporary protection visa alleging that he feared persecution in Iraq from the Shia militia because of his ethnicity as a Sunni Muslim and because of his previous work as a barber. On 21 November 2016, a delegate of the Minister for Immigration and Border Protection refused the application and referred his application to the Independent Assessment Authority for review pursuant to Part 7AA of the Migration Act1958 (Cth). On 13 January 2017, the Authority affirmed the decision of the delegate.
The appellant then applied to the FCCA for judicial review of the decision of the Authority. On 30 March 2020, the FCCA delivered the decision, dismissing his application.
The appellant now appeals from the decision of the FCCA on the following grounds:
(1)The Authority erred in its judgment in its consideration of the appellant’s evidence regarding danger from Shia Militia in Iraq.
(2)The Authority denied the appellant procedural fairness by reaching an adverse conclusion that the appellant claims that as a barber he is a potential target.
(3)The Authority erred in its judgment in not considering that a close family member was killed by militia and legal error.
(4)The primary judge erred in applying “what if I am wrong test” at [30].
(5)The primary judge erred at [35] about the Authority’s findings.
The appellant was represented by counsel at the hearing before the primary judge, but was self-represented in this court and did not file any written submissions in support of his case. The proceedings were first called for hearing on 3 March 2023. On that occasion, the appellant sought a short adjournment to obtain legal representation. I adjourned the hearing for one week. On 10 March 2023, the appeal was listed for hearing and the appellant represented himself with the assistance of an interpreter. The Minister was represented by Mr G Johnson of counsel and filed written submissions in answer to the grounds of appeal advanced.
For the reasons set out below, the appeal must be dismissed with costs.
2. THE DECISION OF THE PRIMARY JUDGE
The primary judge set out the relevant legislation applicable to the fast track review processes and procedures pursuant to Part 7AA of the Act. His Honour then summarised the appellant’s protection visa claims and the content of the decision of the Authority as follows:
Protection visa claims
[12] The applicant’s written claims for protection were made in his TPV application on 15 June 2016. He also gave oral evidence at an entry interview on 29 May 2015 and a departmental interview on 16 September 2016. As summarised by the IAA, the applicant relevantly made the following claims:
The applicant ... attended primary school and two years of intermediate school, leaving at that time to become an apprentice at his father's barber shop. He worked as a barber for his father and later on in another salon. When his father retired he and his brother ...took over the shop. He attended compulsory military service in the 1990s but was a barber in the army, he did not receive weapons training;
... In 2012 a number of barber shops/hairdressers were targeted and the owners threatened. The applicant considered changing his line of work and applied for positions with the government and an oil company, but without success. [His brother] refused to be put off by the threats and continued to open the shop as usual. [One day in] 2012 he opened up the shop and was ... shot and killed;
The applicant was unable to continue working in the shop after [his brother’s] murder. He sold the shop ...
The IAA’s decision and reasons
[13] After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The IAA’s findings were summarised by the Minister in his written submissions in the following terms:
5. The Authority accepted that the applicant was a Sunni Muslim from Basra province in Iraq. For the reason of the consistency in the presentation of the claim, the applicant [sic] was satisfied that the applicant and his brother received a number of threats related to running a barber shop and that demands had been made of them to close the business. The Authority accepted that they did not do so, and as a result the applicant’s brother was shot and killed in June 2012. The Authority accepted the applicant sold the business and came to Australia. The Authority was not satisfied of the applicant’s claims in connection with harm arising from his religion due to an absence of any detail provided.
6. Whilst accepting the applicant had a subjective fear of harm arising from his former work as a barber, the Authority was not satisfied that the fear was objectively well-founded. That was because the applicant had ceased operating a barber shop, as demanded by the militias that had targeted him, and his evidence [sic] was not to recommence that business if returned. The Authority also took into account country information regarding potential risks to those who had formerly engaged in operating a barbershop or hairdressing business.
7. The Authority considered having regard to s.5J(3) of the Act that the applicant could take reasonable steps to avoid persecution by seeking to work in another field than barbering/hairdressing, and that such action would not conflict with a character fundamental to his identity or conscience, would not conceal an innate or immutable characteristic of himself, and would not constitute any other modification contemplated by s.5J(3)(c).
