Bii17 v Minister for Immigration

[2019] FCCA 1788

FEDERAL CIRCUIT COURT OF AUSTRALIA

BII17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1788

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority considered all claims made by the applicant – whether the Immigration Assessment Authority’s findings were open to it – no jurisdiction error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

NABE v Ministerfor Immigration & Multicultural & Indigenous Affairs (No 2)

(2004) 144 FCR 1

Htun v Minister Immigration and Multicultural Affairs (2001) 233 FCR 136

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006]

FCAFC 29

Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323

WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003)

236 FCR 593

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Applicant: BII17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number:   SYG 944 of 2017

Judgment of: Judge Emmett

Hearing date: 20 June 2019

Date of Last Submission: 20 June 2019

Delivered at: Sydney

Delivered on: 27 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Ben Zipser

Solicitors for the Applicant: Stamford Law Firm

Solicitors for the Respondents: Mr Aaron Moss
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 944 of 2017

BII17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 24 February 2017 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 19 December 2016 refusing the applicant a Temporary Protection (Class XD) (Subclass 785) visa (“Protection Visa”).

2. The Applicant is a citizen of the Republic of Iraq who is of Arab ethnicity and is a Sunni Muslim. The Applicant claims that if returned to Iraq, he would be seriously harmed by Shi'a militia groups, including the al-Sadr militia, and Da'esh/Islamic State, due to his religion and imputed membership of a social group.

3. The procedural history of the application is accurately summarised in the applicant’s submissions as follows:

   “Background

   7. On 13 October 2012 the applicant arrived in Australian waters (at Christmas Island) by boat as an unauthorized maritime arrival. (CB 48, 111)

   8. On 9 November 2012 the applicant participated in an entry interview. (CB 1-16) The entry interview record records some of the applicant’s claims at CB 12.

   9. Between October and December 2012 the applicant was in detention centres, following which he was granted a bridging visa and released. (CB 50, 54)

   10. On 22 or 23 March 2016 (CB 30, 85), following the lifting of a bar by the Minister notified to the applicant in May 2015 (CB 17) and again in July 2015 (CB 23), the applicant lodged an application for a temporary protection visa (“TPV”). (CB 30-74) It appears from an email at CB 75 that the applicant’s (undated) statement of claims was not included in the application, although the statement was received by the Department shortly afterwards. (see copy at CB 79-84, which is identical to copy at CB 69-74)

   11. On 17 October 2016 the applicant attended an interview with the Minister’s delegate. (CB 105)

   12. On 19 December 2016 the Minister’s delegate issued a decision refusing to grant the applicant a TPV. (CB 111-121)

   13. On 22 December 2016 the IAA sent the applicant a letter informing him of the referral of the matter to the IAA and providing information about the IAA and referral. (CB 129-130)

   14. On 7 February 2017 the IAA sent the applicant an invitation to comment on country information. (CB 131-132)

   15. On 20 February 2017 the applicant provided a response to the invitation. (CB 133-134)

   16. On 24 February 2017 the IAA made a decision affirming the delegate’s decision not to grant the applicant a TPV. (CB 135-142)

   17. On 28 March 2017 the applicant filed an application in the Federal Circuit Court for judicial review of the IAA’s decision.”

4. The Authority’s decision is accurately summarised in the submissions of the first respondent as follows:

   “IAA Decision

   10. The IAA accepted that the Applicant's father ran a musical instrument shop, and was murdered in September 2010 by militias, after he refused to close his shop as they demanded. 

   11. However, the IAA did not accept that the Applicant was subsequently targeted or threatened by any militia group, or that he received a threatening letter as he claimed. The IAA found that the reasons given for that ongoing adverse attention "make no sense" as:

   (a) there was no indication that he had been of any adverse interest to militia groups until May 2012, a year after the Applicant's younger brother had left Iraq;

   (b) the Applicant did not know how the militia had managed to locate him; and

   (c) no persuasive explanation had been given to the Delegate's question of why the militia did not simply kill him once they had located him, rather than leaving him a letter.

   12. The IAA also accepted that the Applicant's older brother, mother and sisters (all of whom remain living in Ur-Beid) had not been harmed or threatened since his departure from Iraq. 

