AXH17 v Minister for Immigration and Border Protection
[2018] FCA 1362
•6 September 2018
FEDERAL COURT OF AUSTRALIA
AXH17 v Minister for Immigration and Border Protection [2018] FCA 1362
Appeal from: AXH17 v Minister for Immigration [2018] FCCA 464 File number: NSD 470 of 2018 Judge: MARKOVIC J Date of judgment: 6 September 2018 Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review – where Immigration Assessment Authority (Authority) affirmed the decision of a delegate not to grant a protection visa – whether the Authority failed to take into account the applicant’s past experience of persecution – whether the Authority’s reasoning and decision is unreasonable – appeal dismissed. Legislation: Federal Court of Australia Act 1976 (Cth) s 43(3)(d)
Migration Act 1959 s 5H(1)
Cases cited: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Date of hearing: 27 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 37 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 470 of 2018 BETWEEN: AXH17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
6 SEPTEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs fixed in the sum of $3,974.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 21 March 2018 dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority): AXH17 v Minister for Immigration [2018] FCCA 464 (AXH17). The Authority had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Temporary Protection (Subclass 785) visa (Visa).
BACKGROUND
The appellant is a citizen of Iraq. He arrived in Australia as an unauthorised maritime arrival in June 2013. On 16 August 2016, after the Minister exercised the power under s 46A(2) of the Migration Act 1958 (Cth) (Act), the appellant applied for the Visa.
In his statutory declaration annexed to his application for the Visa the appellant made the following claims:
(1)he is a Sunni Muslim and was born and lived in Zubair in southern Iraq, a predominately Sunni Muslim area;
(2)after the fall of the Hussein regime, the situation changed. Shia militias in the area were killing Sunni Muslims and evicting them from their homes;
(3)at the beginning of 2012 Shia militias sent a letter to the appellant’s family threatening to evict them from their house because they were Sunni Muslims;
(4)in February 2012 a hand grenade was thrown at the appellant’s home. His mother and sister were home at the time and his mother sustained injuries in the attack. She died in May 2012;
(5)despite the damage to their home, the appellant and his family continued to live there;
(6)on 8 September 2012 the appellant’s brother was kidnapped from his home. The appellant has not heard from his brother since and believes that Shia militia were behind the kidnapping;
(7)in May 2013 the appellant heard that neighbours were being killed by Shia militia and others were kidnapped. The appellant’s father decided that the family should move to another area and arranged for them to move to Nasiriyah. At that time the appellant departed Iraq via Basra airport; and
(8)the appellant fears that if he returns to Iraq the people who kidnapped his brother and threw the grenade at his home will target him because of his Sunni religion.
On 23 December 2016 a delegate of the Minister refused to grant the Visa.
On 6 January 2017 the delegate’s decision was referred to the Authority for review. On 12 February 2017 the appellant’s representative provided a submission to the Authority.
On 14 February 2017 the Authority affirmed the delegate’s decision.
AUTHORITY’S DECISION
The Authority accepted that:
(1)the appellant is a Sunni Muslim and that his family received a letter telling them to leave the area because they were Sunni Muslims but they did not comply with the letter;
(2)following the withdrawal of United States forces in late 2011, many Sunni Muslims in his area were threatened, some were kidnapped, some killed and some fled;
(3)a hand grenade was thrown at the appellant’s house but concluded that the damage to the house was not serious as the family remained there for a further 15 months before selling it and moving to Nasiriyah. The Authority noted that at his arrival interview the appellant said that the cost of his travel to Australia had been funded by the sale of the house.
The Authority did not accept that the appellant’s brother was kidnapped as he claimed. It reached that conclusion because of an inconsistency in the appellant’s evidence about the abduction; because it was not satisfied the police report produced by the appellant in relation to the incident was genuine; and because it was concerned that the appellant had made fund transfers in 2013 to his brother. The Authority did not accept the appellant’s evidence attempting to explain why those transfers were made when his brother was supposedly kidnapped and missing.
The Authority then turned to consider whether the appellant met the requirements of the definition of refugee in s 5H(1) of the Act.
The Authority identified that the appellant’s central claim for protection was that he is a Sunni Muslim and that from 2012 his family was targeted by an armed group or militia because of this. The Authority noted that country information indicated that some Sunni Muslims may be at risk of serious harm from Shia militia depending on their personal profile, but considered that the appellant did not have a profile that gave rise to a real chance of harm. The Authority concluded that while incidents of violence against Sunni Muslims did occur, it was not satisfied on the basis of country information and the appellant’s circumstances, that there was a real chance that the appellant would suffer harm in Zubair as a Sunni Muslim now or in the reasonably foreseeable future.
