BHN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 83
•14 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BHN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 83
File number(s): SYG 740 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 14 October 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant’s fears found not to be well founded – whether the Authority misunderstood the visa criterion, failed to consider risks of harm cumulatively or overlooked an integer of the applicant’s claims considered – no jurisdictional error Cases cited: AHV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 6
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 24 September 2021 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitors for the Applicant: Alkafaji Lawyers Pty Ltd Counsel for the Respondents: Mr H Bevan Solicitors for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 740 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHN20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
14 OCTOBER 2021
THE COURT ORDERS THAT:
1.The amended application filed on 14 July 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 19 February 2020. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
In May 2013[1] the applicant arrived in Australian waters as an unauthorised maritime arrival.
[1] Court Book (CB) 62, 139
On 3 June 2013 the applicant participated in an “irregular maritime arrival and induction interview”.[2] The applicant’s claims at that interview are at CB 11-12.
[2] CB 1-25
On 12 July 2017,[3] following the lifting of a statutory bar notified by letter dated 29 June 2016,[4] the applicant lodged an application for a safe haven enterprise visa (SHEV).[5] The application included an undated statement of the applicant setting out his claims.[6]
[3] CB 29, 110, 139
[4] CB 27
[5] CB 42-104
[6] CB 81-86
On 25 June 2019 the applicant attended an interview with the delegate.[7]
[7] CB 113, 142.1
On 22 January 2020 the delegate made a decision refusing to grant the applicant a SHEV.[8]
[8] CB 139-151
Shortly afterwards the matter was referred to the Authority.[9]
[9] CB 156
On 17 February 2020[10] an agent for the applicant provided a written submission to the Authority.[11]
[10] CB 163
[11] CB 166-170
On 19 February 2020 the Authority made a decision affirming the decision of the delegate not to grant the applicant a protection visa.[12]
[12] CB 176-187
In March 2020 the applicant applied to the Federal Circuit Court for judicial review of the Authority’s decision.
THE CURRENT PROCEEDINGS
As noted above, these proceedings began with a show cause application filed on 25 March 2020. I granted the applicant leave to rely upon an amended application filed on 14 July 2021. There are four grounds in that application as amended:
1.The applicant confirms that he stated that he was in relationship with a girl whose brothers were members of the Shia Militias, the authority at [4] stated that this is [a] new claim, the applicant will endeavour to provide a transcript of the PV interview to prove that he mentioned his exgirlfriend's brothers connection to the militias, this is jurisdictional error.
2. The applicant claimed that he would be harmed by militia groups on return to Iraq due to formerly being a member of the Baath Party. The Authority at [19] found that it was "not satisfied that the applicant faces a real chance of harm from any group or individuals due to being a member of the Baath Party in the 1980s". The Authority fell into jurisdictional error in making this finding by misunderstanding the country information before it, or making a finding not supported by the country information before it, or misunderstanding the meaning of "wellfounded fear".
3. The Authority, after accepting that the applicant faced two risks of harm, failed to consider the risks of harm cumulatively. This is a jurisdictional error.
4. The applicant claimed a fear of harm arising from the fact that he was granted "subsidiary protection" in Cyprus where he was allowed to remain for five years. But the Authority only considered the risk of harm to the applicant from seeking asylum in Cyprus. The Authority failed to consider the risk of harm to the applicant based on his profile of having been granted a form of asylum in Cyprus, and thereby failed to consider an integer of the applicant's claims, which is a jurisdictional error:
(emphasis in original)
At the trial on 24 September 2021, Ground 1 was abandoned.
In addition to the court book filed on 24 July 2020, I have before me as an exhibit[13] extracts from the UK Home Office Country Policy and Information Note concerning Ba’athists in Iraq dated January 2020 (UK Home Office report) and the DFAT[14] Country Information Report on Iraq dated 9 October 2018 (DFAT report).
[13] Exhibit R1
[14] Department of Foreign Affairs and Trade
The parties provided pre hearing written submissions and made oral submissions through their counsel at the trial.
CONSIDERATION
Ground 2 – did the Authority misunderstand the country information before it?
