BRQ17 v Minister for Immigration and Border Protection
[2021] FedCFamC2G 177
•22 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BRQ17 v Minister for Immigration and Border Protection [2021] FedCFamC2G 177
File number(s): MLG 817 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 22 October 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Protection visa – where the Applicant failed to meet the criteria in section 36(2)(a) of the Migration Act 1958 – where there were omissions by the Applicant at the entry interview – where there were inconsistencies in the Applicant’s evidence – whether the Authority’s decision was unreasonable or failed to properly consider relevant information or a failure to exercise jurisdiction – whether the Authority misconstrued or failed to consider the Applicant’s claims – whether the Authority misapplied the ‘real chance’ test – no jurisdictional error established – application dismissed Legislation: Migration Act 1958, ss 5J(1)(a), 5J(1)(b), 5J(1)(c), 36(2)(a) Cases cited: AKH16 v Minister for Immigration and Border Protection & Anor [2019] FCAFC 27
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
CGA15 v Minister for Home Affairs (2019) 268 FCR 362
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
DQU16 v Minister for Home Affairs [2021] HCA 10
MZYOA v Minister for Immigration and Citizenship [2012] FCA 1462
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 7 October 2021 Place: Melbourne Counsel for the Applicant: Mr Maloney Solicitor for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the Respondents: Ms Smith Solicitor for the Respondents: Clayton Utz ORDERS
MLG 817 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRQ17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application filed on 21 April 2017 and amended on 16 September 2021 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority ('Authority') on 15 March 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is an Iraqi national. The Applicant arrived in Australia on 26 January 2013 as an unauthorised maritime arrival.
The Applicant completed an entry interview with an official from the Department of Immigration on 3 February 2013 ('Entry Interview').
The Applicant applied for the visa on 8 April 2016. His claims for protection were set out in a document entitled 'A Statement of Claims for a Protection Visa' ('Statement of Claims') that accompanied the application for the visa (Court Book 75).
On 24 January 2017, the Applicant attended a Protection Visa interview ('PV interview').
On 31 January 2017, a delegate of the Minister ('delegate') refused to grant the Applicant the visa.
On 3 February 2017, the decision of the delegate was referred to the Authority for review.
On 15 March 2017, the Authority affirmed the decision not to grant the Applicant the visa.
The Applicant commenced proceedings in this Court on 21 April 2017 by filing an application for review and an affidavit in support.
On 16 September 2021, the Applicant filed an Amended Application for review of the decision of the Authority ('Application').
The Applicant filed a written outline of submissions on 16 September 2021. He also filed on 23 September 2021 an affidavit of his solicitor, Sanmati Verma. The Minister filed a written outline of submissions on 30 September 2021. I have had regard to all of the materials on the file.
The matter came before me for hearing on 7 October 2021.
THE DECISION OF THE AUTHORITY
Given the nature of the grounds of review contained in the Application, it is necessary to briefly summarise the reasons of the Authority.
The Authority commenced its decision by summarising various matters pertaining to the Applicant's background at paragraphs [1]-[4] of its reasons.
At paragraph [5] of its reasons, the Authority summarised relevant information from the Applicant's Entry Interview. The Authority recorded, among other things, that:
(a)‘after being discharged from the Army in 1999, the Applicant was a drummer in a band…’. The band provided music for weddings, parties and other celebrations. The Applicant was with the band until he left for Jordan in 2005; and
(b)in relation to why he left Iraq, the Applicant stated that he could not live there, he had been working hard but not earning enough money, and that none of his brothers worked to help his parents. When asked whether there were armed groups, political groups or religious groups operating in the area where he lived, he said there were many groups including the 'Mehdi Army'[1]. In response to the question as to how these groups affected his life, the Applicant stated 'they are affecting my job as a musician. This [playing musical singing] is unacceptable. It is prohibited. Singing is no more. They have destroyed it. There is none of that'.
[1] The name for this organisation also carries and alternative spelling- 'Mahdi Army'.
At paragraph [6] of its reasons, the Authority summarised claims made by the Applicant in his protection visa application and the Statement of Claims. The Authority recorded, among other things, that:
(a)the Applicant was allocated to the musician team when in the Army, that he developed his skills and after discharge from the Army, played music in the band from 1999 until January 2005. Further, after returning from Najaf in January 2011, he again ran a street stall selling clothes in Al Qurna;
(b)there was demand for the Applicant's skills to play at various events. In August 2012, he received a letter from the Mehdi Army that stated, inter alia, if he continued to play music, he would be viewed as an infidel or apostate;
(c)the Applicant ignored the letter referred to above, however some two months later he received a second letter which was not just a warning but a death threat. The letter stated he must leave his house because he was not obeying Islamic rules, that he was a 'Kafir' (unbeliever) and it was a religious duty that Kafirs be killed. The Applicant left his home and went to stay with relatives until he contacted a people smuggler and left the country;
(d)if the Applicant was to return to Iraq, ‘he would be denied his life, his liberty, and he would be tortured and mistreated… He would not be able to practice music and would not be able to consume alcohol and enjoy liberty as a human being’.