The Authority also considered whether the appellant would face a real chance of serious harm as a returnee from Australia, a western country, where he has sought asylum. However, based on country information, it concluded that it was not satisfied that he would face such harm.
The Authority concluded that the appellant had not met the requirements of the definition of refugee in s 5H(1) of the Act and did not meet the requirements of s 36(2)(a) of the Act.
The Authority then turned to consider whether the appellant met the criteria for complementary protection. Relying on its earlier findings, the Authority did not accept that the appellant would face a real risk of significant harm on return to Iraq. It thus concluded that the appellant did not satisfy s 36(2)(aa) of the Act.
FEDERAL CIRCUIT COURT PROCEEDING
On 6 March 2017 the appellant commenced the proceeding in the Federal Circuit Court seeking judicial review of the Authority’s decision.
The appellant raised the following four grounds in his amended application which were numbered 4 to 7:
(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 decisions maker misapplied the test of a ‘real chance’ or ‘real risk’ of persecution by requiring a higher degree of probability than required in 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 in 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.
(Underlining omitted)
In relation to the first ground, the primary judge rejected the appellant’s contention that it was not open to the Authority to find that there was no real chance that the appellant would suffer harm because of his Sunni faith once the Authority accepted that he had been a victim of harm in the past. The primary judge referred to the Authority’s findings at [6]-[8] and [14]-[17] of its reasons and concluded that it was apparent that the Authority took the view that the attack on the appellant’s family home was an isolated incident that was not followed up and that, consistent with country information, the appellant was not at risk of serious harm in his home town. The primary judge noted that, while the Authority might have reasoned differently, it was under no obligation to do so and found that the Authority’s findings were open to it on the material before it: AHX17 at [49]-[51].
The primary judge also rejected the second ground, being that the Authority failed to take into account that the appellant had been a victim of harm in the past. The primary judge noted that the Authority made no finding that the attack on the appellant’s family home amounted to persecution but nevertheless accepted the fact of the attack and expressly took it into account. The primary judge observed that the Authority might have explored further the context in which the attack occurred, namely the attempt to carry out religious cleansing by Shia militants, but instead it chose to focus on other country information. The primary judge found that it was for the Authority to determine what country information it had regard to and that its reasoning fell within the area of decisional freedom open to it: AXH17 at [52].
The primary judge also rejected the third and fourth grounds. The primary judge found that the third ground could not succeed in light of the evidence expressly referred to by the Authority in its reasons and that the proposition that the Authority’s decision was unreasonable in a legal sense, as propounded by the fourth ground, could not succeed: AXH17 at [53]-[54].
THE APPEAL
In his notice of appeal filed on 29 March 2018 the appellant raised three grounds as follows:
(1)Even though His Honour dismissed my application I believe that point 5 of my Amended application filed on 3 August 2017 involved an error of law as admitted by His Honour that I have an arguable case in that the decision maker erred in law in that she failed to take into account a relevant consideration, namely, that 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.
(2)It was not open to the Immigration Assessment Authority to make different factual findings and rely on different country information therefore the reasoning and decision is unreasonable.
(3)There are undisputed facts which were acknowledged yet not acted upon to establish the serious fear of harm and persecution at the hand of the political parties (Shia militia) who persecuted us as Sunni, who threw a hand grenade at my house which exploded and caused damage to the property as well as serious wounds to my mother whose leg had to be amputated and who died in May the same year.
The appellant did not file any written submission in support of his grounds of appeal. At the hearing the appellant made oral submissions which did not engage with the grounds of appeal but went to the merits of his application for the Visa. The appellant submitted that he was now married and has family in Australia. He said that he could not return to Iraq where he has nobody given his parents are now deceased and his brother has been kidnapped. He said that the situation in southern Iraq is becoming more dangerous and is not safe. He further submitted that the incidents he described happened and that his story was genuine.
I consider each ground of appeal below.
Ground one
By this ground the appellant alleges that the Authority erred by failing to take into account a relevant consideration, namely his “past experience of persecution in determining whether his fear of persecution at present is well founded”. This ground appears to reagitate the second ground raised before the primary judge. It should be rejected for the following reasons.
First, the Authority identified at [6] and [13] of its reasons that the appellant’s central claim for protection was that he is a Sunni Muslim, that his family were targeted by militia from 2012 because of this and that, if he were to return to Zubair, he would again be pursued by the militia.
