Axa17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 102
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AXA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 102
File number(s): SYG 629 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 22 February 2022 Catchwords: MIGRATION – Immigration Assessment Authority – whether the Authority erred in failing to lawfully consider information – whether consideration was legally unreasonable – whether jurisdictional error arises – no jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth) s 36 Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Carrascalao v Minister for Immigration (2017) 252 FCR 352
Gunatillake v Minister for Immigration [2021] FCA 387
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (20130 297 ALR 225
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 45
WFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 16 February 2022 Date of hearing: 16 February 2022 Place: Parramatta Counsel for the Applicant: Mr Karp Solicitor for the Respondents: Ms Stone ORDERS
SYG 629 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AXA17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRTION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
22 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application be dismissed.
3.The Applicant is to pay the first respondent’s costs in the fixed amount of $7467.00.
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 HUMPHREYS
INTRODUCTION
The applicant is a citizen of Iraq. The applicant is a Shia Muslim and previously resided in Baghdad. The applicant arrived in Australia on 5 May 2013 as an unauthorised maritime arrival.
Following the lifting of a bar on visa applications, on 3 March 2016 the applicant applied for a Temporary Protection Visa (Subclass 785) (“TPV”). On 21 December 2016 a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his TPV.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 13 February 2017, the Authority affirmed the decision of the delegate not to grant the applicant a TPV.
The applicant now seeks judicial review of the Authority’s decision.
THE AUTHORITY’S DECISION
After setting out the relevant background. The Authority at paragraph 4 of its decision set out the applicant’s claims as follows:
•[The applicant] was born in a district of Baghdad, Iraq. He is a Shia Muslim. He had an older brother born 1979and two sisters, born 1994 and 1996. He attended primary school from age’s six to twelve. In 1988 his father was killed in a motor vehicle accident. From then the family was supported by his brother Mohamed. The applicant worked as a labourer in a wrecking yard from 2005 to 2008 and then as a welder in the Dora oil refinery. He was unemployed from 2008;
•On 24 August 2011 the applicant’s brother was shot and killed outside the family home. They took him to the hospital but he was already deceased. The family left Baghdad immediately and took his body to be buried in the family plot in Najaf. Following this they went to stay with the applicant’s maternal uncle in Karbala.
•The applicant and his family later found out that the “Asia store” in Baghdad where the applicant’s brother worked sold alcohol. They concluded he had been shot by Shia militias due to this. They were afraid they would also be targeted by militias so did not officially change the residence to Karbala area as this information would then be passed on to the militias. Due to these fears the applicant arranged to flee Iraq and did so on 8 January 2013. The applicant’s mother and sisters remain in Karbala.
The applicant claimed a fear of persecution due to the fact that he is a non-practising Shia, and is therefore considered to be an apostate. The applicant is a family member of a known violator of the Shia militia public code and will be imputed as holding a pro-Western or anti-Islamist view due to seeking asylum in Australia.
At paragraphs 6 to 8 of the decision record, the Authority considered the claims in relation to the death of the applicant’s brother. The Authority noted that the applicant’s brother had been killed near the family home. The applicant’s brother had not been killed working in, or entering or leaving the shop where it was claimed, alcohol was sold. The applicant’s brother did not own the shop. The applicant’s brother did not sell alcohol from his home. There was no material to indicate that the store or its owner were targeted at the time the applicant’s brother was shot. Accordingly, the Authority was not satisfied that the applicant’s brother’s death was related in any way to him working in the store or that he was considered to be an infidel. Whilst the Authority was prepared to accept that the applicant’s brother was killed by militia, it did not accept that he was specifically targeted by a militia group in relation to selling alcohol or that his family would also be targeted.
At paragraph 9 of the decision record, the Authority found that there was no evidence to indicate that the family were targeted by any militia groups in Baghdad, and there was no evidence to indicate that the family was of any interest to any armed groups or militia in Karbala. At paragraph 10 of the decision record, the Authority accepted that the applicant was a non-practising Muslim.
At paragraph 13 of the decision record, the Authority found that as there was no evidence the applicant’s brother had been targeted for selling alcohol, there was no reason to suggest that the applicant, his mother or sisters were of any adverse interest to any militia group for that or any other reason.
At paragraph 14 to 16 of the decision record, the Authority accepted that the applicant will face a real chance of serious harm if he were to be returned to Baghdad. The authority was not satisfied, however, that there was a real chance of persecution if the applicant were to relocate to a Karbala, where his family and sisters reside.
At paragraph 17 and 18 of the decision record, the Authority concluded that there was not a real chance of the applicant facing serious harm as a non-practising Shia in Karbala or as a result of more generalised violence if he were returned to Karbala. The Authority was satisfied that the applicant could safely access Karbala from Australia.