   13. In light of these factual findings, the IAA did not accept that the Applicant faced a real risk of harm as a result of his past work in his father's store, or in connection with his father's killing, as:

   (a) the IAA had already found that the Applicant had not been threatened with harm in the past; 

   (b) neither the Applicant nor his brother continued their father's business, such that the militias now had no reason to now target the Applicant, as their demands were complied with, 

   (c) country information indicated that there had been a change in the perception of music and the arts in Iraq since his father's death in 2010, with Iraq's cultural scene "flourishing again";

   (d) the Applicant and his family remained in the "same general area for some two years without further action being taken" against them. 

   14. The IAA did not consider the fact that the Applicant's brother was granted a permanent protection visa assisted the Applicant, as that decision predated the publication of the country information which indicates a "lessening of the intolerance surrounding music and the arts".

   15. The IAA also noted that, in any event, it was not satisfied that the Applicant intended to have any continuing involvement in the musical instrument "industry" in Iraq, as the Applicant had not returned to that work since his father's death and was qualified in and sought jobs in other fields. 

   16. Of its own motion, the IAA also considered whether the Applicant would face a real chance of persecution due to his status as a Sunni Muslim in a Shia-dominated country. Although the IAA accepted that incidents of violence against Sunnis do occur in Nasiriyah, the IAA was not satisfied there was a real risk that the Applicant would be harmed on this basis if returned to Iraq, as:

   (a) he had not claimed to be the victim of any harm prior to his departure, other than in connection with his father's shop (such claims having already been rejected);

   (b) the Applicant appeared able to carry out his religious activities without adverse effect in the past, having not claimed that his religious practice was curtailed in Iraq;

   (c) recent country information indicated that, "in general a Sunni will not face a real risk of persecution in the southern governorates", which include Thi Qar; and

   (d) there was nothing in the Applicant's family situation or particular "profile" which elevated his profile such to place him at a risk of harm on this basis.  

   17. The IAA also considered, of its own motion, whether the Applicant would face a real chance of harm because of societal prejudice and nepotism. It concluded that any difficulties the Applicant may face in securing employment on his return would not amount to "serious harm" as defined in the Act, as the IAA was not satisfied such prejudice would threaten his capacity to subsist.

   18. In light of its findings, the IAA concluded that the Applicant did not meet the refugee criterion in section 36(2)(a) of the Act or the complementary protection criterion in section 36(2)(aa) of the Act and thus affirmed the Delegate's decision not to grant the Applicant a TPV. ”

The proceeding before this Court

1. The applicant was represented before this Court by Mr Ben Zipser, of counsel.

2. Mr Zipser sought and was granted leave to rely on the following ground in an Amended Application filed on 3 June 2019:

   “1. One of the applicant’s claims was that the al-Sadr militia was looking for the applicant’s brother [H], following which [the applicant’s brother H] fled the country, arrived in Australia, and applied for, and was granted, a protection visa. The Immigration Assessment Authority (“the IAA”) did not deal with this claim. Where the IAA fails to deal with a claim before it, this is a jurisdictional error.”

3. Mr Zipser confirmed that that was the only ground upon which the applicant relied.

4. The applicant’s counsel, Mr Zipser, referred to the applicant’s claim that his family was told by friends that the al-Sadr militia where looking for the applicant’s brother, H. The Authority stated that H had organised to flee the country and arrived in Australia in June 2011 and had subsequently been granted a protection visa.

5. The applicant submitted that if the al-Sadr militia was looking for H then that increased the likelihood of the truthfulness of the applicant’s claim that al-Sadr militia subsequently commenced looking for the applicant.

6. The applicant framed the question for consideration as “whether, and if so how, the IAA dealt with the applicant’s claim that the al-Sadr militia was looking for [H].”

7. In support, the applicant referred to NABE v Ministerfor Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[63] and Htun v Minister Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] per Allsop J.

8. The applicant submitted that the Authority’s failure to deal with the applicant’s claim that the al-Sadr militia was looking for H was material to its decision and therefore was a jurisdictional error (see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3).

9. The first respondent submitted that the Authority did not “fail” to deal with the applicant’s claim with respect to his brother, H. Rather, the Authority accepted the applicant’s claim about his brother but found that it did not demonstrate that the applicant faced a real risk of harm. The first respondent conceded that the Authority did not explicitly state that it “accepted” the applicant’s evidence with respect to his brother. However, the first respondent submitted that such an inference is apparent from a fair reading of the Authority’s reasons. I agree with that submission.

