Big18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 621
•30 May 2022
FEDERAL COURT OF AUSTRALIA
BIG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 621
Appeal from: BIG18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs & Anor [2019] FCCA 2759 File number: NSD 1712 of 2019 Judgment of: JAGOT J Date of judgment: 30 May 2022 Catchwords: MIGRATION — where appellant contends that Immigration Assessment Authority (IAA) underestimated extent of threat posed by militia groups in Iraq when rejecting protection claims for visa — no jurisdictional error apparent in reasoning of IAA or primary judge — appeal dismissed Legislation: Migration Act 1958 (Cth) ss 473CA, 473CC Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 17 Date of hearing: 19 May 2022 Counsel for the Appellant: The Appellant appeared in person Solicitor Advocate for the First Respondent: Ms J Strugnell of Minter Ellison Lawyers Solicitor for the First Respondent: Minter Ellison Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1712 of 2019 BETWEEN: BIG18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JAGOT J
DATE OF ORDER:
30 MAY 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
These reasons for judgment concern an appeal against orders made by the Federal Circuit of Australia (Federal Circuit Court) on 26 September 2019 dismissing the appellant’s application for judicial review of a decision by the second respondent, the Immigration Assessment Authority (IAA): BIG18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs & Anor [2019] FCCA 2759 (the primary judgment or PJ). The application for judicial review concerned a decision by the IAA to affirm the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the appellant’s protection visa application.
By his notice of appeal, the appellant contends that the primary judge erred in the following respects:
1. I appeared before His Honour Judge Driver and I admit that he was extremely kind to me as self represented.
2. I still believe that the Authority’s Decision was wrong because it underestimated the nature of the threats against me and failed to see that I have a genuine fear to return to my country.
3. Contrary to the Authority’s findings I will face harm in my home area of Basra. The situation is dangerous and I will not be able to escape the danger.
4. The Authority has no basis to reject that I will be punished by the Mahdi Army.
5. I appreciate that the Federal Court of Australia can give me the opportunity to establish that the Authority's assessment is affected by error of law.
As explained below, no jurisdictional error is apparent in the reasons for decision of the IAA and the appeal must be dismissed.
Background
The appellant is an Iraqi citizen who arrived in Australia in 2013 as an unauthorised maritime arrival and was taken to Christmas Island for processing.
In January 2017, the appellant applied for a “safe haven enterprise visa” (visa), which is a form of protection visa. The appellant’s protection claims involved his fear of harm from the Mahdi Army in Iraq, a conservative Shia militant group, because he covertly sold alcohol from his kebab kiosk for several months in 2013. The Mahdi Army apparently discovered this and burned down the appellant’s kiosk and shot at his house, causing him to go into hiding and subsequently flee Iraq for Australia.
In May 2017, a delegate of the first respondent refused the appellant’s visa application, finding that there was insufficient information that the appellant was targeted for the purpose of being harmed or killed by members of the Mahdi Army, and that in any case he was not at risk of future harm because the militia group had achieved its purpose by stopping the appellant from selling alcohol.
The delegate’s decision was a “fast track reviewable decision” for the purpose of Pt 7AA of the Migration Act 1958 (Cth). Pursuant to ss 473CA and 473CC of that Act, the delegate’s decision was referred to the IAA for review in May 2017. In February 2018, the IAA affirmed the delegate’s decision.
In the Federal Circuit Court, the appellant sought judicial review of the IAA’s decision on three grounds to the effect that the IAA had underestimated the threats against him, his inability to live elsewhere in Iraq, and the likelihood of ongoing punishment by the Mahdi Army.
The primary judge dismissed the application, on the basis that the IAA’s reasons for decision disclosed no jurisdictional error.
As noted, the appellant contends in this Court that the IAA’s decision was affected by error of law for similar reasons to those which he pressed in the Court below.
Appellant’s submissions
The appellant made oral submissions in support of his notice of appeal, to the effect that the Minister and IAA must have made a mistake. He was confused and dismayed that, having been well-received at Christmas Island and then allowed to live in Australia for nine years, the government could now consider forcing him to return to Iraq. He could not understand why the government would not send him back to Iraq immediately if it would not permit him to remain after living here peacefully for nine years. The appellant said that he came to Australia peacefully to escape the threats he faced from the militia groups who govern Iraq, and was not a criminal. He said that in the nine years he has lived here he has adopted the Australian way of life and its customs and could not now return to Iraq. The appellant also explained that he has not seen his children and wife in Iraq for the whole of that nine-year period. He has since had a daughter with his Australian partner and he could not leave his daughter to return to Iraq.
The appellant said that Iraq was governed by militias, as Australia knew. He said that the Australian government could not guarantee his safety if he had to return to Iraq.
The appellant was particularly distressed at the imbalance of power in his seeking to challenge the government. He had spent $30,000 on legal fees previously but now had no lawyer. He was unrepresented and the process was exhausting.
Consideration
I have considered the decision of the IAA and the primary judgement. In common with the primary judge I am unable to see any jurisdictional error in the reasoning process of or conclusions reached by the IAA. The IAA gave detailed consideration to the appellant’s claims, including up to date information about his mental state and the current treatment in Iraq of Shia Muslims and failed asylum seekers/returnees from a western country. The IAA accepted the appellant’s account of his experiences in Iraq, noting that he had provided “consistent, credible and detailed evidence, presented in a manner suggestive of personal experience”, which was also “consistent with independent information that the political and social atmosphere in Basra in and around that period was very conservative”.
However, the IAA was not persuaded that the appellant would be at risk of harm if he returned to Iraq as:
(a)the appellant remained in Iraq for over a month after the incident in which his shop was burned without facing any harm, albeit in hiding;
(b)his wife and children continued to reside in the family home, and his parents and siblings also remain nearby in their home, and they have not faced any harm from militias or anyone else due to his activities selling alcohol;
(c)he complied with the wishes of the Mahdi Army and ceased selling alcohol immediately after the incident and the independent information does not suggest that the Shia militias continue to pursue individuals after they have stopped selling alcohol;
(d)while the selling of alcohol become illegal in Iraq in 2016 and Shia militias prevented the sale of alcohol in Basra, the information available does not support the fact that persons who previously sold alcohol but who have ceased doing so, like the appellant, are being targeted;
(e)the appellant has not claimed that he would return to selling alcohol, or that he would want to, and nor has it been contended that he would refrain from such work due to a fear of harm;
(f)the appellant only sold alcohol for about five months in the beginning of 2013 and otherwise successfully ran his kebab shop;
(g)the appellant’s father in Iraq is currently providing financial support to the appellant’s family and there is nothing in the evidence to suggest that this support would not continue on the appellant’s return to Iraq;
(h)the practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis; and
(i)the appellant will be returning to his home area with the support of his family, and there is nothing in the evidence to suggest he will face any issues in assimilating back into his community.
I agree with the primary judge’s conclusion that the IAA’s findings and reasoning does not disclose any jurisdictional error. The IAA’s findings were all reasonably open on the evidence. The IAA’s process of reasoning is logical and rational.
In [22] of his reasons, the primary judge noted the relationship that the appellant had formed in Australia and invited him to “consider whether he might be eligible for a partner visa”. The primary judge correctly observed that this possibility was extraneous to the appellant’s case to have the IAA’s decision quashed for jurisdictional error, but the reason the primary judge raised and recorded this question is understandable. The appellant’s confusion and distress about his current circumstances are readily apparent. The fact he has made a new life in Australia over the last nine years is not material to his claim of entitlement to a protection visa, but would be relevant to any application he might make for a partner visa.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot. Associate:
Dated: 30 May 2022
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