Aow17 v Minister for Immigration
[2020] FCCA 212
•7 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOW17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 212 |
| Catchwords: MIGRATION – PRACTICE AND PROCEDURE – Application for leave to rely on amended application containing five grounds of review – whether reasonable explanation given for delay in formulating grounds contained in amended application – whether proposed grounds reasonably arguable – leave granted to rely on one of the five grounds. MIGRATION – Application for remedies under s.476 of the Act of decision made by the Authority affirming decision not to grant a temporary protection visa – whether Authority made a finding for reasons on which it was not reasonably open to it to rely – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3 |
| Cases cited: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 |
| Applicant: | AOW17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 421 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 28 January 2020 |
| Date of Last Submission: | 28 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Stamford Law Firm |
| Solicitors for the First Respondent: | Ms K Morris of Clayton Utz |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s.477(1) of the Act for making an application for relief under s.476 of the Act in relation to the decision of the second respondent made on 23 September 2016 is extended to 14 February 2017.
The applicant have leave to rely on ground 1 of the amended application filed on 20 December 2019.
The application for leave to rely on grounds 2, 3, 4, and 5 is dismissed.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 421 of 2017
| AOW17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 14 February 2017 the applicant, a Shia Muslim and citizen of Iraq, filed with this Court an application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) on 23 September 2016 affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (TPV). By the same application the applicant also claims an order under s.477(2) of the Act extending the 35 day period prescribed by s.477(1) for making an application to this Court for a remedy under s.476 of the Act.
Claims for protection
The applicant stated his claims for protection on a number of occasions. It would be convenient if I begin with the claims the applicant made in the statutory declaration that formed part of his application for a TPV.[1] The applicant there claimed as follows:
a)The applicant’s and his family’s problems started when his brother married someone from another tribe towards whom the applicant’s tribe is hostile. The applicant was threatened because he was defending his brother in front of the “head of our tribe and some very influential people in our tribe”. The applicant’s brother “was killed in [sic] 02/7/2012” because of a revenge killing that occurred in 2010. The applicant’s brother nevertheless insisted on marrying the girl from the other tribe at the beginning of 2011. The marriage started the hatred and violence against the applicant’s family.
b)The applicant’s brother was killed in 2012 near the applicant’s sister’s home while lining up at a bakery. The applicant’s tribe prevented the applicant’s family from doing the mourning rituals. On the first day of the mourning ceremony, some tribe members approached the applicant and told him not to proceed with the ceremony, and threatened to kill him if he did so. The applicant nevertheless continued to proceed with the rituals.
c)The applicant felt the members of the tribe would kill him, and he escaped to Erbil in the northern Kurdish region where he stayed for around 15 days. He there received a telephone call from an unknown number stating: “you disobeyed our tribe, we will kill you”. The applicant decided to flee Iraq. To that end, he returned to Baghdad where he lived at his uncle’s house. He then left Iraq for Australia.
[1] CB66-67
The delegate interviewed the applicant on 26 October 2015 (TPV interview). The delegate found that the applicant’s responses were generally consistent with the applicant’s written statement of claims, although the delegate noted they were inconsistent with other information the applicant had given to the Department of Home Affairs (Department).[2]
[2] CB129
Before the delegate, the applicant claimed as follows:[3]
a)Sunni terrorists in Abu Ghreib killed the applicant’s father and one of the applicant’s brothers. The applicant supported this claim by producing copies of death certificates.
b)The applicant’s brother, Mr R, married a woman of the Al Kinani tribe with which the applicant’s tribe (the Al Roubai tribe) has ongoing conflict. That conflict stemmed from an honour killing in 2010 where a member of the Al Kinani tribe killed a member of the Al Roubai tribe. The applicant’s own immediate family was not involved in the killing. The applicant identified a Mr H as the person who had been killed, but the applicant did not know details of the killing. The applicant said that Mr H was far away in Wasit, and the applicant’s family were living in Baghdad.
c)The honour killing affected the applicant’s family because the applicant’s brother married a woman from the tribe of the man who killed “his cousin”.[4] When the applicant’s brother married the woman his tribal leader refused to accept the marriage and told the applicant’s brother to divorce the woman or his blood would be shed. The applicant named a Mr K as the tribal leader.
d)The applicant’s brother was killed on 2 July 2012 while buying bread. The conflict within the tribe that led to the applicant’s brother’s killing started about two years before the applicant’s brother was killed. The applicant’s brother had then been threatened, so he left the family house and went to another area to hide. The tribe kept threatening the applicant’s family, but the family wanted to keep the tribe away from the applicant’s brother.
e)The applicant was the mediator between his brother and the tribe, and he played that role from the time his brother married. The applicant was able to name his brother’s wife, but was not able to name the father of his brother’s wife.
