Aql18 v Minister for Home Affairs

[2019] FCCA 645

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQL18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 645

Catchwords:
MIGRATION – Application for safe haven enterprise visa – fear of harm not established – country information – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.476, 473CB, 5H(1), 5J, 36(2)(a), 36(2A), 5(1), 36(2)(aa).

Cases cited:

Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611

Minister for Immigration and Citizenship v Li [2013] 249 CLR 332

Applicant: AQL18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 133 of 2018

Judgment of: Judge Egan

Hearing date: 20 February 2019

Date of Last Submission: 20 February 2019

Delivered at: Brisbane

Delivered on: 20 February 2019

REPRESENTATION

Applicant: In Person

Solicitors for the Respondent: Mr Garvey of Minter Ellison

IT IS ORDERED THAT:

1. The amended application for review filed on 25 May 2018 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 133 of 2018

AQL18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iraq who arrived in Australia on 25 April 2013.  On 21 November 2016, the applicant applied for a Safe Haven Enterprise visa (SHEV).  On 5 December 2017, a delegate of the Minister refused to grant the applicant the SHEV.  The delegate’s decision was a fast-track reviewable decision and was referred by the Minister to the Immigration Assessment Authority (‘the Authority’) for review.

2. On 25 January 2018 the Authority affirmed the decision not to grant the applicant a SHEV. On 12 February 2018 the applicant filed an application for review of the decision of the Authority pursuant to the provisions of section 476 of the Migration Act 1958 (Cth) (‘the Act’).

3. The applicant filed an amended application for review on 25 May 2018.  The grounds for review, as set out in that application for review, are as follows:

   The decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error, for the following reasons:

   1. The IAA acted unreasonably in finding there was not a real chance that the applicant would suffer serious harm from militias as a result of his former role in the Iraqi Police Force:

   a) The IAA accepted that:

   i. The applicant was employed as a police officer in Najaf between 2004 and about April 2013;

   ii. Country information indicated that serving members of the Iraqi Police Force face a real chance of violence, particularly if they are operating in areas controlled by ISIL or where ISIL remain active;

   iii. Consistently with country information, militia may have threatened the applicant by slipping a bullet under his door in 2011 and may have made a verbal threat against the applicant in 2013;

   iv. The applicant was aware of police colleagues who has been wounded or killed in the course of their work;

   b) Notwithstanding its acceptance of the matters in paragraph (a), the IAA concluded there was not a real chance the applicant would suffer serious harm from militias, on the basis of the IAA’s own apparent conclusion that lower level police officers were not being targeted for killing by militias years after they served in the police force;

   c) The IAA failed to consider how the applicant’s in absentia sentence for deserting the Iraqi Police Force would impact upon the real chance that the applicant would suffer harm from militias were he to return to Iraq;

   d) In the premises, the IAA’s reasons lack an evident and intelligible justification.

   2) The IAA failed to comply with the procedure in section 473DE of the Migration Act 1958 (Cth), in that it failed to give the applicant particulars of the following new information which was the reason, or part of the reason, for affirming the fast track reviewable decision:

   a) That lower level police officers were not being targeted for killing by militias years after they served in the Police Force;

   b) That over a period of nine years in the Police Force the applicant received only two vague and general threats two years apart which was not suggestive of an ongoing interest in him

4. At [4] of the Authority reasons, it was recorded that the Authority had had regard to the material provided to it by the secretary pursuant to the provisions of section 473CB of the Act. At [5] of its reasons, the Authority recorded that because the delegate had relied on only two brief and somewhat old media articles, the Authority had obtained new information from a more recent and authoritative source in order to assess whether the applicant would suffer harm as a result of being prosecuted for claimed desertion.

5. The Authority recorded that it was satisfied that there were exceptional circumstances that justified considering that new information. 

6. At [6] of its reasons the Authority recorded the applicant’s claims as follows:

   ·His family are Bedouin and until the early 2000s he herded sheep back and forth across the border between Iraq and Saudi Arabia.

