Aue18 v Minister for Home Affairs

[2018] FCCA 1611

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUE18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1611

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority considered all claims made by the applicant – whether any further claim arose squarely from the material before the Immigration Assessment Authority – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), Part 7AA, s.473DD

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Applicant: AUE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSSESSMENT AUTHORITY

File Number: SYG 453 of 2018

Judgment of: Judge Emmett

Hearing date: 19 June 2018

Date of Last Submission: 19 June 2018

Delivered at: Sydney

Delivered on: 19 June 2018

REPRESENTATION

Counsel for the Applicant: Mr Alexander Langshaw

Solicitors for the Applicant: Westside Legal

Counsel for the Respondents: Ms Surya Palaniappan

Solicitors for the Respondents: Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 453 of 2018

AUE18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority dated 23 January 2018 (“the Authority”), which affirmed a decision of a delegate of the first respondent (“the Delegate”) made on 12 May 2017 to refuse the applicant a temporary protection visa (“Protection Visa”).

2. The review was conducted in accordance with Part 7AA of the MigrationAct 1958 (Cth) (“the Act”). The background and the Authority’s decision are accurately summarised in the submissions of the first respondent, as follows:

   “Background

   4. The applicant is a male citizen of Iraq. He arrived in Australia by boat on 26 November 2017. On arrival, he participated in an entry interview, and claimed that he would be assassinated by the “Al Mahdi party”: Courtbook (CB) 13.

   5. On 2 July 2016, the applicant lodged an application for a (Class XD) (Subclass 785) Temporary Protection visa: CB 28-64.

   6. On 12 May 2017, a delegate of the Minister refused to grant the visa: CB 99-113.

   7. In his statutory declaration provided with his application (CB 68-70), the applicant claimed to be a Shia Muslim from Nasiriya in Dhi Qar province in Iraq. He claimed Bidoon were picked up as first suspects whenever there was an explosion or similar and were generally discriminated against. He claimed from 2006 he worked as a taxi driver and from 2010, he had a regular customer, a Mr Al Ruqabi, who was an interpreter for high-ranking US officers. The applicant would take Mr Al Ruqabi to and from the Imam Ali Us Air Base once or twice a week.

   8. The applicant further stated that after US forces withdrew from Iraq in 2011, the applicant only drove Mr Al Ruqabi only to Basra and back on two occasions. In August 2012 the Mehdi Army required the applicant to attend their office, took his photo, and informed him that Mr Al Ruqabi was on the top of their most wanted list and the applicant could deliver him to them or else he would be considered collaborating with Americans. The applicant promised to call the Mehdi army the next time Mr Al Ruqabi called him, however when he arrived home he rang Mr Al Ruqabi and told him of the Mehdi army’s plan. He did not see Mr Al Ruqabi again.

   9. The applicant in his statutory declaration further claimed that after a few days, the Mehdi army called the applicant every two or three days and the calls became increasingly abusive. Approximately 20 days after he was called into the army office, he and his cousin saw members of the Mehdi army outside their house and ran. They were shot at and the applicant’s cousin was wounded and fell, however, the applicant escaped by running into a narrow alley and going to a relative’s home. The applicant remained in hiding in a rural area for a month and the applicant’s wife and children went to live with her parents.

   10. The applicant attended an interview with the delegate on 20 March 2017, and on 12 May 2017, a delegate of the Minister refused to grant the visa: CB 99-113.

   11. The delegate accepted some of the applicant’s claims, including that he was a Shia Muslim of Bidoon origin; that he was employed as a taxi driver and had been approached by the Mehdi army and told to assist in their capture of his regular customer who was an interpreter for US officers. The delegate accepted that the applicant was shot at, but found that this was a random rather than targeted event. The delegate did not accept that the applicant was of interest to the militia groups and found that he did not face a real chance or real risk of harm on the basis of his claims.

   12. On 24 May 2017, the matter was referred to the Authority: CB 114-123. On 12 June 2017, the applicant’s representative emailed the Authority with further submissions: CB 124-128. On 23 January 2018, the Authority affirmed the delegate’s decision: CB 165-175.

   The Authority’s decision

   13. The Authority had regard to the submission made on behalf of the applicant by his representative on 12 June 2017, and found that as the submissions did no more than dispute the delegate’s reasons, it amounted to argument rather than new information and on this basis the Authority had regard to it: CB 124-128. The Authority obtained new information in the form of the Department of Foreign Affairs and Trade Country Report, Iraq (DFAT Report) published on 6 June 2017: CB 129-161.

