BHB17 v Minister for Immigration

[2019] FCCA 1220

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHB17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1220

Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – whether a conclusion reached by the IAA was legally unreasonable – no jurisdictional error revealed – application dismissed.

PRACTICE & PROCEDURE – Proposed amended application filed before the hearing – leave sought to rely on the proposed amended application – leave refused.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30;

(2018) 92 ALJR 713; (2018) 357 ALR 408

SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58;

(2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16;

(2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367;

(2010) 115 ALD 248

Minister for Immigration and Citizenship v Li [2013] HCA 18;

(2013) 249 CLR 332; (2013) 87 ALJR 618;

(2013) 297 ALR 225; (2013) 139 ALD 181

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11;

(2016) 237 FCR 1; (2016) 329 ALR 491

Applicant: BHB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 908 of 2017

Judgment of: Judge Nicholls

Hearing date: 11 April 2019

Date of Last Submission: 11 April 2019

Delivered at: Sydney

Delivered on: 10 May 2019

REPRESENTATION

Counsel for the Applicant: Mr O. Jones

Solicitors for the Applicant: Unisaj Legal

Counsel for the Respondents: Mr J. Kay Hoyle

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. Leave to amend the application made on 24 March 2017 is refused.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 908 of 2017

BHB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the act”) on 24 March 2017, seeking review of the decision of the Immigration Assessment Authority (“the IAA”) made on 22 February 2017 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. The evidence before the Court is contained in the bundle of relevant documents filed and tendered by the Minister (Court book – “CB” – “RE1”), and the affidavit of Siddique Panwala, solicitor, made on 10 April 2019.  

Background

1. The applicant is a citizen of Iraq.  His claims to fear harm appeared to arise from three bases.

2. One, fear from Badr militants who killed his brother during the time of the regime of Saddam Hussein. The militants came to the applicant’s family home after the fall of Saddam Hussein and questioned his family about his brother.  The applicant fears that his family were branded as “non-loyal” and that he would suffer harm as a result.

3. Two, the applicant enlisted in the Iraqi army in 2007. He deserted in 2010.  He lived discreetly in Iraq.  The authorities approached his family looking for him.  His family did not disclose his location.  He feared that if he returned he would be brought before a military court and punished for desertion. This punishment would also occur for reason of his family’s “reputation”.

4. Three, he feared harm as a returnee from a Western country where he had sought asylum.

5. The applicant’s written submissions to the IAA characterise these claims as being desertion from the military, and two facets of imputed political opinion.  The first arising from his family situation (CB 137–CB 139).  The second from the circumstances of his return as a failed asylum seeker (CB139).

The IAA’s Decision

1. The IAA set out a summary of the applicant’s claims to fear harm (at [6]–[9] of its decision record).  The IAA found adversely to the applicant’s credit: ([10] at CB 146):

   “10. As can be seen from the summaries of evidence as set out above, the applicant’s statements as to his background and reasons for leaving Iraq have been varied widely. His stated persecution has become increasingly wide-ranging, dramatic and severe. Due to the significant divergence in his evidence I am not satisfied as to his credibility. I accept that he is a Shia Muslim and that his brother Mohammed was killed on 11 February 1995 while serving in the Iraqi army. I do not accept his recent claims that his family were approached by Badr organisation members after the fall of the Saddam regime or that the family was blacklisted by the Badr organisation and could not obtain employment. I am satisfied that his brother’s army service and death has led to any ongoing threat to the applicant from the Badr organisation or from any other militia groups.” 

1. Nevertheless it accepted some of the applicant’s factual account.  These are summarised in the Minister’s written submissions and are not disputed by the applicant before the Court (see [16]–[17] of the Minister’s written submissions):

   “16. The IAA accepted that the applicant was a Shi’a muslim and this M [brother] was killed while serving in the Iraqi Army However, it was not satisfied the family was approached by Badr members or that the family was black-listed. It as not satisfied that the applicant was at risk of any on-going threat as a result of M’s death or army service [see 10] of the Decision).

   17. The IAA accepted that the applicant enlisted in the Army in mid-2002 and was discharged after basic training at the end of 2002 (see [11] of the Decision). It accepted that the applicant re-joined the Army in 2007. Despite the absence of evidence, the IAA accepted that the applicant deserted and, based on evidence at his arrival interview, found that this occurred in January 2013 (see [12] of the Decision).”

