AOY17 v Minister for Immigration

[2018] FCCA 1610

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1610

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant’s fears found not to be well founded – whether the delegate breached s.57(2) of the Migration Act and whether the Authority unreasonably failed to use its powers under s.473DC(3) considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 57, 473DC, 473DD, 477

Cases cited:

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16

SZBYR v Minister for Immigration (2007) 81 ALJR 1190; [2007] HCA 26

Applicant: AOY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 438 of 2017

Judgment of: Judge Driver

Hearing date: 19 June 2018

Delivered at: Sydney

Delivered on: 25 July 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Arch of Christopher Levingston & Associates

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application as amended in court on 19 June 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 438 of 2017

AOY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 9 January 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a 45 year old Iraqi citizen from Dhi Qar province. He is a Sunni Muslim.  He arrived in Australia as an unlawful maritime arrival on 17 November 2012.[1]

   [1] Court Book (CB) 162

4. On 2 December 2012, the applicant attended an irregular maritime arrival entry interview.[2]

   [2] CB 1

5. On 23 November 2015, the Minister lifted the bar under s.46A of the Migration Act 1958 (Cth) (Migration Act) for the applicant and invited him to apply for a Temporary Protection Visa (TPV) or a Safe Haven Enterprise Visa.[3]

   [3] CB 19

6. On 25 January 2016, the applicant applied for the TPV.[4]

   [4] CB 25ff

7. On 23 September 2016, the applicant attended an interview with the delegate in relation to his TPV application.

8. On 18 November 2016, the delegate refused to grant the protection visa.[5]  On the same day the matter was referred to the Authority[6] and the applicant was notified of this by letter dated 25 November 2016.[7]

   [5] CB 157-176

   [6] CB 178

   [7] CB 183

Applicant’s claims

1. The applicant’s claims are set out in a statutory declaration provided with his visa application[8] and are also summarised by the delegate[9] and by the Authority.[10]

   [8] See CB 64-66

   [9] At CB 165

   [10] At CB 195 [4]

2. The applicant is a qualified mechanic and worked in this field until 2004, when he began working as a taxi driver.  He lived in a predominantly Shia area and claimed to have experienced ill treatment at the hands of Shia Muslims, who insulted him and refused to pay their taxi fares.  Between 2007-2010 he was the regular and exclusive taxi driver for two interpreters who worked at the American air base in his area.  In July 2010 he was shot at after dropping off the interpreters at the base.  He did not know who shot him but he heard people shout “Allah Akbar” when they fired.  A bullet still remains in his body which cannot be removed.  He claimed that after being discharged from hospital around November 2010 he lived in hiding at a farm in Zubair, outside Basra, until his departure from Iraq in September 2012.

3. His father died four to five months after he was shot.  His wife’s family asked for a divorce on the basis of their religious differences (he is Sunni and she is Shia) and his wife’s family also left his children in front of his mother’s house.

4. He fears returning to Iraq as he fears that he will experience persecution for religious reasons, as a Sunni and because he was perceived as working with the coalition forces.

Authority review process

1. As noted above, on 18 November 2016, the matter was referred to the Authority.  The applicant did not provide any further evidence or any submissions to the Authority.

The Authority decision

1. The Authority made the following findings (some of which are different from findings made by the delegate):

   a)the Authority accepted (but the delegate had not accepted) that the applicant had been shot while engaged as a taxi driver driving interpreters to and from the American base.  In so finding, it disregarded an apparent inconsistency between the applicant’s evidence of this claim and its account in the report of a medical practitioner, Dr Sanki; and

   b)also, by contrast with findings made by the delegate, the Authority did not consider that the applicant had given inconsistent evidence regarding his family composition.  It noted that the visa application form only provided space for nine siblings, and this explained the apparent inconsistency with his earlier evidence in his entry interview to the effect that he had eleven siblings.[11]  Similarly, it did not consider the applicant had given untrue evidence about having cancer (he had, in fact, been diagnosed with a precancerous polyp).[12]  Nor, having listened to the recording of the TPV interview, did the Authority consider that the applicant had given inconsistent evidence regarding the cause of his father’s death, and it found that the apparent inconsistency was due to a mistake in the similar sounding words “shot” and “shock”.