8. The Authority further accepted the applicant had a subjective fear of persecution based on his religion, but noting that he had been able to practise his religion in Iraq, noted he did not alter his behaviour or conceal his religious beliefs. The Authority found the applicant was able to carry out his religious beliefs in Basra without adverse consequences. The Authority also took into account country information, in particular a recent UK Home Office report, concerning the risk of harm to Sunnis in the southern governates of Iraq.
9. The Authority was not satisfied that the applicant had a profile as a Sunni who had previously operated a barber shop that would place him at relevant risk of harm. The Authority was further not satisfied of the applicant’s additional claim that he would be subject to societal prejudice and nepotism in the search for work in the government or petrochemical industries. The Authority was not satisfied that such discrimination he may encounter would amount to serious harm under 5J. The applicant also raised a claim in connection with the 2014 data breach from the Department of Immigration’s website. The Authority found the applicant faced no real chance of being harmed on this basis.
10. The Authority was not satisfied Australia had protection obligations to the applicant under s.36(2)(a). For the same reasons, and noting the ‘real chance’ test and ‘real risk’ test for purposes of considering complementary protection claims, the Authority was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa). [references omitted]
[14] I adopt that summary.
The appellant advanced two grounds of review before the primary judge. As the primary judge noted, each of the grounds contained within it a number of discrete assertions of jurisdictional error. In the first ground, the appellant asserted error in the Authority’s decision on the basis that:
(a)It did not engage in an active intellectual process with respect to the importance to a person’s identity of a long-standing, chosen career;
(b)It made a finding that the appellant’s occupation was not central to his identity, which was unreasonable because it lacked an evident and intelligible justification; and
(c)It took an irrelevant consideration into account, namely, when considering the importance of the appellant’s career to him, whether the appellant had taken “reasonable steps” to avoid pursuing his career so as to avoid risking the harm he claimed to fear.
The primary judge rejected those claims, finding at [19] that the Authority had grappled with the question of the extent to which his career as a barber was a part of his identity. The primary judge noted that at [12] of its reasons the Authority found that while the appellant had been a barber all of his working life, to modify his conduct by not working as a barber or hairdresser would not conflict with a characteristic that is fundamental to his identity or conscience would not conceal an innate or immutable characteristic of himself, or would not constitute any other modification contemplated by s 5J(3)(c) of the Act. It noted that the appellant had already considered changing his career, when he and his brother first received threats in 2012, and had applied for some jobs with government and in the petrochemical industry. Further, the primary judge rejected the submission that the finding that the appellant’s occupation was not central to his identity was unreasonable having regard to the considerations to which the Authority had referred. The primary judge also rejected the appellant’s submission that the appellant’s decision to seek other work was motivated by fear, noting that the Authority made no such finding. Finally, the primary judge did not accept that it was not open to the Authority to have regard to whether the appellant had taken reasonable steps to avoid pursuing his career, as these were factual matters for the Authority to determine; at [23].
In the second ground, the appellant had contended by reference to the reasons of the Authority at [11] that it had failed to engage in proper consideration with respect to information from the Finnish Immigration Service, and that its findings were tentative so it should have applied the “what if I am wrong” test. Paragraph [11] of the Authority’s decision is as follows:
The 2015 DFAT Country report on Iraq discusses targeting of specific groups of interest, including particular employment types. Targets on this basis seem to be limited to media professionals and journalists', who may be targeted by security forces as well as militia. Of relevance is information from the Finnish Immigration Service' that the position of barbers and hairdressers seems to have improved in Baghdad. They have not experienced any harassment related to their occupations. In the post-civil war years, they were killed and their salons destroyed. In 2013, hairdressers and beauty salon employees organised a festival to celebrate their trade. New beauty salons and fitness centres have been opened in Baghdad. The other country information before me, particularly the reports from the UK home office, are largely silent on this issue, other than to note that on the basis of Daesh's extremist interpretation of shariah, individuals dressing differently would be at a higher risk of violence and discrimination in areas controlled by them'. Basra is not controlled by Daesh. I am satisfied that there is not a real chance that the applicant in particular, or barbers in general, would be targeted by security forces, by Shia militia or by Daesh/ISIS in Basra for reason of their occupation.
The primary judge rejected the appellant’s contentions, finding that the Authority’s duty was to deal with the evidence that it had, not what it did not have, subject to any submissions the appellant might have made that there was some significance in the report’s silence on the issue. However, as the primary judge noted at [30], the appellant made no such submission to the Authority. Furthermore, the primary judge found that there was no need for the Authority to ask itself whether it was wrong, as its findings were “firm and decisive”; at [35].