At paragraph [7] of its reasons, the Authority summarised the Applicant's evidence relating to among other things, his employment and the threats against him, that was garnered during the protection visa interview of 24 January 2017. In summary, the Tribunal recorded, among other things that:
(a)the Applicant was not a practising Muslim and never had been. The Applicant had been in a band until the fall of Saddam but after the fall everything changed. Because of militia and enforcer groups, no singing was allowed. The Applicant went to Jordan in 2005 as a way to obtain employment. People in Al Qurna looked at him in a disrespectful way because he was a musician;
(b)after he came back from Jordan, a friend suggested to the Applicant that he go elsewhere and when things changed and music was allowed, then he could return. The Applicant went to Najaf and took up a position as a petrol station attendant. In 2011, life went back to normal and music was allowed again. The band was in great demand and they were famous. When the Applicant was not working with the band, he would help out his friend's market stall;
(c)in August 2012, the Applicant's father opened the door and there was a letter addressed to the Applicant from the Medhi Army. It said ‘you have to leave the music industry or we will think you are an infidel.’ The Applicant and the other band members who had received the letters ignored the letters;
(d)a second letter was also left outside the door of his house. There was a bullet in the envelope together with a threat bearing the stamp of the 'Peace Brigades'. The letter contained a verse from the Quran as well as a statement ‘that if we see you on the street, we will think you are an infidel and we will have to kill you’. The Applicant fled to Basra where he stayed with relatives;
(e)during the month of October, four masked men went to his parent's home and asked after him. They asked on two occasions. They did not visit again after he had departed the country;
(f)the Applicant was asked why the militia would still be interested in him after such a long time. The Applicant replied that ‘it was because they would see him as an infidel and would want him to join their party, pray in the same way and have the same lifestyle’, and that he ‘wanted a different lifestyle, he went to weddings and ceremonies, he liked to drink and to enjoy’. He was asked whether the militia had ever mentioned his drinking and he stated that they did, in particular, the second threat letter had ‘said you are an infidel, that you are a musician and that you drink’.
At paragraph [9] of its reasons, the Authority recorded its concerns about the 'significant divergences' in the Applicant's evidence since his arrival in Australia. The Authority put these concerns to the Applicant who responded, inter alia, that he was in poor health on his arrival in Australia. The Authority did not accept that his poor health would render him unable to recall the central events which precipitated his departure from Iraq, this being the warning letter and the subsequent death threat.
At paragraph [10], the Authority recorded that the delegate put to the Applicant that he gave a detailed list of his employment from 2005 in his protection visa application, but that this list did not include his working as a musician. The Authority recorded that the Applicant was unable to explain this.
At paragraph [11] the Authority recorded that the delegate also put to the Applicant that he had not mentioned in either his Entry Interview or in the Statement of Claims that accompanied his protection visa application that the Medhi Army had been to his parent's house. The Applicant offered an explanation for this, and the Authority recorded that it is plausible that such an event may not have been mentioned at the Entry Interview, however its absence from the Applicant's Statement of Claims led the Authority to conclude it did not occur. The Authority also records that further to this, the Applicant gave lengthy responses to the appearance of the men and what they had said to his parents, but when asked what his parents had told the men, the Applicant responded that he did not know, as he was not there.
At paragraph [12], the Authority recorded , inter alia, that 'due to the change in the evidence provided by the applicant and the lack of plausible explanation for the significant changes I consider that he has significantly elaborated on his claims over time to enhance his claims for protection'.
At paragraph [13], the Authority accepted that the Applicant may have been a non-practising Shia Muslim and a consumer of alcohol when he lived in Iraq, but did not accept that he was viewed by any militia groups as an apostate at the time of his departure from Iraq, or that he attracted the attention of the Mehdi Army due to not practising Islam or drinking alcohol.
