AXH17 v Minister for Immigration
[2018] FCCA 464
•21 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXH17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 464 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq due to his religion – applicant’s fears found not to be well-founded – whether the Authority overlooked the applicant’s past experiences in making its forward looking assessment considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 46A |
| Cases cited: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 CLS15 v Federal Circuit Court of Australia [2017] FCA 577 Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 77 ALJR 1088 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v SZMDS (2010) 240 CLR 611 MZZYE v Minister for Immigration [2015] FCA 1378 NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 NAHI v Minister for Immigration [2004] FCAFC 10 Sabharwal v Minister for Immigration [2018] FCA 10 |
| Applicant: | AXH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 635 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Olson |
| Solicitors for the Applicant: | Baker McKenzie |
| Counsel for the Respondents: | Mr T Liu |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application as amended on 3 August 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 635 of 2017
| AXH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 14 February 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The following statement of background facts is derived from the submissions of the applicant filed on 13 February 2018.
The applicant arrived at Christmas Island as an unauthorised maritime arrival on 12 June 2013, from Iraq. Having been invited under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to do so, he applied for a subclass 785 (Temporary Protection) visa (TPV) on 15 August 2016. His application was rejected by the delegate on 23 December 2016, and the Authority affirmed that decision.
The applicant’s central protection claim is that he was persecuted for his religion, because he was a Sunni Muslim living in an area of Iraq which was predominantly Shi’a.[1]
[1] Court Book (CB) 8, 59 at [6]
The applicant alleged that Shi’a militia became increasingly active in the Basra province, his home area of Iraq, following the withdrawal of US forces in late 2011. He alleged that the Shi’a militias were involved in the ethnic cleansing of Sunnis, that many Sunnis in the area were threatened, and that some were killed or kidnapped.[2]
[2] CB 59
The Authority accepted that the applicant’s allegations about the activities of Shi’a militia in the Basra region were accurate.[3]
[3] at [7]
The applicant alleged three specific instances when he or his family were targeted for their Sunni faith:
a)in early 2012, the applicant’s family received a letter from Shi’a militia telling them that they had to leave the area because they were Sunnis. The letter threatened that they would be killed if they did not comply;[4]
b)in February 2012, a hand grenade was thrown at the applicant’s house, which exploded and caused damage to the property. The applicant’s mother was seriously wounded in the attack. Her wounds subsequently became gangrenous and her leg had to be amputated, and she died in May that year.[5] In his statutory declaration, made on 13 August 2016, the applicant attributed the grenade attack to “some unknown people”.[6] In his arrival interview on 8 July 2013, however, the applicant attributed the attack to “political parties”.[7] As [4] of the statutory declaration makes clear, “political parties” is the applicant’s way of referring to the Shi’a militia. It is also clear from the statutory declaration that he connected the grenade attack with his family’s failure to comply with the demand in the letter that they leave the area; and
c)in September 2012, the applicant’s brother was kidnapped and has not been seen since. The applicant said that he did not know who the kidnappers were, because they never demanded a ransom, but he believed that it was the same Shi’a militia who had bombed his house.[8]
[4] CB 59
[5] CB 59
[6] CB 59
[7] CB 8
[8] CB 8, 59-60
The Authority accepted that the applicant’s family received the threat letter, and that they were threatened because they were Sunni.[9]
[9] at [7]
The Authority also accepted that the grenade attack occurred but found that “the damage was not serious” [10] (although it apparently accepted that the applicant’s mother was injured in the attack[11]). It also appears to have accepted that the attack occurred because the applicant’s family did not comply with the threat letter.[12] The Authority did not reject the applicant’s claim that the attack was carried out by Shi’a militia because his family were Sunni.