f)The applicant’s personal difficulties began after the applicant’s brother had been killed, when the family held the funeral for the applicant’s brother. The tribe ordered the applicant to stop the regular three-day funeral under Islamic customs, or he would also be killed. When that occurred the applicant went to Erbil, while the applicant’s wife and children went to his mother-in-law’s house in Wasit. After 15 days in Erbil, the applicant returned to Baghdad to ask for the help of his maternal uncles. They refused to help the applicant because they said they would also be caught up in the conflict.
g)The applicant did not seek any assistance from Iraqi authorities. When his brother was killed the applicant went to the police station to report the killing, but when he arrived “they” told the applicant they did not want to be involved after the applicant identified the tribe to which he belonged.
h)While at Erbil the applicant received a call from a man in the tribe who told him he had broken the tribal law, and he would be killed. The applicant did not recognise the voice, and he does not know the man who called him.
[3] CB129-131
[4] CB129. It is unclear to whom “the cousin” is intended to refer, presumably it is Mr H
After the delegate made his decision, and the matter was referred to the Authority, the applicant’s representative provided submissions and documents which included what purported to be a letter dated 10 August 2016 from the “Chieftain of Al-Attatefa Tribe” addressed to “the Sons of” what appears to be the name of the applicant’s father (denouncement-and-order-to-kill-document).[5] The translation of the document states that the “Trible [sic] of Rabie/ Al-Attatef deemed you to be dissidents and it is lawful for any member of the tribe to murder you wherever you may be in Iraq”. The letter further states that “[w]e have denounced you because of your shameful deeds that denigrated the tribe and particularly because of (. . . and his wife)”. The Authority considered this matter to be “new information” within the meaning of s.473DD of the Act, but found there were exceptional circumstances to justify considering that document.[6]
[5] CB179-182
[6] CB191, [8]
Authority’s reasons
The Authority accepted the applicant and his family belong to the Al Roubai tribe, that that tribe is a big tribe, and is predominantly Shia.[7] The Authority noted the applicant did not expressly claim fear of harm on the basis of the revenge killing, but in any event it was not satisfied, for that reason, the applicant faced a real risk of harm now or in the reasonably foreseeable future.[8]
[7] CB192, [15]
[8] CB192, [16]
The Authority accepted the applicant’s brother was married on 15 February 2010,[9] and that the applicant’s brother had been killed.[10] The Authority, however, was not satisfied the applicant’s brother was married to a woman from another tribe that has an ongoing hostility with the applicant’s tribe, or that he was of adverse interest to the applicant’s tribe, or that he was threatened by the tribe, or that he escaped from his home area to the new area to avoid harm, or that the applicant’s brother’s death was in any way related to the revenge killing in 2010, or to any tribal hostility or conflicts, or that he died in the circumstances the applicant claimed. The Authority relied on the following matters:
a)The marriage certificate the applicant provided as proof of his brother’s marriage does not indicate the parties’ tribes; and there was no independent evidence to support the applicant’s claims that his brother’s wife is from another tribe, and no evidence of the relationship between the tribes if they were from different tribes.[11]
b)The Authority did not find plausible the applicant’s evidence that the tribe killed his brother while lining up at a bakery in light of the applicant’s evidence that his tribe is a big and powerful tribe which was able to locate and threaten the applicant 15 days after he escaped to Kurdistan. If, as the applicant claimed, his brother was of adverse interest to the applicant’s tribe, and he was hiding in the area in which he was killed during 2010 and 2011, the applicant’s brother would have remained discreet in the area to avoid being located by the tribe.[12]
c)The Authority shared the delegate’s concerns that the applicant’s brother, who, on the applicant’s claims, was allegedly the main target in the tribal dispute, was able to avoid detection and harm in Baghdad by the tribe, given the tribe’s strength and size.[13] Although the Authority accepted it was not abnormal that a person with skills of hiding from a persecutor could avoid detection for two years, it did not accept that the applicant’s tribe would not have been able to find the applicant’s brother, given that he had moved to an area near his sister’s house.[14]
[9] CB193, [19]
[10] CB193, [25]
[11] CB193, [20]
[12] CB193, [22]
[13] CB193, [23]
[14] CB193, [24]
The Authority did not consider the applicant was truthful about his claims regarding the circumstances in which he departed Iraq. In particular, the Authority did not accept the applicant escaped to the Kurdistan region, stayed in Erbil, and then returned to Baghdad, or that he received a threatening call in Erbil, or that he sought the assistance of his maternal uncles.[15] The Authority relied on the findings it had already made, and on the following additional matters:
a)The Authority did not find it plausible that, having escaped Baghdad to Erbil because he feared harm from the tribe, the applicant would return to Baghdad after 15 days, and after he had received a threat from the tribe. Further, the Authority did not accept the applicant would have escaped to Erbil without first seeking help from his uncles.[16]