   ·His brother, a sheep herder, was killed by the former regime of Saddam Hussein in around 2000-2001.

   ·He was employed as a police officer in Najaf between 2004 and around April 2013.

   ·As a result of his employment he was threatened in 2011 and in early 2013 by Shia militia that he says both hate the police force and have infiltrated the police force.

   ·In mid-2014 he was sentenced in absentia to six months prison for desertion, despite submitting his resignation from the police force prior to his departure from Iraq.

   ·If returned to Iraq he fears the militia will hit him, run over him or kill him.

   ·If returned to Iraq he fears the government will imprison him.

7. At [7] and [8] of its reasons the Authority relevantly recorded the criteria necessary to establish refugee status pursuant to section 5H(1) of the Act, as well as what constitutes a well-founded fear of persecution under section 5J of the Act.

8. At [10] of its reasons the Authority accepted that the applicant was a Shia Muslim of Arab ethnicity who lived in Najaf city until his departure from Iraq. 

9. At [11]-[55] of its reasons the Authority set out in clear and concise terms the claims made by the applicant, as well as its findings in relation to such claims.  The claims were respectively addressed in relation to the applicant’s claimed status as a Bedouin, the alleged death of the applicant’s brother, the applicant’s employment as a police officer, the alleged sentencing of the applicant to six months’ prison in absentia for his desertion, the status of the applicant as a failed asylum seeker and a returnee from a western country, as well as the alleged poor security situation in Najaf, and the consequences of him being returned to Najaf. 

10. As to the applicant’s claims that he was a Bedouin, the Authority referred to country information provided by Department of Foreign Affairs and Trade (‘DFAT’) which was to the effect that there were no specific incidents of mistreatment of Bedouins on the basis of their ethnicity, either by the government or by the wider community.  It noted that, overall, DFAT assessed that Bedouins faced low levels of official and societal discrimination whereas stateless Bedouins faced high levels of official discrimination.

11. In the case of the applicant, the applicant had provided at least three pieces of documentary evidence confirming that he held Iraqi citizenship.  The Authority was satisfied that there was no real chance at the time of the hearing, or in the reasonably foreseeable future, that the applicant would suffer harm because he was a Bedouin.

12. As to the applicant’s brother’s alleged death, the applicant claimed that his brother had been executed under Saddam Hussein’s regime in about 2000 or 2001.  It was noted at [15] of the Authority reasons that though plausible that the applicant’s brother might have been murdered by the former Iraqi regime, any such death had occurred over 17 years beforehand, and it was further noted that the applicant had not claimed to fear future harm, or that he had been targeted, as a result of that event.

13. As to the applicant’s claim that he had been previously employed as a police officer, it was asserted by the applicant that he was targeted by the militias because he belonged to the police force.  The applicant claimed that he could not continue work because of that targeting by militias, which he said were not able to be stopped by the government.  He stated that if he returned to Iraq he would be killed by the militias or imprisoned by the Iraqi government.

14. He claimed that on many occasions he had witnessed the militia shoot at police officers and at the Police Department, claiming that police officers were considered targets all the time, even when off duty.  He claimed that he would not be able to seek help from anyone if returned to Iraq. 

15. At [23] of its reasons, the Authority noted that the applicant had claimed that in 2011 a militia had left a bullet in an envelope under the applicant’s front door, his stating that such was a familiar method used to threaten people. 

16. At [24]-[29] inclusive of its reasons, the Authority closely examined allegations as made by the applicant to the effect that he would be singled out and targeted upon his return to Iraq. 

17. At [29] of its reasons, the Authority recorded that country information indicated that Iraqi government forces and militias were focused on working together to fight Daesh, that the applicant had no particular profile with the police and was low level, and that a number of years had passed since the applicant was last in Iraq.

18. At [30] of its reasons, the Authority accepted that the applicant was employed as a police officer in Najaf between 2004 and about April 2013. 