The Authority’s factual findings are summarised at [7]-[8] above. In particular, it accepted that the appellant’s family had received a letter telling them to leave the area because they were Sunni Muslims and that subsequently a hand grenade was thrown at their house, causing some damage. However, as identified by the primary judge at [52] of AXH17, the Authority did not find that the attack on the appellant’s family home amounted to persecution. The Authority did, as his Honour noted, accept that the attack occurred and took it into account. But the Authority found that after those events, the appellant and his family were not of any further interest to the militia or armed groups, were not subject to serious harm and remained in Zubair without any further adverse attention.
The Authority’s task was to determine if the appellant faced a real chance or real risk of suffering serious or significant harm on return to his country of nationality, Iraq. That is the task that it in fact undertook.
The Authority concluded at [17] of its reasons that, although incidents of violence against Sunni Muslims do occur, it was not satisfied that there was a real chance that the appellant would suffer harm in Zubair as a Sunni Muslim now or in the reasonably foreseeable future. In reaching that finding, which was sufficient to dispose of the appellant’s claim to fear being targeted on return to Iraq because of his Sunni religion, the Authority relied on country information before it. That country information indicated that “in general a Sunni will not face a real risk of persecution in the southern governorates”. The Authority found that the appellant did not have a profile of the type that the country information indicated might give rise to a risk of harm. It is well established that the choice and assessment of the weight of country information are matters for the tribunal or, in this case, the Authority: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13].
The Authority also relied on its finding that neither the appellant nor his family were of any further interest to the militia or armed groups after the incidents which took place in February 2012 and had not suffered any serious harm after that time.
As the Minister submitted this is not a case where the Authority had failed to consider the appellant’s “past experience of persecution”. Indeed, it took the events that the appellant claimed had occurred into account but it was not satisfied that the appellant faced a real chance, or real risk, of suffering serious or significant harm now or in the reasonably foreseeable future. That conclusion was reasonably open to the Authority on the evidence before it as the primary judge found to be the case.
Ground two
By this ground the appellant alleges that it was not open to the Authority to “make different factual findings and rely on different country information therefore the reasoning and decision is unreasonable”. Those “different factual findings” and “different country information” are not particularised.
Insofar as the appellant seeks to challenge the Authority’s reliance on country information, as I have already observed at [26] above, the choice of country information and the weight to attribute to it are matters for the Authority alone.
Insofar as this ground alleges that the Authority’s reasoning was unreasonable, the ground cannot succeed. As the Minister submitted there was nothing irrational or illogical about the Authority’s findings. A rational and logical decision maker could have reached the findings made by the Authority on the material that was before it: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131], [135] (per Crennan and Bell JJ); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [21] (per Allsop CJ).
Ground three
By this ground the appellant alleges that there are “undisputed facts which were acknowledged yet not acted upon to establish the serious fear of harm and persecution at the hand of the political parties… who persecuted us as Sunni”. The appellant then referred to some of the events that he relies on in support of his claim.
Ground three seems to overlap with and raise the same issues as raised by ground one, namely that the Authority failed to take into account the appellant’s “past experience of persecution”. For the same reasons given in relation to the rejection of ground one, this ground should also be rejected. As the Minister submitted, the Authority took into account the events the appellant alleged occurred in early 2012 but was not satisfied that the appellant was of any further interest to the militia or armed groups after that time and was not satisfied that the appellant faced a real chance of harm on account of being a Sunni Muslim now or in the reasonably foreseeable future.
CONCLUSION
For the reasons set out above the appeal should be dismissed.
As the appellant was not successful he should pay the Minister’s costs. At the hearing the Minister made an application pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth) that, in the event he was successful on the appeal, his costs should be fixed in the amount of $3,974. In support of that application the Minister relied on an affidavit sworn by Svetlana Zarucki, a solicitor in the employ of the solicitors for the Minister. Ms Zarucki set out the tasks that were undertaken in relation to the preparation of the appeal on behalf of the Minister, the costs that have been incurred by him based on those tasks and an estimate of the further likely professional costs for completing the hearing of the appeal. Ms Zarucki also provided an estimate of the Minister’s likely recovery upon a taxation of costs in this Court should the costs be assessed in that way.
Based on Ms Zarucki’s evidence I am satisfied that the amount claimed by the Minister for his costs of the appeal is an appropriate sum. It equates to an approximation of the likely recovery following a taxation and is less than the amount to which the Minister would be entitled if he were to follow the procedure in r 40.43(3)(b) of the Federal Court Rules 2011 (Cth) and file a short form bill of costs.
Accordingly, I will make orders dismissing the appeal and for the appellant to pay the Minster’s costs of the appeal fixed in the sum of $3,974.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 6 September 2018
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