Aoc17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 298
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AOC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 298
File number(s): SYG 402 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 27 April 2022 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision refusing to grant the applicant a protection visa – template grounds – whether the Authority decision took into account an irrelevant consideration, failed to consider a claim or was legally unreasonable considered – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 46A, 65 Cases cited: COE17 v Minister for Immigration & Anor [2020] FCCA 1327
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 411
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 27 April 2022 The Applicant: In person Counsel for the Respondents: Mr M P Cleary Solicitor for the Respondents: Mills Oakley ORDERS
SYG 402 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AOC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
27 APRIL 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application filed on 13 February 2017 is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $7,000.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with the Court on 13 February 2017 the applicant seeks review of a decision of the Immigration Assessment Authority (Authority) made on 18 January 2017 which affirmed a decision of a delegate of the first respondent (delegate) not to grant the applicant a temporary protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
The background to the application and to the Authority’s decision is accurately summarised in the Minister’s written submissions.
BACKGROUND AND THE APPLICANT’S CLAIMS
The applicant is a male citizen of Iraq of the Shia Muslim faith, who arrived in Australia unlawfully as a maritime arrival on 24 October 2013. As the applicant arrived in Australia at an excised offshore place, he was barred from making a valid visa application pursuant to s 46A of the Act.
On 25 May 2016 the applicant was advised by letter that the s 46A bar had been lifted, and was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV).
On 23 May 2016, the applicant lodged the TPV application (Court Book (CB) at 60). In summary, the applicant made the following claims for protection:
(a)he was an Arab and Shia Muslim;
(b)he worked in a bar in Basra where he served alcohol;
(c)he was abducted and beaten by men from a group called LAFA who told him he must join their group or be killed;
(d)after being allowed to return home to collect his passport, the applicant subsequently escaped Iraq on 30 May 2013. Two weeks later the militia men went to his house and were asking for him. His home was also shot at in March 2016; and
(e)his personal details were released in 2014 in the Department data breach.
After lodging his TPV application, on 30 May 2016 the applicant attended an interview with the Department.
In a post interview submission dated 26 September 2016 the applicant's agent also claimed the applicant feared harm because of the following:
(a)he was a failed asylum seeker who will be perceived by both the Shia and Sunni militias as having western opinions;
(b)he will be perceived by the Shia militias and the ISF as being anti-regime because he refused to fight against the Sunni insurgents and ISIS;
(c)he will also be perceived as being an opponent of Shia militias because he was an activist for the non-discrimination of Bidoons; and
(d)he will be persecuted by ISIS and other Sunni militias because he is a Shia Muslim perceived as contravening a strict interpretation of Islam.
A further post-interview submission was provided by the applicant’s agent on 30 September 2016.
On 11 October 2016 the delegate refused the applicant the TPV (CB at 204-244). The delegate was not satisfied that the applicant was abducted or beaten by LAFA or was otherwise of interest to them. The delegate did not find that the applicant’s claims were credible.
On 18 October 2016 the application was referred for review by the Authority (CB at 245).
On 10 November 2016 the applicant provided a submission to the Authority addressing the delegate's decision.
On 18 January 2017 the Authority affirmed the decision not to grant the applicant a protection visa (CB at 292-312).
AUTHORITY DECISION
The Authority recorded having received a submission on behalf of the applicant from his representative on 10 November 2016, which addressed the delegate's decision and findings by reference to country information that was before the delegate. The Authority said that it had had regard to that submission (at [4]).
After setting out the background to the review, the Authority addressed the first claim for protection and was not satisfied that the applicant was an activist for the non-discrimination against stateless persons (also referred to as Bidoons), or that he would be imputed with such views, and therefore he would not face a real chance of harm for this reason (at [14]). In so finding, the Authority noted that:
(a)the claim the applicant was an activist for non-discrimination of Bidoons was first raised in a post-interview submission (at [11]-[12]); and
(b)the applicant himself did not claim to be a Bidoon, or that he suffered any discrimination or harm as a Bidoon in the past. In this regard the post-interview submission dated 30 September 2016 clarified that the applicant had not claimed to be stateless (at [17]).