   14. The Authority found the country information was published after the delegate’s decision and relevant to protection status determination. In light of the currency of the DFAT Report, the age of the previous report considered by the delegate (published 13 February 2015), and noting the potential for significant changes to conditions in Iraq since the publication of the report considered by the delegate, the Authority was satisfied there were exceptional reasons, as required by s 473DD, to justify considering the new information: CB 166 [4].

   15. The Authority accepted the applicant’s factual claims in relation to his background and family, including that the applicant lived with his family in Nasiriyah since 1992; that he identified as Bidoon; was of Arab ethnicity, Shia faith, Iraqi citizenship; departed Iraq legally; was employed as a taxi driver from 2006 until his departure in 2012; and that his wife and three children resided with the wife’s parents in Nasiriyah: CB 167 [6].

   16. The Authority characterised the “applicant’s central claim” as being that “he will be assassinated by the Mehdi army if he returns to Iraq”: CB 167 [7]. The Authority again stated at [11] that the applicant “claims to fear assassination at the hand of the Mehdi army should he return to Iraq. This is because he did not assist in the capture of the Mr Al Ruqabi and would be considered by the Mehdi army to be collaborator with the US Forces”: CB 168.

   17. In this regard, the Authority accepted that the applicant had worked as a taxi driver since 2006, and that from 2010, he had a regular customer, Mr Al Ruqabi – an interpreter for the high ranking US officers – who the applicant would take to and from the Imam Ali US Air Base outside of Nasiriyah once or twice a week. The applicant was contacted by the Mehdi army in August 2012, and he attended their local office. While there, they took his photo and he was informed that Mr Al Ruqabi “was at the top of their wanted list and that the applicant could deliver him to them if he would be considered to be collaborating with the Americans and would suffer the consequences.” The applicant was told the next time he picked up Mr Al Ruqabi, he had to call the Mehdi army with the details of the pickup so that they could intercept Mr Al Ruqabi. Instead, when the applicant got home he called Mr Al Ruqabi and told him of the Mehdi army’s plans, and he thereafter never saw or heard from Mr Al Ruqabi again: CB 167.

   18. The Authority also accepted that following this, the Mehdi army called the applicant every two of three days. Contrary to the delegate’s conclusion, the Authority accepted the applicant and his cousin were targeted by the Mehdi army when shots were fired at them 20 days after the applicant had been called in to the Mehdi army office. The Authority accepted that the Mehdi army wanted to threaten and harm him and the attack was related to their previous demand that the applicant assist in the capture of Mr Al Ruqabi: CB 167 [7].

   19. However, when considering whether the applicant had a well-founded fear of persecution, though it had accepted the applicant’s evidence, the Authority noted that it had been more than five years since the applicant was told that “he would be considered a collaborator, should he not assist in Mr Al Ruqabi’s capture”. As a result, the Authority was not satisfied that the applicant was of sufficient interest to the army to be on any current list of targets. This was particularly because the Mehdi army and other militias were now part of the “Popular Mobilisation Forces”, an umbrella group of mostly Shia militias over which the government claimed control and who were focused on the fight against ISIS/Daesh. The Authority concluded that it was “not satisfied that in the future there is a real chance that any threats made against the applicant in 2012 would be realised or manifest into actions causing harm”: CB 168-169 [12].

   20. The Authority additionally found that the applicant was not harmed due to his Bidoon ethnicity and that while the applicant identified as Bidoon and claimed there was some societal discrimination against Bidoons, he did not claim to have been personally harmed for this reason: CB 168 [8].

   21. The Authority did not accept the applicant faced a real chance of harm as a Shia Muslim: CB 169 [13].

   22. In reaching this conclusion the Authority noted the absence of any claims on the part of the applicant to fear harm on this basis, and that it was the delegate who considered whether the applicant being a Shia Muslim, and the security situation in southern Iraq, would give rise to protection obligations: CB 169 [13].

   23. The Authority noted country information which the Authority considered did not suggest Shias who did not support ISIS in Shia areas faced a risk of harm from ISIS. The Authority found that the applicant did not face a real chance of harm on the basis of the general security situation in Iraq, including from Sunni armed groups. The Authority considered country information which suggested the risk of harm faced by ISIS and Sunni extremist groups did not extend to southern provinces including Dhi Qar, and that the risk of harm from opposing Shia militia groups faced by people in Shia areas, such as Nasiriyah, was predominantly borne by militia or tribal groups rather than ordinary citizens. As the applicant’s residence in Iraq was in a southern province and there was no evidence the applicant was involved in Shia militia groups, it found he did not face a real chance of harm from Shia militias, Sunni groups or otherwise arising from sectarian violence. It found that violent crime in Nasiriyah was not so widespread as to give rise to a real chance the applicant would face harm: CB 169 [13].