[10] at [8]
[11] see [13]
[12] at [8], [13]
The Authority did not accept the allegation about the kidnapping of the applicant’s brother.[13]
[13] at [10]
The present proceedings
These proceedings began with a show cause application lodged on 6 March 2017. The applicant now relies upon an amended application filed on 3 August 2017. The grounds in that application as amended are:
4. The decision-maker erred in law in that she misapplied s.5J(1)(b) and section 36(2)(aa) of the Migration Act 1958.
Particulars
The decision maker misapplied the test of a 'real chance' or 'real risk' of persecution by requiring a higher degree of probability than required at law
5. The decision-maker erred in law in that she failed to take into account a relevant consideration, namely, she failed to take into account the Applicant's past experience of persecution in determining whether his fear of persecution at present is well-founded.
6. The decision-maker erred in law in that there was no evidence or other material before her to justify the findings made in paragraphs 14-17 of her reasons.
7. The decision was unreasonable on the evidence before the decision-maker.
In addition to the court book filed on 13 July 2017, I have before me as evidence the affidavit of Kate Louise Gillingham, made on 3 August 2017, to which is exhibited a bundle of country information which was before the Authority.
This matter was listed for a show cause hearing on 27 February 2018. At the commencement of the hearing, however, I informed the parties that I had formed the view that at least Ground 5 in the amended application was arguable. Accordingly, I dispensed with the need for a show cause hearing and the matter was heard on a final basis.
Consideration
The applicant’s contentions
By his amended application, the applicant seeks orders quashing the Authority’s decision and directing the Authority to re-determine the applicant’s TPV application according to law, on the grounds that the Authority:
a)misapplied ss.5J(1)(b) and 36(2)(aa) of the Migration Act;
b)failed to take into account a relevant consideration, specifically, the applicant’s past experience of persecution, in determining whether he has a present well-founded fear;
c)made the findings at [14]-[17] of its reasons without evidence; and
d)made a decision that was unreasonable on the evidence.
The ultimate question the Authority had to determine was whether there was a “real chance” that the applicant would be persecuted, for the purposes of both the s.36(2)(a) (refugee status) and s.36(2)(aa) (complementary protection) grounds.
Chan Yee Kin v Minister for Immigration[14] is authority for the proposition that the expression “a real chance”, in the context of assessing whether one has a “well-founded fear of persecution”, means a chance which is substantial as distinct from remote. A less than 50 per cent chance of persecution is a “real chance” according to this test,[15] and even a probability as low as 10 per cent may suffice.[16]
[14] (1989) 169 CLR 379 at 389 per Mason CJ, 397-398 per Dawson J, 407 per Toohey J and 429 per McHugh J
[15] at 389 per Mason CJ, 398 per Dawson J
[16] at 429 per McHugh J
Notwithstanding statutory changes, the definition of “real chance” in Chan Yee Kin continues to represent the law in Australia for the purposes of both s.36(2)(a) and s.36(2)(aa).[17]
[17] SZQRB at 551 [241]-[248] per Lander and Gordon JJ (Besanko and Jagot JJ and Flick J agreeing); CLS15 v Federal Circuit Court of Australia [2017] FCA 577 at [7], [11] per Charlesworth J. See also Explanatory Memorandum, Migration & Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1180]
The Authority did not refer to any authorities about the meaning of the expression “real chance”. Given the findings which the Authority did make about the applicant’s past experience of persecution and about the general treatment of Sunni Muslims in Shi’a-dominated provinces,[18] however, it is difficult to understand how the Authority could have excluded any possibility of the applicant suffering further persecution as merely “remote” or “insubstantial”, unless it had erroneously applied a standard of probability greater than is consistent with Chan Yee Kin. This incongruity appears most clearly at [17] of the reasons, where the Authority found:
Having regard to the country information and the applicant’s circumstances, I therefore conclude that although incidents of violence against Sunnis do occur, I am not satisfied that there is a real chance the applicant will suffer harm…
[18] see reasons at [7]-[8], [13]
In the applicant’s submission, the conclusion that there was no real chance that the applicant would suffer harm by reason of his Sunni faith was not one which could properly be reached if the Authority accepted that the applicant had in fact been a victim of such harm in the past, and that instances of this type of harm continue to occur.
