BRF17 v Minister for Immigration

[2018] FCCA 1490

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1490

Catchwords:

CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority considered reasonableness and practicality of internal relocation.

Legislation:

Migration Act 1958 (Cth), ss.5H(1),5J, 5K, 5L 36(2)(a), 36(2)(aa), 473CB, 473DC

Cases cited:

MZANX v Minister for Immigration and Border Protection [2017] FCA 307

SZATV v Minister for Immigration (2007) 233 CLR 18

Applicant: BRF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 349 of 2017

Judgment of: Judge Jarrett

Hearing date: 1 June 2018

Date of Last Submission: 1 June 2018

Delivered at: Brisbane

Delivered on: 1 June 2018

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Applicant: Stolar Law

Counsel for the First Respondent: Ms Forder

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 18 December, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 349 of 2017

BRF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent given on 21 March, 2017 whereby the second respondent affirmed a decision of a delegate of the first respondent to not grant the applicant a protection visa.

2. The applicant argues that the second respondent’s decision is affected by jurisdictional error because its decision “failed to give due weight to the country material before it”.  He argues that, “By not giving due weight to this evidence, the Second Respondent failed to take into account a relevant consideration, that it would be unreasonable to require the Applicant to relocate to an area where he will encounter difficulties in obtaining work and accommodation.”

3. The first respondent opposes the application and says that the applicant’s case demonstrates no jurisdictional error on the part of the second respondent.  The second respondent enters a submitting appearance.

4. On 6 April, 2018 the applicant filed a written outline of submissions in support of his amended application.  I also have written submissions from the first respondent filed on 20 April, 2018.

5. The applicant is a citizen of Iraq, who arrived in Australia on 27 March, 2013.  He is a Shia Muslim.  For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival.  He was invited by the first respondent to make a valid application for a Temporary Protection visa.  He made that application on or about 22 March, 2016.

6. His visa application was accompanied by a statutory declaration dated 21 March, 2016 in which he set out his protection claims.  He also made claims in a submission dated 22 March, 2016 made on his behalf by his migration agent.  Subsequently, on 17 October, 2016 and 26 October, 2016 he submitted further translated documents to the first respondent’s department.

7. The applicant had four brothers and four sisters.  He attended primary school and was unable to read or write.  Although his parents were from Basra, he said that he was raised with his extended family in Shola, an area located in the Kadhimya district of Baghdad.  He initially worked for his family’s business in a factory and then as a labourer and most recently as a self-taught tiler.

8. He claimed that in 2006 while at home with his mother he was shot three times in the abdomen when masked men came to the house looking for one of his brothers.  Shortly after he was shot his brother was kidnapped.  The same year, another brother was involved in an insurgent ambush which resulted in his brother and some others being killed.

9. In 2010 the applicant relocated to Basra with his oldest brother’s family.  His parents remained in Baghdad where his father works as a taxi driver.  He has a number of other brothers who also work in Baghdad.  The applicant had a number of other relatives who lived in Basra.

10. In 2011 the applicant commenced work with a foreign-owned company as a security officer/driver.  It was the same company as that for which his brother who was killed had worked.

11. The applicant left Iraq in either December 2012 or January 2013 after he had saved sufficient funds to do so.  His brother and other extended family remain in Basra.  His brother continues working for a foreign-owned oil company.

12. The applicant claimed to fear harm in Iraq from the group who had targeted and killed his brother who worked for a British company.  He claimed that in 2006 the group had shot the applicant when the applicant confronted the men when they were looking for his brother.  He also claimed that in 2006 the group kidnapped another of his brothers who worked for an American company.

13. The applicant claimed to fear harm due to his membership of a particular social group namely, people who worked for an overseas private company, his imputed political opinion, and because he is a Shia Muslim. He also claimed that he would be forcibly recruited to fight against Daesh in either the Army or a militia group if he was returned to Iraq.

14. On 24 October, 2016 the applicant attended an interview with a delegate of the first respondent for the purposes of his visa application.  On 6 January, 2017 however, the delegate refused to grant the applicant the visa for which he applied.

15. The delegate’s decision was a fast track reviewable decision.  It was referred by the first respondent to the second respondent for review on 13 January, 2017.

16. On 20 February, 2017 the second respondent invited the applicant to comment on country information regarding the reasonableness of the applicant relocating within Iraq to Basra.  The applicant responded by email on 14 March, 2017.

