AZB18 v Minister for Immigration

[2019] FCCA 1502

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZB18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1502

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority failed to properly apply the real chance test – whether the Authority made a legally unreasonable finding of fact – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: AZB18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 544 of 2018

Judgment of: Judge Humphreys

Hearing date: 3 June 2019

Date of Last Submission: 3 June 2019

Delivered at: Parramatta

Delivered on: 3 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Applicant: Firmstone & Associates

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 544 of 2018

AZB18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a male citizen of Iraq and is a Shia Muslim who was raised in the Basra district of Iraq. The applicant arrived in Australia as an unauthorised maritime arrival on 13 April 2013. On 14 July 2016, the applicant lodged an application for a Temporary Protection visa. This was prepared with the assistance of a migration agent. On 8 May 2017, the applicant attended an interview with the delegate of the Minister. The applicant’s representative provided additional documents after the interview with the delegate.

2. On 24 May 2017, the delegate refused to grant the visa sought. On 29 May 2017, the matter was referred to the Immigration Assessment Authority (“the Authority”) for a “fast-track” review. On 15 February 2018, the Authority affirmed the delegate’s decision not to grant the applicant a Temporary Protection visa. The applicant now seeks judicial review of the Authority decision.

Background

1. The applicant’s claims for protection are set out in paragraph 9 of the Authority’s decision. They may be summarised as follows:

   ·    The applicant’s father was a merchant in Basra who imported grains and foodstuffs. His father came to the attention of various militia groups who demanded he pay protection money and abandon dealings in providing foodstuffs to British forces who were then in the Basra area.

   ·    The applicant asserts he was forced to end a relationship with a woman named Fatima, who was the sister of a member of a militia. He alleges the militia then burnt down the applicant’s family business that belonged to his father. The applicant alleges he was then sent out of Basra by his father.

   ·    The applicant returned to Basra for an arranged marriage in November 2009, with a woman named Noor. He stayed for one week only before relocating to Syria until March 2013. Due to the security situation, he left Syria for Malaysia and then, ultimately, Australia. He is divorced or separated from his wife, Noor. That occurred prior to him coming to Australia.

New Information

1. In reaching the decision to affirm the delegate’s decision, the Authority had regard to a submission received on 23 June 2017, from the applicant’s migration agent, which it classified as an argument. A report dated 7 February 2009, from Iraqi Police, purports to show a date for the burning down of the applicant’s father’s warehouse and new country information from DFAT dated 26 June 2017 was considered. The Authority found that there were exceptional circumstances to justify consideration of this new information.

2. However, the Authority rejected the documents which purport to show the applicant’s father seeking protection from local police for himself and his family in January 2010 as the Authority found that they were not genuine or personal credible information.

The Authority Decision

1. At paragraph 10, the Authority accepted the applicant’s identity and general background. At paragraph 11, the Authority noted discrepancies in the applicant’s various accounts as to his family’s situation. The Authority noted inconsistencies that caused concern as to the applicant’s credibility.

2. Paragraphs 12 to 15 of the Authority’s decision deal with various accounts given by the applicant as to the circumstances surrounding extortion and threats that were made to the applicant’s father. At paragraph 15, the Authority concluded that they were not satisfied that the applicant’s father held a contract for the supply of foodstuffs to British forces but was satisfied he was a victim of extortion by a criminal gang. The Authority found that the applicant’s father continued to run the business until his death in 2015, despite a fire at the family business warehouse that occurred in February 2009.

3. Paragraphs 16 to 19 deal with the applicant’s asserted relationship with Fatima, who was the sister of a member of the militia, which resulted in issues with the family of Fatima and then the militia. Paragraph 17 notes the differences in answers given by the applicant regarding various dates. At paragraph 18, the Authority concludes that the numerous and significant inconsistencies in the various dates reflected poorly on the applicant’s credibility.

4. At paragraph 19, the Authority concluded that the applicant was of no interest to the Mehdi Army or other militias in 2009 when he left Iraq or in 2013 and that he is not of interest to any members of Fatima’s family.

5. The Authority accepted that the applicant returned to Basra for a week in 2009 to be married to Noor. The Authority did not accept that the warehouse was burnt down in 2009 due to the applicant’s relationship with Fatima.

6. Paragraphs 20 to 26 deal with the Authority’s consideration as to the applicant’s capacity to meet the requirements of the definition of a refugee. At paragraph 23, the Authority notes that the applicant has not claimed fear based on his religion. The Authority then considers the situation in Basra and refers to the DFAT report of 26 June 2017. At paragraph 24, the Authority concluded that they were not satisfied that the applicant faces a real chance of serious harm in Basra from Shia militias, Sunni groups or criminal activity.