1. Nor did the applicant dispute the following summary of the IAA’s findings (see [18] of the Minister’s written submissions): 

   “18. Based on these factual findings, the IAA made the following findings in respect of the applicant’s claims:

a. Any threats as a result of undertaking military service were likely to have been made by anti-government supporters. As such, the threats would have been aimed at the security forces in general and not at the applicant (see [16] of the Decision).

b. It did not accept that the applicant would be subject to a long             prison term if he returned to Iraq and found that he would be treated in the same way as every other deserter in accordance with an amnesty (see [17] of the Decision).

c. It did not accept that the applicant and his family had been targeted by the Badr Organisation. In any event, M was killed 22 years ago and it found that there was not even a remote chance of harm in the future on that basis (see [18] of the Decision).

d. Although not raised by the applicant, it considered the risk of harm to the applicant on the basis of his late brother possibly being a member of the Ba’ath Party. Country information indicated that what was applied to the Ba’ath Party generally should not apply to individuals given the pressures that forced Iraqis to join. The applicant had not claimed to a be a member, M was not a senior member and country information suggested that the family of Ba’ath members was not targeted or discriminated against (see [19] of the Decision). 

e. The applicant claimed, but provided no evidence about, discrimination on the basis that he was a member of the Al Ghizzi tribe. There was nothing to indicate that the tribe was specifically targeted by reason of their race, ethnicity or imputed political opinion (see [20] of the Decision).

f. The IAA also considered whether the applicant was at risk by reason of his Shi’a faith. The applicant did not claim to fear harm on this basis. Based on country information, the IAA found that Shi’as in Shi’a-dominated areas were at low risk of generalised violence and that it was not satisfied there was a real chance of harm on the basis of sectarian violence from Sunni militia in southern Iraq (see [21] of the Decision).

g. Although not raised by the applicant, the Delegate considered whether the applicant would suffer harm by reason of being an asylum seeker. The IAA found that, based on country information, there was no evidence that voluntary returnees were unable to assimilate back into their communities or that they faced significant problems. The applicant also claimed that the applicant has freedom of expression in Australia to curtail this would be unreasonable. The IAA noted country information that freedom of expression, political assembly and associated are protected under the Iraqi Constitution and concluded that there would not be a real chance of harm if the applicant were to express his political views in a lawful manner (see [22] of the Decision).”  

Before the Court

1. At the hearing before the Court the applicant’s counsel sought leave to proceed by way of an amended application. The Minister neither consented nor opposed leave being granted to the applicant to proceed by way of amended application.

2. Given the terms of the sole proposed ground (in the circumstances outlined above) the hearing proceeded on the basis that the Court would hear argument on the proposed ground and determine whether it contained such merit as to warrant leave being granted in the interests of justice.  The grounds of the originating application were abandoned by the applicant.

The Proposed Amended Application

1. The proposed ground is in the following terms:

   “1. The Authority made a jurisdictional error by reaching a conclusion which was legally unreasonable.

   a. The Authority referred at paragraph 22 of its decision to the claim on behalf of the Applicant by his representative that the Applicant “has freedom of political expression in Australia and to curtail this would be unreasonable”.

   b. The Authority referred at paragraph 22 of its decision to country information indicating that “freedom of political expression, political assembly and association are protected in the Iraqi constitution, with an exception for entities that promote or incite terrorism”;

   c. The Authority concluded at paragraph 22 of its decision solely by reference to the constitutional guarantee that there would not be a real chance of harm to the Applicant in Iraq “were he to express his political views in a lawful manner”.

   d. There was no evident and intelligible justification for the Authority to reach that conclusion solely by reference to a constitutional provision;

   e. The above error was material to the decision of the Authority.”   

Consideration

1. The applicant’s proposed ground is focused on [22] of the IAA’s decision record, and in particular that part to which emphasis has been added (at CB 149):

   “22. Although not initially raised by the applicant, the delegate also considered whether he would be harmed due to having left Iraq and sought asylum in Australia. In relation to this, the 2015 DFAT country report provides that there is no evidence to suggest voluntary returnees from the West are not assimilated back into their communities⁵. Further to this, the DFAT report states that a credible international organisation was aware of over 100 Iraqis who had returned to southern Iraq having failed to receive asylum in Australia and that organisation was not aware of any of these returnees facing significant problems⁶. I am not satisfied that 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 applicant’s representative has also claimed that the applicant has freedom of political expression in Australia and to curtail this would be unreasonable. The referred information notes that freedom of political expression, political assembly and association are protected in the Iraqi constitution, with an exception for entities that promote or incite terrorism⁷. I conclude that there would not be a real chance of harm to the applicant in Iraq, were he to express his political views in a lawful manner.”

   [Emphasis added.]
   [Footnotes omitted.]