19. At [31] of its reasons, the Authority accepted that a militia may have threatened the applicant by slipping a bullet in an envelope under the door in 2011, and that a militia may have made a vague verbal threat against the applicant in early 2013, though the Authority considered that the applicant’s claim that the 2013 threat meant that the militia were planning to execute him was speculative.

20. At [32] of its reasons, the Authority noted that in June 2017 DFAT stated that the risk faced by individuals associated with the government had increased with the emergence of Isil, which systematically targeted government employees, which included police.  DFAT assessed that members of the police force faced a high risk of violence, and that that risk increased significantly in Isil-controlled areas.

21. At [33] of its reasons, however, the Authority did not accept that there was, at the time of the hearing, or in the reasonably foreseeable future, a real chance that the applicant would suffer serious harm from militias as a result of his former role in the Iraqi police force.  It recorded that  it had been more than four years since the applicant had left Iraq, and that the applicant was no longer a member of the police force.

22. It noted that there was no evidence that the applicant would seek re‑employment in the police force, finding that he would be returning to his family home in Najaf as a civilian.  It also noted that there was nothing before it to indicate that lower level former police officers were being targeted for killing by militias after they had served in the police force. 

23. It was noted that the applicant had not claimed that the militia had harassed his family or followed up with his family over the past five years as to his whereabouts.  The Authority was not prepared to find that there was any ongoing adverse interest in him by the militias, nor did the Authority accept that there was a real chance that, as a returning civilian, the applicant would be forced to join a Shia militia.

24. At [34] of its reasons, the Authority noted that country information indicated that the militias generally comprised adult volunteers, finding also that the applicant’s claim that he would be forced to join a Shia militia was speculative. 

25. The Authority, at [35] of its reasons, also found that there was not a real chance at the time of the hearing, or in the reasonably foreseeable future, that any action would be directed toward the applicant as a consequence of, or in connection with, his brother’s execution some 17 years beforehand.

26. As to the claim that the applicant had been sentenced to a period of imprisonment in absentia, that all of his assets had been confiscated, and that all of his accounts has been frozen, it was noted at [38] of the Authority reasons that at the SHEV interview the applicant claimed that one or two weeks before he left Iraq he remembered submitting a statement requesting resignation from the police force, and that he had handed the statement and his identification card in, and that after that he had left Iraq. 

27. At [39] of the reasons, the delegate was recorded as having indicated at the SHEV interview that she could not understand why the applicant would be sentenced if he had resigned, the applicant stating that he could not understand either. 

28. At [42] of its reasons, the Authority recorded that the delegate had suggested that the applicant could safely re-locate to another Shia area with his family if he was not working for the police force, to which the applicant claimed that, firstly, he did not have a means of supporting his family, and secondly, that there was an order against him such that the sentence could be carried out against him. 

29. At [46] of its reasons, the Authority noted that country information indicated that Iraqi authorities had offered amnesties for desertion in 2013, 2014, 2015 and possibly again in 2016.  It was also recorded that DFAT contacts had not reported anyone as having been prosecuted recently for desertion, although it was stated that desertion remained a crime subject to military courts in Iraq.

30. At [47] of its reasons, it was found by the authority that on the information before it, the Authority was satisfied that the Iraqi law relating to desertion was a law of general application, and that any punishment the applicant might face for desertion from the police force was a prosecution, not persecution for any of the reasons set out in section 5J(1)(a) of the Act.

31. It was found that apart from assertions to the contrary by the applicant, there was no indication in the information before the Authority to the effect that the law was discriminatory in its terms or in its application.  It was noted that it was doubtful that in the light of the country information that any sentence for desertion would be enforced should the applicant return to Iraq.

32. It was also noted that in March 2017 the applicant had successfully had his passport renewed by Iraqi authorities in Bagdad, which suggested that the Iraqi authorities had no real adverse interest in him. Based on a consideration of all of the issues, and having considered the evidence before it, the Authority was not satisfied that there was a real chance at the time of the hearing, or in the foreseeable future, that the applicant would suffer serious harm for any of the reasons set out in 5J(1)(a) of the Act, or because he may have been seen to be a deserter from the Iraqi police force.