From paragraphs [14]-[27], the Authority assessed whether the Applicant was a refugee. Among other things:
(a)at paragraph [16], the Authority summarised the Applicant's claims to 'fear harm from militia groups, firstly on the basis that he worked as a musician and secondly that he is considered an apostate because he is a non-practising Shia and that he drinks alcohol';
(b)at paragraph [17], the Authority accepted that the Applicant worked as a musician until 2005. The Authority also found that the Applicant was not subject to adverse attention from militias from 2005 to 2012 and that he would not now be targeted by militias on the basis of his past work as a musician;
(c)at paragraph [18] of its reasons, the Authority considered whether the Applicant would in fact work as a musician in the foreseeable future and noted that it was now some 12 years since he had done so, that he had not undertaken any work or study in music since coming to Australia, and that he had stated in his protection visa interview 'I cannot work in the music industry; they will disrespect me and look at me differently'. In light of these matters, the Authority recorded that it was 'not satisfied that the applicant would work as a musician on return to Iraq' and that it was 'not satisfied any fears [the Applicant] may possess about working as a musician are well-founded';
(d)at paragraph [19] of its reasons, the Authority cited country information that indicates how changes in music and the arts have been viewed and noted that 'Iraq's cultural scene is said to be flourishing again. The Authority also recorded that 'artists report restrictions resulting from intolerance and strict interpretations of Islamic values, rather than by direct attacks';
(e)at paragraph [20] of its reasons, the Authority referred to a news article about the Islamic State group and the banning of music. The Authority referred to the country information quoted at paragraph [18] (which seems to be an incorrect reference - the reference should be to paragraph [19] of its reasons) and notes that there may be restrictions or intolerance towards artists including musicians. The Authority ultimately concluded 'that there is no longer a real chance that the applicant would be subject to serious harm, were he to resume working as a musician on return to Iraq'.
(f)At paragraph [21] the Authority considered the Applicant's employment prospects;
(g)At paragraph [22], the Authority considered the Applicant's claim that he was considered to be an apostate due to drinking alcohol and not practising his religion. The Authority, inter alia, stated that it has 'not accepted that he has in the past been the subject of unwelcome attention due to drinking or not attending mosque. The country information does not indicate that Shia militia target individuals due to any actual or perceived lack of religious devotion or for not practising their faith'. The Authority concluded that it is 'not satisfied that there is a real chance of serious harm to a person who consumes alcohol'.
(h)At paragraph [23], the Authority considered whether the Applicant may consume alcohol on return to Iraq and concluded that it is satisfied from the Applicant's accounts of torture or mistreatment related to the drinking of alcohol that he 'would not drink alcohol on return to Iraq out of fear of harm';
(i)at paragraph [24], the Authority concluded, inter alia, that the Applicant could take reasonable steps to avoid persecution by not consuming alcohol;
(j)at paragraph [25], the Authority accepted that the Applicant is a non-practising Shia Muslim and proceeded to consider whether this would give rise to protection obligations. The Authority concluded that on the basis of, inter alia, the referred material, it is not satisfied the Applicant will suffer a real chance of serious harm as a result of ‘sectarian conflict’ and that there is not a real chance that the Applicant would be persecuted if he returned to Basra province now or in the foreseeable future;
(k)at paragraph [26] the Authority considered inter alia, risks arising from generalised violence and concluded that 'there is not a real chance the applicant would be seriously harmed' due to generalised violence (among other things) should he return;
(l)at paragraph [27] the Authority recorded 'although not raised by the applicant, the delegate has considered whether there is a real chance of harm on the basis that the applicant would be a failed asylum seeker'. The Authority cited country information before concluding that it is 'not satisfied that the applicant faces a real chance of harm on the basis that he has spent time in Australia or that he unsuccessfully sought asylum in Australia';
(m)at paragraph [28], the Authority concluded that the Applicant does not meet the criteria set out in section 36(2)(a) of the Migration Act 1958 (‘Act’);
(n)at paragraphs [29]- [34], the Authority considered whether the Applicant will suffer 'significant harm' under section 36(2A) of the Act and ultimately concluded that there are not substantial grounds for believing, inter-alia, that there is a real risk the applicant will suffer significant harm.
THE APPLICATION
Ground 1
The first ground of review in the Application is:
1.The Authority’s decision is affected by jurisdictional error in that the Authority’s finding that the Applicant had been inconsistent and dishonest in his claims, and its rejection of some of his claims on that basis, was unreasonable, or constituted a failure to properly consider relevant information or a failure to exercise jurisdiction.
Particulars
On the bases that the Applicant’s arrival interview did not include some of the details set out in his visa application, and that the written submissions in support of his visa application did not include one matter addressed by the applicant in oral submissions, the Authority concluded that the Applicant was dishonest and rejected central aspects of his claims. In so doing the Authority, without justification, gave undue weight to minor and benign variations in the way the Applicant gave his account, and arrived at the unsupported conclusion that he was dishonest.
