AXB20 v Minister for Immigration

[2020] FCCA 1738

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXB20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1738

Catchwords:
MIGRATION – Immigration Assessment Authority – Protection visa – Safe Haven Enterprise (SHEV) – whether the Authority erred in dealing with the perception of wealth claim – whether the Authority erred in dealing with the risk of kidnap claim – whether the Authority fell into jurisdictional error – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Multicultural Affairs v Rajalingam (1993) 93 FCR

220

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

Applicant: AXB20

First Respondent: MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 401 of 2020

Judgment of: Judge Humphreys

Hearing date: 29 June 2020

Date of Last Submission: 29 June 2020

Delivered at: Parramatta

Delivered on: 29 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Zipser

Solicitors for the Applicant: Stamford Law Firm

Solicitors for the Respondents: Ms Xiao, Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 401 of 2020

AXB20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is an Iraqi National of Shia faith. The applicant last visited Iraq in 2009, but has not lived there since 1995 when he and his family fled to Jordan.

2. The applicant’s family left to return to live in Baghdad, while the applicant stayed in Jordan till his visa expired in 2000.

3. The applicant briefly relocated to Syria and then Cyprus, where he sought asylum for the next decade. The applicant arrived in Australia on 1 May 2013, as an unauthorised maritime arrival.

4. On 13 June 2017, the applicant applied for a protection visa. On 28 November 2019, a delegate of the Minister for the Department of Immigration (“the delegate”), refused to grant the applicant a protection visa. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review.

5. In a decision dated 30 January 2020, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.

6. The applicant now seeks judicial review of the Authority’s decision.

The Immigration Assessment Authority’s Decision

1. Given the grounds of appeal, which are set out below, it is not necessary to summarise the whole of the Authority’s decision. Rather, it is appropriate to set out in a full way, the relevant parts of the decision as they relate to the issues being asserted.

2. At paragraph 25 of its decision, the Authority notes that the applicant will be returning to Baghdad, which has a majority Shia community. The Department of Foreign Affairs and Trade (“DFAT”) states that as the majority of the community in Iraq is Shia Muslim, with a dominant role in the government, Shias face little or no official discrimination.

3. At paragraph 32 of its decision, the Authority deals with relevant country information regarding those individuals associated with the International Security Force and coalition forces (including the USA and Australia), as well as individuals returning from a Western country, as “perceived collaborators”. The Authority goes on to note that some groups may be targeted which include those who deviate from Shia morality norms (LGBTI individuals, alcohol sellers and Christians), as well as certain business owners who are targeted for extortion.

4. At paragraph 33 of its decision, the Authority deals with the risk of kidnappings for ransom by Shia militias in Baghdad, as a means to fund their operations, particularly targeting wealthy individuals or families. The Authority concludes that overall country information does not support a finding that individuals who have resided outside of Iraq for a long period and/or who have resided in the West, are perceived to have wealth or are targeted for that reason.

5. At paragraph 35 of its decision, the Authority concludes that the information before it does not support those who have been absent from Iraq for a long period of time, or have resided and/or sought asylum in the West, are imputed with any adverse political opinions, or that they seem to be wealthy, or face a real chance of being harmed for these reasons.

6. At paragraph 36 of its decision, the Authority deals with the applicant’s brother, H and his employment as a Security Officer for government official. The Authority concludes that it was not satisfied that the applicant will be imputed with any adverse political opinion, or be assumed to be wealthy on his return to Iraq due to his brother’s employment, his long absence from Iraq, his own residence in a Western country, displaying Western behaviours and/or his asylum application in Australia.

7. At paragraph 37 of its decision, the Authority deals in some detail, with the claim that the applicant would be at risk of kidnap for ransom as he might be perceived to be wealthy due to his absence from Iraq. The Authority notes that the applicant’s father has significant disabilities, which have limited his capacity to work and that neither he nor his immediate family members, are actually wealthy. The Authority accepted that the applicant’s cousin was kidnapped and killed in 2009 and that the applicant’s uncle is wealthy. The Authority notes however, that the applicant’s family have resided in the familial home in Baghdad since that incident and they have not been threatened, or otherwise targeted due to their association with their wealthy relative (the applicant’s uncle). The Authority also notes that the information indicates those currently targeted, are principally business owners. The Authority considers the chance that the applicant would be kidnapped for ransom, due to any actual or perceived wealth, is remote.

