AXH18 v Minister for Home Affairs

[2019] FCCA 1796

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXH18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1796

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Tribunal denied procedural fairness to the applicant – whether the Tribunal misinterpreted the law and/or addressed a wrong question – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476

Cases:
ALR17 vMinister for Immigration & Anor [2018] FCCA 3407
DGZ16 v The Minister for Immigration and Border Protection [2018] FCAFC 12
DTP17 v Minister for Immigration & Ors [2019] FCCA 10
DYG18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1142
EIC18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1244

Applicant: AXH18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 513 of 2018

Judgment of: Judge Street

Hearing date: 27 June 2019

Date of Last Submission: 27 June 2019

Delivered at: Sydney

Delivered on: 27 June 2019

REPRESENTATION

Counsel for the Applicant: Mr V Kline

Solicitors for the Applicant: Stamford Law

Counsel for the Respondents: Ms K Hooper

Solicitors for the Respondents: MinterEllison

ORDERS

1. Grant leave to the Applicant to rely upon the amended application filed 8 June 2019.

2. The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

3. The amended application is dismissed.

4. The Applicant pay the First Respondent’s costs fixed in the amount of $7,000.00.

DATE OF ORDERS: 27 JUNE 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 513 of 2018

AXH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Immigration Assessment Authority (“the Authority”) made on 19 January 2018 under Part 7AA of the Act affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 14 July 2013. The applicant claimed to fear harm, in summary, because of his father’s employment as the commander in a voluntary paramilitary group and in the Karbala Chamber of Commerce, and by reason of his father being a long-term and important member of the Ba’ath Party.

3. The applicant alleged that, by his father’s loss of employment, the family home was confiscated. The applicant also alleged that the family were dispersed within Iraq and then fled to Syria for some months in about 2004 or 2005 before returning to Iraq.

4. The applicant alleged that, because of his father’s Ba’athist connections, he and his family were subject to prejudice and discrimination. The applicant also alleged that he was kidnapped by a militia in February 2005. The applicant also alleged that his brother was shot in 2006 and later gaoled before being released, and that his sister was kidnapped in 2010 and released only following payment of a ransom.

5. The applicant alleged that he was employed as a police officer in Baghdad from 2007 to 2013. The applicant also alleged, however, that he did very little work and gave his salary to a commander in exchange for police identification that granted him protection when travelling.

6. The applicant alleged that he was warned that a warrant had been issued for his arrest. The applicant also alleged that he fears he is going to be killed, kidnapped or subject to the death penalty if he were to return to Iraq because of his imputed political opinion as a Ba’athist.

7. On 17 July 2017, the delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. On 20 July 2017, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The same letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on submissions and new information.

8. The applicant put on submissions and new information that were expressly referred to in the Authority’s reasons. The Authority identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority referred to the applicant’s submissions dated 10 August 2017 and the information that was provided therewith. The Authority identified a new claim in respect of which the Authority found that there were not exceptional circumstances to justify considering the same. The Authority also identified other attached documents and extracts from country information which the Authority found were not new information.

9. The Authority summarised the applicant’s claims and referred to the requirements of ss 5H(1) and 5J of the Act. In respect of s 5J(4) of the Act, the Authority correctly referred to persecution involving serious harm and systematic and discriminatory conduct. There was no suggestion that the Authority’s summary of the law in that regard is erroneous.

10. The Authority accepted that the applicant’s parents, adult siblings, brother-in-law and niece are now living in Turkey.

11. The Authority referred to a psychologist report dated 7 July 2017 provided by the applicant to the delegate. The Authority accepted that applicant has been diagnosed as suffering from “Chronic Post Traumatic Stress Disorder” and “Chronic Major Depressive Disorder” and that he has received some treatment for these conditions. The Authority found, however, that these conditions did not adequately explain the wholesale failure of the applicant to mention certain events.

12. The Authority noted that the applicant identified he was never a member of the Ba’ath Party. The Authority also noted that the applicant’s father had returned to Iraq after going to Syria in around 2004 or 2005.

13. The Authority referred to the applicant’s claims and evidence, including the incident in respect of his brother being shot in 2006. The Authority also referred to the incident in respect of the applicant’s sister being kidnapped on the way to university at the beginning of the 2010 to 2011 academic year when she was a student in Baghdad.

