Big18 v Minister for Immigration

[2019] FCCA 2759

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIG18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2759

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 – general grounds of review – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 46A, 473CB, 473DC

Cases cited:

Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473; [2003] HCA 71

Applicant: BIG18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 721 of 2018

Judgment of: Judge Driver

Hearing date: 26 September 2019

Delivered at: Sydney

Delivered on: 26 September 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.

2. The application filed on 19 March 2018 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 721 of 2018

BIG18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The Authority decision was made on 19 February 2018.  It affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 16 September 2019. 

3. The applicant is a citizen of Iraq who arrived in Australia at Christmas Island on 24 June 2013 and is an unauthorised maritime arrival.

4. On 27 June 2016 the Minister’s Department notified the applicant that the Minister had exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act), allowing the applicant to make a valid application for a specified visa.[1]

   [1] Court Book (CB) 27–31

5. On 11 January 2017 the applicant applied for a Safe Haven Enterprise Visa (SHEV).[2]  As part of that application the applicant included a statutory declaration setting out his protection claims.[3]  Those claims are summarised below.

   [2] CB 32–84

   [3] CB 81–84

6. On or about 24 March 2017 the applicant attended a protection interview with the delegate.[4]

   [4] cf. CB 98 and CB 116

7. On 4 May 2017 the delegate refused to grant the applicant a SHEV.[5]  The delegate’s decision was a “fast track reviewable decision”.

   [5] CB 110–128; esp. CB 113–128

8. On 15 May 2017 the delegate’s decision was referred by the Minister to the Authority for review.[6]

   [6] CB 129–130

9. On 11 June 2017 the applicant, by his representative, made a written submission to the Authority (the Authority submission).[7]

   [7] CB 142–147; esp. CB 143–146

10. On 13 February 2018 the applicant, by his representative, submitted a letter from Mohammad Aziz, a social worker, dated 13 February 2018 (the social worker letter).[8]

    [8] CB 148–150; esp. CB 149–150

11. On 19 February 2018 the Authority affirmed the decision under review.[9]

    [9] CB 151–170; esp. CB 154–168

Applicant’s claims

1. The applicant claimed to fear harm from the Mahdi Army or Shia Militias on account of his past sale of alcohol.  He recounted that he had sold alcohol from his kebab kiosk for five months in 2013, until his kiosk was burned down by the Mahdi Army.  He claimed that Abbas Halawa (the leader of the Mahdi army) was seen in a car nearby during the attack on the applicant’s kiosk.  The applicant’s home was also shot at that night, and he believed the Mahdi Army had an ongoing interest in him. He went into hiding and left Iraq a month later.

2. The Authority also considered the following claims of harm which arose on the material: as a consumer of alcohol, as a Shia Muslim, as a failed asylum seeker/returnee from a Western country, due to the general security situation in Iraq and on account of the applicant’s mental health.

The Authority’s decision

1. The Authority had regard to the “review material” provided by the Secretary under s.473CB of the Migration Act.[10] The Authority also had regard to the Authority submission, found that it did not include any new “information” for the purpose of s.473DC(1) of the Migration Act, and considered it.[11]  The Authority also had regard to the social worker letter, was satisfied that this was “new information” which was relevant to his mental health issues, was satisfied that there were exceptional circumstances for considering it, and considered it.[12]  Finally, the Authority obtained new information on the current treatment of Shia Muslims and failed asylum seekers and was satisfied there were exceptional circumstances to justify considering it.[13]

   [10] CB 155 at [3]

   [11] CB 155 at [4]

   [12] CB 155 at [5]

   [13] CB 155 at [6]

2. The Authority accepted the applicant’s factual claims, including that he had sold alcohol and that his kiosk had been burned down and his home shot at by the Madhi Army as a result.[14]  However, the Authority found that the applicant’s claimed fear of harm was not well-founded for the following reasons:

   a)he remained in Iraq for a month after the incident of being targeted;[15]

   b)he ceased selling alcohol immediately after his kiosk burned down, and country information suggested the Mahdi Army and Shia militias did not continue to pursue individuals after they stopped selling alcohol;[16]

   c)it found the applicant would not sell alcohol on return to Iraq by choice, not due to any fear of harm;[17]

   d)it was not satisfied the applicant faced a real chance of harm for any reason associated with his selling of alcohol[18] or consumption of alcohol within his home;[19]

   e)it found that the applicant would be able to access any mental health care treatment he required in Iraq;[20]

   f)it was not satisfied that he would face a real chance of harm as a Shia, on account of the general security situation or as a failed asylum seeker/returnee from the West;[21] and

   g)it found that he could safely access Basra by air.[22]

   [14] CB 157–158 at [12]–[15]

   [15] CB 158–159 at [16]

   [16] CB 158–159 at [16]–[17]

   [17] CB 159 at [18]

   [18] CB 160 at [19]

   [19] CB 160 at [20]

   [20] CB 160 at [21]