b)In his statutory declaration the applicant claimed that when he returned from Erbil he lived in his uncles’ house but in the TPV interview the applicant said his uncles refused to protect him, telling him to leave because they would be in danger if he were to stay.[17]
c)The account the applicant had given at his entry interview in October 2012 about the last place he lived in Iraq before he left Iraq was inconsistent with the account the applicant had given in his statutory declaration and at the TPV interview. Further, the applicant did not at his entry interview mention any travel to the Kurdish region or to Erbil.[18]
[15] CB195, [35]
[16] CB194-195, [31]
[17] CB195, [32]
[18] CB195,[33]-[34]
Given the findings the Authority made, the Authority was not satisfied the applicant faces a real chance of harm for the reasons that the applicant’s brother’s wife is from another tribe that has ongoing hostility with the applicant’s tribe, or that the applicant’s brother was threatened or killed by his own tribe, or that the applicant acted as a mediator between his tribe and his sister-in-law’s tribe, or the applicant defended his brother in front of tribal leaders or anyone.[19]
[19] CB195, [36]
The Authority was also not satisfied that tribal members or anyone else threatened the applicant or his family at the applicant’s brother’s funeral; or that the applicant or his family were threatened.[20] The Authority relied on the following matters:
a)According to the applicant one of his brothers has remained in Baghdad selling electricity “unfound” and “unharmed by such a powerful tribe over a four year period”.[21]
b)Accepting the applicant’s representative’s submissions made at the TPV interview that the “tribal tradition in Iraq goes after the eldest male in the family”, the Authority found that the applicant being younger than his remaining brother raised further questions why the remaining older brother was not found or harmed if the applicant’s family was being targeted by the tribe, as the applicant claimed.[22]
c)The denouncement-and-order-to-kill-document reinforced the Authority’s concerns that if the applicant’s brother in Iraq was targeted, it is doubtful he would have been able to live unharmed in Baghdad in the last four years; and that, if the tribe wished to harm the applicant’s brother in Iraq, as the denouncement-and-order-to-kill-document suggests, the tribe would have done so.[23] The denouncement-and-order-to-kill-document otherwise did not overcome the Authority’s concerns regarding the applicant’s evidence.[24]
d)Four years had passed since the applicant’s brother’s funeral and, apart from the applicant’s claim that he received a telephone call while at Erbil, which the Authority did not accept, the applicant has not claimed that anyone had approached his family looking for him or seeking to harm him.[25]
[20] CB197, [48]
[21] CB196, [40]
[22] CB196, [41]
[23] CB197, [45]
[24] CB197, [45]
[25] CB197, [46]
In light of these findings the Authority was not satisfied the applicant has a well-founded fear of persecution for reasons of his brother’s marriage, revenge killings, his actual or perceived views regarding tribal values or norms, or for any other reason relating to his tribe or tribal conflicts.[26]
[26] CB198, [52]
Next, the Authority considered whether the applicant has a well-founded fear of persecution because he is a Shia Muslim. The Authority accepted the applicant’s father and two brothers were killed; and, as the applicant claimed, they were killed by terrorist groups in Baghdad.[27] The Authority was also satisfied that the applicant will face a real chance of being killed, injured, or seriously harmed by Daesh or other Sunni-linked groups because of his Shia religion if he were to return to Baghdad now or in the reasonably foreseeable future.
[27] CB199, [59]
The Authority noted, however, that s.5J of the Act provided that the real chance of persecution must relate to all areas of the receiving community. The Authority referred to a report by the Department of Foreign Affairs and Trade, noting that it assessed that “Shias in Shia dominated areas in the south are at a low risk of general violence”, and that it gave “weight to this information and find there is only a remote chance that the applicant will be caught up in generalised violence in the southern areas of Iraq”.[28] After referring to additional country information the Authority found that the real chance of persecution to which it found the applicant was exposed does not relate to all areas of Iraq.[29]
[28] CB199, [62]
[29] CB199, [65]
Finally, the Authority considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Authority referred to its findings that it had accepted the applicant faces a real risk of being killed, injured, or harmed by Sunni extremist groups if he were to return to his home area in Baghdad because he is a Shia Muslim. The Authority found, however, that it was reasonable for the applicant to relocate to southern Iraq such as Wasit, where there would not be a real risk that he will suffer significant harm; and, for that reason, s.36(2B) of the Act required the Authority to find the applicant did not face a real risk of significant harm if he were to be returned to Iraq.[30]
[30] CB201, [73]
Approach and arrangement of balance of reasons
The applicant filed his application with this Court on 14 February 2017. On 30 December 2019 the applicant filed written submissions that addressed proposed grounds in an amended application on which the applicant intends to seek leave to rely if an order under s.477(2) of the Act is made. The Minister indicated he would oppose the Court granting the applicant leave to rely on the amended application because the applicant has given an inadequate explanation for his not having formulated the proposed grounds earlier than he has.
