AVM21 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 722

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AVM21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 722

File number(s):	SYG 528 of 2021
Judgment of:	JUDGE ZIPSER
Date of judgment:	20 May 2025
Catchwords:	MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal was required to make finding as to why militia group issued threat letter to applicant’s family - application dismissed
Legislation:	Migration Act 1958 (Cth) ss 65, 476
Division:	Division 2 General Federal Law
Number of paragraphs:	35
Date of hearing:	1 May 2025
Place:	Parramatta
Counsel for the Applicant:	Ms F McNeil
Solicitor for the Applicant:	Alkafaji Lawyers
Counsel for the Respondents:	Mr C Tran
Solicitor for the Respondents:	Mills Oakley

Table of Corrections
28 May 2025	In paragraph 17, a person’s name has been replaced with [S].

ORDERS

SYG 528 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AVM21

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	20 MAY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs in the sum of $8,371.30 $6,100.

THE COURT NOTES THAT:

A.Order 3 has been amended pursuant to rule 17.05(2)(f) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

1. On 31 March 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 March 2021. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Protection (Class XA) (subclass 866) visa under s 65 of the Act.

2. For the reasons that follow, the application is dismissed.

   FACTUAL BACKGROUND

3. On 29 March 2016, the applicant, a citizen of Iraq, arrived in Australia on a prospective marriage visa granted in February 2016. The applicant’s sponsor was a female cousin, A, who was an Australian citizen and to whom the applicant became engaged in early 2015.

4. A few weeks after the applicant arrived in Australia, the applicant’s relationship with A ceased.

5. On 12 May 2016, the applicant travelled back to Iraq. On 14 May 2016, the applicant left Iraq to return to Australia.

6. On 22 September 2016, the applicant applied for a protection visa.

7. Following an interview on 28 September 2017, on 6 October 2017 a delegate of the first respondent made a decision refusing to grant the visa.

8. On 12 October 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

9. On 18 January 2021, the Tribunal invited the applicant to attend a hearing on 25 February 2021.

10. On 25 February 2021, the applicant attended a hearing before the Tribunal.

11. On 8 March 2021, the Tribunal made a decision affirming the delegate’s decision.

    TRIBUNAL’S DECISION

12. The applicant’s principal claim was that a male cousin of the applicant, S, was upset about the applicant’s engagement to A, and S vowed to kill the applicant. The Tribunal, after considering the evidence and various matters associated with this claim, found at [51] that it “does not accept the applicant was of any interest, or ongoing interest, to [S] or his extended family or tribe for any of the reasons claimed by the applicant”.

13. In February 2021, the applicant made an additional claim that in 2018 the applicant’s mother, who resided in Nejaf at the time, was given a threatening letter issued by a Shia militia called Asaid Ahl al-Haq (AAH) which referred to the applicant and his family and told them to leave the area (AAH Letter). The applicant claimed to fear ongoing harm from the AAH (AAH Claim). The Tribunal noted that in 2019 the applicant’s immediate family moved from Nejaf to Baghdad. The Tribunal found at [57] that, even if the family were given the AAH Letter in 2018, they “were able to subsequently and safely relocate to Baghdad … and there is no more than a remote chance of them being subject to harm by the AAH who are primarily based in Nejaf”.

14. The Tribunal, after considering some additional claims by the applicant:

    (a)concluded at [76] in respect of the refugee protection assessment that it was “not satisfied the applicant has a real chance of suffering serious harm [for a Convention] reason in all of Iraq”; and

    (b)concluded at [93] in respect of the complementary protection assessment that it was “not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa)”.

    PROCEDURAL HISTORY

    Judicial review application and steps up to hearing on 1 May 2025

15. On 31 March 2021, the applicant filed an application in this Court which sought judicial review of the Tribunal’s decision.

16. Following a period of inactivity, in March 2025 the registry of the Court notified the parties that the matter was listed for hearing on 1 May 2025.

17. On 31 March 2025, the applicant filed an amended application (Amended Application) which contained a single ground as follows (reproduced as written):

    The Tribunal’s decision was affected by jurisdictional error in that the Tribunal did not consider why the AAH would issue a letter evicting the applicant’s family from them family’s home, in the context of the applicant’s claims overall. The Tribunal thereby failed to engage in an active, intellectual reasoning process in assessing the threat to the applicant from the AAH Group.

    Particulars:

    The Tribunal [at 52] noted that the applicant’s family were given a letter to move from their home in early 2018. This letter was issued by the AAH group and it mentions the applicant personally.