In addressing the applicant’s second claim the Authority was not satisfied that LAFA, or other militant groups, had requested, targeted, or forced the applicant to join, or that he had been followed and kidnapped in the past. The Authority was also not satisfied that his family and home had been targeted by militia after he had left or that there was a real chance that the applicant would be perceived as being opposed to the regime or the militias (at [44]). In this regard the Authority:
(a)considered country information which did not suggest that LAFA engaged in forcible recruitment (at [25]);
(b)considered the applicant's profile, and found it highly doubtful that LAFA would be interested in recruiting him (at [27], [30]-[31]); and
(c)did not find the applicant's claims regarding his abduction credible, noting, various aspects of his claims were not plausible and that no independent evidence such as police reports had been provided (at [31]-[41]).
Finding there was no credible evidence to indicate that the applicant suffered past harm, or that he was of interest to any military group, the Authority was not prepared to accept that any such group wanted to stop the applicant from working his bar job (at [51]).
The Authority was consequently not satisfied that the applicant faced a real chance of harm from LAFA, JAM (the Mahdi Army), Shia militant groups, Sunni armed groups, the authorities, Mr B (an individual who worked at the same bar), or anyone, for reasons relating to his work at a bar in Basra, now or in the reasonably foreseeable future (at [52]).
On the basis of country information, the applicant's accepted profile, and the evidence before the Authority, it was not satisfied that the applicant faced a real chance of being targeted or harmed in Basra by Sunni militant groups, including Daesh (at [58]).
Although accepting that Daesh and other Sunni extremists targeted Shias in areas under their control, the Authority noted that the Basra governorate was in Southern Iraq, under the control of the Iraqi security forces (at [57]). In this regard Department of Foreign Affairs and Trade (DFAT) information indicated insurgent activity was at its highest in northern, western, and central Iraq (at [56]).
The Authority did accept that security incidents occurred in southern areas (at [61]). However, the Authority found there to be only a remote chance the applicant would be caught up in generalised violence (at [67]). In so finding, the Authority:
(a)noted that the southern parts of Iraq were significantly more secure than central Iraq, and have been relatively insulated from the increased level of violence in the north and the west (at [59], [62], [64]);
(b)found that Shias faced little or no official discrimination in government-controlled areas as the majority community (at [64]); and
(c)had regard to DFAT country information which indicated Shias in Shia dominated areas were at low risk of generalised violence (at [64]).
The Authority considered a claim in the post-interview submission dated 26 September 2016 that suggested the applicant had a raised profile because of his health and that this would give rise to harm by Daesh and other extremist groups. The Authority did not accept the applicant would face a real chance of harm for reasons relating to health, noting the claim had not been initially raised until the post-interview submission, and that the applicant had not provided any medical documentation (at [69]-[73]).
The Authority was not satisfied that the applicant faced a real chance of harm on the basis that he was a failed asylum seeker, a returnee to Iraq, had been identified in the Department's data breach, or had been given a 12 month good behaviour bond in relation to an offence committed in Australia.
The Authority found there was nothing to suggest that because the applicant was subject to a good behaviour bond, this would increase his risk profile, and the applicant had not claimed he would disclose the offence to anyone in Iraq (at [78]).
The Authority had regard to independent country information which did not suggest failed asylum seekers or returnees would be imputed with anti-regime views, or that asylum seekers were targeted by militant groups (at [81]-[82]). Rather, the Authority noted, the information suggested that many Iraqis who had sought asylum had now returned to Southern Iraq and taken up senior and middle level public sector jobs, and that there was no evidence that the over 100 Iraqis who failed to receive asylum in Australia and returned to Iraq had faced significant problems (at [83]).
Although accepting the applicant was identified in a data breach, the Authority was also not satisfied the breach gave rise to a real chance of the harm to the applicant given the evidence before the Authority and the applicant's accepted profile (at [85]).
For these reasons outlined above, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
APPLICATION TO THIS COURT
On 24 March 2017 Judge Dowdy made orders at the first Court date in this matter (which the applicant attended in person with the assistance of an interpreter in the Arabic language) for the preparation of this matter for hearing which included that the applicant file and serve an amended application on or by 19 May 2017. The applicant did not avail himself of that opportunity. On 22 December 2021 this matter was brought into my docket and listed for hearing before me today.
The applicant and the first respondent were each ordered to file and serve written submissions 14 and seven days before the hearing date respectively. Written submissions were filed for the Minister on 14 April 2022, but not at all by (or for) the applicant.
