BQM17 v Minister for Immigration and Anor
[2020] FCCA 3365
•10 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQM17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3365 |
| Catchwords: MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that it failed to consider an integer of the applicant’s claims. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473BB, 473CA, 473CB, 473DA, 473DB, 473GA, 473GB, 474 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 |
| Applicant: | BQM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1172 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 12 November 2020 |
| Date of Last Submission: | 12 November 2020 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms F McNeil |
| Solicitors for the Applicant: | Stamford Law Firm |
| Solicitor for the Respondents: | Mr E Taylor of Mills Oakley |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1172 of 2017
| BQM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Iraq who arrived by boat at Christmas Island on 7 October 2012 without a visa permitting him to enter and stay in Australia. On 1 February 2016 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution because of a death threat he received from a militia group in 2012 whilst serving as a soldier in the Iraqi army. On 6 February 2017 a delegate of the first respondent (“Minister”) refused the applicant’s application and his matter was referred to the second respondent (“IAA”) for review. The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
FAST TRACK REVIEW LEGISLATIVE FRAMEWORK
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Definitions
Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
The applicant is a fast track applicant.
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Fast Track Process and Procedures
Part 7AA of the Act sets out the IAA fast track process and procedures.
Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review. Section 473CB relevantly provides:
473CB Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; …
Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. Section 473DB is found in div.3 and relevantly provides:
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
…
(b)the persecution must involve serious harm to the person; and
…
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
BACKGROUND FACTS
Protection visa claims
The applicant provided a statutory declaration dated 25 January 2016. He also gave oral evidence at an entry interview on 2 November 2012 and at a departmental interview on 16 November 2016. The applicant’s legal representative provided the IAA with submissions dated 7 March 2017.
The facts alleged in support of the applicant’s claim for a protection visa were summarised by the IAA in its decision record. As summarised by the IAA, the applicant relevantly made the following claims:
a)the applicant was born in Kuwait but his family later moved to Iraq where he was granted Iraqi citizenship;
b)he joined the Iraq army in August 2008. He did not see combat and from late 2011 was stationed as a gate guard at a base where high-ranking militia members charged with criminal acts were detained for questioning before being transferred to other prisons;
c)in early July 2012, he was guarding the base’s rear gate when two men in a utility vehicle demanded entry. When he asked for their identity documents they said that they were from a militia group, were going to retrieve two high ranking members of their organisation and threatened to kill him and the other guard on duty should they fail to open the gates. The men left after he and the second guard refused to let them in;
d)about two hours later, the men reappeared from the inside of the base (having been let in by corrupt officers) and sought to leave. He and the other guard refused them egress, called their commanding officer and the men and prisoners were imprisoned;
e)one or two weeks later, a letter from the same militia group addressed to him was found by his mother slipped under the gate of their house. The letter said that he and his family had to flee the country or be killed;
f)he stayed with a friend who lived in a nearby village while arranging to flee Iraq, which he did a few weeks later. His parents told him that on two or more occasions masked militia men had attended their home looking for him. These men did not return once his parents made it widely known that he was in Australia.
The death threat relevantly read:
Because you are a soldier in the Iraqi Army and since the Iraqi Army is cooperating with American infidels who are the enemies of [the militia group], and since you participated in operations that caused the death of many of our members, therefore, as soon as you receive this death threat, you should flee Iraq, or else face the consequence of being murdered together with all members of you family.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that the applicant did not meet the requirements of s.36(2)(a) or (aa) of the Act. The IAA’s decision was relevantly based on the findings and reasons that follow.
The IAA accepted:
a)the applicant’s claims and history;
b)that the applicant was a Shia Muslim from a southern province of Iraq;
c)that the applicant feared being killed by a militia group; and
d)that on 15 July 2012 the applicant received a letter threatening death to him and his family if he did not leave Iraq.
The IAA concluded that the applicant had received the death threat because he was a member of the Iraqi army, not because he had refused to free the two prisoners at the military base.
The IAA accepted the applicant’s claim that the guard who was with him at the rear gate of the military base had received a similar death threat and fled Iraq, only to be killed when he returned in 2014. However, country information indicated that by 2015 the militia group had become more accepting of U.S involvement and was working with the Iraqi army to defeat ISIS. The IAA found that with the passage of time since the other guard’s death and the intervening change in the ideology and goals of the militia group, that group would no longer target the applicant on account of his previous membership of the Iraqi army.
The IAA also found that the applicant no longer had a well-founded fear of persecution on the basis that he refused to allow certain prisoners to leave the base after they been given entry by “fellow officers”. The IAA was satisfied that the applicant had not claimed to have ever identified the officers who had allowed the men to enter the base to free the prisoners. Due to the time that had elapsed, the IAA was satisfied that, he would no longer be specifically targeted by persons involved in that event.
Based on country information, the IAA was not satisfied that the applicant would be harmed by other militia groups or individuals because he had been in the Iraqi army.
The IAA accepted that the applicant would face a real chance of serious harm if he re-joined the Iraqi army but was satisfied that he would be able to seek work outside the army, including as a private security guard or as a construction labourer, and so did not have a well-founded fear of persecution.