With the agreement of Mr Zipser, who appeared for the applicant, and Ms Morris, who appeared for the Minister, I heard submissions both on whether an order under s.477(2) of the Act should be made and on the substantive merits of the applicant’s claims, indicating that, in my reasons for judgment, I will consider separately the application for an order under s.477(2) of the Act and, if I were to be satisfied that such order should be made, the substantive merits of the applicant’s claims. I also indicated to Mr Zipser and Ms Morris that I will consider separately whether, assuming an order under s.477(2) of the Act is made, I would grant the applicant leave to rely on the amended application.
The remainder of these reasons, therefore, are arranged as follows. First, I will set out the principles relevant to the exercise of the power conferred by s.477(2) of the Act. Second, I will set out the evidence relevant to the applicant’s delay in making her application to this Court, and consider whether the explanation the applicant gives based on that evidence is reasonable or adequate. Third, I will consider whether the grounds contained in the amended application, if I were to make an order under s.477(2) of the Act, and if I were to grant the applicant leave to rely on the amended application, are reasonably or sufficiently arguable. Fourth, I will consider whether, in light of my conclusions about whether the applicant has given a reasonable explanation for his delay, and the apparent merits of the grounds stated in the amended application, I should make an order under s.477(2) of the Act. As will appear, I am satisfied that an order under s.477(2) of the Act should be made, and that the applicant should be granted leave to rely on one of the grounds of the amended application. The final part of these reasons for judgment, therefore, is devoted to considering the substantive merits of the grounds of application set out in the amended application.
Application for order under s.477(2)
Principles
Under s.477(2) of the Act the Court may order the extension of the 35 day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[31]
[31] [2013] FCA 1284, [47]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b)Whether there is any prejudice to the Minister;
(c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
His Honour further said these factors “cannot be said to exhaust all potentially relevant factors in every case”, because they “are simply sensible guidelines developed by the courts which have utility in most cases”.[32]
[32] [2013] FCA 1284, [48]
The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[33] Further:[34]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[33] [2015] FCA 1391, [63] (cases cited omitted)
[34] [2015] FCA 1391, [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[35] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[36]
[35] [2015] FCA 1391, [63] (cases cited omitted)
[36] [2015] FCA 1391, [62] (cases cited omitted)
Explanation for delay
The evidence on which the applicant relies for not having applied to this Court within the 35 day period provided for by s.477(1) of the Act is contained in his affidavit made on 19 December 2019. The applicant there deposes that on or shortly after 23 September 2016 his migration agent, Mr Alkafaji (who is also a lawyer), gave the applicant a copy of the Authority’s decision and advised the applicant he could “appeal” to this Court. Mr Alkafaji also told the applicant about the time by which the applicant could “appeal”, and the costs of doing so. The applicant considered the costs of the “appeal” to be high. He was not employed, and, therefore, he did not have an income. The applicant then “promptly took” his documents to another agent who informed the applicant that the applicant had the option of applying to the Minister for intervention. The applicant engaged that agent to apply for Ministerial intervention. On the advice of his new agent, the applicant obtained a report from a psychologist. In “this period” the applicant asked the new agent a few times about the progress of the application for Ministerial intervention, and the agent said she was progressing the matter. Then “one day” the new agent contacted the applicant and said she made a mistake because it was not possible for the applicant to apply for Ministerial intervention. The applicant promptly returned to Mr Alkafaji who prepared and filed an application in this Court.
It is true, as the Minister submits, that the evidence on which the applicant relies provides limited details about the events that occurred between 23 September 2016 and 14 February 2017; and there is no evidence to explain why the applicant was unable to afford an application to this Court at the time he became aware of the Authority’s decision, but was in a position to do so by 14 February 2017. I am nevertheless satisfied the applicant’s affidavit provides sufficient detail to make it reasonable to find, as I do, that he was given incorrect advice about his ability to seek Ministerial intervention; that he relied on that advice by deciding to seek Ministerial intervention, and that, when he was told the information was incorrect, he decided to apply to this Court. I am therefore satisfied that the applicant has given an adequate explanation for his delay. Further, although the delay is significant, the circumstances must be assessed against the explanation for the delay, which I have accepted is adequate. I am satisfied that there was no unreasonable delay given I have found the applicant acted on incorrect advice until he became aware it was incorrect.
Apparent merits
The questions I must determine are whether, assuming an order under s.477(2) of the Act is made, the applicant has a reasonably arguable case that he will be granted leave to rely on the amended application and, if so, whether the applicant would have reasonable prospects of succeeding on those grounds. There is a substantial overlap between these two questions because both require the assessment of the apparent merits of the grounds stated in the amended application. The overlap is incomplete, however, because although the apparent merits of the proposed amendments are relevant to whether leave should be granted, there are other matters that are relevant to determining whether leave should be granted.