8. The Authority concluded that the applicant did not meet the refugee criteria contained in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) or the complimentary protection criteria contained within

   
   

   s 36(2)(aa) of the Act.

9. Accordingly, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.

Grounds of Appeal

1. In an Amended Application, filed on 12 May 2020, the applicant now relies upon the following grounds:

   Ground one

   The applicant claimed that, because he spent many years overseas and in a Western country, he would be perceived to be wealthy if required to return to Iraq, and he would be kidnapped as a result. The Immigration Assessment Authority (“the IAA”) found in paragraph 36 of its decision dated 30 January 2020 that it was not “satisfied that the applicant will… be assumed to be wealthy on return to Iraq due to… his long absence from Iraq, his own residence in a Western country...”. The IAA fell into jurisdictional error in making this finding. Amongst other reasons:

   a)     The IAA, in arriving at this finding, overlooked the facts that the applicant’s uncle is wealthy (see paragraph 37) and the applicant’s cousin was kidnapped in 2009 for ransom due to the wealth of the uncle (see paragraph 21). In light of the country information summarised in paragraph 33 of the IAA’s decision and in the Upper Tribunal decision in BA relied upon by the UK Home Office in the country information summarised at paragraph 33, the IAA was required to consider these two facts in deciding whether the applicant would be assumed or perceived to be wealthy.

   b)     The IAA made its finding on the balance of probabilities. The IAA had doubts about this matter. In the circumstances, the IAA ought to have considered the possibility that the applicant would be assumed or perceived to be wealthy: see Minister v Rajalingam (1999) 93 FCR 220. Its failure to do so involved jurisdictional error.

   Ground 2

   The IAA found at paragraph 37 that “the chance [the applicant] will be kidnapped for ransom due to any actual or perceived wealth to be remote”. This finding is based on the IAA’s intermediate finding that the applicant will not be perceived to be wealthy. If the court accepts the ground of jurisdictional error in the above paragraph, it follows that the IAA erred in its finding that the chance of kidnapped was remote.

The Applicant’s Submissions

1. In relation to ground one, Counsel for the applicant points out that at paragraph 37 of its decision, the Authority found that “the applicant’s uncle is wealthy” and that at paragraph 21 of the Authority’s decision, the applicant’s “cousin was kidnapped for ransom in about 2000 due to the wealth of the applicant’s maternal uncle”. It is submitted by Counsel for the applicant, that the fact that the applicant’s uncle is wealthy and the cousin was kidnapped for ransom, due to the wealth of the applicant’s uncle, could rationally affect whether the applicant might be perceived to be wealthy. It is submitted that it is open to this Court to conclude that the Authority overlooked the facts that the applicant’s uncle is wealthy and the applicant’s cousin was kidnapped for ransom. It is submitted that the Authority was required to consider these two facts in deciding whether the applicant would be assumed or perceived to be wealthy.

2. Secondly, the Authority found it was not “satisfied that the applicant will… be assumed to be wealthy on return to Iraq”. It is submitted by Counsel for the applicant that the Authority expressed this finding on the balance of probabilities. This means that the Authority had doubts as to whether its finding was correct. It is submitted by Counsel for the applicant that on the basis of Minister for Immigration and Multicultural Affairs v Rajalingam (1993) 93 FCR 220 (“Rajalingam”) at [60-67], the Authority ought to have considered the possibility that it was wrong in its conclusion that the applicant would not be assumed or perceived to be wealthy.