Alleged failure to consider the applicant’s past experiences
On the Authority’s findings at [7]-[8] and [13], what the applicant experienced before he left Iraq clearly amounted to persecution for reasons of religion within the meaning of s.5J(4)-(5) of the Migration Act. There is nothing in its reasons, however, which suggests that the Authority gave specific consideration to the fact that the applicant had actually experienced such persecution in the past in determining whether the applicant had a well-founded fear of persecution should he return to Iraq.
In the applicant’s submission, the fact that he actually did experience conduct amounting to persecution for reasons of religion in the past was a relevant consideration, and the Authority fell into error by failing to consider it in assessing whether he currently has a well-founded fear.
The High Court has held that determinations about what has occurred in the past are “ordinarily an integral part” of the process of determining what is likely to occur in the future. In Minister for Immigration v Guo,[19] Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ held that:[20]
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
[19] (1997) 191 CLR 559 at 575
[20] See also Sabharwal v Minister for Immigration [2018] FCA 10 at [81]-[82] per Kerr J
A failure to give sufficient weight to the circumstances as they existed at the time of the applicant’s departure was the very error which the High Court in Chan Yee Kin identified in the Full Court’s reasons.[21]
[21] at 391 per Mason CJ, 399 per Dawson J, 408 per Toohey J, 415 per Gaudron J, 434 per McHugh J
The materiality of the applicant’s past experience of persecution is illustrated by the Authority’s findings at [15]-[17].
At [15], the Authority concluded that country information reports were relevant to assessing whether the applicant would be harmed should he return to Iraq. At [16], the Authority relied on a report by the UK Home Office for the proposition that “in general a Sunni will not face a real risk of persecution in the southern governorates” unless their personal profile, family connections, profession, and origins were such as to make them a target. At the end of [16], the Authority concluded that the applicant’s personal profile, family connections and professional history were not such as to make him a target for Shi’a militants. On this basis, the Authority concluded at [17] that “although incidents of violence against Sunnis do occur”, it was not satisfied that there was a real chance that the applicant would suffer harm.
The applicant contends that a finding that the applicant would not be at real risk because his personal profile did not make him a target is one which no reasonable decision maker could have reached in circumstances where the applicant actually had been targeted by the militia in the past. To conclude on this basis that there was no real chance that he would suffer such harm in the future, bearing in mind that even a very low probability may amount to a “real chance”, is said to have been “plainly” unsafe, in the applicant’s submission, when the Authority accepted that he had already suffered such harm.
Alleged findings in the absence of evidence
The Authority’s findings at [15]-[16] are said to be open to the further criticism that they were contrary to the evidence on which they were purportedly based.
The 2015 DFAT[22] Country Report on Iraq included two sections titled “Shia Armed Opposition Groups”[23] and “Sunni”.[24] These sections of the report included the following evidence which bore directly on the risk that the applicant would suffer serious harm as a Sunni Muslim if he were returned to Iraq:
a)“Key Shia militia groups…have conducted attacks on Sunnis and share an anti-Sunni outlook”;[25]
b)“Shia militias have undertaken an increasing number of attacks against Sunni religious structures and institutions in 2013 and 2014. Young Sunni males are frequently kidnapped, tortured and murdered”;[26]
c)“Shia militias have allegedly undertaken execution-style killings and targeted assassinations of young, mainly Sunni males since mid-2013. This has mainly occurred in central Iraq, but there have also been instances in southern provinces. The killings have frequently been preceded by letters warning Sunni residents to leave or be killed. For example, in late 2013, the province of Basra experienced an increasing number of attacks and threats on Sunni residents and mosques. Young male Sunnis were kidnapped and murdered”;[27] and
d)“Overall, DFAT assesses that Sunnis in Shia-dominated and mixed provinces face a high risk of violence from Shia armed opposition groups”.[28]
[22] Department of Foreign Affairs and Trade
[23] Annexure to the affidavit of Ms Gillingham (KLG-1), page 9
[24] KLG-1, pages 16-17
[25] KLG-1, page 9 at [2.36]
[26] KLG-1, page 9 at [2.38]
[27] KLG-1, page 16 at [3.55]
[28] KLG-1, page 17 at [3.57]
Despite the unmistakeable similarity between the modus operandi described above and the applicant’s own allegations, the Authority did not refer to the “Shia Armed Opposition Groups” and “Sunni” sections of the DFAT report at all. At [16], the Authority referred to the report only for the proposition that it “discusses targeting of specific groups of interest”, and that such targets “seem to be limited to media professionals and journalists” and businesses perceived as “un-Islamic”. This conclusion is said to be “plainly incorrect” in light of the other, more directly relevant, sections of the DFAT report which the Authority simply ignored.