The applicant has appeared me using the Microsoft Teams platform this morning, unrepresented but with the assistance of an interpreter in the Arabic language. The Minister is represented by Counsel. The connection appeared to be clear and without any technical difficulties throughout the course of the hearing and the parties and the interpreter did not appear to have any difficulty in understanding one another nor engaging with the Court.
In the absence of having amended his application in accordance with the grant of leave, or at all, the grounds of review are in the originating application as follows (errors in original):
1.THE IMMIGRATION ASSESMENT AUTHORITY “IAA” FAILED TO TAKE INTO ACCOUNT RELEVANT CONSIDERATION, THE “IAA” TOOK INTO ACCOUNT IRRELEVANT CONSIDERATION
2.THE IMMIGRATION ASSESMENT AUTHORITY “IAA” FAILED TO TEST ALL THE REFUGEE CONVENTION ELEMNTS AGAINST MY CIRCUMSTANCES.
3.THE IMMIGRATION ASSESMENT AUTHORITY “IAA” DECISION IS UNREASONABLE
At the hearing before me, the applicant sought to rely on an Affidavit which was filed at the same time as the originating application. That Affidavit annexed a copy of the Authority’s decision which was subsequently included in the Court Book prepared by the first respondent. If that were the only purpose of the Affidavit, I would have declined to receive it. However, as Counsel for the Minister has diligently noted in his written submissions, the body of that Affidavit document raises additional grounds of review. Not only are they additional but, unlike the grounds of review in the actual application, they are not bare assertions and they appear to relate to the applicant’s claims as considered in the Authority’s decision.
In fact, so general were the applicant’s claims that I asked him whether he wished the Court to consider them at all, or to simply proceed to consider the grounds addressed in the Affidavit. I also observed to the applicant that I was aware that these grounds had been raised, including with precisely the same typographic and spelling errors and considered in another matter which has been determined by this Court: COE17 v Minister for Immigration & Anor [2020] FCCA 1327 at [8] per Judge Manousaridis.
Despite this, the applicant nonetheless made statements which I interpreted as meaning that he wished the Court to consider the grounds in the originating application as well as the grounds in his Affidavit. Accordingly, I received the Affidavit of the applicant made on 11 February 2017, the body of which I treated as raising additional grounds for judicial review and during the course of the hearing, the applicant was given the opportunity to address each of the grounds in both of the originating application and the Affidavit.
The applicant also sought to read an Affidavit made by him on 15 January 2018 which annexes a document in the Arabic language together with an English translation prepared by an accreditor translator. Counsel for the Minister objected to the Court receiving this Affidavit on the basis that the document annexed appears to be dated 10 October 2017, which is almost 10 months after the Authority made its decision and the content of the document seeks to go towards the merits of the applicant’s claims. I rejected the Affidavit on the basis that matters at the time of the Court’s hearing or at least post-dating the decision of the Authority are irrelevant to the question before me, which is whether the Authority has erred in a way which goes towards jurisdiction: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [29] per Beach, Thawley and Cheeseman JJ.
At the outset of the hearing I also explained to the applicant the limitations on the Court’s jurisdiction in relation to the granting of visas and he indicated that he understood. Notwithstanding this acknowledgement, most of the submissions that the applicant made to me this morning pertain to the merits of his claims and the reasons why he says he cannot return to Iraq, cannot live in Iraq and why Iraq is a dangerous place for him.
Ground 1
In relation to ground 1 of the originating application which makes bare assertions being that the Authority failed to take into account a relevant consideration and instead took into account an irrelevant consideration. I invited the applicant to address me in respect of this ground and he said that he “just wanted to find out why they rejected [him]” and noted that he had been in Australia for 10 years. The applicant said that “they were supposed to give [him] a visa and accept [him] as a refugee and a humanitarian”.
In relation to the first of these statements, I indicated to the applicant that the reasons why the Authority had affirmed the decision of the delegate were included in its decision record. In relation to the suggestion that the applicant ought to have been accepted as a refugee, the role of the Authority was to review the decision before it in accordance with the functions which are conferred on it by Part 7AA of the Act. The Authority was not mandated by the Act (or any other requirement) to give the applicant the visa he wanted.
Otherwise ground 1 of the originating application is, as the first respondent submits, so general as to be meaningless and does not give rise to a jurisdictional error. If any of the matters that are raised in the Affidavit of the applicant are sought to particularise ground 1, then these will be considered in due course.