For reasons I give later, I am satisfied that ground 1 of the amended application is reasonably arguable, but I am not satisfied that the remaining grounds are reasonably arguable. I am also satisfied that the affidavit made by the applicant’s lawyer, Mr Alkafaji, discloses a reasonable explanation for the applicant’s not having formulated the grounds contained in the amended application before the day on which the applicant filed the amended application.
Prejudice to Minister
The Minister has pointed to no prejudice he may suffer if I were to make an order under s.477(2) of the Act.
Conclusion
I am satisfied that it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act extending the time provided by s.477(1) of the Act up to 14 February 2017. Given I have found that only ground 1 of the amended application is reasonably arguable, and the applicant has given a satisfactory explanation for not having raised the grounds earlier than he has, I also propose to make an order granting the applicant leave to rely on ground 1 of the amended application.
Grounds of application
The amended application contains five grounds.
Ground 1 of amended application
Ground 1 is directed to the Authority’s finding that it was not satisfied the applicant’s brother was married to a woman from another tribe that has ongoing hostility with the applicant’s tribe (Ground 1 finding); and it is as follows:
The Immigration Assessment Authority (“the IAA”) found in its decision dated 23 September 2016 at [27] that “for the reasons given above I am not satisfied that [the applicant’s] brother was married to a woman from another tribe that has ongoing hostility with the applicant’s tribe”. The IAA fell into jurisdictional error in making this finding on one of the following bases:
a)The IAA did not, in an earlier part of its decision, give reasons for not accepting the applicant’s claim that the applicant’s brother was married to a woman from another tribe that has ongoing hostility with the applicant’s tribe.
b)Alternatively, the reasons on which the IAA relied at [27] were not legally adequate to support its finding to not accept the applicant’s claim that the applicant’s brother was married to a woman from another tribe that has ongoing hostility with the applicant’s tribe.
In his written submissions in support of paragraph (a) of ground 1, counsel for the applicant submits that the matters set out in paragraphs 19, 20, and 21 – 26 of the Authority’s reasons, being the matters I take counsel to submit are the “reasons”[37] on which the Authority purported to rely for making the Ground 1 finding, are incapable of being properly characterised as reasons for the Authority’s non-satisfaction, and the Authority, therefore, “erroneously believed it gave reasons for a finding when in fact it had not given reasons for a finding”.[38]
a)As for paragraph 19 of its reasons - where the Authority accepted the applicant’s brother was married in 2010 - counsel appears to submit this cannot be characterised as a reason for the Ground 1 finding because it goes no further than finding that the applicant’s brother was married.[39]
b)As for paragraph 20 of its reasons – where the Authority noted there was “no independent evidence . . . to support that the brother’s wife is from another tribe, or the relationship between their tribes if they were from different tribes” – counsel submits the absence of “independent evidence” is “not a reason, without more, not to accept a claim”.[40]
c)As for paragraphs 21-26 of its reasons – where the Authority did not find plausible the applicant’s evidence that the tribe killed his brother while lining up at a bakery, or that the applicant’s brother was able to avoid detection – counsel submits the Authority focused on the applicant’s claims concerning his brother’s death, rather than addressing the applicant’s claims concerning the applicant’s brother’s marriage.[41]
[37] Outline of Submission[s] for Applicant, [24]
[38] Outline of Submission[s] for Applicant, [25]
[39] Outline of Submission[s] for Applicant, [24(a)]
[40] Outline of Submission[s] for Applicant, [24(b)]
[41] Outline of Submission[s] for Applicant, [24(c)]
This part of the applicant’s written submissions, which imputes acute irrationality to the Authority, is predicated on the assumption that none of the three matters or sets of matters counsel submits the Authority considered as reasons for making the Ground 1 finding was reasonably capable of being characterised as a matter relevant to assessing the truth of the applicant’s claim that the applicant’s brother married a woman from another tribe that has ongoing hostility with the applicant’s tribe.
I accept that the first of the three matters on which counsel for the applicant submits the Authority relied for making the Ground 1 finding – the applicant’s brother was married - is not capable of supporting the Ground 1 finding. I do not accept, however, the Authority considered that that matter did support the Ground 1 finding. The Authority made that finding in response to an element of the applicant’s claims, namely, that he was married.