    The Tribunal then proceeded to state that because the applicant’s family moved from the AAH stronghold in Najaf then there is only a remote chance that the applicant’s family will be harmed (at [55]). Moreover, the Tribunal stated that the applicant’s family move was not for the reason mentioned by the applicant (at [57]).

    The Tribunal did not consider:

    •the issue as to why the AAH would issue the threat letter evicting the applicant’s family from their family’s home, or

    •the significance of the threat letter in the context of the perceived insult to the honour of the tribe of the applicant’s ex-fiancée (including her cousin [S]) by reason of the broken engagement.

    The Tribunal at [59] suggested that the applicant’s family moved to Baghdad because of the deteriorating security situation in Najaf. The Tribunal reached that conclusion without reference to the threat letter. The threat letter, viewed in context, is supportive of an alternative conclusion – namely that the applicant’s family moved from Najaf to Baghdad due to the risk posed by the Aah in Najaf. This was not the conclusion reached by the Tribunal (see [57] – [59]).

    Moreover, the Tribunal’s finding in [59] is inconsistent with the fact that, according to the country information quoted at [58], the demonstrations in Baghdad were even stronger than in Najaf, meaning that the security situation in Baghdad was even worse than in Najaf.

    These matters support a conclusion that the Tribunal did not engage in an active, intellectual reasoning process in respect of the threat letter.    

18. On 3 April 2025, the applicant filed a written submission (AS).

19. On 15 April 2025, the first respondent filed a written submission (RS).

    Hearing on 1 May 2025

20. At the hearing in this Court on 1 May 2025, Fiona McNeil of counsel appeared for the applicant and Christopher Tran of counsel appeared for the first respondent.

21. A Court Book (CB), which contained the Tribunal’s decision and documents before the Tribunal, was tendered.

22. Counsel made oral submissions which supplemented their written submissions. The submissions are referred to below.

    CONSIDERATION

23. As stated in paragraph 12 above, the applicant’s principal claim was that a male cousin of the applicant, S, was upset about the applicant’s engagement to a female cousin, A, and S vowed to kill the applicant. The Tribunal, after considering the evidence and various matters associated with this claim, found at [51] that it “does not accept the applicant was of any interest, or ongoing interest, to [S] or his extended family or tribe for any of the reasons claimed by the applicant”.

24. The applicant, in this Court proceeding, does not challenge this finding, or any step by the Tribunal up to this finding.

25. In February 2021, the applicant made the AAH Claim for the first time. The Tribunal at [52] described the claim as follows:

    With the Tribunal, the applicant lodged a statutory declaration dated 15 February 2021. That stated (in part):

    •Towards the beginning of 2018, the applicant's mother (who was then residing in Nefaf) was given a threatening letter issued by the Asaib Ahl al-Haq (AAH) (being a Shia militia which was said to be powerful and engaged in a power struggle in Nejaf). That letter said the family should leave the house and the area, and the AAH member who delivered the letter told the applicant's mother that he would harm her or any other family member if they reported the matter to the police.

    •The undated threatening letter also referred to the applicant and his family and said they belonged to a 'misguided Shia group' who are not cooperating with the AAH. It was also said that it was known the applicant was not then in Iraq but as he had not cooperated his family were told to leave the area

26. The applicant provided an English translation of the AAH Letter to the Tribunal. The English translation states: (CB 367)

    To the betrayer – [applicant]

    Since you are a misguided Shia group not cooperating with us, this indicates that you are the enemies of our religious group. As you are not currently in the country and not cooperating with us through your family, we are giving you a final warning in front of God to leave the area for good, otherwise you will face the same fate as the betrayers that came before you, and God is the source of all success.

    He who warns is excused

    Asa'ib Ahl al-Haq

27. The Tribunal discussed the AAH Claim with the applicant at the hearing on 25 February 2021. The Tribunal at [53]-[57] summarised its discussion with the applicant and made findings concerning the AAH Claim in the following terms:

    [53] When discussed at hearing, the applicant believed he was named due to his problems with [S], though as stated above, the Tribunal has rejected that evidence as not true…

    [55] The Tribunal is aware that security in parts of Iraq continues to be fluid, and that militias in Iraq may act in ways that are illogical or unreasonable (as claimed by the applicant's agent). However, and when discussed at hearing, the applicant was unsure why his family were targeted, except that he (the applicant) was of adverse interest to them arising from his claimed dispute with [S]. However, for the reasons set out above, the Tribunal does not accept the applicant's evidence about the ongoing nature of a dispute with [S] is true; or that the chance of any serious harm arising from a personal dispute with [S] (or his associates) is now anything more than remote.