17. On 21 March, 2017 the second respondent decided to affirm the decision under review.

18. The second respondent had regard to material referred by the Secretary under s.473CB of the Act and also obtained additional information under s.473DC of the Act relating to relocation within Iraq, namely the most recent report of the UN High Commissioner for Refugees (“UNHCR”).  The second respondent considered that there were exceptional reasons to justify considering the new country information.  The applicant was asked to comment on that information by the second respondent’s letter of 20 February, 2017.  The second respondent was satisfied that there were exceptional circumstances for considering the applicant’s response to that request and the new country information.

19. One of the applicant’s arguments was that it was unsafe for him to return to Iraq, or any part of it.  His arguments on this application for review focus upon the way in which the second respondent used the UNHCR material about relocation to conclude that it was reasonable for him to relocate himself to Basra.  In that respect, the second respondent recognised that the UNHCR report indicated there had been a ‘lessening of opposition to western nations’.  The report observed that with the advances of ISIS in 2014 and 2015 ‘there has been a rise in criminality and a weakening of state authority’ across Iraq, but in particular the non-government controlled areas’.  The applicant emphasises, that importantly from his perspective, the UNHCR report urges States ‘not to forcibly return persons originating from Iraq, on the basis of the massive internal displacements coupled with a large scale humanitarian crisis’ which is being augmented by Iraqis returning voluntarily from Europe.

20. The applicant, through his representative, relied upon a number of newspaper articles in his submissions to the second respondent.  These articles reported Daesh-related violence ‘aimed at Shia neighbourhoods or religious gatherings’. Additionally, Shia communities were targeted by both Daesh and Sunni insurgents, with more violence occurring in Baghdad in particular, where the applicant’s parents lived.  To support his concerns, the applicant relied upon a Department of Foreign Affairs and Trade (“DFAT”) report that suggested that Shia Muslims in Baghdad face a ‘moderate risk of generalised violence’.

21. The second respondent found that the applicant is a citizen of Iraq and that his home region is Baghdad.  The second respondent accepted that someone had targeted the applicant’s brothers and had shot the applicant.  The second respondent did not accept, however, that the applicant’s brother who had been kidnapped was kidnapped by the same group that targeted his other brother, or that his kidnapped brother was personally targeted because the attack was on an entire convoy of which his brother was only one member.  The second respondent found that neither the applicant nor his family have been targeted by anyone in the last 10 years.  The second respondent found therefore, that the incidents involving the applicant’s brothers were isolated and unconnected incidents.  The events occurred in 2006, but his brothers and the other members of the applicant’s family, including him, had not been targeted again.  The kidnappers subsequently had not sought to target the applicant or his family.  The second respondent found that the applicant did not suffer any harm and was not targeted due to his own work for his British employer.  Further, the second respondent found that the applicant would not be harmed because of his family’s past employment.

22. The second respondent was satisfied that there was neither a real chance nor a real risk that the applicant would be harmed in Iraq (in either Baghdad or Basra) because he was an employee of a multinational or foreign-owned company, or that his brothers were. Further, the second respondent rejected the applicant’s claims that there was a real risk or real chance that he would be harmed if he was returned to Iraq because he might be mistaken for a Sunni, that he would be forced to join the army or a militia group and to join the fight against Daesh or because he had spent time in Australia or was a failed asylum seeker from Australia.

23. However, the second respondent accepted that the applicant would face a real chance of harm (and therefore persecution) from sectarian violence on the basis of his Shia religion if he was in Baghdad.  The second respondent accepted that the applicant would ‘face a real chance of being killed, injured or seriously harmed by Daesh or other Sunni-linked groups on the basis of his Shia religion, if he were to return to Baghdad now or in the reasonably foreseeable future’.  But, the second respondent found that the real chance of harm he faced in Baghdad was not present in all areas of Iraq.  The applicant had been living in Basra when he departed Iraq.  The second respondent analysed the information before it to conclude that the sectarian violence that presented a risk to the applicant in Baghdad, was not present in Basra because it was a Shia dominated area outside of the control of Daesh or Sunni Muslims.

24. Accordingly, the second respondent found that, for the purposes of s.36(2)(a) of the Act, the applicant was not a refugee because he did not have a well-founded fear of persecution.  The second respondent reached that conclusion because the real chance of persecution that it had found existed did not exist in all areas of Iraq.  The applicant does not seek to cavil with this finding on this application.