3. THE APPEAL
Although the first three grounds of appeal do not purport to identify any error in the findings of the primary judge, as the appellant is self-represented I shall assume that it is nonetheless error on the part of the primary judge to which the grounds are directed. However, none of these grounds was raised before the primary judge. Leave is required before such grounds may be advanced for the first time on appeal: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] – [48] (Kiefel, Weinberg and Stone JJ). The Minister addressed each ground as a matter of substance and does not oppose the appellant’s reliance on them.
In the present case, none of the first three grounds warrants the grant of leave.
In the first, the appellant does not articulate in what way it is said that the Authority erred in its judgment or consideration of his evidence regarding danger from Shia militias. It is apparent from [14] – [15] of the Authority’s reasons that the Authority understood and took into account the appellant’s claim that he feared harm as a Sunni if he returned to Iraq, specifically from Shia militia. The Authority noted country information, preferring the (then) more recent 2016 report from the United Kingdom Home Office that in general a Sunni will not face a real risk of persecution in southern governorates, although this is dependent on their personal profile, including their family connections, profession and origin. It noted at [17] that the appellant has lived in his town of origin all of his life and still has family in the area. Before leaving Iraq he attended mosque regularly without incident. It concluded, based on country information including a 2015 report from the Finnish Immigration Service, that his previous profession of barber no longer places him at risk of harm and that it would appear that he was not at risk of harm once he had closed his barber shop. It also concluded that he could take reasonable steps not to work as a barber or hairdresser and that he would not be prevented from practising his religion and that there would be no real chance of harm if he did so. No error is apparent from this reasoning.
In the second ground, the appellant contends that the Authority denied him procedural fairness. As the Minister points out in his submissions, the Authority’s obligations to afford procedural fairness to a fast track review applicant are limited to the matters set out in Part 7AA: s 473DA(1). No particular is supplied to support an absence of procedural fairness. The mere finding of an adverse conclusion about a factual issue on the review does not constitute a denial of procedural fairness.
In the third ground, the appellant contends that the Authority erred in not considering that a close family member was killed by militia “and legal error”. This appears to be a contention of error on the basis that the Authority misunderstood his claim to be at risk of future harm from Shia militia in connection with his employment as a barber. However, it is apparent that the Authority did take this into account, as is recorded in its reasons at [5], where it accepted that the appellant’s brother had been shot and killed. However, the Authority found also that the appellant had closed the shop thereafter, had not encountered further difficulties as a result, and that he had said that he would not resume working as a barber in the future. The Authority also found that country information indicated that the risks to barbers had changed since 2012. Accordingly, the contention that the Authority overlooked the appellant’s claims about his brother is not established.
In the fourth and fifth grounds of appeal, the appellant contends that the primary judge erred at [30] of his reasons and also in determining at [35] that the “what if I am wrong” need not be applied.
At [29] – [31], the primary judge was concerned with the allegation advanced below that the Authority “did not engage in proper consideration with respect to the information from the Finnish Immigration Service”. The 2015 Finnish Immigration Service report refers to a 2013 Australian Department of Foreign Affairs and Trade (DFAT) report which contains comments to the effect that the position of barbers and hairdressers had improved in Baghdad. His Honour characterised the allegation as being that the Authority should have engaged with a government report’s silence on a particular issue, namely that DFAT did not state the same conclusion in its 2015 report. The primary judge was correct to observe that the obligation of the Authority was to deal with the evidence that was before it, not to address material that was absent. It is unnecessary to consider whether the primary judge may have overstated a subsequent qualification added, which was that the obligation did not arise “unless the appellant had made a submission to the Authority drawing attention to some significance in the report’s silence on the issue”. The question of whether that obligation arises is very much fact dependent, and does not arise in the present case.
Finally, the fifth ground appears to be directed towards the application by the primary judge of Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [62] – [67]. No error is apparent from the primary judge’s reasoning in this respect. His Honour was correct to characterise the relevant findings made by the Authority as firm and decisive.
4. DISPOSITION
The appellant is refused leave to rely on grounds 1 – 3 of the Notice of Appeal. The Appeal must be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. Associate:
Dated: 28 March 2023
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