By this ground, the Applicant attacks effectively the finding by the Authority that he had 'significantly elaborated on his claims over time to enhance his claims for protection' at paragraph [12] of its reasons. The Applicant claims that in reaching its views that his evidence was inconsistent or that he had been dishonest, the Authority seized on innocuous omissions that did not give rise to inconsistency. For example, it was submitted that the Applicant made clear in his visa application that he had worked as a musician, so it was unclear what follows from the observation of the Authority at paragraph [10] of its reasons that he omitted 'musician' from the list of jobs on his application form. It was further submitted that the additional oral submissions the Applicant made to the delegate that were not foreshadowed in his written submissions did not mean that his evidence changed over time or that his evidence was inconsistent. Rather, all that occurred was the Applicant's claims developed. It was submitted that the Applicant put one set of consistent claims to the delegate.
The Applicant in advancing this ground pointed, inter alia, to the caution that should be exercised by decision-makers in relation to omissions by applicants of matters that occur at an entry interview: see MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 at [56] and [57]. The Applicant also submitted there was a failure to properly assess the significance of the inconsistencies in the manner contemplated in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 (‘AVQ15’) (Kenny, Griffiths and Mortimer JJ).
I accept the statements of principle contained in the authorities referred to me by the Applicant. The Minister accepted that an adverse credibility finding may give rise to jurisdictional error. The following principles are also relevant and emanate from the authorities. First, a visa applicant's failure to raise a claim previously may well be relevant to credibility, even if it is not correctly described as an inconsistency: AVQ15 at [27]. Second, a decision maker is entitled to rely upon inconsistencies in assessing a visa applicant's credibility, provided it is done fairly and reasonably, noting that assessments of reliability and credibility call for a ‘careful and thoughtful approach’: AVQ15 at [23]. Third, caution must be exercised ‘before finding that adverse findings as to credit exposed jurisdictional error, in order to ensure that the Court does not embark impermissibly upon merits review’: Murphy J (with whom the rest of the Court concurred in respect of his statement of the principles) in BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 at [71] referring to principle '(5)' as set out by Kenny, Kerr and Perry JJ in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30].
I have summarised the manner in which the Authority reached its decision earlier in these reasons. When the reasons of the Authority and the Court Book materials are examined, the following anomalies or inconsistencies in the Applicant's evidence become apparent. First, in relation to the Applicant's claims that he was working as a musician, I observe the following. In his protection visa application, the Applicant provided a list of occupations that he had been engaged in after 2005. Nothing in that list indicates he was working as a musician during that period: see Court Book [203]. That information was consistent with what the Applicant had stated in his Entry Interview, but was not consistent with what he had said in his protection visa interview. It is to be remembered that in his protection visa interview, he claimed to be working as a musician after returning from Najaf in 2011: see paragraphs [7] and [12] of the decision of the Authority. Ultimately, the Authority found that he did not work as a musician again after 2005: at [12] of its reasons.
Second, the Applicant claimed in his protection visa interview and protection visa application that he had been the subject of threatening letters from the Mehdi Army. He had not referred to those threats during his Entry Interview.
Third, in his protection visa interview, the Applicant claimed for the first time that masked men went to his parent's house and asked for him, and that they did not come after he left the country. This matter was not referred to in either the Entry Interview or in the protection visa application.
The Authority did not simply rely on these matters without notifying the Applicant. It asked the Applicant for an explanation and considered the Applicant's response (which was, effectively, that he had been ill at the time of the Entry Interview). The Authority ultimately did not accept that the Applicant was in such poor health that he would be unable to recall the central event or events which led to his departure: at paragraph [9] of its reasons. The Authority asked the Applicant about his failure to mention that he worked as a musician after 2005 and recorded that the Applicant stated he did not know why he had not included this information: at paragraph [10] of its reasons. Finally, the Authority asked the Applicant to explain his omission from the Entry Interview and the written protection visa application about the visits of the masked men to his parent's home and noted that the Applicant stated that it had not been on his mind, and his representative stated that he had not witnessed it. Ultimately, the Authority concluded that its absence from the Applicant's detailed statement of claim led it to conclude that the event did not occur, particularly in circumstances where the Applicant was able to give a lengthy response about the appearance of such men at his parent’s home: at paragraph [11] of its reasons.
In my view, the Applicant's submissions to the effect that the Authority gave undue weight to minor or benign or innocuous variations in his evidence cannot be accepted. The matters considered by the Authority were not just limited to differences between what occurred at the Entry Interview and what occurred later. The inconsistencies identified occurred at several points. Further, the inconsistencies were not simply innocuous matters. They were matters that went directly to issues of significance for the Applicant's claim, for example, the claim about the visit to his parent's house from masked men, and the threats from the Mehdi Army. The Authority put these matters to the Applicant, weighed his response and in doing so considered the significance of the inconsistencies with which it was dealing. The findings made by the Authority were open to it and were not unreasonable.