25. As to the question of complementary protection, the second respondent was not satisfied that there was a real risk of significant harm to the applicant and it found that he did not meet the criteria for the grant of the visa pursuant to s.36(2)(aa) of the Act.  That was so notwithstanding the second respondent’s finding about the real chance of persecution by reason of the sectarian violence to which he might be subjected in Baghdad, because the second respondent found that it would be reasonable for the applicant to relocate to Basra.  In that respect, the second respondent found:

    a)that Basra was located in a government secured area and therefore, the applicant would be at a ‘low risk of general violence’;

    b)that the applicant could safely access Basra by its international airport;

    c)that he would not face a real risk of harm in Basra on the basis that he has spent time in Australia; and

    d)that the applicant would not face a real risk of harm because he unsuccessfully sought asylum in Australia.

26. The second respondent observed that the applicant has a number of his extended family living in Basra, including his elder brother. However, the applicant points out that whilst the DFAT report suggested that voluntary returnees are ‘assimilated back into their communities’, the UNHCR report observed that ‘local authorities have increasingly introduced stringent entry and residency restrictions, including sponsorship requirements’’.  Of these matters, the second respondent said (citations omitted):

    The UNHCR has reported that existing family ties in the area of relocation are crucial when assessing the availability of relocation in Iraq as these generally ensure a certain level of community protection and access to services. More recently the UNHCR has reported that in many other areas, local authorities have increasingly introduced stringent entry and residency restrictions, including sponsorship requirements.  In the applicant’s case, he resided and worked in Basra from 2010 until he left Iraq in December 2012 / January 2013.  His brother Mohammed and family remain there and three aunts and their families also live there. He has family ties that I am satisfied would enable him to be sponsored to enter (should such sponsorship be required) and remain in this area.

27. What is clear from the second respondent’s reasons is that the second respondent considered the reasonableness of relocation to Basra, having found that the applicant would be seriously harmed or killed in Baghdad if he returned there.  The second respondent had regard to information about relocation from the UNHCR, which suggested that sponsorship was required to relocate to some areas of Iraq, although it made no finding about whether the applicant would require sponsorship for him to return there.  However, the second respondent took into account that the applicant had previously lived in Basra and that his family live there now.  It was therefore satisfied that the applicant could obtain sponsorship were it required.  

The grounds of review

1. The applicant’s amended application filed on 18 December, 2017 particularises two grounds. They are as follows:

   1. The second respondent failed to give proper weight to the advice before it and formed an unreasonable opinion based upon available evidence and/or, in the alternative,

   2. The second respondent failed to take into account a relevant consideration in reaching its decision, thereby falling into jurisdictional error.

   Particulars

   (a) The applicant is a member of a particular social group:

   (i) He is a Shia Muslim, whose country of origin is Iraq;

   (ii) He is ill educated, described as being illiterate, having only completed primary school;

   (iii) He lacks any trade qualifications and has only been engaged in laboring and driving;

   (iv) His family are residents of Baghdad;, except for a short period the applicant has resided in Baghdad for the majority of his life;

   (v) His brother is/was a resident of Basra;

   (vi) Information before the second respondent warned against forcibly returning persons to Iraq on the basis of ‘massive internal displacements coupled with a large-scale humanitarian crisis’;

   (vii) The second respondent accepts the applicant ‘will face a real chance of being killed, injured or seriously harmed’ by Sunni linked milita, due to his religion if he was to return to Baghdad;

   (viii) The second respondent formed the decision the applicant could be relocated to southern Iraq, where it is reported his brother lived/formerly lived;

   (ix) Given the applicant’s poor education, lack of social/family support network in southern Iraq, he would be forced to move to Baghdad to gain accommodation and employment.

2. Neither ground of review clearly articulates the precise aspect or aspects of the second respondent’s decision that is sought to be impugned.  That was clarified to some extent by the applicant’s written submissions which expressly abandoned any assault upon the second respondent’s finding concerning the applicant’s claims to protection pursuant to s.36(2)(a) of the Act.  The applicant’s counsel submitted:

   27. The applicant concedes his application fails to meet the high threshold set by the statutory requirements of section 5H(1) of the Act. Therefore, it follows the applicant fails to meet the requirements as set out in section 36(2)(a) of the Act.

3. The applicant’s written submissions do not address each of the grounds of review set out in the amended application.  Rather, they appear to address a different argument.  I will return to that argument shortly, but I will address the grounds of review first.

4. As the first respondent submits, it is entirely unclear whether the particulars to ground 2 are intended to apply to ground 1 of the grounds of review.  Clarity was brought to that issue by the applicant’s counsel in oral submissions when he confirmed that the particulars were intended to apply to both grounds of review.