    [56] Neither does the Tribunal accept that [S] has any ongoing interest in the applicant, that would give rise to a real chance of him suffering serious (or significant) harm in Iraq, over 6 years after the applicant's engagement to [A].

    [57] Therefore, and even if the family were given a letter to move from their home in Nejaf in early 2018, the Tribunal is not satisfied it was for the reasons claimed by the applicant. The Tribunal is however, satisfied the applicant's immediate family in Nejaf, were able to subsequently and safely relocate to Baghdad (where they had lived until 2010), and there is no more than a remote chance of them being subject to harm by the AAH who are primarily based in Nejaf (though I have discussed the brother's engagement in protests in Baghdad immediately below).

28. It is stated in the Amended Application that “the Tribunal did not consider why the AAH would issue a letter evicting the applicant’s family from [their] family’s home, in the context of the applicant’s claims overall” and “the Tribunal thereby failed to engage in an active, intellectual reasoning process in assessing the threat to the applicant from the AAH Group”. To similar effect, it is stated that “the Tribunal did not consider the issue as to why the AAH would issue the” AAH Letter.

29. In light of the manner in which the Tribunal dealt with the AAH Claim, I disagree that the Tribunal was required to make a positive finding as to why the AAH issued the AAH Letter. Specifically:

    (a)Although “the applicant was unsure why his family were targeted” (at [55]) by the AAH by the issue of the AAH Letter, he “believed he was named [in the AAH Letter] due to his problems with” S (at [53]). The Tribunal at [53] and [55] noted that it had previously rejected the applicant’s claims concerning S, and thereby rejected the applicant’s claim that he was named in the AAH Letter due to his problems with S.

    (b)The Tribunal then found at [57] that, even if the applicant’s family were given the AAH Letter, the family relocated to Baghdad in 2019 and “there is no more than a remote chance of them being subject to harm by the AAH who are primarily in Nejaf”. The Tribunal added at [86] that the applicant “can safely relocate to Baghdad” and repeated at [90] that “the applicant can safely and reasonably reside in Baghdad”.

    (c)In light of the findings in (b), it was unnecessary for the Tribunal to make a positive finding as to why the AAH issued the AAH Letter. For whatever reason the AAH issued the letter, “that letter said the family should leave the house and the area” of Nejaf, in 2019 the applicant’s family complied with the demand in the letter and relocated to Baghdad, and there was “no more than a remote chance” (Tribunal at [57]) of the AAH harming the applicant’s family in Baghdad.

30. Further, the applicant’s complaint in the Amended Application that the Tribunal “did not consider why the AAH would issue” the AAH Letter is not entirely correct. The Tribunal at [53] and [55] considered (and rejected) the applicant’s explanation as to why the AAH issued the AAH Letter.

31. It is also stated in the Amended Application that “the Tribunal did not consider … the significance of the threat letter in the context of the perceived insult to the honour of the tribe of the applicant’s ex-fiancée (including her cousin [S]) by reason of the broken engagement”. The meaning of this contention is unclear. In any event, since the Tribunal rejected the applicant’s claim that the AAH issued the AAH Letter arising from the applicant’s dispute with S, it was unnecessary for the Tribunal to explore this issue further.

32. In relation to the complaint in the Amended Application that “the Tribunal thereby failed to engage in an active, intellectual reasoning process in assessing the threat to the applicant from the AAH Group”, it is clear from the Tribunal’s reasons at [52] – [57] that the Tribunal carefully considered the AAH Letter and the threat to the applicant’s family arising from the AAH Letter and, for reasons provided by the Tribunal, explained why the chance of the applicant’s family in Baghdad, and thereby the applicant on his arrival in Baghdad, being harmed by the AAH was “no more than a remote chance” (Tribunal at [57]).

33. The last few paragraphs of the particulars in the Amended Application refer to findings of the Tribunal at [57]-[59]. Ms McNeil clarified at the hearing on 1 May 2025 that the applicant did not contend there was an error in any finding by the Tribunal at [57]-[59].

34. For the above reasons, the ground in the Amended Application does not identify a jurisdictional error in the Tribunal’s decision.

    COSTS

35. At the conclusion of the hearing, the parties made submissions on costs. Both sides sought costs in the scale amount if they succeeded, and neither party opposed the other party’s claim in respect of costs. Since the application is to be dismissed, I will order that the applicant pay the first respondent’s costs in the scale amount of $8,371.30.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       20 May 2025