For all of the above reasons, Ground 1 of the Grounds of Review must be dismissed.
Ground 2
The second ground of review in the Application is:
2.The Authority’s decision is affected by jurisdictional error in that the Authority misconstrued or failed to consider the Applicant’s claims.
Particulars
The Applicant claimed to fear harm as a Westernised apostate. The Authority characterised the Applicant’s claim as a fear of harm from militia groups. However, it was not confined in this way. The Authority’s consideration of the threat from Shia militia groups failed to dispose of the Applicant’s claim. Further, the Authority gave no consideration to the Applicant’s claims arising from his having become westernised.
It is well understood that jurisdictional error may be committed where a decision maker fails to respond to substantial, and clearly articulated arguments relying upon established facts.
Consideration of this ground must therefore begin with a review of the Applicant's claims. In his Statement of Claims that accompanied his visa application (Court Book 75), the Applicant claimed:
(a)to have a 'different view than religious people whom I have no connection with': at paragraph [7] of the Statement of Claims;
(b)he had 'received a threat from…Mahdi Army… Telling me that I'm doing wrong things… and I have to avoid doing Haram things. In their view music is taboo and for me playing music I am perceived as an infidel or apostate': at [8] of the Statement of Claims;
(c)that he 'received another paper…it was a real death threat… They acted seriously against musicians and young man who drink alcohol and not practising Islam': at [9] of the Statement of Claims; and that he was accused of being 'Kafir (disbeliever)… and must get killed as a matter of their religious duty': at [10] of the Statement of Claims;
(d)'I have been in Australia for quite a long time enjoying my liberty and expressing my views freely…now Mahdi army is devided (sic) in two main militias…Both militias acting freely to persecute people of my kind. The government is associating with all militias and yet there is no protection available': at [16] of the Statement of Claims; and
(e)'If I went to Iraq I would be denied my life, my liberty, tortured, mistreated or live in discreet (sic). I will not be able to practice my music, will not be able to consume alcohol and enjoy my liberty as a human being': at [17] of the Statement of Claims.
The Applicant makes a number of submissions about the Authority's treatment of these claims. First, that the Authority failed to deal with his claim of being a 'westernised apostate'. Second, that there was no basis to assess these claims purely by reference to threats from militia groups. Harm could have come to the Applicant from other militia groups, or people in the community, or government. Third, the reference of the Authority to the Applicant being a 'non practising Shia [who] drinks alcohol' was not a sufficient basis on which the Authority could dispose of the Applicant's claim to being westernised (though it might suffice to deal with the claim that he drank alcohol and was not religious).
A review of the Applicant's claims discloses that the primary claim that he advanced was a claim to fear harm on the basis that he was an apostate. This may be seen from his claims that the Mehdi Army perceived him to be an infidel or apostate for playing music, that they were acting against musicians or young men who drank alcohol and did not practice Islam and that he was a 'Kafir' or 'disbeliever' who was to be killed. Unsurprisingly, the Authority dealt with these claims squarely and in detail at paragraphs [16]-[24] of its reasons.
The Applicant submits that the Authority assessed these claims purely by reference to the threat posed by Shia militia groups and failed to take account of the threat from others, be it community members or the government. There are two things to be observed about that submission. First, the focus of the Applicant's claims was the threat posed by militia groups and in particular, the Mahdi Army. Again, it is therefore unsurprising that the Authority in its reasons focused on the threat from the Mahdi Army. Second, in my view, the Authority did in fact consider whether there was any threat to the Applicant from persons other than militia groups. At paragraph [22] of its reasons, the Authority in assessing the risk posed to persons who consume alcohol noted that 'country information does not indicate that they are targeted by militia groups or individuals' (emphasis added). Also, at paragraph [18] of its reasons, the Authority considered the Applicant's claim that he will be disrespected and looked at differently if he works in the music industry given 'community views towards musicians in Iraq'.
In advancing the submissions above, the Applicant points to paragraphs [16] of his Statement of Claims and to his statements that 'both militias are acting freely to persecute people of my kind. The government is associating with all militias and yet there is no protection available'. It was submitted by the Applicant that this claim effectively raised a claim about harm from the government and that claim was not properly considered. In my view, that submission should not be accepted. Properly understood, the statements contained at paragraph [16] of the Statement of Claims that refer to the conduct of the 'government' are referring to whether the government is taking steps to protect persons from militia groups. The Authority, of course, dealt in some detail with the risk posed by militia groups. The reference to government, in my view, arises and should be regarded as being dealt with and subsumed in the claims regarding the militia. In my view, what is contained in paragraph [16] of the Statement of Claims insofar as it concerns the government is not a claim by the Applicant that harm was being perpetrated by the government.