10. The Authority acknowledged in its decision record that the applicant claimed that from 2008 he worked in his father’s shop, as did his brother H; and that on 5 September 2010 militia members entered the shop and shot and killed the applicant’s father, following which the applicant’s family left the town where they lived. The Authority then records that the applicant and his family remained in telephone contact with friends in their old home town and were subsequently told that the al-Sadr militia where looking for H, whereupon H organised to flee the country, arriving in Australia in 2011 and being granted a protection visa.

11. The Authority noted the applicant’s claim that in May 2012 the applicant heard from his friends that the militia had discovered that H had fled the country and that they were now hunting the applicant. The Authority referred to the applicant’s claim that he received a written note threatening to kill him placed under the door of his dwelling and consequently organised to leave the country on 20 July 2012.

12. Under the subheading “Factual findings”, the Authority accepted the murder of the applicant’s father in September 2010, following which the shop was closed and not re-opened. The Authority found such a consequence complied with the demands of the militia.

13. Ultimately, the Authority rejected the applicant’s claim to be of continuing interest to a militia group or that he received a threatening letter as stated. The Authority referred to the applicant’s evidence to the effect that there had been no indication that the applicant had been of any interest to militia groups until May 2012, a year after H had left.

14. The Authority then identified country information before it that indicated that the applicant’s previous casual work selling and hiring out musical instruments no longer placed the applicant at risk of harm and that the applicant was not at risk of harm once his father’s shop was closed.

15. The applicant does not challenge those findings.

16. Rather, the applicant contends that the Authority should have considered the applicant’s risk of harm arising from the fact that his brother H was persecuted because he worked in the shop with his father and was subsequently granted a permanent protection visa in Australia.

17. However, the Authority referred specifically to the decision to grant protection to the applicant’s brother, H, made on 20 September 2011. However, the Authority stated “this predates the publishing of the country information … which indicates a lessening of the intolerance surrounding music and the arts.”

18. The Delegate noted that the decision in respect of H’s claims for protection did not involve any findings regarding whether he was threatened on an ongoing bases because of his association with his father’s shop; and was found to be owed protection obligations on the basis of his religion as a Sunni Muslim based on country information at the time of the assessment. The Delegate also noted several differences between the applicant’s circumstances and those of H, noting that H was much more visible to the public as someone who worked in the music shop and was present when the father was killed, while the applicant was not at the shop.

19. Fairly read, the Authority’s reasons make clear that whilst it accepted that the applicant’s brother H had been granted protection in Australia after fleeing Iraq, based on country information before it, the applicant was no longer at a real risk of harm if returned to Iraq for the reasons claimed. The Authority made it clear that this was because country information which post-dated H’s protection visa indicated that local attitudes to music had improved.

20. The Authority found that there were exceptional circumstances to justify the consideration of that new information, being the country information upon which it relied. No challenge had been made to that finding by the applicant.

21. In the circumstances, I accept the submission of the first respondent that the country information to which the Authority had regard was “eminently capable of supporting the conclusions” which the Authority drew from that information.

22. Further, the Authority invited the applicant to comment on the information, which the applicant did. The Authority had regard to the applicant’s response but found that it inconsistent with the more recent country information before it. It is well settled that the country information to which the Authority has regard and the weight it gives that information is a matter for the Authority (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

23. In the circumstances, the Authority was entitled to form the view that H’s protection visa did not affect its assessment of whether the applicant satisfied the criteria for the grant of a protection visa.

24. I also accept the first respondent’s submission that in so far as the grant of a protection visa to H “increased the likelihood of the truthfulness of the applicant’s claim that the al-Sadr militia subsequently commenced looking for the applicant”, those matters were subsumed in the Authority’s finding of greater generality, namely, that the applicant was not of interest to a militia group (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at [91]; ApplicantWAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604, [46]-[47]).

25. The Authority’s findings were open to it on the evidence and material before it and for the reasons it gave. The Authority’s findings were logical and probative of the issues for consideration. The Authority’s findings were not without intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.

2. The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 27 June 2019