ATK18 v Minster for Immigration and Anor

[2018] FCCA 3966

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATK18 v MINSTER FOR IMMIGRATION & ANOR [2018] FCCA 3966

Catchwords:
MIGRATION – Application for protection visa – fear of harm unfounded – reliance by authority upon country information – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476(1), 473CB, 473DD(a), 473DD(b), 36(2)(aa)

Cases cited:

SZSMQ v Minister for Immigration and Border Protection [2013] FCCA 1768

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: ATK18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 161 of 2018

Judgment of: Judge Egan

Hearing date: 16 November 2018

Date of Last Submission: 16 November 2018

Delivered at: Brisbane

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the Applicant: Mr S.W. Jones

Solicitors for the Applicant: Stolar Law

Solicitors for the First Respondent: Ms L. Helsdon

ORDERS

IT IS ORDERED THAT

1. The amended application for review filed on 10 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 $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 161 of 2018

ATK18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a female citizen of Iraq who arrived on Christmas Island as an unauthorised maritime arrival on 11 November 2012.  On 6 January 2016, the department advised the applicant to accept assistance through the Primary Application and Information Service so that the applicant might apply for a temporary protection (subclass 785) visa referred to as a SHEV.  The applicant applied for a SHEV on 2 August 2016. 

2. The applicant was invited to attend an interview with the delegate scheduled for 14 March 2017.  On 30 May 2017, the delegate refused to grant the applicant the SHEV.  On 2 June 2017, the decision was referred to the Immigration Assessment Authority (‘the Authority’) for review.  On 19 June 2017, the applicant provided a psychologist’s report to the Authority. On 2 February 2018, the Authority affirmed the delegate’s decision.  The applicant filed an application for review on 18 February 2018.  The applicant filed an amended application for review on 10 May 2018. 

3. The proceeding is brought pursuant to the provisions of Section 476(1) of the Migration Act 1958 (Cth) (‘the Act’). The applicant’s claims were set out by her in her statement, which one sees at pages 81-84 inclusive of the court book. Her relevant history is that she moved to Iran with her family in 1991 and was given a green card. She married an Iranian man and had three children with him. In 2004, the husband took a second wife. In 2010, the husband, having already divorced the applicant, returned to live in Saudi Arabia with the children born of the relationship between that former husband and the applicant.

4. In 2011, the applicant obtained an Iraqi passport, which, as a result, caused her Iranian green card to be cancelled.  The applicant was given temporary residence in Iran, but after the end of her teaching role, she had no right to remain in that country.  The applicant asserted that, if returned to Iraq to live, she would be discriminated against as a result of her marriage to a Saudi;  that she could not travel without being accompanied by a man;  that she would be unable to obtain employment as a divorced woman;  that she would not receive any social or financial support as a divorced woman;  that she would not receive any support from her family, as her divorce had brought shame on them;  and that she would be targeted by ISIS/Daesh for arrest, torture and execution as a result of her being a professionally educated person.

5. Before arriving at its decision, the Authority relevantly considered the material given to it by the Secretary pursuant to Section 473CB of the Act (court book 141 at [3] of the reasons). The Authority also considered new information, being the psychologist’s report dated 19 June 2017. The Authority found that such report fell within the provisions of Section 473DD(a) and (b). (See reasons at [4]-[5] at CB141). The Authority also had recourse to new information being a DFAT report published on 26 June 2017. It relevantly considered that there were exceptional reasons justifying the authority considering the contents of such report. The Authority accepted that the applicant gave a consistent account when giving evidence and impressed as a credible witness.

6. The Authority was satisfied that the applicant was a divorced woman and that she did not have the right to permanently reside in Iran (see [8] of reasons at CB142-143).  At [9] of the reasons at CB143, the authority noted that the applicant had returned to Basra for a visit in 2011 and again in 2012, staying with relatives during those periods.  It was recorded that, during the 2011 visit, the applicant was urged by her family to update her identity card, as there had been a change in her visual profile since that time.  The fact that she had returned to stay with her relatives in Basra on two occasions in 2011 and 2012 runs contrary to the applicant’s argument that she would lack support from family if she returned to live in Basra. 