The Authority’s reading of two reports from the UK Home Office which were also in evidence is said to have been similarly selective. The Authority cited at [16] the 2016 Home Office report titled “Country Information and Guidance Iraq: Sunni (Arab) Muslims” only for the proposition that a Sunni may be able to demonstrate a real risk of serious harm from the Shi’a militia depending on their personal profile. The difficulty with the Authority’s reliance on this evidence, in circumstances where it had found that the applicant actually had been targeted by the Shi’a militia already, has been noted.
Other parts of the Home Office report to which the Authority did not refer, however, contained the following information:
a)“When ISIS invaded Mosul in June 2014 and the Iraqi army fled, Shia militias began to organise themselves in order to defend Iraq and Baghdad, in particular, against the ISIS Sunni fighters. Even before this, the Shia militias had behaved violently towards the Sunni population in response to the ISIS troops gaining ground in Iraq. Sunnis were considered ISIS supporters and were feared to be members of ISIS”;[29]
b)“...the militia are in the process of carrying out indiscriminate attacks on the population on sectarian and ethnic basis…Recent campaigns have seen ‘Sunni’ Arabs as the major target of the militias’ fury. The strategy…aims at displacing this component of society and ‘clean’ certain areas from their presence”.[30]
[29] KLG-1, pages 84-85 at [6.1.2]
[30] KLG-1, page 90 at [7.1.1]
Given that the reports which the Authority itself relied on contained such evidence that Sunni males in Shi’a-dominated areas were at “a high risk of violence from Shia armed opposition groups”,[31] the applicant submits that the Authority’s finding that there was no real chance that the applicant would be targeted by Shi’a militia if he returned to Iraq lacked any evidentiary basis.
The Minister’s contentions
[31] KLG-1, page 17 at [3.57]
First ground – asserted misapplication of the “real chance” or “real risk” test
By this ground, the applicant contends that the Authority misapplied s.5J(1)(b) and s.36(2)(aa) of the Migration Act. In particular, the applicant contends that the Authority misapplied the “real chance” or “real risk” test by “requiring a higher degree of probability than required at law.”
The Minister submits that, first, the Authority’s reasons for decision clearly indicate that it understood the relevant legal framework and the applicable test for a “real risk” or a “real chance”. At [22] of its reasons, the Authority correctly identified that the “real risk” test in s.36(2)(aa) was the same as the “real chance” test. Further, contrary to the applicant’s submission, the Authority did in fact refer to authority at footnote 10, page 6 of its reasons. It referred to the same authority as the one now relied upon by the applicant, SZQRB. The Authority also correctly identified at [12] of its reasons the statutory elements for a well-founded fear of persecution provided by s.5J of the Migration Act.
The Minister submits that the applicant’s second contention in this ground is not in fact specifically directed to the ground of review that the Authority applied the wrong test for a “real chance” of harm. It is said to invite the Court to engage in merits review by disagreeing with the Authority’s factual finding. The Authority’s finding that there was not a real risk the applicant would suffer harm despite it also finding that incidents of violence against Sunnis do occur was open to it. The basis for that finding is detailed at [16] of the Authority’s reasons where it noted that only persons of a particular profile or occupation, such as journalists, were generally targeted and that the applicant’s profile of having worked in construction and selling sweets and pastries did not put him at real risk of harm if returned. This was a finding open to the Authority on the evidence and does not suggest that it applied a different test to that required by s.5J of the Migration Act.