2. The heart of the applicant’s allegation against the IAA is that there was no evident and intelligible justification for the conclusion expressed in the last sentence of [22] in circumstances where the IAA simply referred to the Iraqi Constitution.

3. The proposed ground as stated, and as explained in submissions, is one of legal unreasonableness.  The applicant refers to Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) at [10] per Kiefel CJ and at [82] per Nettle and Gordon JJ, for the proposition that the “law requires an evident and intelligible justification” for the IAA’s decision.

4. The applicant sought to explain this lack in the IAA’s reasoning in the current case in the following way.  The IAA understood the relevant claim to have been put by the applicant’s representative on his behalf to be that returning him to Iraq, would be unreasonable. 

5. In considering this claim the IAA had regard to certain information before it concerning the Iraqi Constitution.  It then immediately reached the state of requisite satisfaction (in light of the relevant criteria for the grant of the visa) without anything further in reference to the Iraqi Constitution.

6. What emerged between the parties in oral submissions was a “debate” as to the state of the relevant authorities on the issue of legal unreasonableness.

7. On the one hand what was described as the “more traditional SZMDS standard”, where a finding of irrationality is one where no reasonable decision maker could have arrived at the same result (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 – see especially [130], [131] and [135] see also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [13]–[15]).

8. On the other hand the lack of an evident or intelligible justification may be unreasonable in circumstances where the decision maker is exercising a statutory discretion (see Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”)) as opposed to reaching, or not reaching, a statutory state of satisfaction, in this case, as to whether the applicant satisfied the criteria for the grant of the visa.

9. In the current case the applicant emphasised what can be described as the “intelligible justification” approach.  The Minister the “reasonable satisfaction” approach.  Both also argued that in the circumstances of this case both approaches would lead to the respective (but different) outcomes for which they contended.

10. The following is relevant to the current consideration.

11. One, there is no doubt that lawful decision-making requires a state of legal reasonableness.  (See for example Li at [26], [29], [63], and [68] and SZVFW at [4] and [53]).

12. Two, the test for legal unreasonableness is strict (Li at [108], SZVFW at [11]).

13. Three, in light of the authorities it may be said that there are two broad contexts within which to consider legal unreasonableness.  One, legal unreasonableness as a result of some identified error, or two, legal unreasonableness deriving from the outcome of the decision.

14. Four, as set out above the parties in the current case have sought to characterise the “complaint” identified in the proposed sole ground as being capable of determination with reference to one or other standard of legal unreasonableness as set out above.

15. While their submissions proceeded with reference to principles extracted from various authorities, and exhibited nuance in explanation, it must be made clear that the assessment of the applicant’s ground cannot proceed on the basis of some fixed formula (see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) at [2], [10] and [62]). As was said in SZVFW the consideration does not involve “talismanic words that can avoid the process of judgment” (at [59]).

16. Five, as was also said in SZVFW (at [84]) the consideration for current purposes requires attention to the facts and circumstances of this case (see also Stretton at [7] and [11]).

17. It is in this latter light in particular that the lack of merit in the proposed ground is revealed.

18. The applicant focuses on a part of [22] of the IAA’s decision record.  It is clear from the language used that at that part of its decision record the IAA was addressing a claim to fear harm advanced in the applicant’s representative’s submissions to the IAA.

19. Those submissions in their entirety are reproduced at CB 135–CB 139.  The specific part of those submissions addressed by the IAA (in the impugned part of [22]) is as follows (see CB 139):

    “Imputed Political Opinion – Failed Asylum Seeker

    Although the applicant did not claim that he fears harm for being “failed Asylum Seeker” the delegate provided country information to suggest that the applicant upon return to Iraq and in the reasonably foreseeable future, would not face significant problems. However, the delegate did not take into account that being deserter with opponent political opinion puts him at risk if he failed to be recognised as a refugee. The applicant stated that he developed his political opinion and yet he expressed his views freely in Australia. Therefore, it is unreasonable to get his liberty to express his view deprived upon return, in addition to the serious and significant harm he would be subjected should he return.”

1. In short, the claim was that the applicant would be at risk of harm if he were to return to Iraq because (amongst other things) he would have imputed to him a political opinion because of his return from Australia as a failed asylum seeker. In all, someone who had “failed to be recognised as a refugee”, and who was also a deserter from the Iraqi army.

2. As part of the argument in support of that claim the applicant’s representative submitted that in contrast to the expected situation in Iraq, in Australia the applicant had been free (“liberty”) to express his “view” (in context political opinion) and that it would be unreasonable to return him to Iraq where he would be deprived of this liberty.