3. In relation to ground two, Counsel for the applicant submitted that the Authority found at paragraph 37 of its decision, that “the chance [the applicant] will be kidnapped for ransom due to any actual or perceived wealth to be remote”. This finding is based on the Authority’s intermediate finding the applicant would not be perceived to be wealthy. If the Court accepts the ground of jurisdictional error in ground one (that the applicant would not be perceived to be wealthy), it follows that the Authority also erred in finding the chance of kidnap was remote.

4. In oral submissions, Counsel for the applicant stated that the point being relied upon was narrow. Essentially, it is asserted that at the end of paragraph 36 of its decision, the Authority did not specifically indicate that it was satisfied that the applicant would not face harm, based on the applicant’s uncle’s accepted wealth. This was a necessary step in coming to the conclusion at the end of paragraph 37 of the Authority’s decision, that the risk of harm from kidnapping, was remote due to actual or perceived wealth.

5. Counsel for the applicant also very properly conceded that if ground one failed, then so must ground two.

The First Respondent’s Submissions

1. At the time of the applicant’s protection visa application, he did not have a right to re-enter or reside in Jordan, Syria or Cyprus. In the applicant’s statement provided in support of that application, he claimed that he could not return to Iraq because he feared harm from the government, Islamic State or other armed groups.

2. The Authority firstly accepted that the applicant was a national of Iraq and that he had no right to enter and reside in any other country. While the Authority accepted as credible the applicant’s evidence about his personal and family circumstances, the Authority was not satisfied on the totality of “the independent (country) information and the applicants particular claims taken individually and cumulatively”, that if forced to return to Iraq, he would face any real chance of harm by reason of those circumstances, or for any of the reasons claimed.

3. It is submitted on behalf of the first respondent that the first particular of ground one, asserts the Authority’s findings at paragraph 36 of its decision, that the applicant would not be assumed to be wealthy “due to… his long absence from Iraq, his own residence in a Western country”, overlooked the wealth of his uncle and the kidnapping of his cousin for ransom.

4. There is no dispute that those matters were accepted by the Authority in its findings at paragraphs 21 and 37 of its decision.

5. However, at paragraph 37 of the Authority’s decision, the following was also stated:

   As noted, I am not satisfied the applicant will be perceived to be wealthy due to his absence from Iraq or his residence/asylum application in Australia, and nor has he contended that he or his immediate family members are actually wealthy… I have accepted the applicant’s cousin was kidnapped and killed in 2009 and that the applicant’s uncle is wealthy. However, I note that the applicant’s family have resided in the familial home in Baghdad since that incident and that they had not been threatened or otherwise targeted due to their association with their wealthy relative (the applicant’s uncle) (emphasis added).

6. It is submitted on behalf of the first respondent that it is readily apparent, that the Authority turned its mind to the facts which the applicant contends it was required to consider. Contrary to the applicant’s submission, there is no basis on which it would be open to conclude otherwise. So too did the Authority provide a rational or logical explanation as to why those facts did not alter its finding that the applicant would not perceived to be wealthy. In reality, ground one merely invites the Court to review the merits of that finding and no error arises from the applicant’s mere preference for a different conclusion.

7. It is submitted on behalf of the first respondent that the second particular to ground one, asserts that the Authority was obliged to consider the possibility was wrong, because it expressed its findings on the balance of probabilities. This assertion is without foundation. Nowhere in the Authority’s reasons does it adopt any such standard. In so far as it is suggested, the Authority’s finding that it “was not satisfied” that the applicant “will” be perceived to be wealthy, is a different finding that it “was satisfied” the applicant “will not” be perceived as wealthy, such a contention amounts to no more than a “quibble”, with its manner of expression. The Authority expressed its conclusion in the negative does not suggest that it entertained any doubt about the findings that were made.

8. The Authority accepted in its decision, the past events alleged to have taken place, however, a reading of the Authority’s reasons shows that it had no real doubt about the correctness of its material findings of fact, in which it undertook “the required speculation about the chances of future persecution” in the light of the country information before it. The Authority accepted that the applicant had a maternal uncle who was wealthy and it accepted that his family have resided in Baghdad since that incident, without being targeted due to their association with his uncle. Based on those findings, the Authority assessed “the chance he will be kidnapped for ransom due to any actual or perceived wealth will be remote”.