At no point in the Authority’s reasons does it state that it required a particularly high state of satisfaction or that it required the applicant to discharge any particular burden of proof. Disagreement with the Authority’s factual findings or the way it used country information is not sufficient to show that it misapplied the “real chance” test. The authorities confirm that a real chance is one that is not remote or insubstantial or a far-fetched possibility.[32] Such an assessment is left to the evaluative judgement of the Authority.
[32] see Chan Yee Kin at 407 and 429
Second ground – asserted failure to take into account a relevant consideration
In support of this ground, the applicant contends, in essence, that the Authority failed to consider a claim that the applicant experienced “conduct amounting to persecution for reasons of religion in the past”.
The Minister contends that, contrary to the applicant’s submissions, the Authority set out the applicant’s claims at [5] of its reasons and considered them in turn, accepting a number of them. The Authority correctly identified at [13] that the applicant’s “central claim for protection is that he is a Sunni Muslim and that his family were targeted by an armed group or militia from 2012 due to this.” The Authority accepted that the applicant and his family were targeted in the past because they were Sunni.[33]
[33] Authority reasons at [7]-[8]
As the applicant’s submissions accept, the Authority “concluded that country information reports were relevant to assessing whether the applicant would be harmed should he return to Iraq.” Based on that country information, the Authority found that despite there being incidents of “violence against Sunnis” the applicant did not have a sufficient risk profile to warrant protection.
The applicant has not suggested any other “substantial, clearly articulated argument relying upon established facts” which the Authority did not consider.[34]
[34] NABE v Minister for Immigration (No 2) [2004] FCAFC 263; 144 FCR 1 at [55]; Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 77 ALJR 1088 at [24]
The applicant’s final complaint is that the Authority’s finding that he did not face a real chance of harm was unreasonable or irrational. This is said to misapprehend the applicable test. In Minister for Immigration v SZMDS,[35] Crennan and Bell JJ stated the following about a finding of fact that is said to be illogical or irrational:
…“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…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.
[35] (2010) 240 CLR 611 at [130]
The Authority’s findings criticised by the applicant do not exhibit these features of “illogical” or “irrational” reasoning. The Authority’s conclusion that there was no real chance of harm turned on its finding that only certain people with a particular profile were at real risk and the applicant did not meet that profile. This finding exposes the Authority’s reasoning process which was based on evidence of country information. In these circumstances, the Minister submits that it was open to the Authority to “engage in the process of reasoning with which it did engage and to make the findings it did make on the material before it”.[36]
[36] SZMDS at [133]
Third ground – whether the Authority’s findings are based on evidence
By this ground, the applicant raises a “no evidence” ground for establishing jurisdictional error in the Authority’s decision.
In the recent decision of SZUXR v Minister for Immigration,[37] O’Callaghan J made the following observations about the “no evidence” ground of judicial review at [15]:
The appellant’s “no evidence” ground could only succeed if the appellant established that there was no evidence at all to support the Tribunal’s findings: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. Even a “slight” evidentiary basis will defeat a “no evidence” challenge: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]–[19]; WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]–[12]; and SZNKV v Minister for Immigration and Citizenship [2010] FCA 56; 118 ALD 232.
[37] [2017] FCA 763
In MZZYE v Minister for Immigration,[38] Murphy J referring, among other things, to Australian Retailers Association v Reserve Bank of Australia,[39] stated:
…the “no evidence” ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”. The learned authors Aronson and Groves in Judicial Review of Administrative Action (Fifth Edition at 246, [4.600]) suggest that the “no evidence” ground “cuts out when even a skerrick of evidence appears”.