I do not accept that the second of the three of matters on which counsel for the applicant submits the Authority relied for making the Ground 1 finding – the absence of independent evidence - is not capable of supporting the Ground 1 finding. There being no independent evidence to support the applicant’s claim that his brother’s wife is from another tribe, or their being no independent evidence about the relationship between their tribes if the applicant’s brother and his wife were from different tribes, were matters that were reasonably open to the Authority to consider relevant to the assessment of the applicant’s claim that his brother married a woman from a hostile tribe. As the Minister submitted, the applicant’s agent provided various documents - death certificates, a marriage certificate, the denouncement-and-order-to-kill-document, and information about the applicant’s tribe - but no information that showed the applicant’s brother’s wife belonged to a different tribe. It was reasonably open to the Authority to have expected the applicant would produce some evidence beyond the applicant’s uncorroborated evidence that the applicant’s brother’s wife was a member of a hostile tribe, if such claim were true, or at least some evidence to explain that no such independent evidence can be obtained or easily obtained. Further, there was before the Authority country information about tribes in Iraq, including information that the applicant’s tribe is a “‘several-million’ strong tribe”. It was reasonably open to the Authority to have expected that if, as the applicant claimed, there were hostilities between his tribe and another tribe, there would have existed independent information about those hostilities.
In any event, even if it were accepted that the absence of “independent evidence” is “not a reason, without more, not to accept a claim”,[42] the Authority’s not accepting the applicant’s claim that his brother’s wife belonged to a different and hostile tribe was not based, without more, on the absence of independent evidence to support that applicant’s claim that the brother’s wife is from another tribe, or their being no independent evidence about the relationship between their tribes if the applicant’s brother and his wife were from different tribes. The Authority also relied on the implausibility of the applicant’s evidence concerning the circumstances in which the applicant’s brother was killed.
[42] Outline of Submission[s] for Applicant, [24(b)]
I also do not accept it was not reasonably open to the Authority to consider relevant the circumstances in which the applicant’s brother was killed to its assessment of the applicant’s claim that his brother married a woman belonging to a hostile tribe. The applicant claimed that members of his and his brother’s tribe killed his brother because his brother had married, and, contrary to the wishes of the tribe, he insisted on remaining married, to a woman belonging to a hostile tribe. This claim can be broken down into three premises: the applicant’s brother married a woman belonging to a hostile tribe; because of that fact the applicant’s and his brother’s tribe formed an intention to kill the applicant’s brother; and, having formed that intention, the tribe carried it out by killing the applicant’s brother. The non-acceptance of the third of these three premises is a matter that is reasonably capable of supporting the non-acceptance of the second premise which, in turn, is reasonably capable of supporting the non-acceptance of the first premise. That is, the non-satisfaction of the applicant’s and his brother’s tribe’s having killed the applicant’s brother affords a rational (though not a necessary) basis for the non-satisfaction of the tribe’s having formed an intention to kill the applicant’s brother; and the non-satisfaction of the tribe’s having formed an intention to kill the applicant’s brother affords a rational (though not a necessary) basis for not accepting what the applicant claimed was the cause of the formation of that intention, namely, the applicant’s brother marrying a woman belonging to a tribe hostile to the applicant’s and his brother’s tribe.
Paragraph (b) of ground 1, and the submissions counsel for the applicant makes in his written submissions in support of that paragraph, are advanced as alternatives to paragraph (a) of ground 1. Paragraph (b) assumes that the matters on which the Authority relied for making the Ground 1 finding are matters that could be characterised as reasons for making the Ground 1 finding; paragraph (b) claims those matters are not legally adequate to support that finding. I take this to be a claim that the matters on which the Authority relied for making the Ground 1 finding were not reasonably capable of supporting the Ground 1 finding. For the reasons I have already given, I am not satisfied that the matters on which I have found the Authority relied for making the Ground 1 finding were not reasonably capable of supporting that finding. On the contrary, I find they were matters that were reasonably capable of supporting that finding.
Ground 1 is reasonably arguable and, for that reason, I will grant the applicant leave rely on it. Although arguable, however, the ground fails for the reasons I have given.
Ground 2
Ground 2 of the amended application is as follows:
The applicant claimed that his brother was killed by the tribe to which the applicant and his brother belonged because the brother disobeyed a direction from the tribal leader to the brother that the brother should not marry a woman from the Alkinani tribe. The IAA at [19] accepted that the applicant’s brother married in February 2010, and at [25] accepted the applicant’s brother “was shot and died on 2 July 2012”. However, the IAA at [26] “considered it speculative to make a finding as to who killed the applicant’s brother or why he was killed”. In light of the principle in Rajalingam v Minister (1999) 93 FCR 220, this finding was insufficient to dispose of the applicant’s claim.