14. The Authority referred to country information in respect of the applicant’s fears of religious militias if he returns to Iraq. The Authority expressly referred to a UK Home Office report from November 2016 (“the Report”), which referred to most high-ranking Ba’athists having either fled Iraq or already been dealt with by the new regime. The Authority also noted that the Report states Shia militia may target alleged or actual Ba’athists, but such targeting is not systematic. The Authority also noted that the Report states individual circumstances are likely to influence whether a person is at risk, which include the person or their relative’s rank or position within the Ba’ath Party, whether the person or their relative has been involved in any particular activities or associated with the wider abuses of the Ba’athist regime, and how those activities, the person’s profile or their relative’s profile have brought them to the adverse attention of those they fear. The Authority continued the analysis of the Report and also referred to other country information.

15. The Authority accepted that the applicant’s father was employed in Iraqi embassies abroad, as a commander in a voluntary paramilitary army, and in the Karbala Chamber of Commerce. The Authority also accepted that the applicant’s father was a middle-ranking member of the Ba’ath Party and that, as a result of the “de-Ba’athification” process, the applicant’s father may have lost his job and the applicant’s family may have lost their home. The Authority also accepted that the applicant was not himself a member of the Ba’ath Party, but that he benefited as a result of his father’s political connections.

16. The Authority accepted that, in the chaotic lead up to and in the years immediately following the fall of Saddam Hussein in 2003, there occurred some killings of the Ba’athists. The Authority also accepted that the applicant and other members of his family may have suffered low-level verbal harassment and societal prejudice in their neighbourhood where his family was known because of his father’s political connections.

17. The Authority did not accept that the applicant’s father was a high-ranking or active leading member of the ruling party for decades in Baghdad or other cities. The Authority referred to the applicant being unclear about his father’s role in the party and found it implausible that he would not know more about his father’s history. The Authority also considered the applicant’s father’s profile was not consistent with that of a high-ranking Ba’athist associated with the former regime’s abuses. The Authority referred to country information in that regard.

18. The Authority accepted that the applicant was kidnapped in February 2005 before managing to escape. The Authority was also willing to accept that the discrepancies between the applicant’s description of the circumstances surrounding this event may be explained by his post-traumatic stress disorder, which he had been diagnosed with. The Authority was also willing to accept that the applicant’s kidnapping may have been wholly or partially related to his father’s Ba’athist connections. The Authority found, however, that more than twelve years have passed since the incident and no further action has been taken against the applicant by the kidnappers.

19. The Authority accepted that the applicant’s brother was shot in Baghdad in 2006. The Authority also accepted that the shooting may have been wholly or partly related to the applicant’s father’s Ba’athist connections. The Authority found, however, that more than a decade has passed since the incident and there has been no further action taken against the applicant’s brother by the shooters and there has been no ongoing consequences for the applicant.

20. The Authority was willing to accept that the applicant’s brother may have been arrested and briefly detained on returning to Iraq after some years, but was not satisfied that the detention was a result of their father’s Ba’athist connections.

21. The Authority accepted that the applicant’s sister was kidnapped in late 2010 and released following the payment of a significant ransom by her family. The Authority did not accept that her abduction seven years after the fall of Saddam Hussein was as a result of their father’s Ba’athist connections. The Authority also noted that the applicant’s sister remained in Baghdad working at an international aid organisation, and that seven years had passed since this incident. The Authority found that this incident was not connected with the applicant.

22. The Authority did not accept that a warrant has been issued for the applicant’s arrest. The Authority referred to the applicant’s psychological disorder, but found it implausible that the applicant would completely forget the whole incident he now states was the trigger for his departure. The Authority also took into account that the applicant was able to depart Iraq legally on a passport issued in his own name and without incident, which suggests that he was of no adverse interest to the Iraqi authorities.

23. The Authority did not accept that, apart from his kidnapping in 2005, the applicant was otherwise directly threatened or significantly physically mistreated by militia or anyone else in the years prior to his departure from Iraq in May 2013, or that he was subject to continuous death threats. The Authority found that the applicant’s evidence in regard to his treatment in the five years prior to his departure from Iraq to be evasive, vague and unconvincing.