[38] [2015] FCA 1378 at [54]
[39] [2005] FCA 1707 at [575]; (2005) 148 FCR 446 at 587
The Minister submits that, in view of these authorities, the applicant’s submission that there was “no evidence” to support the Authority’s findings at [14]-[17] cannot succeed. The Authority’s findings relied on the applicant’s evidence and on country information. The applicant’s complaint is, in substance, not that there was “no evidence” (in the administrative law sense articulated in SZUXR) but that the Authority was selective in how it used the evidence before it. How the Authority chooses to analyse country information, and what parts it chooses to emphasise, is a matter for the Authority.
Put more generally, when considering whether there is a “real chance” of a person being persecuted for a Convention reason, a decision-maker will often have regard to relevant items of country information. The choice of, and the weight to be placed upon, items of country information is a matter for the decision-maker.[40] In NAHI at [13] the Full Federal Court concluded that “[t]he Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.” That reasoning is said to apply forcefully in this case.
[40] NAHI v Minister for Immigration [2004] FCAFC 10 at [11] and [13] per Gray, Tamberlin and Lander JJ
Fourth ground – whether the Authority’s decision was unreasonable in the legal sense
The final ground is a generalised complaint that the Authority’s decision was unreasonable in the legal sense which has been addressed above in the context of the other grounds.
Resolution
I prefer the Minister’s submissions on the grounds of review advanced.
First, I reject the applicant’s contention that it was not open to the Authority to find that there was no real chance that the applicant would suffer harm by reason of his Sunni faith once the Authority accepted that the applicant had been a victim of harm in the past. Relevantly, the Authority’s factual findings are found at [6]-[8][41] where the it stated:
The applicant’s central claim for protection is that he has been persecuted due to his religion. He claims that as his family is Sunni they were targeted by militias and forced to leave [his home town]. He further claims that if he were to return he would be again pursued by the militia that targeted the family in 2012/2013.
In relation to the applicant’s claims, I accept that he is a Sunni Muslim. I also accept that the family received a letter telling them to leave the area because they were Sunni. Country information indicates that following the withdrawal of the US forces in late 2011, the activities of Shia armed groups including the Mehdi Army and AAH increased, including in the Basra province[42]. These activities included “sectarian cleansing” or removal of Sunni households from predominantly Shia areas. The applicant stated that many Sunnis in their area were threatened and some were killed, some kidnapped and some fled. This is consistent with the country information from that time[43] and I accept that it occurred.
The applicant’s family did not however comply with the threat letter. The applicant then contends that two weeks later the house was “bombed”, when a hand grenade was thrown at it. The applicant’s evidence as to the extent of the damage has varied. The matter was not reported to the police at the time, however the applicant states that on 8 September 2012 a report was made at the Al-Marbid police centre that “as a result of blowing up a hand grenade … fire broke out and burnt the house”. The applicant has stated that all of their belongings were burnt. He also gave evidence at his PV interview on 15 November 2016 that they “had to leave because our house was destroyed”. While I accept that a hand grenade was thrown at the house as claimed, I conclude that the damage was not serious. The family did in fact remain in the house for a further 15 months before selling it and moving to [another town]. At his arrival interview the applicant advised that the cost of his travel to Australia, which was US$8,000, had been funded from the sale of the house.
(footnotes retained and re-numbered)
[41] CB 120
[42] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq, May 2012, CIS27173; p. 12
[43] Ibid; p.26
Having had regard to the available country information, the Authority then reasoned at [14]-[17]:[44]
The applicant’s family then remained in their home in [the applicant’s home town] until June 2013 without any further adverse attention, demands or threats. The applicant’s father sold the home and the family relocated to [another town]. A few weeks prior to the relocation the applicant departed Iraq and travelled to Australia. He retained his employment at a local sweet shop until his departure. I find that, after the events of early 2012, neither the applicant nor his family were of any further interest to a militia or armed group and there was no requirement for them to leave [the applicant’s home town]. I am not satisfied that they were subject to serious harm in [the applicant’s home town] after February 2012.