   [11] [7]

   [12] [8]

2. However, the Authority found that some aspects of his claims had been embellished over time.[13]  For example, the applicant’s evidence as to the length of time he had spent in Zubair had increased over time, from three months to the entire time since his discharge from hospital in 2010.[14]

   [13] At [10]

   [14] [9]

3. The Authority made the following further findings:

   a)it accepted that the applicant had been shot in 2010 while working as a taxi driver for two interpreters who worked at the American base camp, by someone who wished to harm persons departing the American air base, but that this attack was not on him personally;[15]

   b)although it accepted that the applicant's family home may have been visited by militia on occasions, it considered that the applicant’s claim that this attention was due to the applicant’s actions was purely speculative and did not accept that the attention was a consequence of his work as a taxi driver to the interpreters;[16] and

   c)it did not accept that the applicant had been specifically targeted by a militia group, nor did it accept that he had been in hiding since the shooting.[17]

   [15] [10]

   [16] [11]

   [17] [12]

4. As to the applicant’s claims to fear harm as a Sunni living in a predominantly Shia area, the Authority stated at [13]:

   The applicant also discussed the problems he had prior to the shooting incident. When he started driving a taxi all was well, then "it got weird". Sunni and Shia used to get on well – his now ex-wife is Shia - but from around 2006 or 2007 people would say to him you Sunni what are you doing in Nasiriya. He had tomatoes thrown at him and his house, the tyres of his cab were slashed and people would refuse to pay the fare and walk off. This treatment was the main reason why he decided to work for the two interpreters, rather than dealing with a lot of people every day. I am satisfied that this accurately describes the applicant's situation prior to his shooting.

Refugee assessment

1. The Authority found that although he may face a real risk of serious harm if he were to continue to work as a taxi driver for the American base camp personnel, the applicant was qualified as a mechanic and could find other work. The Authority noted that s.5J(3) of the Migration Act provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, so long as they were not required to do so in a way that would conflict with an innate or immutable characteristic or one that is fundamental to the person’s identity or conscience.[18]  Ceasing to work as a taxi driver would not conflict with any such characteristic and thus the Authority was satisfied that the applicant could take reasonable steps to avoid persecution by seeking work in a field other than taxi driving, as he has the skills and experience to work as a mechanic, and has demonstrated his capacity to work in other fields.  It concluded that the applicant does not have a well-founded fear of persecution on this basis.[19]

   [18] [18]

   [19] [16]-[18]

2. The Authority accepted that the applicant had faced discrimination at the hands of Shias in his home area in the past, but relied on country information to find that such harm as he might face as a Sunni Muslim in the foreseeable future would not rise to the level of serious harm or persecution.  It was therefore not satisfied that there was a real chance of the applicant facing serious harm for reason of being a Sunni Muslim upon his return to Iraq.[20]

   [20] [19]-[21], [23]-[24]

3. The Authority concluded that the applicant does not meet the requirements of the definition of a refugee in s.5H(1) of the Migration Act and thus does not meet s.36(2)(a).[21]

   [21] [26]

Complementary protection assessment

1. The Authority relied upon country information to find that the applicant does not face a real risk of significant harm on the basis of his work as a taxi driver from 2007 to 2010; or because he is a Sunni Muslim; or as a Sunni living in a Shia-dominated province; or because he had sought asylum in a Western country. It was therefore not satisfied that the applicant would face a real risk of significant harm for the purposes of s.36(2)(aa).[22]

   [22] [29]

The current proceedings

1. These proceedings began with a show cause application lodged on 14 February 2017 and filed the following day. The application was filed just outside the period prescribed by s.477(1) of the Migration Act. The applicant sought an extension of time under s.477(2) which was not opposed by the Minister. I granted an extension of time until 15 February 2017.[23] 

   [23] The date of filing

2. At the trial of this matter the applicant sought leave to rely upon an amended application annexed to his written submissions.  Leave was not opposed and I granted it, on the basis that the solicitor for the applicant would electronically file the amended application.  The amended application deletes the three grounds in the original application and adds a fourth ground as follows:

   The Immigration Assessment Authority (“the Authority”) failed to exercise the power conferred by section 473DC (3) of the Migration Act by failing to invite the applicant to give new information in response to relevant information that formed the reasons or part of the reasons for affirming the decision of the Minister’s delegate to refuse to grant the applicant a protection visa.