24. The Authority did not accept that the applicant, if returned to Iraq, is likely to be killed, kidnapped, or subject to the death penalty as a result of his Ba’athist connections because that would not be consistent with the country information or the applicant’s own evidence. The Authority did not accept that the applicant’s capacity to subsist if returned to Iraq would be threated. The Authority took into account that the applicant was able to graduate as a lawyer and joined the Iraqi Jurists Union.

25. The Authority was not satisfied that there is a real chance now or in the reasonably foreseeable future of any action directed at the applicant as a consequence of, or in connection with, the events that occurred in 2005, 2006 and 2010. The Authority was not satisfied that there is a real chance now or in the reasonably foreseeable future that the applicant will suffer harm as a result of an imputed political opinion because his father was a middle ranking member of the Ba’athist party.

26. The Authority was willing to accept that the applicant was employed as a police officer in Baghdad between 2007 and early 2013. The Authority was not satisfied that there is a real chance now or in the reasonably foreseeable future of any action directed at the applicant as a consequence of, or in connection with, his former employment as a police officer or his qualification as a lawyer.

27. The Authority referred to the applicant’s Shia religion and security situation in Iraq. The Authority took into account country information, including a DFAT assessment that official and societal discrimination against Shias is low, particularly in Shia areas. In these circumstances, the Authority was not satisfied that the level of harm is such that it rises to a real chance.

28. The Authority also considered the applicant’s ability to access medical care for any psychological disorders that he might continue to suffer in Iraq. The Authority found that the evidence before it does not suggest the applicant would be unable to access medical treatment for his conditions. The Authority was not satisfied that now or in the reasonably foreseeable future there is a real chance of persecution stemming from the applicant’s medical conditions.

29. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant failed to the meet the criteria in s 36(2)(a) of the Act.

30. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant has not met the criterion in s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   1. The Second Respondent denied procedural fairness to the Applicant and thus fell into jurisdictional error.

   Particulars

   (i)The Second Respondent failed to inform the Applicant of the nature of the material before it.

   (ii)The Second Respondent failed to alert the Applicant to any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.

   (iii)The Second Respondent failed to give the Applicant the opportunity to address, orally or in writing, any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.

   (iv)In dealing with the review of the Applicant’s claims, on the basis of only one side of the argument, where the Applicant was denied the opportunity to make submissions in his own cause, and the Second Respondent considered itself free to make its decision on whatever material it considered appropriate, without the Applicant being told what that material was, the procedure adopted by the Fourth Respondent, suffered inherently and by definition, from bias.

   2. The Second Respondent asked itself the wrong question when, applying the term ‘systematic’, within the meaning of s 5J(4)(c) of the Migration Act 1958 (Cth), to its analysis of the facts of the case, and thus fell into jurisdictional error.

   Particulars

   (i) The Second Respondent determined that the acts of persecution, which it found were relevant to the Applicant's situation, were not 'systematic' because the persecutors in question did not set about, on a regular and ongoing basis, to persecute him.

   (ii)The Second Respondent thus misinterpreted the concept of systematic persecution, which is established if the Applicant can show only that the conduct of the persecutors in question was deliberate or premeditated, that is motivated.

   (iii)The Second Respondent asked itself the wrong question by failing to understand that systematic persecution does not require the Applicant to show that he suffered persecution on a number of occasions, or that there were a series of co-ordinated acts directed at him.

Ground 1

1. In support of ground 1, Mr Kline of counsel on behalf of the applicant submitted that s 473DA of the Act did not exclude the applicant’s right to be heard in relation to matters adverse to him. Mr Kline also submitted that the steps taken by the Authority in the sending of the letter inviting the applicant to put on submissions and new information did not provide the applicant with procedural fairness in the conduct of the review. Mr Kline also submitted that procedural fairness is not a unitary concept but a single right.

2. Mr Kline submitted that the applicant was not excluded by the provisions of Part 7AA of the Act from having a right to respond in writing to potentially adverse information. Mr Kline also submitted that the provisions of the Act had not excluded, as a matter of fairness, the applicant being given the opportunity to engage with what the Authority considers or thinks may be important to the review. Mr Kline submitted that Part 7AA of the Act should be construed as permitting the applicant to make written response to concerns that the Authority may have in relation to the applicant’s case. Mr Kline also submitted that it cannot have been the intention of parliament to exclude the applicant’s right to make submissions in that regard.