Finally, that leaves the Applicant's contention that there was a failure to deal with his claim to fear harm on the basis that he was a 'westernised apostate'. In my view, when the Applicant's claims are considered, the Applicant did not advance a clearly articulated claim to fear harm on the basis that he had become westernised. I have recorded above what the Applicant said at paragraphs [16] and [17] of his Statement of Claims. The statements by the Applicant to the effect that he has enjoyed his liberty in Australia do not amount to a claim that he fears persecution on the basis of being westernised. The statement in paragraph [16] of the Statement of Claims that the two main militias are acting 'freely to persecute people of my kind' also does not amount to a substantial and clearly articulated claim - indeed it might be said that is not clear what the Applicant means when he refers to 'people of my kind'.
If, contrary to what I have said above, the view were taken that there was before the Authority a clearly articulated and substantial claim to fear harm on the basis of being westernised, I would come to the view that the Authority has nevertheless dealt with that claim to the extent it was raised. The Authority considered expressly whether the Applicant would face harm on return to Iraq from having lived in a Western country or from having sought asylum in Australia and concluded that he would not face harm: at [27] of its reasons. The Authority therefore dealt with the subject matter of the claim to the extent it was raised: at [27] of its reasons.
Finally, in dealing with this last aspect, the Applicant relied on the decision of Murphy J in MZYOA v Minister for Immigration and Citizenship [2012] FCA 1462 (‘MZYOA’) as being an example of a decision where an applicant, having spent an extended period of time in Iran, claimed to have undergone cultural or social changes which would give rise to a real chance of harm on his return to Afghanistan. That decision does not advance the Applicant's case. In MZYOA, the applicant had made a clear and express claim that he faced harm through being someone who had lived for a long period in Iran: see paragraph [12] of MZYOA. As I have indicated, that is not the case here.
For all of the above reasons, Ground 2 of the Grounds of Review must be dismissed.
Ground 3
The third ground of review in the Application is:
3.The Authority’s decision is affected by jurisdictional error in that the Authority misapplied the ‘real chance’ test.
Particulars
First, the Authority accepted that there was ongoing ill-treatment of musicians in Iraq, and that this may be more prevalent in the Applicant’s home region. However, it found that the Applicant did not face a real chance of harm on this basis. Its finding demonstrates that, in assessing whether the Applicant faced a real chance of serious harm, it misapplied ‘real chance’ and/or ‘serious harm’.
Second, the Authority accepted that there had been attacks by Sunni armed groups in the Applicant’s home region. However, on the basis that the level of sectarian violence was lower than elsewhere in Iraq, the Authority was not satisfied that the Applicant faced a real chance of serious harm from sectarian violence. Its finding demonstrates that it misapplied ‘real chance’.
Third, the Authority accepted that the situation in the Applicant’s home region was deteriorating and that neighbouring areas had been overtaken by Daesh and other Sunni extremists. However, it did not accept that the Applicant faced a real chance of serious harm from generalised violence. Its finding demonstrates that it misapplied ‘real chance’.
Section 5J(1)(a),(b) and (c) of the Act provides as follows:
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.
The principles in respect of the 'real chance' test were recently summarised by the High Court of Australia in DQU16 v Minister for Home Affairs [2021] HCA 10. A 'real chance' of serious harm arises if the chance of harm faced is not far-fetched or merely theoretical. There may be a real chance of persecution even when persecution is unlikely, for example, 'only a 10 per cent chance of persecution': Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [389], [397-8], [407] and [429].
As can be seen from the particulars to Ground 3, the Applicant has identified three areas in which he says the Authority misapplied the 'real chance' test. I consider each of these in turn.
In the particulars to the Ground of Review, it is said that 'the Authority accepted that there was ongoing ill-treatment of musicians in Iraq'. The Applicant submitted that the Authority accepted reports of the mistreatment of musicians and accepted that such mistreatment may be more prevalent in rural areas of southern Iraq. The Authority also found that there were reports of 'restrictions or intolerance' towards musicians. While the Authority found that the Applicant would reside in such identified areas, however, it was not satisfied that the Applicant faced a real chance of serious harm. In respect of these matters, the Applicant contends that the Authority fell into error by either applying an unduly high threshold when it came to assessing a 'real chance' of harm, or did not appreciate that 'restrictions or intolerance' would constitute 'serious harm'.
