BCH17 v Minister for Immigration

[2017] FCCA 1728

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCH17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1728

Catchwords:
MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority considered irrelevant material – whether the Authority failed to consider the applicant’s claims – whether the Authority denied the applicant procedural fairness – whether the decision was illogical, irrational, or unreasonable.

Legislation:

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

Applicant: BCH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 146 of 2017

Judgment of: Judge Street

Hearing date: 25 July 2017

Date of Last Submission: 25 July 2017

Delivered at: Sydney

Delivered on: 25 July 2017

REPRESENTATION

Solicitors for the Applicant: Mr F Faris
Rebus Legal

Counsel for the Respondents: Mr P Macliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Time for filing of the application is extended up to and including 7 March 2017 under s.477 of the Migration Act 1958 (Cth).

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 146 of 2017

BCH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 a decision of the Immigration Assessment Authority (“the Authority) under Part 7AA made on 30 January 2017 affirming the decision of 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. The applicant left Iraq on 4 June 2013 and arrived in Australia on 7 July 2013. The applicant lodged an application for protection on 8 September 2016. On 14 December 2016 a Delegate of the Minister refused to grant the applicant a protection visa and found that the applicant did not meet the criteria under the Act. The Delegate found the applicant was not an excluded fast tracked applicant.

The Authority’s decision

Information before the Authority

1. On 20 December 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for a review. The Authority identified that there were limited circumstances in which the Authority could consider new information. The letter attached a fact sheet and a Practice Direction providing the applicant with an opportunity to put on further submissions and new information. There was a 21-day time limit in relation to the provision of new information or submissions and there was a five-page limit imposed in respect of submissions but no page limit in respect of new information.

2. On 9 January 2017, the applicant’s migration agent provided submissions to the Authority and those submissions included alleged issues arising from militia men and that the Delegate had raised the issue of the applicant not mentioning that the men who visited his home in 2013 were militia men from the Mahdi army. The submission advanced that the reason for this was that it was not known who the men were at the time and that roughly four months after leaving detention the applicant was told by his brother that he was certain that the men were from the Mahdi militia. The applicant advanced that was why he did not mention the militia men in his first interview.

3. The applicant referred to having mentioned in his first interview that the Mahdi army was present in his city. The applicant maintained in the submissions that the militia men came to his parent’s house looking for him for bringing dishonour to his previous partner. The applicant was not concerned they were from the Mahdi army; his only concern was to flee and save his life from imminent death. The submissions addressed other matters.

4. The Authority in its decision identified the applicant’s background and identified, having regard to the material referred to the Authority under s.473CB of the Act. The Authority expressly referred to the submissions dated 9 January 2017 received by the Authority on behalf of the applicant. The Authority identified having regard to the submission and referred to obtaining additional information and that the additional information was not specifically about the applicant and the Authority found that there were exceptional circumstances to consider that country information, which was produced from the UN High Commissioner for Refugees.

Claims for protection

1. The Authority identified the applicant’s claims for protection and, in particular that the applicant claimed to fear harm from the father of a daughter that the applicant asked to marry. The applicant alleged that the father caught the applicant and the daughter sitting together in a hotel room and was furious and that the father threatened to kill him. The applicant alleges that he went to a different part of Karbala to hide and he alleges that the following day he had been told by his brother that the father of the daughter went to his family home threatening to kill the applicant for shame and dishonour that he had brought upon the father’s family. The applicant’s brother warned the applicant not to return home.

2. The applicant alleges he had a further encounter with the daughter and told her he was in hiding. The applicant alleges that due to the threats from the father of the daughter, the applicant decided to leave the country.

Factual findings

1. The Authority accepted that there had been an incident involving the father’s daughter and the father being furious but noted that there had been some variation in the applicant’s evidence as to what had happened after he had left the hotel in April 2013.

2. The Authority identified that the applicant mentioned that the daughter had stayed with him at the hotel for a period of two weeks in his arrival interview and had not mentioned it since that time. The Authority did not accept that that event occurred. The Authority noted the applicant was also asked in the arrival interview, as part of the standard list of questions, whether any armed groups or militias were active in his area, and he replied that the Mahdi army were. There was no other mention of this group in the applicant’s interview. The Authority noted the applicant’s contention that the father was well-connected with the Mahdi army.