Ground 2
Ground 2 of the originating application alleges that the Authority failed to test all of the Convention elements against the applicant’s own circumstances. I again invited the applicant to address me in respect to this ground and specifically which of his circumstances he says the Authority did not consider as part of its refugee assessment. In response, the applicant said that the Authority found that he can live in Iraq, but in fact he cannot live there and because there is “a lot of assassination that takes place”. I asked the applicant if what he was saying by this submission was that, in essence, the Authority had failed to accept his claims and the applicant agreed.
As I explained to the applicant in the course of the hearing, simply by not accepting his claims, the Authority did not commit a jurisdictional error. The Authority was not required to uncritically accept the applicant’s claims and the fact that he is dissatisfied with its findings does not give rise to the type of serious legal error which I described to him as being required, in order that the matter would be remitted. A review of the Authority’s quite comprehensive decision does not reveal a failure on its part to have considered each of the applicant’s claims as against the refugee criteria.
Again, if by this ground the applicant is making reference to the more specific grounds raised in his Affidavit, including a failure to consider his membership of a particular social group, then those allegations will be addressed in due course in relation to those grounds. Otherwise there is nothing raised by the applicant at hearing in relation to the bare assertion in ground 2 of the originating application which gives rise to a jurisdictional error and it must therefore fail.
Ground 3
Ground 3 of the originating application alleges that the decision of the Authority is unreasonable. When asked to speak to this ground, the applicant said “I do not know what to say.”
Legal unreasonableness is a technical concept which, it can be accepted, is not something with which an unrepresented applicant may readily come to grips, so it is unsurprising that the applicant is not able to address it. However, the threshold for establishing it is high: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [135]. In the time since SZMDS was delivered, the High Court has also described the test for unreasonableness as being stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.
At hearing before me today the applicant has consistently expressed disagreement with the decision of the Authority. However, the fact that the applicant disagrees with the decision of the Authority or is otherwise dissatisfied with the Authority’s findings or its non-acceptance of his claims are not indicia of the unreasonableness of the decision. There has been nothing raised by the applicant in addressing ground 3 of the originating application which would satisfy me that there is a jurisdictional error arising from it and, therefore, it is not made out.
The Affidavit
Turning then to the grounds of review which are taken from the applicant’s Affidavit made on 11 February 2017, they are as follows (errors in original):
1.The IAA failed to take into account relelvant consideration represented by my statutory declaration my application for temporary protection visa , THE IMMIGRATION ASSESMENT AUTHORITY "IAA" FAILED to consider my testimony during the protection visa application in relation to my citizenship , alternatively , THE IMMIGRATION ASSESMENT AUTHORITY "IAA" relied on my agent's submission which was erroneous in describing me as stateless person.
2.THE IMMIGRATION ASSESMENT AUTHORITY "IAA" relied on my agent's submission which describes me as" an activist for stateless people issues in Iraq , on the other hand , "THE IMMIGRATION ASSESMENT AUTHORITY "IAA" FAILED to take my statements during the protection visa interview which clearly stated that I was not an activist for stateless people rights .
3.THE IMMIGRATION ASSESMENT AUTHORITY "IAA'' FAILED to consider my membership in the particular social group "people who worked in bars selling alcohol" in to consideration , THE IMMIGRATION ASSESMENT AUTHORITY "IAA" FAILED to consider this aspect of my claims.
4.THE IMMIGRATION ASSESMENT AUTHORITY "IAA" FAILED to consider my imputed political opinions as an employee in a bar , selling alcohol in basra , my imputed political opinion emanate from the fact that my work was a challenge to the purpose of establishing Islamic regime in iraq , THE IMMIGRATION ASSESMENT AUTHORITY "IAA" FAILED to completely consider this aspect .
Particulars
a. THE IMMIGRATION ASSESMENT AUTHORITY "IAA" FAILED to consider the threats I received because of my work as a barman , in my statement , I refereed to the LAFA group threatening me because of my work , this is the main reason why they asked me to join them , because they saw in my work as a challenge to them .
Grounds 1 and 2 in the Affidavit
Grounds 1 and 2 contained in the Affidavit have a common thread and it is appropriate to consider them together. By ground 1, the applicant seems to be alleging an error on the part of his agent which, in turn, led the Authority into error.