   Particulars

   The Authority failed to invite the applicant to give reasons why it should not find (as it did at paragraph 11 of its Decision Record) that other members of the applicant’s family were the militia’s target and not the applicant.

3. I have before me as evidence the book of relevant documents filed on 29 March 2017. 

Consideration

1. The applicant contends that, consistently with the recent decision of the High Court in Plaintiff M174/2016 v Minister for Immigration[24] the Authority fell into error, in circumstances where the delegate had breached s.57(2) of the Migration Act, by failing to exercise its powers under s.473DC(3) to invite the applicant to give new information in response to the information relied upon by the delegate. The information which the applicant contends the delegate failed to disclose was information that he was not the intended target of the attack upon him.

   [24] [2018] HCA 16

2. I accept from the delegate’s decision[25] that the “information” identified by the applicant was not put to him by the delegate in accordance with s.57(2). However, in my view it did not need to be. Even on the applicant’s own account, the delegate’s reason for refusing the visa was relevantly her rejection of his claims concerning being targeted by militias. The obligation in s.57 relates only to “information” which in its terms must be of “such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself ‘would’, as distinct from ‘might’ be the reason or part of the reason for refusing the visa”.[26] The failure to accept a claim because it is not believed is not “information” for the purposes of a provision such as s.57: see in particular SZBYR v Minister for Immigration[27] at [18] where the High Court stated:

   … [I]f the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). …

   Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”

   does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

   If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

   (citation omitted)

   [25] CB 166-168

   [26] See Plaintiff M174 at [9]

   [27] (2007) 81 ALJR 1190; [2007] HCA 26

3. Further, even if there was information that ought to have been, but was not put to the applicant by the delegate, failure on the part of the delegate to do so does not necessarily give rise to any jurisdictional error on the part of the Authority, as a result of the latter not inviting the applicant to provide new information pursuant to s.473DC(3).

4. The applicant relies on the decision of the High Court in Plaintiff M174.  That reliance is overstated.  It is not the case that, as the applicant puts it,[28] the High Court held that where there has been non-compliance by the delegate with the obligation under s.57(2), “it is incumbent on the Authority to exercise its power under section 473DC(3) of the [Migration] Act to invite the applicant to give “new information” in relation to the “relevant information … ”. That will depend, as it did in the case of Plaintiff M174, on the nature of the information itself (assuming there is, as is not the case in the matter before this Court, some relevant “information”).[29] But the discussion in this case is purely hypothetical. There was no “information” that the delegate had, which met the requirements of s.57, and upon which the Authority relied in a manner adverse to the applicant in its decision making.

   [28] At Applicant’s Submissions [38]

   [29] See the application of the principles to the facts of Plaintiff M174 at [71]-[72] (per the plurality)

5. In the absence of some such particular circumstance enlivening the discretionary power under s.473DC(3), it must be recalled that, by s.473DC(2), the Authority is under no obligation to “get, request or accept any new information”, including where requested to do so (and no such request was made in this case). Even if the Authority did seek out such information, or the applicant had provided to it some new information on which it sought to rely, the Authority is prohibited from considering that information unless it meets the cumulative requirements of s.473DD.

6. For these reasons, nothing in Plaintiff M174 assists the applicant.

7. I conclude that there was no breach of s.57(2) by the delegate and hence there was no obligation, contingent or otherwise, for the Authority to exercise its powers under s.473DC(3) of the Migration Act.

Conclusion

1. The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       25 July 2018