At paragraph 19 of the decision record, the Authority was satisfied based on country information that the applicant would not be at risk as a returning asylum seeker.
Accordingly, the Authority concluded the applicant did not meet the criteria for refugee protection.
Paragraphs 20 of the decision record and onwards deal with complimentary protection considerations. For the same reasons, the Authority determined that the applicant did not meet the requirements for protection under the complimentary criteria. Accordingly, the Tribunal affirmed the decision under review.
GROUNDS OF JUDICIAL REVIEW
The applicant seeks to rely on an amended application attached to an Affidavit filed by the applicant on 27 January 2022. There being no objection by the respondent, leave was granted to rely upon the amended application.
The grounds now relied upon are as follows:
1.The Authority erred in failing to lawfully consider information before it and which it was required to consider in “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq”, 31 May 2012, at pp 31-32.
Particulars
(a) The information on those pages was to the effect that persons who worked selling alcohol had been singled out for attacks, and that the situation of such people was precarious, was centrally relevant to the applicant’s claim that his brother was murdered for selling, or was perceived to be selling alcohol.
(b)The information was neither mentioned nor alluded to in circumstances where it was clearly relevant and could reasonably have been expected to have been mentioned or alluded to.
2.Alternatively to ground one above, if the authority did lawfully consider the information to the effect that persons who worked selling alcohol had been singled out for attacks and that the situation of such people was precarious, then the rejection of the claim that the applicant’s brother was murdered for selling or perceived to have been selling alcohol, for the reasons it gave at CB1 46 [8], was legally unreasonable.
Particulars
(a) In the light of evidence that persons who worked selling alcohol had been singled out for attacks, and the situation of such people was precarious, it was not open for the authority to make a finding that the applicant’s brother was not murdered because:
(i)The brother had not been gunned down whilst working in or entering or leaving the shop.
(ii)He did not own the shop or sell liquor from his home.
(ii)There was nothing to indicate that the store or its owner were targeted.
3.The IAA erred in failing to lawfully consider information which it was required to consider in the UNHCR Position on Returns to Iraq, 14 November 2006 at pp 9-10.
Particulars
(a)That information was that:
(i)Entry requirements into areas of presumed safety are arbitrarily imposed and administered, and that sponsorship requirements themselves are subject to abuse and that there exists exploitation of people seeking safety.
(ii) Entry into proposed areas of safety cannot be guaranteed.
(iii) Karbala (or Kerbala) was a “conflict area”.
THE APPLICANT’S SUBMISSIONS
The applicant relied upon a number of documents, including the UNHCR Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Iraq of 31 May 2012, and specifically pages 31 to 32 which were cited by the Authority in its decision at footnote 1 and 2.
The applicant also sought to rely upon the UNHCR Position on Returns to Iraq dated 14 November 2016, also footnoted in the Authority’s decision.
It was submitted that the Authority decision was to conduct a de novo review of the merits of the decision and in so doing, was required to consider any material provided to it by the Secretary of the Department.
Consideration in this context involves an active intellectual process to that which must be considered. This included that the Tribunal was required to address all criteria for the grant of a protection visa. Reliance was placed on Gunatillake v Minister for Immigration [2021] FCA 387 at [74] where the following was said by Murphy J:
“In my view engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight. Lawful decision-making by an administrative decision-maker must be based on the evidence and it requires genuine consideration of the evidence. Care must, however, be taken to ensure that the Court does not stray into merits review.”
In terms of grounds one and two, it was submitted that the UNHCR 2012 publication at p31 states:
“Persons engaged in professions or providing goods or services considered “immoral” have also been singled out for attacks. This is particularly the case for shops or bars selling alcohol…. The situation of persons engaged in alcohol sales remains very precarious”.
It was submitted that this information was directly relevant to the murder of the applicant’s brother. There was no reason for the Authority to reject the claim that the applicant’s brother was murdered for selling alcohol. It was so centrally relevant that it could have been expected it would have been mentioned if indeed it was considered: (see; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34]).
If, however, the Court were to find that the Authority did consider the passage set out above, then it was legally unreasonable for the Tribunal to find that the applicant’s brother was not murdered for selling alcohol. There was nothing in the evidence to suggest that the risk to people selling alcohol was restricted to the vicinity of the business, or to the business where they worked or to the employer being targeted.
In relation to ground two, it was submitted that the Authority found the applicant could travel to Kabarla and live there safely. In so doing, the Authority acknowledged that in “many other areas, local authorities have increased stringent residency restrictions, including sponsorship requirements”. This was referenced in UNHCR 2016 at page 9. The Authority found that the applicant’s family could sponsor him if sponsorship was required. Reference was then made to paragraph 20 in one of the UNHCR 2016 documents which set out that freedom of movement was often subject to arbitrary changes. Sponsorship requirements and the lack of clarity in relation to the scope and applicable procedures gave rise to exploitation and abuse. Some sponsors may ask for money or services in order to stand guarantee for a person.