3. As the Minister submitted, given what is set out before the Court in the entirety of the representative’s submissions, and indeed having regard to all of the evidence before the Court now, the applicant (including through his representative) made no attempt to identify, let alone explain, what this political opinion, or view, was, of which he said the applicant would be deprived.

4. The IAA found that the applicant would not be subject to relevant harm for reason of his being a deserter (at [17]). The applicant’s sole proposed ground takes no issue with this finding.

5. At [22] the IAA addressed the claim raised for the first time in the representative’s written submissions to the IAA of a fear of harm as a returned asylum seeker. In this the IAA had regard to country information available to it to find that the applicant would not face harm (“a real chance”) on the basis of being a failed asylum seeker. Again the applicant’s proposed ground now raises no complaint about this.

6. The focus of the proposed ground is on the IAA’s consideration of what can be described as the curtailing of liberty claim (as raised in the applicant’s representative’s submissions to the IAA).

7. That is, the claim was that because the applicant had freedom or liberty of political expression in Australia, it would be unreasonable to return him to Iraq where freedom of political expression would be curtailed.

8. To be clear that unreasonableness according to the representative’s submissions to the IAA would arise because “his liberty to express his view [of which the applicant would be] deprived upon return, in addition (emphasis added) to the serious and significant harm he would be subjected should he return”.

9. That is “in addition” to being a deserter (dealt with by the IAA and not now impugned) and a failed returning asylum seeker (also dealt with by the IAA and not now impugned) he would suffer harm for reason of the curtailing of his liberty to express his political views.

1. This is what the IAA sought to consider in the last, and impugned, part of [22].

2. The finding made by the IAA at [22] was that “there would not be a real chance of harm to the applicant in Iraq, were he to express his political views in a lawful manner”.

3. The basis for this finding was again to look at country information before it. The IAA found:

   “that freedom of political expression, political assembly and association are protected in the Iraqi constitution, with an exception for entities that promote or incite terrorism⁷”.

   [Footnote omitted]. 

   That finding informed its conclusion as expressed in the last sentence of [22].

4. The paucity of the applicant’s proposed ground can readily be exposed with reference to the fourth dot point at [4] of his written submissions to the Court:

   “There was no evident and intelligible justification for the Authority to reach that conclusion solely by reference to a constitutional provision”.

1. While the applicant’s oral submissions before the Court were eloquently expressed, in essence, the applicant’s argument did not advance from that proposition.  What may be said therefore is as follows.

2. The assertion of legal unreasonableness is not based on there being no evident and intelligible justification for the conclusion, but rather that the lack of an evident and intelligible justification was said to be revealed because the IAA only made reference to the Iraqi Constitution.

3. What I understood from the applicant’s oral submissions was that legal unreasonableness was revealed because there was an absence of anything further to the reference to the Iraqi Constitution in the IAA’s consideration.

4. That is, it was not sufficient for the IAA to look at the bare terms of the Iraqi Constitution, and conclude that the applicant would not be at risk of harm. Something more was needed to provide an intelligible justification.

5. What this “something more” may have been was, it must be said, not satisfactorily explained. That may well be because, as set out above, there was nothing otherwise in the claim as made to require the IAA to provide further consideration to that set out at [22]. In short, as the Minister submitted, it was not incumbent on the IAA to search for further information simply in the hope that the applicant’s claim to fear harm may be made out.

6. In the circumstances of this case the claimed failure by the IAA does not reveal jurisdictional error. As set out above, the applicant, through his representative, made a bare assertion of the containment of his expression of his political views if he were to return to Iraq. That is the claim as made. That is also the claim as addressed by the IAA at the last part of [22].

7. Its conclusion was based on evidence before it. The applicant may not now agree with that conclusion but that is simply an expression of grievance with the IAA’s finding. That is, the sole proposed ground attempts to take issue with the IAA’s conclusion based on information before it.  A conclusion that was comprehensive of the particular claim as advanced by the applicant’s representative before it.

8. To use the approach urged by the applicant in his submissions, the IAA did provide an intelligible justification for its conclusion.

9. To use the Minister’s approach, the IAA’s reasoning was logical.  It was reasonably open to it on what was before it.  This is not a case where no reasonable decision maker could have arrived at the same conclusion.

Conclusion

1. The applicant’s sole proposed ground is really an attempt to seek impermissible merits review from the Court.  It therefore, lacks requisite merit that warrants the grant of the leave sought.  I will make an order refusing that grant. The substantive application contains grounds otherwise abandoned by the applicant.  It is appropriate therefore that it be dismissed. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 10 May 2019