By ground 2, the applicant alleges that the Authority relied on his agent’s submissions which described him as an activist for “stateless people issues” in Iraq. The applicant says that the Authority failed to consider his statements during the protection visa interview which he says clearly stated he was an activist for stateless people’s rights. When asked to speak to these grounds at the hearing, the applicant said to me: “I’m not stateless; I’m born in Iraq. My family is stateless.” I observed to the applicant that the Authority agreed with him and very clearly, at paragraph [8] of its reasons for decision, accepted that he was a citizen of Iraq. The applicant also said:
I would like to find out the reason why they rejected me. I’m facing great danger in Iraq. I don’t – I can’t live in Iraq.
The references in grounds 1 and 2, as contained in the applicant’s Affidavit, appear to come from a written submission which was made to the delegate by the applicant’s agent on 26 September 2016 (CB 151) which provides as follows:
2. CONVENTION NEXUS
[The applicant]’s claims are based on the following convention grounds:
• Membership of a particular social group:
oA failed asylum seeker who will be perceived by both the Shia and Sunni militias as having western opinions.
• Imputed political opinion:
o[The applicant] will be perceived by the Shia militias and the ISF as being anti-regime by refusing to fight against Sunni insurgents and ISIS.
oAs an activist for non-discrimination of Bidoons, [the applicant] will be perceived as being an opponent of Shia militias.
• Religion:
oISIS and other Sunni militias will persecute [the applicant] because he is a Shia muslim perceived as contravening strict interpretation of Islam.
Despite the suggestion in ground 1 in the Affidavit that the applicant’s agent claimed on his behalf that the applicant was stateless, there is nothing in this 26 September 2016 written submission that gives credence to that suggestion. It may be that some confusion arises out of the fact that, four days later on 30 September 2016, the applicant’s migration agent provided a further written submission to the delegate which clarified the Convention nexus claimed by the applicant (CB 192 to 193). The 30 September 2016 written submission also contained a statement at the bottom of page 201 of the Court Book which indicated that the applicant was not himself claiming to be stateless. It appears from its omission in the 30 September 2016 submission that the applicant may no longer have been actively advancing the claim to be an activist for non-discrimination against Bidoons.
The delegate accepted that the applicant was Iraqi (CB 208 and 209) which is consistent with the applicant’s claims throughout the visa application process (CB 34, 56 and 73). The delegate explained the circumstances in which the claim to be a non-discrimination activist had arisen and dealt with that claim on its face. Considering the claim in circumstances where it had been raised and not expressly abandoned was not inappropriate or in error and, accordingly, it then comprised part of the delegate’s decision which was subsequently referred to the Authority.
The grounds seem to direct themselves to the conduct of the applicant’s agent. If what is sought to be alleged is that the agent acted in a way which gave rise to an error on the part of the Authority that allegation must fail. Firstly, the controversy, even if there was one, took place at the delegate phase and was clarified such that it did not cause the delegate (and consequently the Authority) to misapprehend the applicant’s claims. Even if the applicant’s agent had somehow misrepresented the applicant as being stateless, which is not in fact clear, the agent expressly disavowed such a representation by the later 30 September 2016 submission. Next, even if the agent had erroneously stated that the applicant was claiming to be stateless, it is well established that in order to unravel the making of an administrative decision, what is required is fraud, and not mere negligence or inadvertence on the part of the agent: Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [33].
Given that an allegation of fraud is a serious one indeed, the Court would need to be satisfied that the conduct of the applicant’s agent in misrepresenting the applicant’s claims to the delegate, and later the Authority, had been proved to the level of satisfaction required by the Briginshaw standard.
Beyond the bare allegation in grounds 1 and 2 contained in his Affidavit, the applicant has not filed any evidence to make out such an allegation, even if he intended to make it. Further, like the delegate before it, the Authority also addressed the activist claim, and this can be seen at paragraphs [11] to [14] (CB 295 to 296).
Further, and as I pointed out to the applicant during the course of the hearing, it is also clear from the express finding at paragraph [8] (CB 295) that the Authority accepted the applicant was a citizen of Iraq and, therefore, was not stateless.
Even if the activist claim was erroneously made, and even if it was intended to be abandoned or withdrawn and that notwithstanding this the Authority went on to consider it unnecessarily then this would still not amount to an error. That is because even though the Authority did not accept that the applicant had such a profile, this finding did not form part of its assessment of the applicant’s credibility or his other claims. Accordingly, even if considered in error, it had no negative consequences for the applicant or, more specifically, had the Authority refrained from considering the claim, there is no realistic prospect that it could have come to a different decision.