3. The Authority made reference to the issue that had been raised with the applicant about making no mention of the involvement of the Mahdi army at his initial interview and asked why that was, and that the applicant responded that his brother had not initially known that the groups of men that came to the applicant’s house were the Madhi army and that they did not identify themselves as such. This reference in the Authority’s decision is a clear reference to the propositions advanced in the submissions of 9 January 2017 referred to by the Authority.

4. The Authority referred to detailed questioning on that issue by the Delegate and that it was not clear at the protection visa interview whether the applicant had concluded that the visitors to his home had been the Mahdi army or whether his brother had come to that conclusion and advised the applicant. It was in those circumstances the Authority was not satisfied that a later inclusion of the Mahdi army in the applicant’s story was true.

5. The Authority accepted that the father had threatened to kill the applicant and accepted that associates or agents of the daughter’s father went to the applicant’s family home looking for him. The Authority did not accept that there was militia involvement in the matter.

Refugee assessment

1. The Authority correctly identified the relevant law. The Authority was not satisfied on the evidence that the applicant faces a real chance of harm from the Shia militias or armed groups due to simply being a Shia. The Authority found that the applicant did not have a well-founded fear of persecution from the father for the purpose of s.5J of the Act. The Authority found the applicant was not the target of the Mahdi army or other military militia groups.

2. The Authority found there is not a real chance the applicant would be persecuted on this basis if he returned to Karbala now or in the reasonably foreseeable future. The Authority was not satisfied the applicant faces a real chance of harm on the basis that he has spent time in Australia or that he unsuccessfully sought asylum in Australia. The Authority found the applicant did not meet the definition of refugee in s.5H(1) and that the applicant failed to meet the criteria in s.36(2)(a) of the Act.

Complementary protection assessment

1. The Authority turned to complementary protection and found that there is a real chance that if the applicant returned to his family home in Karbala he will be killed by Mr Samir due to the applicant dishonouring his daughter. For the same reasons, the Authority accepted that there is a real risk the applicant may be killed by the father if he returns to his own neighbourhood.

2. The Authority made reference to the requirements of s.36(2B). The Authority was satisfied that the applicant would be at risk of harm if he returns to his family home from the father, and the Authority was satisfied, if the applicant returned to and remained in Karbala in the long term, there was a real risk he would be located and harmed. The Authority found the applicant has a real chance of serious harm in the areas of North, West and Central Iraq now and in the reasonably foreseeable future. The Authority referred to the country information and was not satisfied that it is reasonable for the applicant to relocate to Iraqi Kurdistan.

3. The Authority made express reference to the applicant’s personal circumstances and found that the Authority was satisfied the applicant could relocate to another area of Southern Iraq and that it was reasonable to do so. The Authority made reference to country information in support of that finding. The Authority found, as an ordinary Shia civilian of no particular interest to militia or armed groups, the Authority was satisfied that the applicant was not at real risk of harm were he to relocate within Southern Iraq.

4. The Authority made reference to the applicant’s explanation as to why he could not live elsewhere and the assertion that Mr Samir would have located him and his life would be at risk and the assertion that Mr Samir was well-connected. The Authority noted that the father had been unable to locate the applicant within Karbala itself and, accordingly, the Authority was satisfied there is not a real risk that the father would be able to locate and harm the applicant should he relocate to another town/city in Southern Iraq.

5. In those circumstances, the Authority found is not taken to be a real risk that the applicant will suffer significant harm due to the actions of the father. The Authority then turned to the country information to consider whether the applicant could reasonably relocate. The Authority observed that most of the immediate family of the applicant resided in Karbala, however, he has stated that he has family and friends in Najaf, as well as aunts in Al- Hillah.

6. The Authority was satisfied that it would be reasonable for the applicant to relocate to another city in the predominantly Shia southern governorates of Iraq and family ties would assist him in being sponsored to enter, should such a sponsorship be required, and to remain in such areas.

7. It was in those circumstances that the Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iraq from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s.36(2)(aa) of the Act.