Applicant’s contentions
The applicant claimed “that he would be harmed by militia groups on return to Iraq due to formerly being a member of the Ba’ath Party”.[15] He also claimed a fear of harm from “popular mobilisation forces” as a result of being a former Ba’ath party member.[16]
[15] CB 181 [19]
[16] CB 141.2
The Authority accepted that from 1992 the applicant was encouraged or required to be a member of the Ba’ath Party.[17]
[17] CB 180 [12]
The Authority then summarised the country information and then made a finding as follows:[18]
former Ba’ath Party ‘mere members’ face a low risk of targeted violence in Iraq. Further to this, in general a person will not be at risk of serious harm or persecution by the state because of their previous involvement with the Baath Party. I am not satisfied that the applicant faces a real chance of harm from any group or individuals due to being a member of the Ba’ath Party in the 1990s.
(footnotes omitted)
[18] CB 181 [19]
The first sentence in the above passage is credited in a footnote to the DFAT report which states at [3.51]:
DFAT assesses that former high ranging officials of the Ba’ath Party face a high risk of official and societal discrimination ... Individuals with lower-level links to the Ba’ath party face a lower risk of official and societal discrimination.
The second sentence in this passage accurately repeats a sentence from the UK Home Office report.
The applicant’s complaint is about the Authority’s finding in the third sentence of the above passage at [19] of its reasons. The complaints are as follows.
First, one distinction between the DFAT assessment and the UK Home Office assessment was that the DFAT assessment considered the risk of harm to former Ba’ath Party members from all sources, both government and non-government. In contrast, the UK Home Office assessment only considered the risk of harm to former Ba’ath Party members from government sources.[19] It is unclear whether the Authority member appreciated this distinction. If the Authority did not appreciate the distinction, it is said to have misunderstood the evidence before it, which can be a jurisdictional error.
[19] see reference to “the state”
Secondly, the Authority is said to have misstated the level of risk to “mere members” of the Ba’ath Party in the DFAT report. The DFAT report described the risk of harm as “a lower risk” than “a high risk”. Such a risk could include a medium-level risk. However, the Authority described the risk as “a low risk”. The applicant submits that the Authority’s finding of “a low risk” is not supported by the DFAT report. Either:
(a)the Authority again misunderstood the country information (which can be a jurisdictional error), or
(b)the Authority made a finding of fact without evidentiary support (which can be a jurisdictional error).
Thirdly, even if the Authority did not err in equating “a lower risk” with “a low risk”, a low risk can still give rise to a real chance of harm: see Chan v Minister for Immigration and Ethnic Affairs[20] at 429 per McHugh J:
a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur … an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.
[20] (1989) 169 CLR 379
Resolution
I prefer the Minister’s submissions on this ground.
By Ground 2, the applicant alleges that the Authority either misstated the country information or misunderstood the relevant legal test in its consideration and rejection of the applicant’s claim to face a real chance of harm due to being a member of the Ba’ath party in Iraq.
This ground focusses on [19] of the Authority’s decision.[21]
[21] CB 181
The Authority set out the applicant’s claim that he “would be harmed by militia groups on return to Iraq due to formerly being a member of the Ba’ath party”. The Authority referred to country information (from the UK Home Office) to the effect that targeting by Shia militia of former or alleged former members “is not systematic and is often dependent on a person’s past profile and activities within the Ba’ath party”.
The Authority accepted that, as he was a conscript in the Iraqi Army from 1992, the applicant was required to be a member of the Ba’ath party. But it did not accept his claim that “80% of people who were formerly in the Ba’ath party have been gaoled or hanged” as, in the applicant’s words, “it’s a stigma, you don’t get over it”.
The Authority considered that the applicant’s claim was not supported by country information. As this is the focus of the applicant’s challenge, it is convenient to set out the passage in full:[22]
This claim is not supported by country information, which indicates that at a societal level, it is broadly agreed among Iraqis that what applies to the Ba’ath party should not apply to the Ba’athists as individuals, given the pressures that forced millions of Iraqis to join the party and that linked all aspects of the state to it. As a result, former Ba’ath party ‘mere members’ face a low risk of targeted violence in Iraq.[23] Further to this, in general a person will not be at risk of serious harm or persecution by the state because of their previous involvement with the Ba’ath Party. .
