Ayj17 v Minister for Immigration

[2020] FCCA 1996

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYJ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1996

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Protection visa – whether the Authority correctly applied the relevant law in respect of the real chance or real risk of serious harm or significant harm – whether the Authority failed to take into account an aspect of the applicant’s claim – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: AYJ17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2131 of 2019

Judgment of: Judge Street

Hearing date: 22 July 2020

Date of Last Submission: 22 July 2020

Delivered at: Sydney

Delivered on: 22 July 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams

Solicitors for the Respondents: Ms H Dejean, Australian Government Solicitor, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 22 July 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2131 of 2019

AYJ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 Act1958 (Cth) (“the Act”), in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Pt 7AA of the Act, made on 23 July 2019, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. 

3. The applicant claimed to be a Sunni Muslim who had been a police officer for a period of almost seven years, and the applicant also claimed that his brother had died as a result of an explosion in the applicant’s car, and that he fled to Syria and feared harm from Shia militias because he is a Sunni Muslim and because he was a member of the Iraqi police force.

4. On 12 October 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa. On 31 January 2017, a differently constituted Authority affirmed the Delegate’s decision.  The applicant successfully applied to the Federal Circuit Court to have that decision quashed and remitted and an appellate challenge by the first respondent to the Federal Court of Australia was unsuccessful.

5. On 30 May 2019, the currently constituted Authority wrote to the applicant explaining that the case had been remitted for reconsideration. The applicant provided submissions, dated 11 June 2019, which the Authority took into account insofar as it engaged with the Delegate’s decision, and, insofar as it contained new information, found that there were exceptional circumstances to justify considering the same.

6. The Authority also identified new country information that the Authority took into account. 

7. The Authority wrote to the applicant on 28 June 2019 in relation to that new information and took into account the applicant’s submissions in response dated 12 July 2019. The Authority found that there were exceptional circumstances to justify considering the new information provided by the applicant in that regard.

8. The Authority, in its reasons, identified the background to the Protection visa application and had regard to the material given by the secretary under s 473CB of the Act. 

9. The Authority summarised the applicant’s claims and set out the relevant law, including in an annexure entitled “Applicable law” incorporated by pagination.

10. The Authority referred to the applicant’s claims and accepted that the applicant was employed as a police officer in a particular governorate over a period of approximately seven years. The Authority summarised the applicant’s duties in that regard. Those duties had been identified in the applicant’s statement in support of the Protection visa. Nowhere in that statement did the applicant claim to be a general or a colonel or a brigadier. The applicant referred to his role as that of a police officer, and it is apparent from para 5 where the applicant referred, on page 79 of the court book, to a captain, that the applicant appreciated that there was a more senior structure in the police force.

11. The Authority accepted that the applicant may have received derogatory comments and/or verbal abuse by reason of being a Sunni, which the Authority described as being “societal discrimination”. 

12. The Authority accepted that there was an assault on the police directorate where the applicant worked, but found that that attack was not connected with the applicant.

13. The Authority was willing to accept that the applicant may have participated in a few police operations resulting in arrest of Shia militia leaders and smugglers. The Authority pointed out, however, that unlike the applicant’s evidence about his policing duties, those assertions lacked detail or specific knowledge about the events. The Authority found that the applicant was a marginal participant in such arrests, rather than having any notable involvement in the operations. The Authority found that the applicant was merely acting as part of a police force and following orders. Taking into account the finding about the limited training of the applicant, the Authority found that he was a low ranking officer during his service in the Iraqi police force. Consequently, the Authority was not satisfied that, as a result of that low ranking profile, this would have resulted in the applicant having a profile that would make him of ongoing interest to Shia militia, rogue members of Shia militia or tribes associated with either militia or their rogue members. The Authority took into account that the applicant’s parents and his siblings were born in the relevant governorate and continue to live in that governorate, as does his wife’s family. 

14. The Authority accepted that the applicant had two distant cousins that may have died in sectarian violence, but did not accept that they were employed as police officers in the same police directorate as the applicant, or that they were killed in the line of duty, or that their deaths were in any way connected to the applicant’s circumstances. The Authority did not accept that the applicant’s elder brother is in hiding. The Authority identified the implausibility of the elder brother being in hiding but that his other brothers were not.

15. The Authority was prepared to accept that the applicant was threatened by Shia militia, via his phone, in late 2010/early 2011, in connection with his work as a police officer, and his religion, and accepted that his brother died in the circumstances claimed in 2011. 

16. The Authority was not, however, satisfied that there was a real chance that the applicant will suffer serious harm as a former police officer and as a Sunni Muslim from the particular governorate. In that regard, the Authority took into account country information and its finding in relation to not accepting that the applicant was of ongoing interest to Shia militias, rogue militias, tribes or anyone else.

