BPC16 v Minister for Immigration

[2017] FCCA 1140

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1140

Catchwords:
MIGRATION – Immigration Assessment Authority – applicant Shia Muslim from Iraq – whether the Authority’s finding on the applicant’s chance of harm from Daesh was legally unreasonable – whether the information post the decision under judicial review might be the subject of further evidence – the material seeks to re-agitate the merits of the Authority’s findings – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD, 476, Part 7AA

Cases cited:

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446

Applicant: BPC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1652 of 2016

Judgment of: Judge Street

Hearing date: 29 May 2017

Date of Last Submission: 29 May 2017

Delivered at: Sydney

Delivered on: 29 May 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Unisaj Pty Ltd

Solicitors for the Respondents: Ms N Blake
Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 27 April 2017.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1652 of 2016

BPC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) for in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 30 May 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country.  The applicant claimed to fear harm from the Mahdi Army and also from Daesh as well as concerns as to his economic hardship affecting his ability to subsist.

The delegate’s decision

1. On 5 May 2016 a delegate found that the applicant failed to meet the criteria under the Act and found that the applicant was not an excluded fast track review applicant. Materially in the applicant’s case, it was identified that the applicant was from Najaf, a city in the South of Iraq, where the majority are Shia Muslims. Before the delegate, the applicant raised that his house in Najaf was destroyed in 2010. The delegate did not accept that claim.

2. The delegate identified that the southern regions of Iraq are predominantly Shia Arab. In the course of the delegate’s reasons, the delegate identified that Shia military formerly known as Jaysh Al-Mahdi became the main Shia opposition to the foreign coalition forces in Iraq in 2003 and that the Mahdi Army shifted its focus to socio-political activities and retained a smaller armed militia named the Promised Day Brigades. The delegate referred to attacks linked to the Promised Day Brigades continuing sporadically from 2008 until the withdrawal of US troops in 2011.

3. The delegate referred to Shia military groups having recently begun to refocus and remobilise. The delegate referred to the primary aim being to fight against IS in the northern and central Iraq where Daesh is active. There was reference to there being the conduct of targeted attacks against Sunnis in Basra, Najaf, Karbala, Muthanna and Baghdad. The delegate noted the applicant’s response, maintaining that there were terrorist gangs there and that there was no work, no safety and no security. The applicant asserted that the Al-Mahdi is not fighting Daesh, they are in the city and the Al-Mahdi is the Government. The delegate recorded that the applicant said he feared the High Council, the Badar Group and the Al Dawa Party, although the applicant was not involved with any of them.

4. The delegate identified the applicant’s profile and that the applicant was from the Najaf governance in Iraq. The delegate did not accept the applicant’s claim that the Al-Mahdi destroyed his house in Najaf in 2010, threatened his family and that consequently his family is dispersed around different places in Iraq.

5. The delegate addressed the security situation in southern Iraq and referred to country information in respect of southern Iraq and the governance relevantly of a number of places, including Najaf, being predominantly Shia Arab. The delegate referred to the Shia military’s primary aim to fight against Daesh in the northern and central Iraq where Daesh is active. The delegate referred to the Shia military also conducting targeted attacks against Sunnis in Basra, Najaf and other places.

6. The delegate found that while Shia military militia groups have recently begun to refocus and remobilise, their primary aim is to fight against Daesh in northern and central Iraq where Daesh is active.  The delegate referred to the applicant’s fear on account of his religious profile as a Shia Muslim from Najaf. The delegate found that Shia Muslims in Najaf form the majority of the population.  The delegate found they are not at risk of being targeted on sectarian grounds in an area where they are the majority and cited UN country information in support of that finding. The delegate referred to there being no evidence that the applicant has experienced any harm in Iraq in the past on account of his religion as a Shia Muslim.

7. The delegate found that there is no reason to find the applicant would face harm because he is a Shia Muslim if he were returned to a Shia-dominated area of Iraq in the future. The delegate found that the applicant’s fear of persecution by the non-state agents on account of his Shia Muslim religion is not well-founded. 

8. The delegate made express reference to the applicant’s fear of a Daesh takeover. The delegate referred to there being no credible country information to indicate that Iraq as a whole is in imminent danger of being taken over by Daesh and cited country information in support of that, being a DFAT country information report. The delegate found there is no indication that Shias in the southern part of Iraq are in immediate threat of harm from Daesh. The delegate referred to other country information to the effect that southern Iraq has so far been relatively insulated from the violence occurring in other parts of Iraq. 

9. The delegate found there is not a real chance that the applicant faces significant harm in the Najaf the area of Iraq to which the delegate found the applicant would return, either from Mahdi Army or other Shia militia, Daesh, in mass casualty attacks or as a result of general insecurity, conflict or violence. 