In considering whether the applicant would be harmed should he return to Iraq, the DFAT Country Report of 13 February 2015 notes that the security situation in Iraq deteriorated significantly in 2013 and 2014 and violent crime increased[45]. In its 2015 report “Iraq: Security situation in Baghdad, southern governorates and the Kurdistan Region of Iraq”, the UK Home Office stated that the security situation (during 2014) in the southern governorates (including Basra province) remained relatively stable. The 2016 report however, published on 12 August 2016, no longer states this[46]. This may lead one to conclude that the situation is no longer stable, however this may be due to the claims of Daesh/ISIS in 2014 that their offensive would carry them as far as Karbala and Najaf[47]. This has not occurred.
A further UK Home Office report of similar currency provides that in general a Sunni will not face a real risk of persecution in the southern governorates[48], however they may be able to demonstrate a real risk of persecution or serious harm from the Shia militia dependent on their personal profile, including their family connections, profession and origin[49]. In the applicant’s case, he lived and worked in [his home town] all of his life, however his immediate family no longer live there. There is nothing to indicate that his late father or siblings participate in activities that would raise the applicant’s profile. There was no evidence on whether he has friends or extended family in the [home town] area. The 2015 DFAT report discusses targeting of specific groups of interest, including particular employment types. Targets on this basis seem to be limited to media professionals and journalists[50], who may be targeted by security forces as well as militia. Businesses seen as “un-Islamic” are also targeted; these include bars and shops selling alcohol. The applicant has worked in construction as well as selling sweets/pastries. I am satisfied that there is not a real chance that the applicant would be targeted by security forces, by Shia militia or by Daesh/ISIS in [his home town] for reason of his family connections or profession/work history.
Having regard to the country information and the applicant’s circumstances, I therefore conclude that although incidents of violence against Sunnis do occur, I am not satisfied that there is a real chance the applicant will suffer harm in [his home town] as a Sunni now or in reasonably foreseeable future.
(footnotes retained and re-numbered)
[44] CB 122
[45] Ibid, 2.30
[46] UK Home Office, "Country Information and Guidance Iraq: Security situation in Baghdad, the south and the Kurdistan Region of Iraq (KRI)", 12 August 2016, OGD7C848D67
[47] Ibid, 8.2.3
[48] UK Home Office, “Country Information and Guidance Iraq: Sunni (Arab) Muslims”, 10 August 2016, OGD7C848D63, 2.2.8
[49] Ibid, 2.2.5
[50] Department of Foreign Affairs and Trade (DFAT), DFAT Country Report, Iraq, 13 February 2015, CISEC96CF1160, 3.91
It is apparent that the Authority took the view that the attack on the applicant’s family home was an isolated incident that was not followed up and that, consistently with the country information, the applicant was not at risk of serious harm in his home town. Plainly, the findings made by the Authority were open to it on the material before it. While it is also plain that the Authority might have reasoned differently, it was under no obligation to do so. There was no misconstruction or misapplication of the visa criteria.
Likewise, I reject the applicant’s contention that the findings made by the Authority failed to take into account that the applicant had been a victim of harm in the past. The Authority made no finding that the attack on the applicant’s family home amounted to persecution. The Authority nevertheless accepted the fact of the attack and expressly took it into account. The Authority might have explored further the context in which the attack occurred, namely an attempt at religious cleansing by Shi’a militants, and the country information would have supported that further exploration. The Authority chose to focus on other country information, however, and it was for the Authority to determine what country information it had particular regard to. The Authority’s reasoning in relation to the applicant’s claims falls within the area of decisional freedom open to it.
The third ground in the amended application cannot succeed in the face of the evidence expressly referred to by the Authority in its reasons.
Further, the proposition that the Authority’s decision was unreasonable in a legal sense also cannot succeed.
Conclusion
I conclude that the applicant is unable to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 March 2018
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