BIN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1094
•31 July 2020
FEDERAL COURT OF AUSTRALIA
BIN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1094
Appeal from: BIN18 v Minister for Immigration [2019] FCCA 2725 File number: NSD 1872 of 2019 Judge: LEE J Date of judgment: 31 July 2020 Catchwords: MIGRATION – application for temporary protection visa – appellant claiming fear of harm in Iraq as a Sunni Muslim – competing country information – selection and weight to be afforded to country information part of the fact-finding function of the Immigration Assessment Authority – must provide intelligible justification as to why less favourable country information preferred – failure to do so unreasonable – appeal allowed Cases cited: BIN18 v Minister for Immigration [2019] FCCA 2725
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Date of hearing: 24 July 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Appellant: Mr B Zipser Solicitor for the Appellant: Stamford Legal Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: MinterEllison ORDERS
NSD 1872 of 2019 BETWEEN: BIN18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LEE J
DATE OF ORDER:
31 JULY 2020
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The judgment of the Federal Circuit Court be set aside, and in lieu thereof it be ordered that the decision of the Immigration Assessment Authority (IAA) be quashed, the matter be remitted to the IAA to be determined according to law and the first respondent pay the appellant’s costs of the proceeding in the Federal Circuit Court.
3.The first respondent pay the appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LEE J:
A INTRODUCTION
This is a commendably narrow focussed appeal from the Federal Circuit Court in BIN18 v Minister for Immigration [2019] FCCA 2725 (Primary Judgment).
There is no need to set out the procedural background or circumstances leading up to the decision of the primary judge. These are summarised in the Primary Judgment (at [1]–[12]). However, in order to understand the Immigration Assessment Authority’s (IAA) decision and reasons (Authority Decision), it is necessary to note two points:
(1)the appellant contends, inter alia, that: he is a Sunni Muslim from a poor family in Zubair, in Basra province in the south of Iraq; he may be harmed by Shia militia if he returns to Iraq because he is perceived to be a spy for the Gulf States as he is a Sunni; he is a Sunni known to have left Iraq and to have fled Shia persecution; and he would face danger if he was to return to Iraq because of what was described as a “radical Shia hegemony”, which represents a threat to moderate Sunnis like the appellant: see Authority Decision (at [8]); and
(2)the authority concluded that it did not accept that the appellant was of any particular adverse interest as an individual to any Shia militia group or any other armed group at the time of his departure from Iraq: see Authority Decision (at [26] and [33]).
The conclusions reached by the IAA in these respects are not the subject of any challenge. What is the subject of challenge proceeds from the rejection of the appellant’s contention that he was of any particular adverse interest as an individual to Shia militia groups or any other armed group at the time he left Iraq. After accepting that the appellant was from Basra province in the south of Iraq, the IAA also found that the overwhelming majority of the population of southern Iraq is Shia and that a wide range of ethnic and religious minorities are reported to reside in southern Iraq, including Sunni Muslims: Authority Decision (at [36]).
B THE GROUND OF APPEAL
The ground of appeal which is pressed is in the following terms:
The Immigration Assessment Authority (“the IAA”), in paragraphs 40 and 41 of its decision dated 15 February 2018, referred to country information in a UK Home Office report and DFAT report which provided conflicting assessments of the situation faced by Sunnis in the south of Iraq. The IAA, in paragraph 42, stated that it was “possible to reconcile the apparently different perspectives offered by DFAT and UK Home Office”, but then purported to reconcile the reports by accepting the assessment in the UK Home Office report, which assessment was less favourable to the applicant. The appellant contended in the Federal Circuit Court that the IAA’s approach involved jurisdictional error. The Federal Circuit Court, in its decision at [39]-[40], found that this ground fails. The Federal Circuit Court erred in not finding that the IAA’s approach involved jurisdictional error.