This ground relies on the judgment of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam.[43] In that case Sackville J (with whose reasons North J agreed) stated the following principles in the context of applications for review to the Refugee Review Tribunal (RRT):[44]
[43] [1999] FCA 719
[44] This part of my reasons substantially reproduces what I said in SZTFI & Anor v Minister for Immigration & Anor [2014] FCCA 740, [25] and [26]
a)There are circumstances in which the RRT “must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur”. The Tribunal “must not foreclose reasonable speculation about the chances of the hypothetical future event occurring”.[45]
b)The RR “performs its fact-finding task as an administrative decision-maker”, which means it cannot simply apply the civil standard of proof to all fact-finding; that is particularly so because the Tribunal “must frequently make its assessment on the basis of fragmented, incomplete and confused information” and that “It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator”.[46]
c)Given (b), “it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence”. When, however, the RRT:[47]
is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case . . . the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
d)The question whether in any given case the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to its own reasons:[48]
If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. . . . . Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
[45] [1999] FCA 719, [60]
[46] [1999] FCA 719, [61]
[47] [1999] FCA 719, [62]
[48][1999] FCA 719, [67]
In his written submissions counsel for the applicant submits that in paragraph 26 of its reasons the Authority recorded two alternative possibilities that accounted for the death of the applicant’s brother, namely, the brother was killed by a Sunni extremist group or the applicant’s brother “was targeted and killed for other reasons”; and, for that reason, when assessing the applicant’s claims the Authority was required, but it failed, to take into account the possibility that the applicant’s brother was killed by the persons the applicant claimed killed him, namely, members of or persons associated with the applicant’s and his brother’s tribe.
Ground 2 ignores other findings the Authority made. These include the Authority’s not being satisfied on the evidence that the applicant’s brother was killed by his own tribe. Thus, although the Authority countenanced there being a number of possibilities concerning the person or persons who killed the applicant’s brother, it was not satisfied that one of the possibilities was the applicant’s tribe’s having killed him; and the Authority had no doubt or real doubt it was not satisfied the applicant’s tribe killed the applicant’s brother.
Ground 2 is not reasonably arguable, and I propose to refuse the applicant leave to rely on it.
Ground 3
Ground 3 is as follows:
The IAA at [22] found it not “plausible that [the applicant’s] brother would be lining up to buy bread rolls in public places such as a bakery if he was in hiding”. The IAA fell into jurisdictional error in making this finding.
In his written submissions counsel relied on two matters for claiming the Authority made a jurisdictional error by finding it was not plausible that the applicant’s brother would be lining up to buy bread rolls in public places such as a bakery if he was in hiding (Ground 3 finding). During oral address counsel abandoned one of those matters; but counsel maintained the second of the matters on which he relies. Counsel submitted that the Ground 3 finding was premised on the assumption that the applicant’s brother had personal skills of hiding such that he should have been able to evade detection; yet, counsel submits, the Authority rejected in paragraph 24 of its reasons the applicant’s claim “that the brother’s personal skills of hiding are such that he was able to evade the detection of his tribe for two years in Baghdad”. Counsel further submits the Authority needed either to accept the brother had good hiding skills, or not accept the brother had good hiding skills.[49]
[49] Outline of Submission[s] for Applicant, [39]
These submissions are not reasonably arguable. The Authority’s finding implausible the applicant’s claim that his brother, if in hiding, would line up to buy bread rolls in a public place such as a bakery cannot reasonably be said to be premised on the applicant’s brother having personal skills of hiding such that he should have been able to evade detection. The Authority’s finding was premised on a generalisation to the effect that, in the ordinary course of things, a person who is hiding to avoid death or serious harm from persons who have threatened to kill the person, would not expose himself or herself to the view of the public by lining up to buy bread.
Further, the applicant did not claim that the brother’s personal skills of hiding are such that he was able to evade the detection of his tribe for two years in Baghdad. In paragraph 24 of its reasons the Authority recorded a submission made by the applicant’s agent that it is not abnormal for someone who is wanted by a tribe to avoid detection for a period of two years, and that this depended on the “personal skills of hiding from the persecutor”. That submission was made, not in relation to the implausibility of the applicant’s lining up to buy bread from a bakery in circumstances where the applicant claimed his brother was in hiding, but in relation to the plausibility of the applicant’s claims that the tribe was unable to detect the applicant’s whereabouts for two years. The Authority found that, given the claims the applicant made, namely, that the applicant’s brother moved to an area near his sister’s house, and that he was killed in a public space, it did not accept that the applicant’s brother’s tribe would not have been able to locate the applicant’s brother for two years in the same city if he had moved to a place near his sister’s home.
Ground 3, too, is not reasonably arguable, and I propose to refuse the applicant leave to rely on it.
Ground 4
Ground 4 is as follows:
The IAA at [24] was “not persuaded on the evidence that the brother’s personal skills of hiding are such that he was able to evade the detection of his tribe for two years in Baghdad”. The IAA’s reasons for decision indicate that it had doubts about this finding. The IAA should have considered the possibility that the brother had sufficient personal hiding skills to evade detection for two years.
