BGV18 v Minister for Home Affairs

[2018] FCCA 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGV18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2014

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misunderstood an aspect of the applicant’s claims – whether it was legally unreasonable for the Authority to depart from the delegate’s finding without considering whether or not to exercise the power under s 473DC – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DC, 473DD, 473DE, 476.

Cases cited:

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

Applicant: BGV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 697 of 2018

Judgment of: Judge Street

Hearing date: 18 July 2018

Date of Last Submission: 18 July 2018

Delivered at: Sydney

Delivered on: 18 July 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law

Counsel for the Respondents: Ms N Laing

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 4 July 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 697 of 2018

BGV18

Applicant

And

MINISTER FOR HOME AFFAIRS

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 26 February 2018, 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 was found to be a Shia Muslim from Basra in the southern governorates of Iraq. The applicant claimed to fear harm in summary from Shia militias and in particular, the Asaeb Ahl-Al-Haq (“the AAH”) on his return to Iraq by reasons of incidents that occurred prior to his departure, as well as a fear of harm being a Shia Muslim and due to the general security situation.

3. On 20 June 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. 

The Authority’s decision

1. On 23 June 2017, the Authority wrote to the applicant explaining that there were limited circumstances which the Authority could consider new information and provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions.

2. The applicant did put on submissions which were provided on 10 August 2017 and insofar as those submissions engaged with the decision of the delegate, the Authority took the same into account. The Authority expressly referred in the context of the submissions, to a claim that the applicant was a vulnerable person without familial or tribal support who is targeted for recruitment. The Authority accepted that that constituted new information and had regard to both limbs of s 473DD of the Act and was not satisfied there were exceptional circumstances to justify considering the new information.

3. The Authority also took into account more recent country information consistent with s 473DE(3)(a) of the Act. The Authority summarised the applicant’s claims and evidence. 

4. The Authority referred to the applicant’s claimed fear of harm on return to Iraq due to his past refusal to join the AAH.  The Authority did not accept that the AAH or any Shia militia group attempted to recruit the applicant in the past or that he came to the adverse attention of the AAH or any Shia militia group for any reason, including insulting them, forgetting to attend prayers, for playing soccer or for choosing to live in the West rather than to fight.

5. The Authority referred to the applicant having provided different evidence to the Department regarding his protection claims. The Authority referred to the arrival interview and that the applicant did not at any stage indicate that the AAH, or any other militia group attempted to recruit him or state that he had been threatened by these groups for any reason, including insulting them, for forgetting to attend prayers, for playing soccer or for being in the West. The Authority noted on that occasion, the applicant stated he left because there was no future and no studies and that nothing specifically happened to him.

6. The Authority referred to the fact that the applicant’s evidence at the arrival interview was raised with the applicant during the TPV interview and that the applicant acknowledged that he had given different evidence but stated this was because he was emotionally tired after the sea journey and he was told that he would have another interview to discuss his protection claims, and because he was scared that he would be deported. The Authority considered those explanations and found they did not satisfactorily account for the discrepancies in the information provided to the Department. The Authority took into account that it was not clear why the applicant would state nothing happened to him, even if tired, when asked to explain why he left Iraq and feared returning. The Authority also found that it was not clear why the applicant had not raised claims of past harm to explain why he could not return to Iraq, particularly in circumstances where he said he feared he would be sent back to face harm. 

7. The Authority referred to the submissions that the applicant’s statements on arrival were broadly about the claims later made in the TPV application. The Authority did not accept that that was the case and found the evidence was vastly different with the applicant stating that he had experienced no past harm but had left Iraq because of the limited opportunities and no future in contrast to the applicant stating that he had been threatened by the AAH. It was in those circumstances the Authority found these accounts could not be reconciled. 

8. The Authority referred to having listened to the interview and found there was no suggestion that the applicant’s evidence had been misinterpreted or misunderstood during the arrival interview or during the TPV interview. The Authority found the written record of the interview was accurate and that the applicant acknowledged that he provided a different account of his past experiences in Iraq. The Authority further referred to the proposition that had the claimed events relating to the AAH occurred, the Authority would have expected these matters to have been raised when the applicant had an opportunity to do so in the arrival interview, and that he would not have provided a different account of the reasons for departing Iraq. 