[22] UK Home Office, “Country Policy and Information Note Iraq: Ba’athists”, January 2020, 2.4.2
[23] Department of Foreign Affairs and Trade (DFAT), “DFAT Country Information Report – Iraq”, 9 October 2018, [3.48]-[3.51]
The Authority was not satisfied that the applicant faces a real chance of harm from any groups or individuals due to being a member of the Ba’ath Party in the 1990s.
The applicant’s challenge has several aspects.
First, it is suggested that the Authority misunderstood the evidence by what is said to be an asserted distinction between the DFAT and UK Home Office reports to the effect that the UK Home Office “only considered the risk of harm … from government sources” whereas the DFAT report considered “government and non-government” sources. I do not accept that there is a distinction between the reports. The UK Home Office reports covers both “State treatment” and “Societal treatment”.[24] The Authority correctly states the effect of the UK Home Office report.[25] There is no basis to infer that the Authority erred in its understanding of the report.
[24] see affidavit of Ali Alkafaji made on 1 September 2021, Annexure B and [2.4.1]-[2.4.4] (for “State treatment”) and [2.4.5]-[2.4.7] (for “Societal treatment”), noting that the extract annexed to Mr Alkafaji’s affidavit is incomplete and a full extract was tendered (Exhibit R1)
[25] see footnotes 2 and 4 to [19]
The applicant’s second criticism with respect to the Authority’s reference to “low risk”, as opposed to “lower risk”, is misplaced. The applicant is correct insofar as [3.51] of the DFAT report refers to those with “lower-level links to the Ba’ath Party” facing a “lower risk of official and societal discrimination”. That may be so, but the Authority drew on the totality of that section of the DFAT report, not just the final paragraph, in support of the proposition that “‘mere members’ face a low risk of targeted violence in Iraq”. That proposition is supported by the thrust of the country information to which the Authority referred. It is well-established that the choice and weight of country information is a matter for the Authority and the Court cannot substitute its own view of the material, even if it had a different one from that reached by the Authority.[26] The Authority did not err in its approach to the country information.
[26] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ, cited in the context of Part 7AA in AHV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 6 at [23] per Markovic, Thomas and Banks-Smith JJ
Thirdly, and relatedly, the applicant alleges that the Authority thereby misunderstood the relevant legal test. I disagree. The Authority properly directed itself to the law[27] and assessed the applicant’s claims to face harm because he had been a former member of the Ba’ath Party. In rejecting the applicant’s claims in light of the country information, the Authority used, in terms, the requisite words of the assessment of risk required by the statute and the authorities: “real chance”. It therefore neither misunderstood nor misapplied the correct legal test when it rejected the applicant’s claims.
Ground 3 – did the Authority err by not making a cumulative assessment of the risk of harm?
[27] see Authority’s decision at CB 180-181 [16]-[17]
Applicant’s contentions
The Authority found that the applicant faced the following risks of harm if required to return to Iraq:
(a)a risk of harm as a former ordinary member of the Ba’ath Party, although the risk of harm was less than a real chance;[28] and
(b)a risk of harm from ISIS/Daesh and Sunni militia groups, although “the risk of harm is not one that rises to a real chance”.[29]
[28] at [19]
[29] at [21]-[22]
A decision-maker must consider the applicant’s claims cumulatively.[30]
[30] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 but see [41] below
The applicant’s complaint to the Court is that the Authority did not consider the above two accepted risks of harm cumulatively. Specifically, first, the Authority did not expressly consider the two risks of harm cumulatively. Secondly, while it is accepted that there is no magic in words and it is not necessary for the Authority to use the word “cumulatively”, there is no paragraph or sentence in the Authority’s decision where the Authority, in effect or substance, considered the two accepted risks of harm cumulatively.
Resolution
I also prefer the Minister’s submissions on this ground.
By Ground 3, the applicant alleges that the Authority failed to consider the cumulative risk of harm arising from the considerations in [19] and [22] of its decision.[31]
[31] CB 181 and 182
There is an obligation to consider the whole of the case put forward by a visa applicant but there is no obligation to make a “cumulative assessment” where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country.[32]
[32] DDK16 at [32]-[34]
The applicant contends that the Authority did not consider the cumulative risk of harm arising from “a risk of harm as a former ordinary member of the Ba’ath Party” or the “risk of harm [from sectarian violence that] is not one that rises to a real chance”. The difficulty for the applicant is that the two planks of this argument do not reflect the Authority’s findings and reasons.