It was submitted that the Authority’s analysis omitted information to the effect that entry requirements into areas of presumed safety, was arbitrarily imposed and administered, and that sponsorship requirements themselves are subject to abuse and there exists exploitation of people seeking safety. It was submitted that this information went directly to the ability of the applicant to travel and enter Karbala and is clearly relevant to his possible relocation to that space. It was, however, not mentioned by the Authority in circumstances where it was so directly relevant that it could have been reasonably expected to have been mentioned.
Further, Karbala itself was mentioned as a “conflict area” in the UNHCR 2016 document. There was a failure to consider whether it was reasonable for the applicant to relocate to Karbala in view that fact it was a conflict area.
THE RESPONDENT’S SUBMISSIONS
In relation to Grounds one and two, it was submitted that a finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made: (see; Carrascalao v Minister for Immigration (2017) 252 FCR 352 at [48] (“Carrascalao”)). In circumstances where the Authority expressly referenced the UNHCR guidelines in its decision record, the contention that the UNHCR guidelines were not considered cannot be sustained: (cf; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [44]-[46]).
It was submitted that it should be inferred, in circumstances where the Authority cited information from the very paragraph relied upon by the applicant, in its decision, that the Authority had read the entire paragraph but did not consider the sentences relied upon by the applicant to be sufficiently relevant to warrant express mention. The Authority is not required to specifically refer to every piece of country information (let alone every sentence of every piece) before it and the selection of country information was a matter for the Authority: (see; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).
In terms of the argument in relation to legal unreasonableness, the test is “necessarily stringent”: (see; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11]). Contrary to the applicant’s contention, the Authority did not reject the claim that the applicant’s brother was murdered for selling, or being perceived to be selling alcohol solely because “he was not murdered at the store, did not sell liquor at home (and) there was nothing to indicate that the owner of the stores targeted”. The Authority also relied on the applicant’s evidence at the TPV interviewed that the applicant’s family had not known the shop where his brother worked sold alcohol until after his death. Further, the applicant’s brother had never received any threats prior to being killed and that he did not know whether anyone else who worked in the shop had been harmed. The country information suggested people who sold alcohol “were at risk” but did not put beyond doubt that the applicant’s brother was killed because he worked in the shop that sold alcohol.
It was reasonably open to the Authority not to be satisfied that there was any connection between the killing of the applicant’s brother and his alleged or imputed employment in a shop that sold alcohol in circumstances where his own family were unaware that the shop where he worked sold alcohol, that there was no evidence that anybody else was associated with that shop had been harmed and there was nothing to indicate that the killers, who gunned his brother, in a drive-by shooting outside the family home, were aware of the brothers employment.
On the applicant’s own evidence, it was not clear if the brother’s murder was a targeted killing. The Authority’s conclusion and its reasoning was open in the sense that a reasonable and rational decision-maker could have reasoned that, was on the available material. Properly understood ground two does no more than express disagreement with the Authority’s factual findings and invites the Court to undertake impermissible merits review.
Proposed ground three takes issue with the Authority’s findings that the applicant could safely access Karbala. On the basis that the Authority failed to “lawfully consider” the information pages 9 and 10 of UNHCR position. First, the applicant contends that the Authority omitted information was directly relevant to the applicant’s ability to travel to and enter Karbala. It was submitted that the submission does no more than identify particular factual matters that a different Authority might rely upon to possibly make a different decision.
In assessing whether it is reasonable or practical for an applicant to relocate to an area of the country where they would not face a real of significant harm as required under s 36(2B)(a) of the Migration Act 1958 (Cth) must depend upon the particular circumstances the applicant and the impact of that for the purposes of relocation. In this case, the Authority relied on one important matter when finding the applicant could safely access Karbala, being the applicant had family ties that would enable him to be sponsored to enter in and remain in the area as he had from August 2011 until he left Iraq in January 2013.
In terms of Karbala being a conflict area, that position appears to be based upon a misreading of persons fleeing from conflict areas to Baghdad, Babel and Karbala. Properly understood, the relevant paragraph from the UNHCR position indicates that there are now complete entry bans on people coming from conflict areas, mostly people fleeing from then ISIS held areas.
The applicant in this case was not from a conflict area and as a non-practising Shia Muslim did not fit the profile described in the UNHCR position of persons who might be considered a security threat seeking access to Karbala.
For this matter to succeed, the applicant must demonstrate not only that the Authority had overlooked country information which was material to and cooperative of his claims, but also that such information was of such a cogent, central and substantial nature as to have gone to the exercise of jurisdiction: (see; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [97]-[112]).