33. As to the assertion that the applicant would face harm because he was a failed asylum seeker and a returnee from a western country, at [49] of its reasons the Authority noted that DFAT had assessed that internal relocation to southern Iraq could be a reasonable and practical option for a Shia, particularly if they had existing familial networks within the south.

34. The Authority, at [50] of its reasons, did not accept that there was a real chance at the time of the hearing, or in the reasonably foreseeable future, that the applicant would suffer harm as a result of being a failed asylum seeker or a returnee from a western country.  It found that there was nothing in the information before it to suggest that militias adversely targeted returnees.  It was found that the applicant would be returning to Najaf where his parents, adult siblings, wife and children, had continued to live whilst he had been in Australia.

35. As to the security situation in Najaf if returned to Najaf, at [52] of its reasons it was noted by the Authority that in June 2017 DFAT had indicated that southern Iraq had been, and remained, more secure than other parts of the country, though noting that generalised criminality did occur, albeit at a lower level than in Bagdad. 

36. Credible in-country contacts suggested that the risk of being caught up in intra-Shia violence was predominantly borne by those who were actively involved in a militia or a tribal group. 

37. At [53] of its reasons, the Authority found that it was satisfied that the chance was remote at the time of the hearing, or in the foreseeable future, that the applicant would suffer harm as a result of the security situation in and about Najaf. 

38. At [55] of its reasons, it was noted that the UK Home Office indicated that Najaf was serviced by an international airport and that there was not a real risk of ordinary civilians travelling from Bagdad airport to the southern governorates suffering serious harm en route. 

39. As a result of its consideration of all of the claims made by the applicant, the Authority found that the applicant did not meet the requirements of the definition of refugee in section 5H(1) of the Act, or that the applicant met the relevant section 36(2)(a) criteria.

40. As to a complementary protection assessment, it was recorded in [59] of the Authority reasons that under section 36(2A) of the Act, a person would suffer “significant harm” if:

    ·the person will be arbitrarily deprived of his or her life

    ·the death penalty will be carried out on the person

    ·the person will be subjected to torture

    ·the person will be subjected to cruel or inhuman treatment or punishment, or

    ·the person will be subjected to degrading treatment or punishment.

41. At [60] of its reasons, the Authority accepted that the applicant could be prosecuted for desertion from the Iraqi police force stating that there was some question as to whether the applicant would be punished if he returned to Iraq, or whether he would benefit from an amnesty under the 2016 general amnesty law. The Authority found that even if punishment was enforced it was not satisfied that it would amount to significant harm because the Authority was not satisfied that the acts or omissions of the Iraqi officials in such process were intended to inflict pain or suffering, severe pain or suffering, or to cause extreme humiliation, as is required by the definitions of torture, cruel or inhumane treatment or punishment, and degrading treatment or punishment as set out in section 5(1) of the Act.

42. The treatment did not consist of the death penalty or arbitrary deprivation of life or torture, and the Authority found that any treatment of the applicant would not amount to significant harm within the meaning of section 36(2A) of the Act.

43. At [61] of its reasons, the Authority concluded that the applicant did not face a real chance of harm as a result of being a Bedouin, as a result of his brother’s killing by the former regime, as a result of his former employment as a policeman in Najaf, as an asylum seeker and returnee from a western country, or because of the security situation in Najaf governorate. 

44. At [62] of its reasons, the Authority was not satisfied that the applicant would face a real risk of significant harm if returned to Najaf based on section 36(2)(aa) criteria, which it found were not met.

45. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the authority, or in respect of the way in which the Authority addressed the issues before it. [1]

    [1]     See per Crennan and Bell JJ Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR

    611 at [130].

1. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said:

   [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

2. The application for review in all respects is without merit.  The application for review is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 14 March 2019