9. The Authority further considered that the applicant provided inconsistent evidence in relation to certain aspects of his claims. The Authority referred to the applicant’s written claim that he applied for a passport a short time after the AAH first approached him to attempt to recruit him. Whereas in the TPV interview, the applicant said he applied for the passport six months prior to departing Iraq and that it was not until after the second visit from the AAH that he decided to leave the country. The Authority found that it would have expected the applicant to provide a consistent account of the claimed events, and noted there has been no suggestion that the quality of the interpretation of the TPV interview was such the applicant’s claims and evidence could be said to have been misunderstood.

10. The Authority then referred to the applicant having stated that he was chosen for recruitment in part because he was unemployed. The Authority found however, his evidence was that he was in fact employed as a taxi driver at the time he claims to have been targeted. It was in these circumstances that the Authority found that the AAH or any other Shia militia would consider that he was unemployed and target him for this reason. The Authority also noted the applicant was an adult at the time of the claimed events and that there was nothing in the independent information before the Authority to suggest Shia militias, including the AAH, the Mahdi Army or any other group operating in southern governorates of Iraq, undertook forcible recruitment of adult males or that they targeted soccer players as contended by the applicant.

11. Taking into account the matters cumulatively, the Authority was not satisfied on the evidence that the claimed events occurred.  The Authority was not satisfied the AAH, or any Shia militia group, ever attempted to recruit the applicant or that the applicant refused to join them and insulted them by referring to them as militias. The Authority did not accept the AAH or the Shia militia threatened to harm the applicant because he refused to join them, because he insulted them by calling them militias, because he played soccer or because he forgot to go to prayers.

12. The Authority did not accept that members of the AAH or other Shia militia, visited the applicant’s mother two weeks after his departure from Iraq, asked his whereabouts and again, threatened to harm him for these reasons, or because he had chosen to live in the West instead of fighting. The Authority referred to country information and found the applicant will not be forcibly recruited to join any Shia militias on return to Basra or harmed for failing to join militia groups.

13. On the totality of the evidence, the Authority was not satisfied the applicant faces a real chance of any harm from the AAH or any other Shia militia, or anyone else if he returns to Basra now or in the reasonably foreseeable future for any reason including being forcibly recruited into a Shia militia, a past or future refusal to join the AAH or another Shia militia group, for insulting the AAH or Shia militia in the past, for forgetting to pray, for playing soccer, or for choosing to live in the West rather than to fight.

14. The Authority was not satisfied on all the evidence, that the applicant would be unable to obtain accommodation or employment on return to Basra or that he will face any other harm from the community due to his Shia faith, or that he will not have a future because he will not join a Shia militia group. 

15. The Authority was not satisfied on the totality of the evidence, that the applicant faced a real chance of harm as a Shia Muslim, or on the basis that he has no future because he will not be a member of a Shia militia group, or due to the general security situation, or if he returns to Basra in southern Iraq now and in the reasonably foreseeable future. The Authority found the applicant could safely access his home area.

16. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant failed to meet the criteria in s 36(2)(a) and the criteria under s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. Mr Zipser of counsel on behalf of the applicant, confirmed that ground 2 was no longer pressed and was abandoned. Grounds 1, 3 and 4 of the amended application are as follows:

   1. The applicant's principal claim was based on the fact that a militia group attempted to recruit him. The Minister's delegate accepted that the event occurred in his decision dated 20 June 2017. In contrast, the Immigration Assessment Authority ("the IAA") found at [13] that the event did not occur. Where the IAA reverses a finding by the Minister's delegate in the applicant's favour concerning a significant and material claim by the applicant without giving the applicant an opportunity to comment, such conduct by the IAA may be legally unreasonable. In the present case, the IAA, in reversing the finding by the Minister's delegate in the applicant's favour concerning whether the applicant was approached for recruitment by a Shia militia group, without exercising its power in s 473DC to give the applicant an opportunity to comment, involved conduct by the IAA which was legally unreasonable.

   3. One reason the IAA rejected the applicant's claims was because it believed the applicant claimed that a Shia militia group attempted to forcibly recruit him, when country information did not suggest that Shia militia groups recruited adult males: see at [17]. However, the applicant never claimed that the Shia militia group attempted to forcibly recruit him. In the circumstances, the IAA misunderstood this aspect of the applicant's claims, which is a jurisdictional error.

   4. On 11 June 2013 the applicant participated in an entry interview. The IAA in its decision at [14] relied, in a manner adverse to the applicant, on his failure to make a claim concerning a specified matter during the entry interview. For reasons partly explained in MZZJO v Minister 239 FCR 436 at [55]-[57], the IAA’s approach involved jurisdictional error.