For the same reasons as submitted earlier, it is not open to the Court to infer that the relevant paragraph was overlooked when it was expressly referenced in the Authority’s decision.
CONSIDERATION
Noting that there was no objection, leave was granted to rely upon the amended application filed with the applicant’s submissions on 9 February 2022 and reproduced above.
It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: (see; AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24]).
The Authority’s decision should not be scrutinised with an eye keenly attuned to error, nor is it necessarily required to provide reasons of a kind that might be expected of a Court: (see; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604).
Grounds one and two may be conveniently dealt with together. The applicant alleges in ground one that the Authority erred in failing to lawfully consider information which was before it in terms of the UNHCR document of 31 May 2012 at page 31-32 relating to the risks related to persons selling alcohol. If it did so, in the alternative, its rejection of the claim that the applicant’s brother was murdered for selling alcohol’s legally unreasonable.
A fair reading of the decision clearly indicates, firstly, that the Authority was fully seized of the information contained within the UNHCR document that the position of persons who sold alcohol was “precarious”. Counsel for the applicant submits that this material was not properly considered in that the decision-maker did not engage in a meaningful or active intellectual process in considering the information.
Firstly, the Court rejects the assertion that the entire information was not considered by the Authority. It is clear that the Authority cited information from the very same paragraph from the UNHCR document in its decision. To suggest that the Authority may have read only part of a paragraph and then quoted from it but did not read the full paragraph simply cannot be sustained.
The Authority was satisfied that the applicant’s brother was killed by militia. The Authority provided rational reasons however, as to why it was not satisfied that the killing was as a result of the brother’s involvement in the selling of alcohol. The Court is satisfied that the claim of fear by the applicant that he and his family would be similarly targeted due to the brothers claimed involvement in selling alcohol was nothing more than speculation on the part of the applicant. There was no evidence before the Authority of any specific threats made to the applicant or any other members of his family. There was no evidence before the Authority of any threats or indeed acts of violence towards the owner of the shop or any other persons involved with the shop.
A finding that a decision-maker has not engaged in the meaningful or active intellectual process should not be lightly made: (see; Carrascalao at [48]). In the particular circumstances of this case, the Court is unable to be satisfied that the material was not considered. Rather, the Court is satisfied the Authority did consider the information but came to the conclusions it did for the reasons it gave on the basis of the evidence before it.
Accordingly, the Court is not satisfied that the ‘stringent’ test for legal unreasonableness can be met. The fact that a different decision maker may have come to a different decision based on the same information is not sufficient to meet the test for legal unreasonableness. Rather, the decision must be so unreasonable that no reasonable decision maker could have come to that decision: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [28]). In this case, the allegation for unreasonableness is being used as a means for challenging the Authority’s decision on the basis that the applicant disagrees with the consideration of matters or the evaluative judgements made by the decision-maker. Grounds one and two invite the Court to undertake impermissible merits review. Grounds one and two have no merit
Ground three is of a similar vein, but slightly different. It is alleged that the Authority again failed to “lawfully consider” information at pages 9 to 10 of the UNHCR 2016 paper.
Firstly, in relation to whether not Karbala was a conflict area, a fair reading of the impugned paragraph indicates that the reference to Karbala being a conflict area is incorrect. Rather, the correct interpretation of the paragraph is that persons were seeking to flee from northern conflict areas to Baghdad, Babel and Karbala. Local authorities in those three areas were imposing entry bans or restrictions from people fleeing from northern conflict areas that were at that stage under the control of ISIS.
Secondly, the Court is not satisfied that the impugned paragraph was overlooked by the Authority given that it is expressly referenced in the Authority’s decision.
Thirdly, the applicant was not an internally displaced person seeking to flee from ISIS should he return. Rather, the applicant was a person who had previously resided in Karbala and had family there. The Authority properly considered whether or not there were risks in the applicant travelling from Baghdad to Karbala but was of the view that these would not present such difficulties as to make such a journey if he were returned, not practicable. The Authority considered whether or not the applicant might be at risk as a non-practising Muslim but determined that he was not. Further, there was not a risk to the applicant in relation to generalised violence in Karbala.
The Court is not satisfied that the Authority overlooked relevant country information which was material to and corroborative of the applicant’s claims and was also of such a cogent, central and substantive nature as to go to the exercise of jurisdiction: (see; Minister for Immigration and Citizenship v SZRTK [2013] FCA 317 at [97]-[112]). Further, it is well-settled that the selection and use a relevant country information is a matter for the Authority: (see; WFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
Again, if anything, ground three also seeks to engage the Court in impermissible merits review. Ground three has no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 22 February 2022
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