17. The Authority also took into account that the applicant has not claimed that he, personally, or any members of his family, have, in the past, suffered adverse treatment from Sunni group, ISIL. The Authority was not satisfied that the level of risk that the applicant suffered generalised violence rises to that of a real chance. The Authority took into account that the applicant’s family have not suffered any adverse treatment in the eight years the applicant has lived in other countries outside Iraq. 

18. The Authority was not satisfied that the societal discrimination would rise to the level of serious harm. The Authority was not satisfied that there is a real chance that the applicant will face harm from Shia or Sunni armed groups or anyone else as a result of his religion or former occupation.

19. The Authority was not satisfied that there is a real chance that the applicant will suffer harm because he is a returnee from a western country.

20. The Authority was not satisfied that the applicant has a well-founded fear of persecution. 

21. 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 did not meet the criteria in s 36(2)(a) of the Act. 

22. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia, there is a real risk the applicant will suffer significant harm on return to Iraq. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 19 August 2019, and on 12 September 2019, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. 

3. The applicant’s oral submissions were to contend that he played a prominent role as a police officer and made an assertion that his rank was that of a colonel, general or brigadier. No such claim or such a rank was advised before the Authority. Indeed, it is apparent from the applicant’s statement that the applicant appreciated that there was a rank structure when he described his role as that of a police officer.

4. The Authority took into account the limited training the applicant had received, and the nature of his duties, in finding that he played a low profile role in relation to arrests and that because of that low profile role, the applicant would not face a real chance or real risk of serious harm or significant harm.

5. The applicant’s disagreement with the adverse findings by the Authority in relation to his profile are, in substance, an invitation to engage in merits review. This Court has no power to review the merits.

6. The Authority’s reasons for finding that the applicant had a low profile cannot be said to lack an evident and intelligible justification. That intelligible justification included the difference between the detail of the applicant’s duties and lack of detail in relation to arrests and the limited training received by the applicant. 

7. No jurisdictional error arises by reason of the applicant’s disagreement with the adverse findings in relation to his role as a police officer, and the adverse findings by the Authority in relation to the Refugee Convention and in relation to complementary protection.

8. This Court is not in a position to make fresh findings in relation to the applicant’s claims. There is nothing before the Court to suggest the applicant advanced a claim that he was a colonel, brigadier or general before the Authority. A claim not raised before the Authority and which does not clearly arise on the material before the Authority cannot give rise to a jurisdictional error.

9. The applicant also referred to threats he received before going to Syria which were expressly referred to and taken into account by the Authority.  The Authority also accepted that the applicant’s brother was killed. Nothing said by the applicant orally identified any jurisdictional error by the Authority.

The grounds

1. The grounds in the applicant’s application are as follows:

   1.The authority accepted all my claims for protection, however, they concluded that there is no real chance that I will be harmed if I go back to Iraq, the authority failed to properly address the real chance of persecution issue.

   2.The authority failed to address the risk posed by the people who I arrested in the past, in this regard, the authority failed to consider the risk posed by both the Shia and Sunni militias.

Ground 1

1. In relation to whether the Authority correctly identified the relevant law in respect of the real chance or real risk of serious harm or significant harm, and the reasons of the Authority support a finding that the Authority correctly applied the relevant law. 

2. The Authority’s reasons are consistent with the correct application of the relevant law in determining whether the applicant has a well-founded fear of persecution. The Authority’s reasons are consistent with correctly applying the real chance test in relation to the applicant’s claims. 

3. The Authority made dispositive findings in respect of all of the applicant’s claims, which were open for the reasons given by the Authority as summarised above. Those adverse findings were logical and rational. The adverse findings were not based on trivial or insignificant matters. Further, the Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error.

4. No jurisdictional error is made out by ground 1.

Ground 2

1. Ground 2 reflects a disagreement with the adverse findings by the Authority in respect of a low profile played by the applicant in arrests, and whether the applicant was of ongoing interest to Shia and Sunni militias. 

2. The Authority did not fail to take into account the applicant’s claim in relation to the role he played. Rather, the Authority did not accept that the applicant played a significant role which would give rise to him facing a real chance or a real risk of significant harm or serious harm.  That adverse finding was open on the material before the Authority and was logical and rational. 

3. No jurisdictional error is made out by ground 2.

4. The Court notes that the applicant’s affidavit asserted that the Authority did not consider his claims for protection. The Authority’s reasons are inconsistent with that assertion, and reflect the making of dispositive findings in respect of the whole of the applicant’s claims.  No jurisdictional error arises by reason of the applicant’s disagreement with the consideration of his claims by the Authority as raised in his affidavit.

5. As no jurisdictional error was made out, the application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 22 July 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 6 August 2020