9. In oral submissions, the legal representative for the first respondent pointed out that the conclusions at the end of paragraph 36 of the Authority’s decision, were based on the claims recited by the Authority at paragraph 10 of its decision. It was submitted that nowhere had the applicant claimed that he would be perceived as being wealthy, due to the uncle’s wealth

Consideration

1. 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]). It is for the applicant to provide whatever evidence or argument they wish to advance, to support the contention that they have a well-founded fear or persecution, for a convention reason. The Authority must then decide whether that claim is made out (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]). Further, any reasons given by the Authority for its decision, should not be read with an eye keenly attuned to error (see ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [604]).

2. In relation to ground one, the Authority accepted at paragraph 37 of its decision, that there have been incidents in which wealthy individuals or those perceived to have wealth, had been kidnapped for ransom in Baghdad. The Authority however found that it was not satisfied that the applicant will be perceived to be wealthy, due to his absence from Iraq or the fact that his immediate family members (excluding his uncle) are actually wealthy. The Authority noted that the applicant’s immediate family have resided in the familial home in Baghdad since that incident and that they have not been threatened or otherwise targeted, due to their association with their wealthy relative (the applicant’s uncle). The Authority also noted that country information indicates that those who are currently targeted are primarily business owners, Christians and Sabean-Mandeans. The Authority was not satisfied that the applicant will have (or will be perceived as having) those profiles on return to Iraq now, or in the reasonably foreseeable future. The Authority accordingly found the chance that the applicant would be kidnapped to ransom, was remote.

3. The Court is satisfied that at paragraph 37 of its decision, the Authority did consider the fact that the applicant’s uncle was wealthy. The Authority accepted at paragraph 21 of its decision that the applicant’s cousin was kidnapped for ransom, due to the applicant’s maternal uncle’s wealth. The Court is satisfied the Authority took that into account, but based on the fact that his immediate family had not been threatened or otherwise targeted, it came to the conclusion that the applicant would not be at risk for that reason.

4. The Court is satisfied that this was a conclusion that was open to the Authority. The Authority’s conclusion was logical and rational. The Authority considered whether or not the applicant would be perceived to be wealthy, due to his absence from Iraq, but formed a view on evidence that was available to it, that this would not occur. The Court is satisfied, that the finding at the end of paragraph 37 of the Authority’s decision was a finding of greater generality, which necessarily took into account the issue of the uncle’s wealth and the impact it may have on the applicant (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91]).

5. The Court agrees with the submissions on behalf of the first respondent, that the first aspect of this ground merely takes issue with the merits of a factual finding made by the Authority and invites merits review, which the Court cannot do.

6. In relation to the second aspect of ground one, the Court does not accept that the Authority had any doubts as to its view that the applicant was not at risk of kidnap, due to the assumed wealth on return to Iraq. Accordingly, there was no requirement under Rajalingam, to consider an alternative scenario if the Authority was wrong in its conclusions. The interpretation put forward by the applicant asks the Court to read the decision of the Authority with ‘an eye too finely attuned to error’.

1. Ground two cannot stand for similar reasons as set out above. The Court is satisfied that the Authority did consider properly the claim, that the applicant would be perceived to be wealthy on return to Iraq. Based on country information and the fact that the applicant’s immediate family had not been targeted or threatened, based on a perception that they might also be wealthy, like the applicants uncle, the Authority came to a conclusion that he was not at risk. If the applicant was not perceived to be wealthy, he was not at risk of kidnap. The Authority considered country information that related to those persons who may be at risk, including business owners, but came to a conclusion that the applicant did not fit that profile.

2. The Court is satisfied that the conclusion it came to, that the applicant was not at risk, was based on evidence that was before the Authority.

3. The conclusion was reasonably open to it based on that evidence. No jurisdictional error is made out

Conclusion

1. Accordingly, the application is dismissed.

I certify that the proceeding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 1 July 2020