The Authority’s decision

1. On 9 May 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter identified the limited circumstances in which new information could be received by the Authority and provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and put on submissions.

Information before the Authority

1. By email dated 23 May 2016 submissions were sent to the Authority on behalf of the applicant which relevantly, included a media report delivered the same date as the decision of the delegate. The Authority identified that the submissions were based on the information provided by the applicant to the delegate and found that they were not new information and had regard to the same.

2. The Authority identified that the media report was information relating to recent political developments in Iraq. The Authority found that the information related to the possibility of violence between different Shia armed groups with which the applicant has no connection and appeared to be referring to the situation in Baghdad, not Najaf. The Authority found that this appears to be highly speculative in that it cites only one source who states there is a risk of confrontation between the Shia parties with no analysis of the real risk or how or when it might develop in reality, or exactly how it might affect the applicant in Najaf. It was in those circumstances that the Authority was not persuaded there were exceptional grounds which justify considering the same as new information and found that it was prevented from considering the same by s.473DD of the Act.

3. The Authority in its decision identified the applicant’s background and set out the applicant’s claims for protection.  The Authority correctly identified the relevant law. The Authority identified credibility concerns in respect of some of the applicant’s claims.

Consideration of refugee convention criteria

Harm feared from Mahdi Army

1. The Authority accepted that the applicant felt he was at serious risk of harm in 2010 following the murders of his brothers and the attack on his former house. The Authority accepted that the applicant made the decision to leave Iraq then. The Authority however, found that the subsequent events indicate that the applicant was not a risk of harm and that he did not face a real chance of persecution when he left Iraq in 2012. The Authority was not satisfied there is a real chance the applicant would face harm from the Mahdi Army or anyone associated with it, if he were to return to Iraq now or in the reasonably foreseeable future. 

Harm feared by reason of the applicant’s Shia religion in Najaf

1. The Authority turned to consider the applicant’s fear of harm by reason of his religion as a Shia in Najaf.  The Authority said that it could not identify anywhere where the applicant claimed to face harm as a Shia in Najaf for reason of his religion, nor does this claim squarely arise from the facts of the case. The Authority was not satisfied the applicant faces harm of any kind as a Shia in Najaf for the essential and significant reason of his religion.

Applicant’s inability to subsist, lack of services and economic issues

1. The Authority turned to the applicant’s issue of inability to subsist and lack of services and economic issues. The Authority found the applicant could re-establish a business if he returned to Iraq and that he was university educated and qualified in teaching. The Authority found that any difficulties the applicant may face in finding employment resulting from general conditions in Iraq including the current security situation, past conflict and political instability would not be directed at him for any relevant reason specified in s.5J(1)(a) of the Act.

2. The Authority found that the applicant would not be denied services to such an extent that his capacity to subsist would be threatened or that in any way which would constitute serious harm amounting to persecution. 

Harm feared by Daesh

1. The Authority then turned to the applicant’s claim of fear of harm from Daesh.  The Authority noted that the applicant did not explicitly claim to fear harm from Daesh, but noted that the delegate had dealt with that claim.  The Authority referred to country information from 2014 which identified that Daesh took over control of large portions of the northern and central provinces. The Authority referred to the fact that in the areas under Daesh’s control it is targeting members of religious minorities, including Shias. The Authority referred to an ongoing fight to try and contain Daesh in an attempt to recover territory and prevent its further expansion.

2. The Authority accepted that as a Shia, the applicant may be at risk from Daesh in the areas under its control. However, the Authority referred to the fact that the applicant comes from Najaf in southern Iraq and the Authority was satisfied that this was the applicant’s home area and that this was the area of Iraq to which the applicant would return. The Authority referred to country information indicating that this part of Iraq is under the control of the central government and that Daesh and other militant Sunni groups have little or no presence there and little or no capacity to carry out targeted attacks.

3. The Authority referred to a declaration by Daesh of an intention to march on Shia holy cities, including Najaf and observed there was no information before the delegate at the time of her decision and that there was none before the Authority to indicate that any progress had been made to achieve that objection. The Authority found that the available information indicates the Daesh’s presence in southern Iraq provinces, including Najaf is minimal and does not pose a real or substantial threat to the Shia population.

4. The Authority found based on the available information, that the possibility that, in the reasonably foreseeable future, Daesh would overrun the southern parts of Iraq including Najaf, is speculative and remote. It was in those circumstances that the Authority found that the possibility that the applicant faced harm from Daesh on return to Iraq is remote.

Fear of general insecurity

1. The Authority then turned to the applicant’s fears of general insecurity.  The Authority was not satisfied that the applicant will face serious harm in Najaf as a result of a mass casualty attack targeted at any identifiable group or groups of which the applicant is a member, (such as Shia), or as a result of an attack aimed at some other group because he happened to be in the wrong place at the wrong time or because of general conflict.