In assessing the submission above, particular attention needs to be given to the finding of the Authority. The Authority at paragraph [20] stated that 'country information as quoted at paragraph 18 above does however note that there may be restrictions or intolerance towards artists including musicians'. (I note in passing that both parties accepted that the reference to paragraph '18' in this quote is actually a reference to paragraph [19] of the reasons of the Authority). Paragraph [19] of the reasons of the Authority relevantly states 'Country information indicates that over recent years there has been a change in how music and the arts are viewed. After years of reported persistent attacks against artists, actors and singers for their (perceived) engagement in "un-islamic" or "Western" activities, Iraq's cultural scene is said to be flourishing again. Artists report restrictions resulting from intolerance and strict interpretation of Islamic values, rather than by direct attacks'.
The following observations may be made about the findings recited above. First, the findings recited above are not findings of 'ill-treatment' or 'mistreatment' as contended by the Applicant. They are findings about restrictions or intolerance. The Applicant's submission therefore is based on an incorrect premise or description of the findings of the Authority. There was no finding by the Authority of ongoing 'ill-treatment' or 'mistreatment'. Second, to suggest that any 'restriction or intolerance' should rise to the level of 'serious harm' would be to disregard the manner in which the Authority considered the information before it including, in particular, paragraph [19] where the Authority noted that the country information clearly discloses that the cultural scene in Iraq is 'flourishing'. It would also be to disregard the distinction made by the Authority between restrictions resulting from intolerance and 'direct attacks'. Those matters strongly suggest the Authority considered the intolerance or restrictions do not amount to serious harms. Third, the intolerance or restrictions are said to arise from 'strict interpretation of Islamic values'. When the country information is considered, and I observe that the country information was attached to the Applicant solicitor's affidavit, that statement linking intolerance and restrictions to a strict interpretation of Islamic values is, in my view, a reference to restrictions or intolerance arising from the limits or otherwise of artistic expression of certain subjects under Islamic law. That too supports a conclusion that the reference to restrictions or intolerance does not rise to the level of serious harm.
The Applicant next takes issue with the findings of the Authority in relation to the level of sectarian violence and the risk it presents at paragraph [25] of its reasons. At paragraph [25] the Authority states:
25. I accept that the applicant is a Shia Muslim (albeit non-practising) and he has not claimed a fear of harm on this basis alone. Nevertheless, I have considered whether this would give rise to protection obligations. On the evidence before me, the applicant originates from a Shia dominated region of Iraq. Country information indicates that Sunni armed groups have attacked locations in southern provinces, but overall the level of violence is much lower than elsewhere in Iraq. While the referred material indicates that violence does occur in cities such as Basra, I am not satisfied on the referred material that there is a real chance that the applicant will suffer serious harm in a rural area of Basra province as a result of Sectarian conflict. The referred material indicates that Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence. Considering whether the applicant faces harm from Shia militias or Shia armed groups due simply to being a Shia, there is nothing in the referred material to indicate that this occurs. I conclude that there is not a real chance that the applicant would be persecuted if he returned to Basra province now or in the reasonably foreseeable future. (footnotes omitted)
In respect of this passage, the Applicant focuses on the statement by the Authority that 'Sunni armed groups have attacked locations in southern provinces, but overall the level of [sectarian] violence is much lower than elsewhere in Iraq'. The Applicant contends that this statement demonstrates that the Authority applied the wrong principle. It was submitted that the 'real chance' test is not relative. The fact that the chance of harm to the Applicant in a particular place may be lower than in some other place does nothing to demonstrate that the Applicant does not face a real chance of harm. It is thus contended that the Authority fell into error.
I accept, and it is not controversial, that the test as to whether an applicant faces a 'real chance' of harm is not a relative one, and that what matters is the actual level of risk in a particular place: CGA15 v Minister for Home Affairs (2019) 268 FCR 362 (‘CGA15’) at [23]. The Applicant's contention therefore needs to be assessed in light of a close reading of paragraph [25] of the reasons of the Authority.
When paragraph [25] of the reasons of the Authority is examined, the following can be seen. First, the Authority concluded that 'there is not a real chance that the applicant would be persecuted if he returned to Basra province now or in the reasonably foreseeable future'. Second, that finding was underpinned by a range of objective factors considered by the Authority in paragraph [25] of its reasons, including that the Applicant originated from a Shia dominated province, that country information indicated Sunni groups have attacked locations in southern provinces, but overall levels of violence were lower in other parts of Iraq, and that the 'referred material' indicated that Shias in Shia dominated provinces of Southern Iraq are at low risk of generalised violence (I observe that a DFAT Country report was cited in support of that proposition). This last statement is particularly significant. The finding made is not of a 'lower' risk of generalised violence, but a 'low' risk of generalised violence - a finding in objective, non-relative terms. Clearly there were a number of matters considered by the Authority which led to the ultimate conclusion stated in paragraph [25] of its reasons.