The IAA found that the applicant would not re-join the Iraqi army as he had other skills and had previously been employed in other areas. It was not satisfied that any inability to work as a soldier amounted to significant harm.
PROCEEDING IN THIS COURT
The applicant abandoned the first and second grounds of his amended application. In the third and remaining ground he alleged:
3.The applicant claimed that after he left Iraq masked militia men came to the applicant’s home looking for him. The IAA failed to address this integer of the applicant’s claims, which was a jurisdictional error.
CONSIDERATION
The applicant referred to the fact that, although the IAA had noted his claim that militia members had twice been to his home looking for him, it had concluded that the passage of time and a change in the ideology and goals of the militia group in question meant that he would no longer be a target of that group on account of his earlier membership of the Iraqi army. He argued that in reaching this conclusion, the IAA
… did not factor in that:
a)the [militia group] had visited the family home looking for the applicant twice after the applicant fled Iraq (which indicates an interest in the applicant); and
b)the applicant’s family made it known that the applicant was in Australia (which would explain why the [militia group] did not return to the family home).
The applicant submitted in that connection that in considering the significance and possible continuing relevance of the militia’s visit to his family home, the IAA had failed to have regard to all the reasons he had advanced for the occurrence of those visits. He referred in this regard to the threatening letter he received in 2012 which was quoted earlier. He characterised that letter as expressing two discrete bases for the threat it made, namely:
a)his “army membership”; and
b)his “specific conduct”(i.e. participation in operations).
The IAA discussed that threat in paras.13 and 14 of its reasons:
The death threat issued to the applicant states that it has been issued “because you are a soldier in the Iraqi Army and since the Iraqi Army is cooperating with American infidels who are the enemies of [the militia group]”. … although that was the case at the time the threat was issued, [the militia group] is now more accepting of U.S. involvement in Iraq, to assist in the fight against Daesh/ISIS. Further to this, the [militia group] is working with the Iraqi Security Forces, including the Iraqi Army …
… I consider that, due to the further passage of time as well as the changes in ideology and goals of the [militia group] since 2014 as set out above, the applicant would no longer be a target of that group by virtue of having previously been a member of the Iraqi Army.
As recorded earlier in these reasons, the IAA then went on to deal with the applicant’s claim that he was at risk of harm because he had refused to let the militia members leave the military base when he was guarding the rear gate.
The applicant submitted that the IAA had not considered the “specific conduct” threat made in the militia letter. The difficulty with this argument is that the applicant never suggested that he had ever participated in operations that caused the death of anyone or did anything of significance apart from refusing to let the militia members escape the military base when he was on guard. In his decision record, the delegate recorded the applicant’s time in the Iraqi army as follows:
… the applicant was asked in the [protection visa] interview if he performed any other roles while in the military. He replied that after initial training, gate keeper was his sole role and that Private First Class was the highest rank he had obtained.
The implication of the applicant’s submission is that the IAA wrongly characterised the “specific conduct” threat as relating to the event at the base, which it addressed and dealt with, rather than as relating to something else, which it did not address or deal with. However, the applicant did not advance to the IAA such a characterisation of his claims. In fact, the IAA’s approach to his claims reflects the relevant submissions his advisers made to it, namely:
… it is important to put in mind that the applicant did not claim protection just because he is member of the ISF forces, rather, he has very special profile in a very specific case, this case needs to be assessed according to its merits, the circumstances of this case tells us that what the applicant done is considered unique even in Iraq, because he refused to let prisoners who participated in combat operations against the coalition forces and the Iraqi army … flee the military base …
…
As for the content of the threatening letter, the delegate admits that it is the militia threatening the ISF, but why they addressed it to him? there must be a reason as to why the [sic] singled him out, there are millions in the Iraqi army, do we have country information about militias sending millions of threatening letter to the ISF members? of course not, it is because of the applicant [sic] role against them, …
The only “specific conduct” in which the applicant had engaged and was cited in support of his claims to protection was his refusal to let the militia members leave the military base with their escaping companions which the IAA considered. The fact that the IAA did not consider a different claim that the applicant, who was represented then and before the delegate, did not make, was not an error.
In that regard, whether a claimant is represented by professional advisers, and whether those advisers articulated a case which it is later said not to have been dealt with, are questions relevant to whether a matter can be considered to have clearly arisen from the materials before the IAA: SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at 35 [37]. Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed: SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 at [57]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at 513, 514 [30], [31].
The applicant also submitted that the IAA had not, when referring to the passage of time, taken into account the fact that the militia’s visits to his home had occurred after the death threat was issued, although there was no issue that they had because by that time he had already fled from the threat made in the letter. More importantly, however, the applicant did not suggest that he had claimed that the timing of the visits was of any relevance to his claims except to the extent that, implicitly, they corroborated the making of the death threat. The applicant further submitted that the IAA should have considered the possibility that the cessation of the militia’s visits to his home arose out of his absence overseas rather than a lack of interest in him caused by the effluxion of time.
The IAA’s findings on the reasons why it concluded that the militia group would no longer be interested in the applicant were of sufficient generality that a separate discussion of the visits to his home would have been otiose. The IAA did not err by not embarking on one.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 10 December 2020
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