It is necessary to extract the critical part of the Authority Decision in full (at [40]–[42]):
40. In June 2017, the UK Home Office expressed the view that while there are some reports that Sunnis have experienced human rights abuses at the hands of Shia militia or unknown perpetrators in the southern provinces, it does not appear to form part of a consistent or systematic risk to Sunnis in the southern provinces. In the view of the UK Home Office, in general a Sunni will not face a real risk of persecution or serious harm in the southern provinces, although the Home Office encourages decision makers to consider whether there are particular factors specific to the individual applicant which would place them at real risk [UK Home Office, “Country Policy and Information Note - Iraq: Sunni (Arab) Muslims”, 28 June 2017, OG6E7028831]. The Home Office suggested that a Sunni may be able to demonstrate a real risk of persecution or serious harm from Shia militia, but this will depend on their personal profile, including their family connections, profession and origin [Ibid].
41. The DFAT country report on Iraq, also published in June 2017 and prepared specifically for the purposes of protection assessments conducted in Australia, appears to offer a less favourable assessment of the situation faced by Sunnis in the south of Iraq. DFAT assesses that Sunnis in Shia-dominated areas, including Shia areas of Baghdad and the southern provinces of Iraq, face a high level of societal discrimination and violence [DFAT, “Country Information Report for Iraq 2017”, 26 June 2017, CISEDB50AD4631]. DFAT does not elaborate on the nature of the risks, or the incidents of violence faced by Sunnis in these areas, but reports generally that official and societal discrimination and violence towards Sunnis in Iraq is increasing and tolerance for Sunnis in non-Sunni areas has declined [Ibid].
42. I consider it possible to reconcile the apparently different perspectives offered by DFAT and the UK Home Office, both of which represent authoritative and recent assessments of the situation faced by Sunni Muslims in Iraq. DFAT offers an overall assessment of the level of violence faced by all Sunni Iraqis in all Shia areas, while the UK Home Office report recognises that Sunnis in the south of Iraq may face a real chance of harm depending on their individual circumstances. I conclude that some Sunnis, depending on their profile, may face a real chance of harm in the south of Iraq.
B.1 Submissions
In short, the submission of the appellant is that the IAA (at [42]) implicitly accepted the conclusion of the UK Home Office report and rejected the conclusion of DFAT report, without providing an intelligible justification as to how or why that conclusion was reached. Furthermore, it is submitted that the preference for the conclusion contained in the UK Home Office report was material to the decision reached by the IAA.
In counter to this, counsel for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) submits that the views expressed in the DFAT report that “Sunnis in Shia-dominated areas, including Shia areas of Baghdad and the southern provinces of Iraq, face a high level of societal discrimination and violence”, is not directly correlative with the proposition that Sunni Muslims in Shia-dominated areas have a well-founded fear of harm. On this basis, it is submitted that the conclusion of the IAA (at [42]) that “some Sunnis, depending on their profile, may face a real chance of harm in the south of Iraq”, while more closely aligned to the views contained in the UK Home Office report, is not inconsistent with the DFAT report and therefore did not amount to an implicit rejection of the DFAT report. Instead, it is asserted that this conclusion, and the process of reasoning which proceeds it, demonstrates a “reconciliation” of the two reports. Furthermore, it is argued that this conclusion is supported by the IAA’s aversion to the need to “reconcile” the two reports (at [42]); further reference back to the DFAT report in its reasons (at [48]); and other conclusions in its reasons asserted not to be inconsistent with the views expressed in the DFAT report (at [55]).
B.2 The Relevant Legal Principles
The question of whether the IAA’s reasoning is infected by jurisdictional error in the current circumstances is not one which raises any question of legal importance. It is trite that the question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment as to whether the decision was lawful or authorised having regard to the scope, purpose and object of the statutory source of power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (at 5–6 [9]–[12] per Allsop CJ, at 19–20 [62] per Griffiths J and at 29–30 [92] per Wigney J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (at 565–7 [54]–[60] per Gageler J, at 572 [78]–[79] per Nettle and Gordon JJ and at 586 [135] per Edelman J). The conclusion of legal unreasonableness can, inter alia, be drawn in the event that a decision “lacks an evident and intelligible justification”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (at 367 [76] per Hayne, Kiefel and Bell JJ); see also SZVFW (at 550–1 [10] per Kiefel CJ and at 573 [82] per Nettle and Gordon JJ).