3. Mr Kline submitted that, on proper construction of Part 7AA of the Act, the applicant was entitled to the opportunity to make submissions on the potentially adverse issues identified by the Authority. Mr Kline also submitted that, in the circumstances of the present case, the Authority has failed to do so, whereby there was a jurisdictional error.

4. Mr Kline candidly acknowledged that there are decisions of this Court that have not accepted this argument and that this Court is bound by the principle that it should follow the same unless satisfied that they are clearly wrong. Mr Kline identified the grounds on which he contended that those decisions were wrong, and properly reserved his client’s rights in respect of his challenge to those decisions.

5. The Court is not satisfied that the decisions in DYG18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1142 at [11]-[18], EIC18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1244 at [17], DTP17 v Minister for Immigration & Ors [2019] FCCA 10 from [66], and ALR17 vMinister for Immigration & Anor [2018] FCCA 3407 are plainly wrong.

6. Further, Mr Kline acknowledged that this Court may face a further difficulty being able to distinguish DGZ16 v The Minister for Immigration and Border Protection [2018] FCAFC 12. Mr Kline identified that he wished to challenge the correctness of that decision. This Court cannot entertain any such challenge. Despite the skilful submissions, the Court can see no basis upon which that decision may be distinguished and is bound by the same. Mr Kline properly reserved his client’s rights in respect of his challenge to that decision.

1. In the present case, the Authority sent the applicant a letter at the commencement of the review process and provided the applicant with an opportunity to put on submissions and put on new information. In those circumstances, the Court does not accept that there is a further obligation upon the Authority to give the applicant an opportunity to put on further written submissions in respect of the potential adverse findings in the circumstances of the present case.

2. It is apparent from the delegate’ adverse findings, in which the delegate did not accept that the applicant had been issued with a warrant for his arrest or that the applicant met the criteria for the grant of a Safe Haven Enterprise visa, that the applicant was on notice as to those adverse findings. This is not a case where there has been identified any particular circumstances enlivening any obligation under s 473DC(3) of the Act.

3. Mr Kline’s submissions, in substance, require further steps by the Authority after receipt of, and deliberation in relation to, the applicant’s submissions so that the applicant may engage with the potential adverse findings. The provisions of Part 7AA of the Act do not support any such obligation.

4. In any event, this Court finds that the decisions of other Judges of this Court rejecting the substance of ground 1 are not plainly wrong, nor is this Court satisfied that there is any proper basis upon which it would be entitled to depart from the decision of the Full Court of the Federal Court of Australia in DGZ16, which binds this Court.

5. Accordingly, no jurisdictional error as submitted in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Kline submitted that the Authority had misconstrued the meaning of “systemic”. Mr Kline submitted that the Authority had asked itself a wrong question as to the meaning of s 5J(4) of the Act. In this regard, Mr Kline focused upon the reference to the content of the Report in paragraph 51 of the Authority’s decision and to which the Court has referred above.

2. Whilst Mr Kline accepted that there was a reference to the Report in that regard, he submitted that it supported the inference that the Authority had misconstrued and misunderstood the concept of the meaning of “systematic” in its assessment of the applicant’s claims and evidence against the criteria under section 5J(4) of the Act. Mr Kline submitted that this misinterpretation had impacted on the Authority’s findings in respect of whether the applicant met the criteria under the 1951 Refugee Convention and under s 36(2)(a) of the Act.

3. The Court accepts the first respondent’s submission that this is not a case where the Authority found the applicant faced a future risk of harm, see paragraph 67. The Court also accepts the first respondent’s submission that the Authority found there was no real chance of any action being directed to the applicant and arising from the events of 2005, 2006 and 2010. The Court also accepts that these findings mean that the issue of systematic conduct did not arise, and that there was simply no conduct, systematic, selectively discriminatory or otherwise, such that the Authority can be said to have misapplied or misconstrued the question of systematic conduct in this context. The reference to “systematic” in paragraph 51 was a reference to the content of what was in Report.

4. The Authority’s use of the term “systematic” in paragraph 51 reflects a factual analysis engaged in by reference to country information, and is consistent with the requirements of s 5J of the Act as identified by the Authority in paragraph 18 of its reasons. No submission was advanced by the applicant that the Authority had misconstrued or misidentified the relevant law in paragraph 18. Accordingly, the Court finds no jurisdictional error is made out in relation to ground 2.

5. Accordingly, the amended application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2019