7. The Authority found that, if the applicant was required to obtain the permission of a male relative in order to secure employment, she would be able to obtain such permission.  The Authority did not accept that the applicant would be denied employment because she was a divorced woman and found that the applicant did not have a well-founded fear of persecution on that basis (see [17] of reasons at CB145).  The Authority also noted that the applicant had inherited a parcel of land, which was an asset, which could be realised to assist her financially should she be in temporary need.  The Authority did not accept that the applicant had a well-founded fear of persecution on that basis (see [18] of reasons at CB145).  Having regard to country information, the Authority did not accept that the applicant would be required to be accompanied by a male relative when moving about outside her home in her home region (see [19] of reasons at CB145).  Also relying on country information, the Authority did not accept that the applicant’s home region was controlled by ISIS/Daesh.  The Authority accordingly found that there was not a real chance that the applicant would face harm from ISIS/Daesh in her home region (see [20] of reasons at CB145). 

8. Also having regard to country information, the Authority did not accept that the applicant faced a real risk of harm from Shia militia, Sunni groups, or was at risk due to sectarian violence or otherwise because of the security situation in Iraq (see [21-22] of reasons at CB146).  The Authority also found that the applicant would not face a real chance of harm because she had spent time in, and might have otherwise unsuccessfully sought asylum in, Australia (see [23] of reasons at CB146).  The Authority did not accept that the applicant faced a real risk of significant harm, either as a divorced woman or because she was a female, from either sectarian or general violence (see [27] of reasons at CB147). 

9. As to the applicant’s mental health, the applicant noted that Iraq had a mixture of public and private hospitals, and that public healthcare was provided by both private and public clinics.  At [28] of the reasons, the Authority noted that country information indicated that Iraq’s health infrastructure had suffered from decades of insecurity and recent conflict, and that that had further reduced access to health services.  It also noted that many healthcare facilities were under-resourced, particularly in conflict-affected areas or areas with large numbers of internally displaced people. 

10. The Authority accepted that, depending on the circumstances, an inability to access medication or other medical treatment could potentially amount to significant harm in the relevant sense as set out in SZSMQ v Minister for Immigration and Border Protection [2013] FCCA 1768 at [114], but the Authority found that that was not the case with the applicant. It found that Basra, the applicant’s home region, was not in a conflict area, and that it hosted less than one per cent of all internally displaced persons. The Authority at [28] was not satisfied on the evidence before it that mental health support and appropriate treatment would be unavailable to the applicant in Basra.

11. It was also not satisfied on the evidence that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, that there was a real risk that the applicant would suffer significant harm as defined, either because of her medical condition, or because of that condition coupled with under-resourced healthcare facilities.  The Authority was not satisfied that there was a real risk that the applicant would be arbitrarily deprived of her life or subjected to torture or to intentionally afflict cruel or inhuman or degrading treatment or punishment should she be returned to Iraq. 

12. It also found in respect of the complementary protection criteria that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Iraq, that there was a real risk that the applicant would suffer significant harm. It found that the applicant did not meet the section 36(2)(aa) criteria. The Authority noted that the review material did not indicate that divorced women were denied access to rental accommodation, and it also noted that the applicant could supplement her rental payments from the sale proceeds of the land which she had inherited. The application filed on behalf of the applicant, in effect, seeks an impermissible merits review of the decision made by the Authority.

13. It cannot be said that no other rational or logical decision-maker could not have made the same decision in respect of the way in which the decision was made by the Tribunal in the sense as set out by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] which provides as follows:

    [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

14. Neither could the decision be considered as legally unreasonably or one lacking an evident and intelligible justification as such concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was stated as follows:

    [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.

15. No jurisdictional error has been established. The application for review is without merit and is dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  25 February 2019