   24. The Authority also considered (although not raised by the applicant, but considered by the delegate) whether the applicant faced a risk of harm on the basis of having sought asylum in a western country, and found that he did not in reliance on country information: CB 169 [14].

   25. The Authority also found the applicant did not face a real chance of harm due to the applicant’s Bidoon ethnicity, placing weight on the absence of any claims by the applicant to have been  harmed for this reason: CB 169-170 [15].

   26. The Authority concluded that the applicant did not meet the definition of refugee in s 5H(1) and did not meet s 36(2)(a): CB 170 [16].

   27. In light of its earlier factual findings, the Authority found the applicant did not face a real risk of significant harm because he was threatened by the Mehdi army and shot in 2012, as a Bidoon, as a Shia Muslim, due to sectarian or general violence, or because he sought asylum in Australia: CB 170 [19]-[20].”

The proceeding before this Court

1. The applicant was represented by Mr Langshaw, of counsel.

2. By consent, the applicant was given leave to rely on the grounds in an Amended Application filed on 6 June 2018, as follows:

   “1. The Authority failed to consider a claim and/or misunderstood or misconstrued a claim and thereby made a jurisdictional error.

   Particulars

   a) An express claim, or alternatively a claim squarely raised by the material before the Authority, was made that the applicant was a collaborator of the United States and/or had an imputed association with the United States and, by reason thereof had a well-founded fear of persecution and/or faced a real risk of suffering significant harm if returned.

   b) The Authority failed to consider that claim in its decision.

   2. The Authority failed to consider the cumulative effect of the applicant's claims in assessing whether the applicant had a well-founded fear of persecution and thereby made a jurisdictional error.

   Particulars

   a) The Authority failed to consider the cumulative effect of:

   i. its finding that the applicant had previously been personally targeted by the Mehdi Army; and

   ii. the risk of being caught up intra-Shia violence in southern Iraq.”

3. Ground 2 of the Amended Application was not pressed and withdrawn by the applicant’s counsel on instructions.

4. Ground 1 asserts that the Authority failed to consider a claim, or misunderstood or misconstrued a claim that arose squarely on the material before the Authority. The claim was that the applicant was a collaborator of the United States (“US”) who had, or was imputed with, an association with the United States and feared harm for that reason if returned to Iraq and that the Authority confined its consideration of the applicant’s claim too narrowly.

5. In support, the applicant referred to the following findings made by the Authority:

   i)From 2006-2012, the applicant worked as a taxi driver.

   ii)From 2010-2012 the applicant had a regular customer, Mr AR, who was an interpreter for high-ranking US military officers.

   iii)Prior to the withdrawal of US forces from Iraq in 2011, the applicant would drive Mr AR to and from the US airbase once or twice a week.

   iv)Following the withdrawal of US forces from Iraq in 2011, the applicant drove Mr AR only on two occasions.

   v)In August 2012, the applicant attended the offices of the Mehdi Army at their direction. The applicant was told that Mr AR was at the top of the Mehdi Army’s wanted list and the Mehdi Army required the applicant to deliver Mr AR to them. If the applicant failed to do so, he would be treated as a collaborator of the US.

6. Counsel for the applicant submitted that a Department of Foreign Affairs and Trade (“DFAT”) report considered by the Authority pursuant to s.473DD(1), and which post-dated the Delegate’s decision, disclosed the following about individuals associated with the international community in Iraq:

   “Association with the International Community

   3.56 Individuals who have worked with the international community (and, in particular, with the US Government) have faced recriminations since 2003. Many of those at risk of being targeted (for example, those most closely involved with the US military) have moved abroad. In-country contacts from the international community told DFAT that their local employees do not openly discuss their employment or association with the international community within their local communities. Overall, DFAT assesses that the risk of societal discrimination against individuals associated with the international community is high and the risk of societal violence is moderate.”

7. Counsel for the applicant contended that the possibility of general social discrimination or violence against the applicant was squarely raised by the material before the Authority, in particular the DFAT report, and also emerged from the Authority’s findings stated above. Counsel submitted that the Authority failed to consider the risk of discrimination or harm to the applicant arising from his actual or imputed association with the US and considered only whether the applicant faced a risk of harm from the Mehdi Army because of his failure to assist them to capture Mr AR.

8. Counsel for the applicant submitted that the Authority failed to consider the broader threat of discrimination or violence by the community generally due to the applicant’s actual or implied association with the US arising on the material before the Authority.