Failed asylum seeker from a western country

1. The Authority then turned to the applicant being a failed asylum seeker from a western country. The Authority found the applicant does not face any real chance of being persecuted for any reason, including an imputed political opinion, as a failed asylum seeker from a western country or as a returnee from a western country.

2. The Authority found that the applicant did not meet the definition of “refugee” in s.5H(1) of the Act and did not meet the criteria under s.36(2)(a) of the Act.

Consideration of complementary protection criteria

1. The Authority was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Iraq, there is a real risk that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The ground in the amended application is as follows:-

   Ground 1

   The Authority made a jurisdictional error because its finding in relation to the jurisdictional fact of whether it was satisfied that the Applicant was a refugee became legally unreasonable in circumstances where the reasoning of the Authority that the Applicant faced only a remote chance of harm from Daesh has been contradicted by events occurring after the Authority made its decision.

2. Mr Jones of counsel on behalf of the applicant adduced evidence in support of the alleged ground of jurisdictional error based on legal unreasonableness. In that regard, Mr Jones of counsel sought to rely upon three media publications concerning the same incident in which Daesh attacked an Iraqi police checkpoint in the southern city of Najaf in January of 2017. One of the articles referred to this as being a reminder of Daesh’s continued ability to operate away from territory under its control.  The Court admitted the articles subject to relevance.

3. Mr Jones of counsel submitted that the articles demonstrated a fundamental factual error in a critical aspect of the Authority’s reasoning in respect of the risk of Daesh in Najaf. Mr Jones of counsel submitted that the articles were of such significance that no reasonable decision-maker could have come to the same ultimate finding as made by the Authority if the articles had been before the Authority.

Consideration

1. The single incident the subject of the three articles, falls well short of demonstrating that Daesh has control in southern Iraq, let along the city of Najaf. The material was the subject of objection and a submission was advanced on behalf of the first respondent that in substance, ground 1 was seeking to invite this Court to engage in an impermissible merits review.

2. Mr Jones of counsel accepted that the subject matter of the three articles in respect of the same particular incident that he was seeking to advance into evidence was the same topic upon which the Authority had exercised its powers in its deliberation as to whether to receive new information and for the reasons identified above declined to do so. This is a case where it is apparent that the issue of the conduct of Daesh in southern Iraq was live and apparent before the Authority. Mr Jones of counsel does not contend that the findings made by the Authority in relation to the risk from Daesh in Najaf at the time of the Authority’s decision is illogical, unreasonable or irrational.  Rather,  what Mr Jones of counsel seeks to submit is that the subsequent material in respect of the particular incident is of a kind that falls within the observations made by Weinberg J in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 (“Australian Retailers”) at [457]-[459].

3. Mr Jones of counsel accepted that the risk of Daesh in Najaf was not itself a jurisdictional fact and accepted that whether the applicant met the criteria to be a refugee involved a combination of factual criterion.  The passage in Australian Retailers identifies limited circumstances in which on the grounds of legal unreasonableness, information post the decision under judicial review might be the subject of further evidence. Whilst not being exhaustive, the two examples identified by Weinberg J were that an actual state of facts did not exist or that there was a finding of a particular fact that did not exist.

4. The present case is not one which falls within either of the two contemplated circumstances identified in Australian Retailers. The material admitted subject to relevance in the present case was really country information addressing the merits of the review conducted by the Authority. It is not necessary in the circumstances of the present case to identify examples beyond those identified by Weinberg J in which fresh evidence may be able to be received to make out legal unreasonableness subsequent to the decision the subject of judicial review.

5. On no view is the information sought to be adduced and which was admitted subject to relevance in the present case, of a kind that establishes that a particular fact did not exist or that a particular state of facts did not exist. The incident in 2017 of an attack by Daesh did not establish that Daesh had control of southern Iraq or of Najaf. The material sought to be adduced is not of a kind falling within the principle identified by Weinberg J and is not admissible to establish legal unreasonableness in the present case.

6. The material on its face seeks to re-agitate the merits of the findings of the Authority which were open on the material before the Authority and which cannot be said to lack an evident and intelligible justification. In these circumstances, the material that was admitted subject to relevance should not be received into evidence and the tender of that material is rejected on the grounds of being irrelevant. 

7. I accept the first respondent’s submission that ground 1 is in substance, a skilful attempt to invite this court to engage in an impermissible merits review.  The material would in any event, fall well short even if received into evidence of demonstrating that no reasonable decision-maker could have come to the decision made by the Authority in the present case. 

Conclusion

1. No jurisdictional error of the kind alleged in the amended application is made out.  The amended application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 June 2017