7. The Authority also considered, although not raised, risks associated with the applicant returning to Iraq as a failed asylum seeker. The Authority found that the applicant did not face a real chance of harm on that basis. Accordingly, the Authority concluded that the applicant did not meet the requirements under s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

8. Complementary protection considerations were then dealt with in paragraphs 27 to 30 of the decision. For the same reasons as set out above, the Authority concluded that the applicant did not meet the test in s.36(2)(aa) of the Act.

Grounds of Appeal

1. Two grounds of appeal were advanced and I paraphrase them here. First, the Authority made a jurisdictional error by failing to apply the “real chance” test in relation to the risk of harm. Secondly, the Authority made a jurisdictional error by making a legally unreasonable finding of fact regarding the risk of serious harm. In considering these grounds of appeal, I note that, firstly, the applicant bears the onus to prove error and, secondly, that the reasons of the Authority must be fairly read and not with a detailed eye to error.

Ground 1

1. The first ground asserts that the Authority erred by failing to apply the “real chance” test, by confining consideration to violence from criminal activity. It is suggested by the applicant that the Authority failed to consider, following a spike in violence, whether or not this still remained at a level such that there was a real chance of serious harm. At paragraph 24, the issue is specifically dealt with by the Authority. I will set out here the paragraph in full. It starts with;

   More recently, it is however reported that the provincial government in Basra has taken action to address criminal activity and tribal violence, which is said to have resulted in some improvement in the situation in Basra.

   There is then reference to a US Department of State ‘Iraq 2016 Crime and Safety report: Basra’, which is dated 10 March 2016.

   A media article from late 2016 notes that despite a relative stability in the security situation, Basra has witnessed a spike in armed tribal tensions, murders, kidnappings, armed robberies and car-jacking during the first half of 2015. The situation, however, improved slightly in early 2016, with a security operation resulting in the arrest of thousands of convicts within a few months.

   There is also reference there to Iraqi News ‘Security Forces Free Kidnapped Lukoil Engineers in Basra’, which is dated 1 November 2016.

2. Overall, I am not satisfied the applicant faces a real chance of serious harm from Shia militias, Sunni groups or otherwise arising from sectarian violence or that the Authority misapplied the “real chance” test. Although violent activity, including kidnappings and killings does occur in Basra province, on the basis of the material before me, I conclude that it is not so widespread as to give rise to a real chance that the applicant would face serious harm should he return to Iraq.

3. During the course of discussions with the counsel for the applicant during the hearing, I referred counsel to a number of sections within the DFAT report that fairly dealt with the issue of the risk of violence. In particular, I also note that the Authority had found that he was not at risk from inter-militia violence because he was not a member of the militia and also that he was not at risk from Fatima’s family, given the efflux of time over the period.

4. The Authority also looked at whether or not the applicant would face harm from his return to Iraq as a failed asylum seeker. Ground 1, in my view, fails on a factual basis. The finding that the applicant was not at real risk of harm was clearly open to the Authority. The Authority clearly considered the overall situation, including not just criminal activity but violence from Shia militias, Sunni groups and otherwise from sectarian violence. There is an express reference in paragraph 24 to the real chance test. I find that there is no jurisdictional error and that the ground must fail.

Ground 2

1. Ground 2 asserts that the Authority erred by making a legally unreasonable finding of fact. The test for a legally unreasonable finding of fact is very high. The applicant asserts that the conclusion that he did not face a real chance of serious harm or real risk of significant harm lacked an “evident and intelligible justification”.

2. In order to succeed in this ground, the written submissions concede that the decision must be one that no rational or logical decision-maker could arrive at on the same evidence and reference is made there to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at paragraphs [124] and [130]. The test for unreasonableness is also very stringent and only arises in rare cases. See Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at paragraph [113].

3. Having referred, during the course of argument, to information that was contained in the DFAT report, I am satisfied that, on a fair reading, the Authority did undertake an evaluative exercise and its conclusion was one which had an evident and intelligible justification based on material that was reasonably before it. The Authority found he did not face a real risk from either the militia or Fatima’s family. The Authority noted the country information in the DFAT report and set out its reasons in the quote from paragraph 24 that I have quoted above.

4. I am satisfied that the finding was open to the Authority. It is not the task of this Court to undertake merits review. There is no jurisdictional error evident in relation to Ground 2. This ground must also fail.

Conclusion

1. I therefore dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  19 August 2019