B.3 Consideration
It is uncontroversial that, as the primary judge noted (at [39]), the selection and weight to be afforded to information, such to country information, forms part of the fact-finding function of the authority: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [11] per Gray, Tamberlin and Lander JJ). However, in executing such function, the authority must demonstrate, by its reasons, a discernible basis upon which the selection and weight to be afforded to such information is reached. Here, while it may, as a matter of theory, have been possible to reconcile the DFAT report with the UK Home Office report in the way contended for by the Minister, it is entirely speculative from the Authority Decision as to whether or not the IAA did attempt to reconcile the reports in this way.
Indeed, the explanation given by the IAA for its conclusion (at [42]) was that:
DFAT offers an overall assessment of the level of violence faced by all Sunni Iraqis in all Shia areas, while the UK Home Office report recognises that Sunnis in the south of Iraq may face a real chance of harm depending on their individual circumstances.
However, both reports provided an assessment on the level of violence faced by Sunnis in the south of Iraq: the DFAT report assessed that Sunnis in specified areas, including Basra province, “face a high level of societal discrimination and violence” and the UK Home Office report assessed that a Sunni in the southern provinces, including Basra, “in general …will not face a real risk of persecution or serious harm”. Hence, the slightly different focus of the reports does not explain why the IAA adopted the conclusion reached in the UK Home Office report.
Furthermore, I do not accept the submission made on behalf of the Minister that the use of the word “reconcile” (in [42]) somehow transmogrifies a paragraph of conclusion into one of reconciliation; it clearly is not. The IAA’s assertion that “some Sunnis, depending on their profile, may face a real chance of harm in the south of Iraq”, is simply a replication of the views contained in the UK Home Office report. While it was entirely open for the IAA to prefer the views contained in UK Home Office report over those in the DFAT report, it needed to show an intelligible reason why it did so, particularly in circumstances where the reports offered differing opinions on a matter integral to the question for determination. Instead, what appears to have happened is that the DFAT report, which was prepared specifically for the purposes of protection assessments conducted in Australia and which, as the authority recognised, offered a less favourable assessment of the situation faced by Sunni Muslims in Basra, was implicitly rejected in preference for the view expressed in the UK Home Office report.
Nor do I accept the Minister’s contention that a simple reference back to the DFAT report in IAA’s reasons or the fact that the conclusion reached as to the harm faced by Sunni Muslims in the south of Iraq was not inconsistent with the views expressed in the DFAT report, provide sufficient “reconciliation”. The fact that assertion X (that “some Sunnis, depending on their profile, may face a real chance of harm in the south of Iraq”) is not entirely inconsistent with (or can be said to encompass) assertion Y (that “Sunnis in Shia-dominated areas, including Shia areas of Baghdad and the southern provinces of Iraq, face a high level of societal discrimination and violence”) cannot be taken as importing the relevant reasoning sufficient to justify why the views expressed in the UK Home Office report, which were less favourable to the position of the appellant, were preferred. To find otherwise would be to artificially construe the Authority Decision in a way not evident on its face.
Finally, the conclusion was clearly material: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (at 134–5 [29]–[30] per Kiefel CJ, Gageler and Keane JJ). The IAA then focussed on the appellant’s individual profile and circumstances in reaching the conclusion as to whether the appellant was one of those Sunnis, who, based on his individual profile, may face a real chance of harm in the south of Iraq: see Authority Decision (at [56]).
C CONCLUSION AND ORDERS
For the above reasons, the ground of appeal advanced is made out and the appeal should be allowed. The Minister should also pay the costs of the appellant.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 31 July 2020
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