BKD18 v Minister for Immigration

[2020] FCCA 530

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKD18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 530

Catchwords:
MIGRATION – Judicial Review – Decision of Immigration Assessment Authority – application for protection visa – where failure to particularise any alleged jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

DWR16 v Minister for Immigration and Border Protection (2019) FCA 2021

NABE v the Minister for Immigration, Multicultural and Indigenous Affairs (No.2) (2004) FCAFC 263

Applicant: BKD18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: DNG 21 of 2019

Judgment of: Judge Young

Hearing date: 21 February 2020

Date of Last Submission: 21 February 2020

Delivered at: Darwin

Delivered on: 21 February 2020

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the First Respondent: Mr Liveris

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent’s costs in the sum of $6,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 21 of 2019

BKD18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 22 February 2018, which affirmed a decision of the Minister’s delegate made on 12 January 2018 to refuse the applicant a protection visa.  The grounds set out in the application for judicial review are as follows:  

   The reviewer failed to take into account the relevant psychological and/or other harm the Applicant might face as a result of:

   (1)The risk of harm to his wife who is a Sunni in a Shia dominated area. The country information was that Sunnis faced a high risk of harm in Shia-dominated areas (see 2016 DFAT report cited by the Reviewer at 3.39, page 16);

   (2)The risk of harm to the [applicant’s] whole family due to their mother’s sect and their close familial association with Sunni families in a Shia-dominated area;

   (3)The risk of harm to the [applicant’s] oldest daughter who was the product of an extra-marital relationship (in the context of tribal retribution and cultural/religious negativity identified). 

   Although these claims were not explicitly advanced, they sufficiently arose from the material.

3. There is also an application for an extension of time. An earlier application filed on 21 March 2018 was discontinued on 12 February 2019. A new application was filed on 10 July 2019, so the application is a little short of 18 months out of time. 

4. The background to the matter is as follows.  The applicant is an Arab Shia Muslim who resided in Basra in Southern Iraq.  He was, it appears, born in Kuwait but, as a member of the Bidoon minority, was expelled from Kuwait along with his family in 1993 after the first Gulf War.

5. The applicant arrived in Australia in August 2013.  His claims were as follows. He was born in Kuwait.  He claimed to be a member of the stateless Bidoon minority.  He and his family were expelled from Kuwait to Iraq in 1993.  He said that one of his brothers had fought on the Iraqi side in the first Gulf War but had been imprisoned until 2001.  He said that he was discriminated against as a Bidoon and considered to be a Kuwaiti spy by the Iraqi authorities.

6. He said that he had worked as a taxi driver between 1996 and 2013 and that he was discriminated against because of his Kuwaiti or Gulf accent.  People would refuse to pay his taxi fare when they heard his Gulf accent.  He said that he resumed Shia practice or Shia observance on his return to Iraq, having previously followed Sunni observance.

7. He was, however, not a committed religious person and said that he attended mosque only on occasions.  He said that he had commenced a sexual relationship with his wife at a time when they were not married.  He said as a result of that extra-marital relationship his eldest daughter was born.  He said that as a consequence of pressure from the local community he was forced to marry his wife.  I might say that the evidence indicates that he has seven children and he has been married for about 20 years. 

8. He said that there was significant conflict as a result of the relationship with his wife and subsequent marriage.  She was a Sunni; he was a Shia, and their families disapproved of the inter-sect marriage as well as the premarital sexual relationship.

9. The applicant said there was significant conflict resulting from that.  He said there were other clans involved and he fled to Jordan, returning subsequently to Iraq after the fall of Saddam Hussein in 2003. He said that there was nowhere safe in Iraq.  He also expressed concerns about the data breach and the risk of identity fraud.

10. The Authority made the following findings.  It accepted that the applicant was born in Kuwait and found that he was married with seven children.  It found that the applicant was an Iraqi citizen although he was a member of a Bidoon minority.  The Authority identified the applicant’s central claims as relating to his relationship with his wife.  It found that the relationship between the applicant and his wife – though a premarital one – was consensual. 

11. The Authority did not accept, in light of the subsequent marriage and six further children, the applicant was at risk if the birth date of his eldest daughter showed a conception before marriage.  The Authority referred to country information which suggested that subsequent marriage was seen, from a cultural point of view, as curing many irregularities of that kind.  The Authority accepted that there was some initial shame as a result of the circumstances of the eldest daughter’s birth and the relationship, but noted that the applicant and his wife had been married for 20 years at the time of the hearing before the Authority.  It did not accept the applicant’s claims that as a result of the mixed marriage between a Sunni and a Shia person that the applicant and his family had been forced to relocate.  It also did not accept that in Iraq a mixed marriage across the Sunni-Shia demarcation line was seen to be heretical. It also made various findings about the data breach, concluding that the applicant would not be at risk if the Iraqi authorities accessed that information, which would show simply that he had applied for asylum in Australia.  It did not accept that there was any risk of identity fraud.