The issue that then arises is whether the statement focused on by the Applicant undermines the overall finding of low risk made by the Authority. In my view, it does not. A range of information as noted above was relied on by the Authority to support its conclusion. There is nothing which prevents the Authority having regard to relative degrees of a risk of harm (as one relevant factor) when it comes to assessing the actual level of risk in a particular place: see CGA15 at [28]; BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 at [49]. That is what occurred here. No error is disclosed.
The Applicant next takes issue with the reasoning of the Tribunal in paragraph [26] of its reasons. That paragraph provides as follows:
In relation to whether the applicant is at real risk of harm from generalised violence, the DFAT Country Report notes that the security situation in Iraq deteriorated significantly in 2013 and 2014 and violent crime increased'. In these years, coordinated bombings and shootings took place on a daily basis. DFAT advises that Daesh and associated Sunni extremist groups are currently in control of large parts of northern, western and central Iraq". However, government forces retain control of southern Iraq, including Basra province" and this area has remained significantly more secure than central Iraq". Although violent crime, including kidnappings and killings, does occur in Basra, on the basis of the referred information I conclude that there is not a real chance that the applicant would be seriously harmed due to this, should he return. (footnotes omitted)
The Applicant contends that the real chance test was misapplied by the Tribunal in the following manner. The Authority accepted that the situation in Iraq had deteriorated significantly and 2013 and 2014 and it also accepted that Daesh and associated Sunni extremist groups were currently in control of large parts of northern, western and central Iraq. Notwithstanding those findings, the Authority was satisfied that the Applicant did not face a real chance of harm because 'government forces retain control of Southern Iraq including Basra province and this area has remained significantly more secure than central Iraq'. The Applicant contends that by reasoning in this way, the Authority once again fell into error by assessing whether one area of Iraq was safer compared to other areas, rather than applying the 'real chance' test.
The submission of the Applicant must be rejected for two reasons. First, for the reasons previously articulated, simply because the Authority assessed as one factor that Southern Iraq including Basra were significantly more secure than central Iraq, does not of itself produce the result that the Authority misapplied the real chance test. Second, it is apparent from what is set out in paragraph [25] of the reasons of the Authority that the Authority also properly assessed the risk in Basra objectively. Among other things, in paragraph [25], the Authority considered referred material and stated that 'Shia's in Shia dominated provinces of Southern Iraq are at low risk of ‘generalised violence' before concluding that 'there is not a real chance the applicant would be persecuted if he returned to Basra province now or in the reasonably foreseeable future'.
Finally, the Applicant submitted that the 'real chance' test is forward-looking and required the Authority to consider what reasonably might occur in the future. It was submitted that the Authority noted in paragraph [26] of its reasons the deteriorating situation in Iraq (among other things) but yet gave no consideration to what might occur in the reasonably foreseeable future. That is said to be an error.
In AKH16 v Minister for Immigration and Border Protection & Anor [2019] FCAFC 27 (‘AKH16’), Middleton and Mortimer JJ considered the principles regarding when the Authority is to consider matters in the foreseeable future. At paragraph [49]-[50], their Honours quoted with approval the following passage of Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60]:
49. As Mortimer J stated in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60]:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.
50. As we have said, there was no dispute as to these legal principles. …
Turning then to the decision of the Authority, the first matter to note is that the Authority used language in its reasons that indicated it applied a forward looking lens to assess whether the Applicant was likely to face a real risk of harm from generalised violence in the foreseeable future. In paragraph [26] of its reasons (which is the paragraph that the Applicant focuses on in respect of this aspect of his submission), the Authority concluded the paragraph by stating that 'I conclude there is not a real chance that the applicant would be seriously harmed due to this, should he return' (emphasis added). In paragraph [18] of its reasons, the Authority considered 'whether the applicant would in fact work as a musician in the foreseeable future' (emphasis added). At paragraph [25] of its reasons, in assessing whether the Applicant would be persecuted if he returned to Basra, the Authority stated 'I conclude that there is not a real chance that the applicant would be persecuted if he returned to Basra province now or in the reasonably foreseeable future' (emphasis added). All of these matters, in my view, show that the Authority adopted a forward looking approach in assessing whether there was a real risk of harm.
The second matter to note is the comments of the Full Court in AKH16. Care must be taken to ensure that any rejection is not 'too remote' from a person's expected life circumstances, and any assessment to be made is to occur on the basis of probative material, and not guesswork. The Applicant has not pointed to any probative material that would have enabled the Authority to assess whether Daesh and Sunni groups might control Iraq in the foreseeable future.
For all of the above reasons, Ground 3 of the Grounds of Review must be dismissed.
CONCLUSION
The Applicant has not succeeded in any of the grounds of review. The appropriate course is for the Application to be dismissed. Costs ordinarily follow the event. I will award costs to the Minister of $7,467.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 22 October 2021
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