Accordingly and based on the material before me, I am not satisfied that there is any error as alleged by grounds 1 and 2 of the applicant’s Affidavit or otherwise arising from the making of the claim in the 26 September 2016 submission that the applicant was an activist against Bidoon discrimination.
Grounds 3 and 4 in the Affidavit
In relation to grounds 3 and 4 contained in the applicant’s Affidavit, it is equally appropriate to consider these grounds together. Ground 3 alleges that the Authority failed to consider the applicant’s membership of a particular social group said to be people who worked in bars selling alcohol. Ground 4 together with its particulars alleges that the Authority failed to take into account the applicant's political opinion as an employee in a bar in Basra selling alcohol because it was a challenge to Iraq's Islamic regime and that for this reason he was threatened by LAFA to join them, or be killed.
When asked to speak to these grounds the applicant told the Court that, “over there” – by which I assume he sought to refer to Iraq – “you do not accept this type of bar work, and it's very dangerous work”. The applicant said that this decision of the Authority is “very hard on [him]” but that he could not say that they made an error because “they are the government and you have to respect the government and the law”.
In relation to the allegations made by grounds 3 and 4 the first thing to note is that the applicant, who was represented (both at the delegate and the Authority phase of the decision), had expressly made a claim to be a member of a particular social group (see CB 294). It is open to infer that the applicant’s submissions were crafted with some specificity, and on instructions. Even if they had been improperly expressed, one might then expect they would have been clarified in the 30 September 2016 submission when other corrections were being made. The applicant did not expressly make the link between his employment in a bar selling alcohol giving rise to him being a member of a particular social group or as being an element of his political opinion, imputed or otherwise.
Further, and as Counsel for the first respondent submits, the Authority considered the applicant's bar work through the prism of three separate parts of his claims and its decision: firstly, at paragraphs [51] to [52], in relation to what could be summarised as the recruitment claims as follows:
51. There is no credible evidence to indicate that the applicant suffered past harm, or that he is of interest to LAFA, JAM, Shia or Sunni armed groups, the authorities or anyone, for reasons relating to his work at a bar in Basra. Given my above concerns with the applicant’s evidence, I am not prepared to accept that LAFA, JAM, Shia armed groups or Sunni militant groups, Mr B or anyone wanted to stop him from working in that job.
52. I am not satisfied on the evidence that the applicant faces a real chance of harm from LAFA, JAM, Shia militant groups, Sunni armed groups, the authorities, Mr B, or anyone, for reasons relating to his work at a bar in Basra, now or in the reasonably foreseeable future.
Next the Authority considered the claims under the “general situation and harm as a Shia Muslim” chapeau in paragraphs [53] and [54] and lastly, in its conclusion at paragraph [90] (CB 306).
Given that:
(a)the Authority did not fail to consider the claims regarding the applicant's bar work, or the harm said to arise because of it;
(b)the applicant was represented at all relevant times;
(c)no express particular social group arose from the material placed before the delegate or the Authority;
(d)the delegate's decision also did not have regard to this being a particular social group as now contended; and
(e)having regard to the principles that have evolved over many years in this regard,
I am not satisfied that the material or claims as they lay for consideration before the Authority sufficiently raised the particular social group now claimed, such that the Authority should have dealt with it in the specific formulation now advanced: SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 411 at [11] to [17] per Selway J.
Accordingly I am not satisfied that grounds 3 and 4 of the applicant's Affidavit are made out.
CONCLUSION
For the foregoing reasons I find that the decision of the Authority is free from jurisdictional error. Accordingly it is a privative clause decision and must be dismissed. I will so order.
The Minister seeks an order consequent upon my dismissal of the application that the applicant pay costs fixed in the amount of $7,000. The applicant has made submissions to me that he is married and that his wife is pregnant. He says he is not sure how he is “going to be able to afford all of this” and that “she is really sick”. As I explained to the applicant, while I have sympathy for his present family position, this is not a matter that would necessarily impact whether or not costs are reasonable in this case.
I also explained to the applicant that he would be contacted in due course by the first respondent's solicitors who will explain to him how he can contact the Department with a view to seeking time or instalments to pay.
Accordingly, and in all the circumstances of this case, I am satisfied that costs should follow the event, and I am also satisfied that the amount sought is reasonable.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 13 May 2022
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