5. In respect of ground 1 the first respondent submits that nothing in those particulars reveals any ‘evidence’ or matters that the second respondent failed to take into account or which rendered the second respondent’s findings to be unreasonable in any legal sense.  The submissions did not advance this ground at all.

6. The second ground appears to allege that the second respondent failed to take into account a relevant consideration, which by the particulars, is explained to be the range of matters set out in the particulars.  One view of the particulars (that advanced by the first respondent) is that the applicant is advancing a case that he was a member of a particular social group and that the second respondent did not recognise that claim and did not deal with it.

7. However, as the first respondent accurately submits, such an argument is sterile because:

   a)the applicant’s membership of a particular social group is only relevant to the applicant’s satisfaction of the refugee criterion set out in s.36(2)(a) of the Act; and

   b)the applicant conceded that he failed to meet the requirements of s.36(2)(a) of the Act because he was not a refugee for the purposes of s.5H(1) of the Act.

8. The applicant’s argument as articulated in his written submissions is with the second respondent’s findings concerning his claim for complementary protection.  Membership of a particular social group is not directly relevant to whether the applicant satisfied the complementary protection criterion in s.36(2)(aa) of the Act.

9. Moreover, as the first respondent also accurately submits, whilst the applicant did make a particular social group claim relating to people who worked for an overseas company or employer, he did not make any other claim to membership of any other particular social group.  The second respondent considered the claim based on employment by overseas companies and made factual findings in respect of that claim.   

10. The first respondent also argues that “the putative particular social group was not even capable of being a particular social group”.  The meaning of membership of a particular social group is set out in ss.5K and 5L of the Act, and, the first respondent argues, it is difficult on any view to see how the nine matters particularised in subparagraphs (i)–(ix) of particular (a) of ground 2 could be said to fall within that legislated meaning.  I agree.

1. I accept the first respondent’s argument that the applicant’s ground 2 as particularised in the amended application cannot succeed.  It does not establish that the second respondent’s decision is affected by jurisdictional error.

2. However, the applicant’s argument as articulated in his written submissions is not that the second respondent has not taken into account a relevant consideration, being the applicant’s membership of a particular social group, but rather that in coming to a conclusion about relocation for the purposes of s.5J of the Act, the second respondent did not consider the practicality and reasonableness of the relocation for this particular applicant.  His argument commences with the obiter of Kirby J in SZATV v Minister for Immigration (2007) 233 CLR 18 at [82] “as to how to interpret available information”:

   In the nature of things, country information available to refugee adjudicators is often expressed at a high level of generality.  It may not extend in sufficient detail to establish, in a convincing way, the differential safety of other towns, districts or regions of the one country...where otherwise a relevant ‘fear’ is shown, considerable care will need to be observed in concluding that the internal relocation option is a reasonable one when, by definition, the applicant has not taken advantage of its manifest convenience and arguable attractions.

3. The argument then passes to Mortimer J’s decision in MZANX v Minister for Immigration and Border Protection [2017] FCA 307. At [45] Mortimer J identified the issue before her as follows:

   45.    The single issue, crystallised in the appellant’s submissions, is whether in addition to considering and assessing the chance of harm to the appellant if he were to relocate to Kabul (on both the refugee and complementary protection bases), the reviewer was obliged, but failed, to consider and determine the reasonableness and practicability of the appellant relocating to Kabul, in terms of his individual circumstances and by reference to the relocation objections he expressly raised.

4. Her Honour went on to hold (emphasis added):

   49.    In my opinion the contention made on behalf of the appellant is correct. The appellant’s objections to relocation were not dealt with in a way that enabled the Tribunal to assess reasonableness and practicality for the appellant, as an individual. The assessment of whether a person who has been found to have a well-founded fear of persecution in one part of her or his country of nationality, can relocate to another region or part of that country of nationality is not to be approached only by reference to the risk of harm, whether assessed under the Refugees Convention or in accordance with complementary protection obligations.

   50.    It is also to be assessed by reference to the individual circumstances of the person concerned, and what is practicable and reasonable for that person, taking into account what it is really like to live in the place said to be safe. In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 (SZATV) at [24] the plurality said:

   What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

   51.    In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.

5. The applicant’s written submissions and the particulars to ground 2 of his amended application, are directed to this issue.  His contention, when properly analysed, appears to be that the second respondent did not assess the facts and circumstances raised by him against relocation to Basra to reach its conclusion that relocation to Basra was reasonable.

6. It is clear that the second respondent was alive to the necessity to make a finding about the reasonableness of relocation.  It referred to that in paragraphs [4] and [33] of its reasons and made the relevant finding in paragraph [37] of its reasons.