In his written submissions counsel for the applicant submits the expression “I am not persuaded” is a finding based on the balance of probabilities, and indicates the Authority “had a real doubt” about whether the applicant’s brother’s personal skills are such that he was able to evade detection; and, for that reason the Authority should have considered the possibility the brother did have such skills.
There is no merit in this submission. The expression “not persuaded”, as used by the Authority, is synonymous with the expression “not satisfied”, which the Authority also used, and manifests no doubt by the Authority that it was not persuaded or satisfied that the applicant’s brother had personal skills to evade detection for two years. The Authority did qualify its finding; but that qualification was that its non-satisfaction was based “on the evidence” before it.[50] Counsel for the applicant has not identified or otherwise submitted there was before the Authority any evidence that could or ought reasonably have given rise to a doubt by the Authority’s not being persuaded or satisfied that the applicant’s brother’s personal skills of hiding were such that he was able to evade the detection of his tribe for two years in Baghdad.
[50] CB193, [24]
Counsel for the applicant also submits that the Authority’s relying on the applicant’s claim that his brother had moved to an area near his sister’s house as a reason for not accepting that the applicant’s tribe would not have been able to locate him for two years in the same city is legally unreasonable. The applicant submits that the fact that the applicant’s brother happened to be living in a house near his sister does not rationally increase the likelihood that the applicant’s tribe would be able to locate him. Counsel does not explain the basis of this submission and, for that reason alone, I do not accept it.
In any event, I am satisfied that the applicant’s claim that his brother happened to be living in a house near his sister, if accepted, would rationally increase the likelihood that the applicant’s tribe would have been able to locate him. The Authority’s reliance on the applicant’s claim that his brother lived near his sister for two years for not accepting that the applicant’s tribe would not have been able to detect him is based on an implicit and reasonable generalisation, namely, that those who search for someone whose whereabouts are unknown would make inquiries of persons close to such persons, such as family members. That the applicant had a sister in a particular area, therefore, would have increased the probability of the tribe’s directing its inquiries in the area in which the applicant’s sister lived rather than in an area or areas where the applicant’s sister or other relatives of the applicant’s brother did not live; and, for that reason, it would have increased the applicant’s tribe’s chances of locating the applicant because he lived near his sister.
Ground 4 is not reasonably arguable, and I propose to refuse the applicant leave to rely on it.
Ground 5
Ground 5 is as follows:
The IAA at [65] found “that the real chance of persecution does not relate to all areas of Iraq”. The IAA fell into jurisdictional error in making this finding. Specifically, the IAA at [62] relied on an assessment in country information “that Shias in Shia dominated areas in the south are at low risk of general violence”. However, this assessment applies to Shias resident in Shia dominated areas in the south of Iraq. The applicant was not originally from the south of Iraq. If required to return to Iraq, he would be relocating to the south of Iraq. The risk profile of a person relocating to an area of a country is different to the risk profile of a person returning to an area of a country in which they resided before departing the country. The IAA failed to take into account this different risk profile for the applicant in making its finding at [65].
There is no merit in this ground. The finding the ground claims manifests jurisdictional error (Ground 5 finding) is part of the Authority’s consideration of s.5J of the Act, and in particular its consideration of s.5J(1)(c). That paragraph requires that there be a real chance of persecution that “relates to all areas of a receiving country”. The Ground 5 finding reflects the Authority’s satisfaction that, because persons that share the applicant’s profile, namely, Shia Muslims, do not face a real chance of harm in south Iraq, the applicant did not face a real chance of harm in “all areas” of Iraq. That the applicant faces a real chance of harm in Baghdad if he were to return there, as the Authority found, did not prevent the Authority from concluding that s.5J(1)(c) of the Act was not satisfied because persons who shared the applicant’s profile did not face such real risk of harm in south Iraq.
In any event, when the Authority considered the applicant’s claims against the complementary protection criterion, the Authority proceeded on the basis that the risk profile of a person relocating to an area of a country may be different from the risk profile of a person returning to an area of a country in which the person resided before departing the country; and the Authority did so when it considered whether it was reasonable for the applicant to relocate to south Iraq.
Ground 5 is not reasonably arguable, and I propose to refuse the applicant leave to rely on it.
Disposition and costs
I propose to make an order under s.477(2) of the Act extending the time provided by s.477(1) of the Act up to 14 February 2017. I also propose to grant the applicant leave to rely on ground 1 of the amended application, refuse the applicant leave to rely on the other grounds contained in the application, and otherwise dismiss the application.
Ms Morris and Mr Zipser agreed that costs should follow the event, and that the costs should be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). I propose to order that the applicant pay the Minister’s costs, and that those costs be set in the amount of $7,206, being the amount provided for by item 3 in Part of Schedule 1 to the FCC Rules at the time the applicant commenced this proceeding.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 7 February 2020
0
5
3