   [21] CB 160–161 at [22]–[25]

   [22] CB 162 at [26]

3. For these reasons, the Authority rejected the applicant’s claims and found he did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act, and thus did not satisfy the refugee criterion in s.36(2)(a).[23] For the same factual reasons, the Authority found that the applicant did not satisfy the complementary protection criterion in s.36(2)(aa).[24]  In this context, the Authority found the applicant could safely access his home area.[25]

   [23] CB 162 at [27]

   [24] CB 163 at [32]–[34]

   [25] CB 163 at [33]

The present proceedings

1. These proceedings began with a show cause application filed on 19 March 2018.  The applicant continues to rely upon that application.  There are three grounds in it:

   1.I think the decision of the IAA is wrong in that the decision maker underestimated the nature of the threats against me.

   2.I cannot move to another party of Iraq to obtain safety, and what happened to me becomes known in the country. This no examined properly.

   3.Madhi Army militia still posing a threat to me, as they have long memories and need to complete their punishment of me. This not understood in decision.

   (errors in original)

2. The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence the court book filed on 26 April 2018 and the affidavit of Jodie Ellen Coomber made on 4 June 2018.  Annexed to Ms Coomber’s affidavit are transcripts of three interviews conducted by the Minister’s Department with the applicant. 

3. Only the Minister filed written submissions in advance of today’s hearing.  I invited oral submissions from the applicant.  He was obviously at a disadvantage.  He told me that, for the purposes of this application, he has consulted three different solicitors.  He told me that he paid one solicitor $1,000 and another $10,000 and the third $1,500.  It appears that the only thing he has got for that money is the affidavit of Ms Coomber and, possibly, some advice. 

4. The applicant is now self-represented. He told me frankly that he has no quarrel with the decision of the Authority, at least in respect of any legal issues. He has no complaint about the procedure followed by the Authority.

5. In his submissions in reply, the applicant sought to clarify an aspect of his evidence given to the Minister’s Department.  This concerned his returns home while he was in hiding.  The applicant pointed out that he only returned home late at night after midnight.  It seems to me, however, that the Authority was aware of the applicant’s claim that he only returned home discreetly and at night.

6. The applicant also told me about his family circumstances.  In effect, he has two families.  He has three children in Iraq and one in Australia with a second on the way.  For practical purposes, he has severed his relationship with his wife in Iraq.  The applicant has formed a relationship with a woman in Australia.  I invited the applicant to consider whether he might be eligible for a partner visa.  These are, however, matters extraneous to these proceedings. 

7. The Minister’s submissions deal adequately with the grounds of review advanced by the applicant.  I agree with those submissions. 

Ground 1

1. Ground 1 contends that the Authority’s decision was wrong because it “underestimated the nature of the threats against [the applicant]”.

2. The Authority considered the applicant’s claims and evidence and made dispositive findings in relation to the threats made against the applicant.  In particular, it did not accept that he faced an ongoing risk of harm because the applicant was not harmed while visiting his family in his home in the month before he left Iraq, there were no further attacks on the house, and his wife, children, parents and siblings continue to reside in their homes without issue.[26]

   [26] CB 158–159 at [16]

3. Further, on the basis of country information the Authority found that the Mahdi Army (and Shia militias more generally) did not continue to target individuals such as the applicant once they ceased selling alcohol.[27] In this respect, the Authority did not impose an expectation that the applicant would modify his behaviour to avoid harm.[28] Rather, the Authority made factual findings that were open to it and dispositive of the applicant’s claims. In particular, having regard to the applicant’s claims and circumstances, the Authority was not satisfied the applicant would need to, or want to, sell alcohol, and that this was not due to any fear of harm.[29]

   [27] CB 158–159 at [16]

   [28] Cf. Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473; [2003] HCA 71

   [29] CB 159 at [18]

4. No jurisdictional error is revealed by Ground 1.

Ground 2

1. Ground 2 contends that the applicant cannot move to another part of Iraq and that this issue was not examined properly.  This ground is misconceived, as the Authority in this matter did not make any findings regarding relocation.

2. Rather, the Authority found that the applicant would not face harm in his home area of Basra.  As such, no occasion arose for the Authority to consider relocation.

3. No jurisdictional error is revealed by Ground 2.

Ground 3

1. Ground 3 contends the Authority did not understand that the Mahdi Army have long memories and “need to complete their punishment of [the applicant]”.

2. The Authority expressly considered and rejected this claim.[30]  The applicant has not identified any jurisdictional error in the Authority’s reasoning in respect of this aspect of his claims.

   [30] CB 158–159 at [16]

Conclusion

1. I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error.  On my own reading of the Authority decision, I can see no issue of any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,600. The applicant considered that outcome unjust, having regard to the money he has already paid to solicitors. I am satisfied, however, that the costs claimed have been reasonably and properly incurred. The applicant is also concerned about the future of his children in Australia, which does not bear upon the issue of costs.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       1 October 2019