The Authority’s conclusion in [19] was that it was not satisfied that the applicant faces “a real chance of harm from any groups or individuals due to being a member of the Ba’ath Party in the 1990s”. Contrary to the applicant’s suggestion, this does not constitute an acceptance of a lower level of risk. If there were any doubt about that, it is removed when regard is had to the Authority’s subsequent statement in [20] that “I have not accepted that the applicant was of any adverse interest to militia groups or individuals …” (emphasis added). Despite this (“[a]lthough …”), the Authority went on to consider “his risk of harm due to sectarian violence as well as any harm the applicant may face due to his Shia religion”. The Authority proceeded to do this in [21] and [22] of its decision, ultimately concluding that “[o]n the totality of the evidence … including the applicant’s particular circumstances”, it was “not satisfied that he faces a real chance of harm as a Shia Muslim, or due to sectarian violence” on return to Baghdad now, or in the reasonable foreseeable future. No challenge is made to that finding. Accordingly, the proposition that the Authority erred by failing to make a cumulative assessment is not made out, as no such obligation arose, having regard to the applicant’s claims and the Authority’s findings.
Ground 4 – did the Authority fail to consider a claim based on the claim of subsidiary protection in Cyprus?
Applicant’s contentions
The applicant claimed that, if required to return to Iraq, he feared harm from militia groups “if they discovered that I have the 5-year Refugee Identity granted to me in the British Camp” in Cyprus.[33]
[33] CB 83
The Authority accepted at [5] that in June 2007 the applicant was granted “subsidiary protection” in Cyprus “on the basis of ‘the prevailing unstable situation in Iraq’ which meant that ‘there is a threat to your life, security or freedom because of the violence exercised indiscriminately under conditions of armed conflict or because of systematic or generalised violations of human rights’”.
The Authority found at [23]:
It is further submitted that due to the time spent in a Western country the applicant ... will be considered to have been secularised and/or to be an infidel. This claim is not supported by the country information which indicates that the practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis. I do not accept that the applicant faces a real chance of harm due to having spent some years in or having sought asylum in Cyprus or in Australia.
(footnote omitted)
The applicant’s complaint to the Court is as follows. The applicant claimed a fear of harm arising from the fact that he was granted “subsidiary protection” in Cyprus where he was allowed to remain for five years. But the Authority only considered the risk of harm to the applicant from seeking asylum in Cyprus. There is said to be a material distinction between the profiles of a person who has merely applied for asylum and a person who has been granted a form of asylum. The Authority failed to consider the risk of harm to the applicant based on his profile of having been granted a form of asylum in Cyprus. The Authority thereby failed to consider an integer of the applicant’s claims, which is a jurisdictional error.[34]
[34] see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[63]; Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42]
Resolution
Once again, I prefer the submissions of the Minister on this ground.
By Ground 4, the applicant alleges that the Authority erred by not considering a claim based on the fact that he was in fact granted a form of protection (called “subsidiary protection”) in Cyprus as opposed to a claim that he sought asylum. The applicant states that there is a “material distinction” between the two.
Irrespective of whether there is any difference in terms of the protection in fact afforded, the applicant has not established that there is a material difference in terms of the risk profile of the applicant’s claims.
The fact of seeking asylum[35] is broader than the outcome of that application. Posing the question rhetorically, how would it become known to those in Iraq that he had been granted subsidiary protection, that state of affairs being within the applicant’s knowledge? To the contrary, it would more reasonably be inferred by those in Iraq that he had sought protection and was either unsuccessful or had decided to return because he was in Iraq.[36] So understood, the Authority’s consideration of the claim on the basis of seeking protection is a finding of greater generality that subsumes the narrower claim.[37]
[35] which was considered in [23] at CB 182
[36] in this regard, see the Authority’s finding based on country information as to “the practice of seeking asylum and then returning to Iraq once conditions permits is well accepted amongst Iraqis”
[37] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] per French, Sackville and Hely JJ
Further, and in any event, any error is not material because the applicant cannot show that he was deprived of the possibility of a different outcome based on the claimed distinction between a claim based on seeking asylum and one based on having been granted a form of protection.[38]
[38] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
CONCLUSION
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 14 October 2021
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