12. The Authority accepted that, as a member of the Bidoon minority, the applicant may have been subjected to forms of discrimination. Relying on country information the Authority accepted members of the Bidoon minority have been discriminated against in Iraq in employment, housing and services, but noted that the applicant had made no claim to being unable to access such services.

13. In relation to claims that the applicant would be seen as an apostate, a secularised person or Western person on return to Iraq, the Authority did not accept that the country information supported that.

14. The Authority also considered claims by the applicant that he may be at harm from the operation of religious fundamentalists or ISIS in Iraq.  The Authority found that Basra in southern Iraq had been under the control of the Iraqi government at relevant times.  It found that there had been fighting between Shia militias, essentially over criminal enterprises, but the risk flowing from that affected primarily the participants in that fighting and not civilians. The Authority did not accept that the applicant, who was not involved in such conduct, was at risk.

15. The Authority also referred to criminal activities in Basra and an upsurge in violence, but was not satisfied that that violence was so widespread as to constitute a risk of harm or significant harm to the applicant. The Authority also considered the applicant’s complementary protection claims which essentially consisted of the same issues.

16. The applicant has been unrepresented before me and it is clear to me that he does not understand the grounds that were included in his application for review.  He was not able to make any oral submissions in any constructive way in relation to the alleged grounds of jurisdictional error.

17. However, I have read some of the materials in the court book, and I refer in particular to the submission prepared by the applicant’s migration agent, Dr Al Jabiri, dated 10 January 2016, which was a submission to the delegate.  In addition the statement made by the applicant and translated from Arabic, which was attached to the application for the protection visa.

18. Neither of those documents raise explicitly a claim that the applicant might face harm, psychological or otherwise, as a result of the risk of harm to his wife, his family or his oldest daughter.  In my view, those claims do not arise squarely on the material either, though the application acknowledges that they do not arise explicitly.  I do not concede or agree that those claims arise squarely on a reading of the material.

19. I certainly acknowledge that in some of the material, for example the applicant’s statement at page 100 of the court book, there is reference to his relations dealing harshly with his daughter, presumably the oldest daughter and his wife.  I do not accept that that passing reference to poor treatment of the applicant’s wife and daughter, which was referenced in the context of poor treatment of the applicant by relatives and the wider society, squarely raises the claims that are said to arise in the application for review.  This being the risk of psychological and/or other harm to the applicant flowing from harm to his wife, his family or his eldest daughter.

20. The Authority concluded, I think relying largely on the fact that the applicant and his wife remained married for 20 years and had six more children, that there was not likely to be any continuing harassment, persecution or ill-treatment of him.  In substance, the Authority did not accept those claims, whether expressed generally or specifically.  

21. It seems to me that from those findings, particularly at paragraph [8] in the decision, the Authority did not accept those claims and gave reasons for doing so.  For example, the applicant was asked whether he had suffered anything at the hands of his family, and apparently he said that he was hit over the head in 2001 by his brother, who disapproved of his conduct, but there was nothing said to have occurred after that.

22. The Authority also referred to country information which said that even perpetrators of crimes involving sexual violence are exonerated if they marry their victims.

23. In my view, the claims raised in the application for judicial review did not arise squarely on the material. Further the claims were so closely related to claims that were considered and not accepted by the Authority that there would be no prospect of a different result had those matters been directly raised.

24. The respondent referred to case law on the raising of claims which I do not need to refer to in any detail.  The authorities are well understood and I was referred in particular to a decision of Perry J in DWR16 v Minister for Immigration and Border Protection (2019) FCA 2021 at paragraphs [79] to [82], where it was said an error will be constituted by a failure of a reviewer to consider “a substantial, clearly articulated argument”.  This of course is not the case here or if a claim arises “squarely” on the material before the reviewer.  There is also a reference to NABE v the Minister for Immigration, Multicultural and Indigenous Affairs (No.2) (2004) FCAFC 263 at paragraph [58].

25. I have concluded that there is no merit to the application for review, and accordingly in assessing whether or not there ought to be extension of time I give the lack of merit of the application substantial weight.  In my view, it is not necessary in the interests of the administration of justice for there to be an extension of time. I refuse the application for extension of time and dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  11 March 2020