Proceedings before this Court

Grounds of the application

1. The grounds of the application are as follows:

   1. The Decision maker has considered irrelevant material;

   2. The Decision maker failed to consider claims;

   3. Breach of rules of Natural Justice, by restricting the applicant to 5 pages response; and

   4. The decision maker decision was illogical, Irrational and Unreasonable.

2. Submissions were provided by the solicitor on behalf of the applicant expanding under the topic heading of each of the four grounds. In light of those submissions, the Court extended time under s.477 in the circumstances of the present case.

Consideration

Ground 1

1. In relation to Ground 1, Mr Faris sought to argue that, because the Delegate had referred to the applicant facing pending criminal charges, that there had been an irrelevant consideration taken into account by the Authority. There was no reference to those criminal charges in the reasons of the Authority. Accordingly, no jurisdictional error can be made out in that regard.

2. There was no irrelevant consideration taken into account by the Authority, nor would a reference to the fact of charges of itself have been irrelevant, albeit the charges have not been determined and events subsequent to the decision of the Authority identify the applicant was acquitted on 20 July 2017. None of that identifies any irrelevant consideration taken into account by the Authority. No jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, Mr Faris submitted that there had been a failure by the Authority to consider the applicant’s evidence concerning the militia, including the Mahdi militia. Mr Faris took the Court to part of the submissions of 9 January 2017, and it is apparent from the reasons of the Authority, to which I have already referred, that the Authority took those submissions into account and, in particular, referred to part of the explanation advanced by the applicant in relation to his failure to earlier mention the involvement of the militia. There is no basis to conclude that the Authority failed to consider the whole of the applicant’s submissions on the material before the Court.

2. The Authority made dispositive findings that were open on the material before the Authority. There was no failure to take into account relevant material. Mr Faris referred to the reference in the reasons of the Authority to the lack of clarity identified by the Delegate in respect of questioning of the applicant as to who had come to his home. Mr Faris contended there had been a misunderstanding of the applicant’s claim and that this had adversely affected on the assessment of the applicant’s credibility. No misunderstanding of the applicant’s claim was made out by reference to paragraph 11 of the Authority’s reasons. Further, the adverse findings in relation to the applicant’s credibility were the subject of logical and rational reasons, and the adverse credibility findings cannot be said to lack an evident and intelligible justification.

3. Mr Faris also argued in relation to Ground 2 that there had been a misunderstanding about the information by the applicant as to the inability to locate the applicant. Mr Faris made reference to the submissions that the applicant had gone into hiding. I do not accept that there is any failure to have regard to relevant evidence or failure to take into account the applicant’s claims in relation to going into hiding in the adverse credibility findings made by the Authority in paragraph 28. Those adverse findings were open.

4. Mr Faris also submitted that the Authority had overlooked the applicant’s evidence about the Mahdi army’s interest in the applicant. This, in substance, was an invitation to this Court to engage in an impermissible merits review and reflect a disagreement with the findings of fact that were open. No jurisdictional error is made out as alleged in Ground 2.

Ground 3

1. In relation to Ground 3, Mr Faris complained of the page limit in respect of submissions of five pages and the limited time to put on those submissions. In this case, there was no request made to the Authority to put on submissions in excess of five pages, nor was there any request for a further extension of time in that regard. No denial of procedural fairness is made out as alleged in relation to Ground 3 by reason of the provision of the opportunity given to the applicant to provide submissions and new information identified in the Practice Direction and fact sheet provided under cover of the letter sent by the Authority to the applicant at the time of the commencement of the review.

2. On the face of the material before the Court, the Authority complied with its obligations of procedural fairness by giving the applicant an opportunity to put on new information and submissions and, taking those submissions into account that were received by the Authority. No jurisdictional error is made out by Ground 3.

Ground 4

1. In relation to Ground 4, Mr Faris focused on the findings made by the Authority in relation to complementary protection and that there was a real risk of harm if the applicant returned from his family home from the daughter’s father. Mr Faris contended that it was not safe for the applicant to relocate anywhere. Mr Faris sought to refer to country information supporting the proposition that the Mahdi army have access and control of all Shia areas in Iraq. In substance, Ground 4 is an invitation to this Court to engage in impermissible merits review.

2. The Authority made dispositive findings in respect of the applicant’s claims, and the adverse finding as to relocation, having taken into account the applicant’s personal circumstances, was open. The findings of the Authority in relation to relocation and complementary protection were not unreasonable, illogical or irrational.

3. No jurisdictional error is made out by Ground 4.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 September 17