Ground 1

1. In relation to ground 1, Mr Zipser took the Court to the reasons of the delegate in relation to the applicant being approached by the Mahdi Army. In that regard, the delegate’s reasons refer to the applicant alleging that he had been twice approached and declined both times and that he had never been threatened or harmed. The delegate found that the applicant had been broadly consistent with his account of being approached by members of the Mahdi Army and found it plausible that he may have been approached in the manner described. The delegate rejected the assertion of a threat to the applicant’s mother after the applicant left Iraq and found there was incentive for the applicant’s mother to exaggerate the dangers faced by her son and did not accept that the militia members threatened the applicant in the manner descry. The delegate found that while the applicant may believe such an encounter took place, it is not possible to determine whether such encounter took place as, the applicant himself had no direct involvement in the matter. 

2. The delegate referred to basic facts of the applicant’s encounter with the Mahdi Army being substantially true but found the applicant had either misconstrued or exaggerated any threat or menace. The delegate accepted it was plausible that the Mahdi Army would approach a young, able-bodied male and noted that the applicant stated he had never been threatened or harmed. The delegate did not accept the applicant was threatened in such a way since there would be no motivation on the part of the Mahdi Army to harm the applicant. 

3. The delegate did not accept that the group were sufficiently angered with the applicant’s use of the term militia, nor that they threatened the applicant with harm and found there was no country information suggesting militia is a pejorative or negative term.

4. The Authority did not accept that the applicant was approached by the Mahdi Army. Mr Zipser submitted that in these circumstances that was central to the applicant’s claim and that in relation to that assessment, the Authority did not have the benefit of observing the applicant’s demeanour. Mr Zipser contended that it was legally unreasonable in those circumstances to depart from the delegate’s finding without considering whether or not to exercise the power under s 473DC of the Act to give the applicant an opportunity to comment on the issue which the delegate had accepted and which the Authority did not. 

5. The Authority is not bound by the findings made by the delegate and the issue relating to the approach by the Mahdi Army, the threat to the applicant’s mother and the alleged forcible recruitment of the applicant was a live issue as a result of the delegate’s reasons. It is apparent from the submissions advanced on behalf of the applicant to the Authority, that the applicant was contesting the issue in those submissions as in respect of the threat as well as the issue of forced recruitment.

6. I do not accept that the departure from the delegate’s finding in relation to the approach to the application for recruitment by the Mahdi Army gave rise to circumstances in which it was legally unreasonable for the Authority to expressly consider exercising the power under s 473DC of the Act. I take into account in that regard what was said in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72]. It was appropriate for the Authority to evaluate for itself the material that had been considered by the delegate and in that regard, to make findings dispositive of the applicant’s claims. The Authority gave reasons for the adverse credit findings. The Authority’s reasons cannot be said to lack an evident and intelligible jurisdiction. The adverse finding in respect of the applicant’s claims concerning the approach by the Mahdi Army was open to the Authority. No jurisdictional error as alleged in ground 1 is made out.

Ground 3

1. In relation to ground 3, Mr Zipser submitted that the Authority had misunderstood the applicant’s claims, as the applicant had not claimed in his statement that a Shia militia group had attempted to forcibly recruit him. Paragraphs 4 to 6 of the applicant’s submissions, on a fair reading, advanced a claim to fear harm by reason of a forcible recruitment of the applicant.

2. There was no misunderstanding of the applicant’s claims to fear harm as alleged in ground 3. There was express reference in the applicant’s submissions to the Authority in relation to the issue of forcible recruitment. The assumption upon which ground 3 has been advanced. That it was never claimed that a Shia militia group attempted to forcibly recruit the applicant is, itself, misplaced and erroneous. No jurisdictional error as alleged in ground 3 is made out. 

Ground 4

1. In relation to ground 4, Mr Zipser took the Court to the Authority’s reasons, taking into account what was said at the entry interview.  The adverse findings made by the Authority in the present case were not made solely on the basis of the entry interview.

2. Further, the Authority took into account the applicant’s explanation in relation to the different evidence given by the applicant at the entry interview, which was expressly raised with the applicant at the TPV interview. There was no misunderstanding of the Authority’s task or the review and it was open to the Authority to take into account the inconsistencies identified by the Authority in the circumstances of the present case. No jurisdictional error as alleged in ground 4 is made out. 

Conclusion

1. As the amended application fails to make out any jurisdictional error, accordingly, the amended application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 September 2018