7. The matters identified by the applicant in the particulars to ground 2 of his amended application for review were all matters that the second respondent considered in the course of its reasons.  It is simply not open to argument that the second respondent did not pay any attention to those matters.  This is not a case like MZANX where the applicant was able to identify a number of matters to which the decision makers had paid no attention when considering the reasonableness and practicality of relocation within the receiving country.  The applicant has not identified any particular matter that was before the first respondent’s delegate or the second respondent that bore on the issues of reasonability or practicality of relocation to Basra that the second respondent did not consider in the course of its reasons.

8. The applicant’s argument asks: “is it objectively reasonable to expect the applicant to relocate to a safe region of Iraq and if it was a viable option for the applicant why did he not avail himself of this option before expending significant funds to travel to Australia”.  He argues that the real chance of significant harm the second respondent recognised as applying to the applicant should he travel to Baghdad was not necessarily eliminated “by reference to the material before it”.  The applicant argues that there are practical considerations the second respondent “failed to give due weight to, such as if he would be exposed to these harms in Baghdad, what would prevent him to being exposed to these same harms in Basra?”  The applicant contends that the second respondent fell into jurisdictional error by “narrowly viewing the harm the applicant could be exposed to should he be relocated”. 

9. But the applicant’s argument pays no attention to the second respondent’s reasons.  The second respondent expressly addressed the issue of risk of harm in Basra compared to the risk of harm in Baghdad.   In the course of its consideration of the applicant’s claim to protection pursuant to s.36(2)(a) of the Act, the second respondent said (footnotes omitted):

   22.    On the basis of current country information I accept that the applicant will face a real chance of being killed, injured or seriously harmed by Daesh or other Sunni-linked groups on the basis of his Shia religion, if he were to return to Baghdad now or in the reasonably foreseeable future. However, pursuant to s.5J of the Act, the real chance of persecution must relate to all areas of the receiving country.

   23.    As noted above, the applicant moved to Basra with his brother Mohammed and Mohammed’s family in 2010 and resided there until he departed Iraq in late 2012/early 2013. The applicant also has three aunts and their families, living in Basra. For the same reasons as outlined above, I am not satisfied the applicant faces a real chance of harm from any militia in Basra on account of his brother’s current or former employment with foreign companies or his own former employment with Aegis. In his response to the IAA received on 14 March 2017, the applicant asserts that “my threat exists everywhere, especially from Basra”.

   24.    DFAT advises that Daesh and associated Sunni extremist groups are currently in control of large parts of northern, western and central lraq13. However, government forces retain control of southern Iraq, including Basra 14 and this area has remained significantly more secure than central lraq15. As the majority community in Iraq, with a dominant role in Government, Shia face little or no official discrimination by the Government in areas that are under Government control.  Overall, DFAT assesses that Shias in Shia dominated areas in the south are at a low risk of general violence.  I conclude that there is not a real chance that the applicant would face serious harm as a Shia, or as a result of more generalised violence if he returned to Basra now or in the reasonably foreseeable future.

10. In paragraph [33] of its reasons, the second respondent used these findings when it reconsidered the risk of harm to the applicant in Basra for the purposes of s.36(2)(aa) of the Act. Then at [37] it expressly considered the applicant’s claim that he would be at a disadvantage in Basra when seeking employment (footnotes omitted):

    37.    The applicant also stated in his response of 14 March 2017 that he would be discriminated against by other Shia for not being from Basra and would therefore be unable to find a job or sustain a livelihood.  Country information indicates that in Shia-dominant areas such as Basra, it is more likely to be Sunni Muslims who are subject to societal prejudice and nepotism, making it harder to obtain employment.  I note that the applicant maintained  employment until he voluntarily ceased work in July 2012 and am not satisfied that he would be prevented from  earning  a  living Having regard to the applicant’s  circumstances,  and  the  country information before me, I am satisfied that it would be reasonable for the applicant to relocate to Basra.

11. As the first respondent submits, in response to the invitation to comment the applicant set out for the second respondent his reasons for why he could not reasonably relocate to Basra.  The relevant factors as identified by the applicant were:

    a)that Basra is unsafe;

    b)that Shia in Baghdad and Basra are different tribes and have different customs and he would not be accepted; and

    c)he would face discrimination which would affect his livelihood.

12. The second respondent dealt with each of these matters.

13. In my view, the applicant does not establish that the second respondent’s decision is affected by jurisdictional error.  The amended application must be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       7 June 2018