9. In support, Counsel for the applicant referred to the following findings by the Authority:

   “11. The applicant is an Iraqi national and Iraq is his receiving country. He claims to fear assassination at the hands of the Mehdi Army should he return to Iraq. This is because he did not assist in the capture of Mr Al Ruqabi and would be considered by the Mehdi Army to be a collaborator with the US Forces.

   12. Although I have accepted the applicant’s evidence, it has now been more than five years since these events occurred. I accept that the applicant was told in August 2012 that he would be considered a collaborator, should he not assist in Mr Al Ruqabi’s capture, however I am not of the view that he was of sufficient interest to the Mehdi Army to be on any current list of targets, particularly given that the Mehdi Army and other militias are now part of the Popular Mobilisation Forces, an umbrella group of mostly Shia militias over which the government claims control, fighting with the ISF. The focus of these groups is the fight against ISIS/Daesh, which remains the most acute issue influencing the current security situation throughout Iraq. I am not satisfied that in the future there is a real chance that any threats made against the applicant in 2012 would be realised or manifest into actions causing harm.”

   (Footnotes omitted)

10. Counsel for the first respondent, Ms Palaniappan, contended that the claim of general social discrimination or violence against the applicant by reason of being a collaborator of the US or having an imputed association with the US, was neither expressly raised, nor implicitly or squarely raised, by the applicant.

11. In his Irregular Maritime Arrival Entry Interview on 17 December 2012, the applicant stated that he left Iraq because he was going to be assassinated “by the militant Al Mahdi army” because they had asked him to work as a translator to assist them in capturing Mr AR. The applicant claimed to have been targeted and shot at in Iraq by members of the Al Mehdi Army who were themselves targeting Mr AR.

12. In a statutory declaration dated 2 July 2016, the applicant stated that officers of the Al Mehdi Army said to him about Mr AR, “if you don’t hand him to us then we will regard you as someone who is a collaborator with him and the Americans”. That statement encapsulated the applicant’s claimed fear of harm from the Al Mehdi Army and was at the heart of his claims. The statutory declaration does not refer to any broader fear by the applicant beyond his fear from the Al Mehdi Army for the reasons claimed.

13. The Delegate found that the applicant had been consistent with his claims of a fear from the Al Mehdi Army because of events leading up to his departure from Iraq.

1. The Delegate accepted that the applicant was shot at, but that the incident was not a targeted attack against him. It was a random encounter. Ultimately, the Delegate did not accept that the applicant faced serious harm based on his interactions with the Al Mehdi Army.

2. The Authority considered a submission following the Delegate’s decision that cavilled with the Delegate’s finding that the applicant had not been shot at by persons from the Al Mehdi Army. That submission recounted the applicant’s claims. Nowhere in that submission is there a claim of a fear of harm from general social discrimination or violence by reason of the applicant being, or imputed as being, a collaborator of the US.

3. The DFAT Country Information Report from Iraq, dated 26 June 2017, which raised the potential issue of societal discrimination against individuals associated with the international community was confined to individuals who had worked with the international community, in particular with the US government. Mr AR may well have been such an individual. However, the applicant was not. In the absence of an express claim by the applicant of a risk of general social discrimination, I do not accept that such a claim arose squarely from the material before the Authority.

4. The function of the Tribunal is to respond to the case that the applicant advances (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).

5. I accept that there was no evidence before the Authority that anyone outside the Al Mehdi Army knew that the applicant was driving Mr AR. Further, there was no evidence that any harm that may befall the applicant because of any actual or perceived collaboration with the US, would be serious or significant (see NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15])

6. The Authority considered the claims made by the applicant and the context in which they arose in concluding that there was no a real chance of harm to the applicant if returned to Iraq. The Authority noted that the applicant’s central claim was that he would be assassinated by the Al eahdi Army if he returned to Iraq and, in my view, that is a correct summation of the applicant’s central claim. The Authority’s findings were based on the applicant’s evidence, which it comprehensively accepted.

7. The Authority’s principal reason for its lack of satisfaction of a real chance of harm for the reasons claimed was because it was more than five years since events had occurred and the Authority was not satisfied that the applicant was of sufficient interest to the Al Mehdi Army to be on any current list of targets, including an umbrella group of which the Al Mehdi Army was one. The Authority noted that the focus of those groups was the fight against ISIS/Daesh. The Authority’s findings were open to it on the evidence and material before it and for the reasons it gave. In the circumstances, the Authority considered the claims made by the applicant. As stated above, I do not accept that a claim of a fear of harm from general social discrimination by reason of being, or imputed with being, a collaborator of the US was either made expressly by the applicant, or arose squarely from the material before the Authority.

8. Accordingly, Ground 1 is not made out.

9. The Authority’s decision is not affected by jurisdictional error and the proceeding should be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  19 June 2018