BWU17 v Minister for Immigration

[2017] FCCA 3229

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWU17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3229

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection Visa – whether the Authority erred by misconstruing or misapplying the meaning of “exceptional circumstances” in s 473DD of the Migration Act 1958 (Cth) – the Authority’s reasons in support of the adverse finding under s 473DD of the Migration Act 1958 (Cth) is not deficient for want of adequate reasons – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 476, 486E

Applicant: BWU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1323 of 2017

Judgment of: Judge Street

Hearing date: 19 December 2017

Date of Last Submission: 19 December 2017

Delivered at: Sydney

Delivered on: 19 December 2017

REPRESENTATION

Solicitors for the Applicant: Ms M Youssef
Mona Youssef & Associates

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to rely upon the following ground:

   “The Authority erred by misconstruing or misapplying the meaning of “exceptional circumstances” in s 473DD.”

2. The Court dispenses with the need for the filing of an amended application.

3. The application is dismissed.

4. The applicant to pay the first respondent’s costs fixed in the amount of $6,500.00.

THE COURT NOTES THAT:

1. The solicitor for the applicant concedes that Grounds 1 to 5 in the application fail to make out any jurisdictional error.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1323 of 2017

BWU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 4 April 2017 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia as an authorised maritime arrival on 2 May 2013. The applicant lodged an application for a Temporary Protection Visa (“TPV”) on 16 August 2016. The delegate refused the grant of the visa on 23 December 2016, finding the applicant failed to meet the criteria for the grant of a visa

3. The applicant claimed to fear harm on his return to Iraq due to him having owned a shop that sold CDs and DVDs and issues with militias regarding accusations that he sold alcohol from that shop and issues about him drinking alcohol. 

The Authority’s decision

1. On 6 January 2017, the Authority wrote to the applicant identifying that the application had been referred to the Authority for review. The Authority’s letter explained that there were limited circumstances in which the Authority could consider new information, and provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. Submissions were provided to the Authority on 12 February 2017 which were expressly referred to in the Authority’s reasons.

2. The Authority identified the background to the application for review and had regard to the material under s 473CB of the Act. Insofar as the submissions engaged with the delegate’s findings, the Authority identified that was not new information for the purpose of s 473DC of the Act and had regard to the same in the submission. 

3. The Authority identified that there was information from iraqinews.com postdating the delegate’s decision and found that there were exceptional circumstances to justify considering that information. 

4. The Authority also identified that there was a link to a YouTube video clip that predates the delegate’s decision. The Tribunal descended into the nature of what that material was in purporting to support a claim that the militia groups punish alcohol-sellers in Nasiriya. The Authority noted that no reasons had been provided as to why the information could not have been provided to the delegate or why it was credible personal information. The Authority referred to the issue of whether alcohol is forbidden and whether persons who drink alcohol are punished having been explored at the TPV interview. It was in those circumstances that the Authority said that it was not satisfied that s 473DD(b) of the Act was met and the Authority was not satisfied that there were exceptional circumstances to justify considering that information.

5. On a fair reading of the Authority’s reasons the Authority has taken into account both limbs of s 473DD of the Act. There has been no failure by the Authority in the application of s 473DD of the Act by adopting an erroneously narrow meaning of exceptional circumstances.

Assessment of Refugee Convention criteria

1. The Court notes that the Authority accepted the applicant was a non-practising Shia Muslim, that he did not visit the mosque in Iraq or Australia and that his parents were committed practising Muslims.  The Authority found there was no evidence to suggest the applicant suffered past harm from the local community or neighbouring businesses as a result of the applicant’s music shop, the claimed perception of the applicant or his friends, their conduct, the applicant being a non-practising Muslim or the past disputes or complaints. The Authority was not satisfied that there was a real chance of the applicant facing harm on these bases if he were to return to Iraq now or in the reasonably foreseeable future. 

2. The Authority referred to the inconsistencies in the applicant’s evidence and did not accept the explanation that there had been a misunderstanding or interpretation error. The Authority was not satisfied that the inconsistencies in the applicant’s evidence was due to any external factors. The Authority found the applicant changed his evidence during the TPV interview in order to address the delegate’s reasons. The Authority found this raised doubts concerning the truthfulness of the applicant’s evidence.

3. The Authority accepted that selling and drinking alcohol is considered un-Islamic or immoral in Iraq. The Authority found that if the applicant was in fact accused by Shia militias of selling and drinking alcohol in his music shop, it is not now plausible that they would only have threatened him, told him that they would leave him alone for now until they get an order of arrest from their religious figures or until the religious court decided his case, and left his shop without physically harming him. 

4. The Authority found it implausible that the Shia militias would have left the applicant unharmed for over a month without taking any further action against him following the January 2013 incident, until March 2013, when they raided his house seeking to capture him.  The Authority thought this was particularly so given that the applicant’s area is a small area and consists of a limited number of houses and that the music shop was located only about 17 kilometres from where the applicant lived. 

5. The Authority did not consider it credible in the circumstances, where the applicant claims that a religious order, arrest warrant or a decision was made by the superiors in the militias to arrest him in March, that the applicant would have been able to remain unharmed and not located by the militias in Basra in the intervening period between March and April 2013 before he left Iraq.

6. The Authority was prepared to accept that armed men went to the applicant’s shop coincidentally in January 2013, as they were conducting patrols and were monitoring the area. The Authority did not accept that the militias or armed men pursued him, found alcohol, accused the applicant of drinking or selling alcohol, threatened to kill him or burn his shop, or that they told the applicant they would leave him for now as they did not have a religious order or arrest warrant. The Authority did not accept that a religious order or arrest warrant or a decision was made by the religious leaders against the applicant for any reasons. The Authority did not accept that someone called the applicant to warn him that a warrant was issued against him or that the militias were coming to his house. 

7. The Authority did not accept the applicant went to Zubair or fled Iraq due to his fear of harm, that armed men or the militias visited or raided his house, or that since he arrived in Australia, the militias or anyone were trying to find him. The Authority did not accept the applicant was perceived as selling or drinking alcohol, being an atheist infidel or associating with atheist friends. The Authority found that the evidence did not indicate the applicant was targeted or suffered any past harm for being a non-practising Muslim or as an owner of a music shop. The Authority was not satisfied on the evidence that the applicant is or was of interest to JAM, the Dawa Party or other Shia armed groups or Sunni militia groups, the police or the authorities or anyone on these bases. The Authority found the applicant does not face a real chance of harm on these bases now or in the foreseeable future. 

8. The Authority was not satisfied that the local community or his neighbouring shops were aware the applicant or his friends drank alcohol in the past. The Authority was not satisfied there was a real chance of the applicant facing harm in Iraq because he drank alcohol in Iraq or Australia, now or in the reasonably foreseeable future. The Authority was not satisfied the applicant would face a real chance of being punished for his past alcohol consumption.

9. The Authority found the applicant will not face a real chance of being tortured, punished or otherwise harmed by JAM, the Dawa Party or other Shia or Sunni militant groups or extremists, the police or the authorities, the local community or anyone else for reasons relating to the January 2013 incident, that he owned a music shop, he drank alcohol in Iraq or Australia, or their perception of him or his friends now or in the reasonably foreseeable future.

10. The Authority found that the applicant would, as a matter of fact, stop drinking alcohol upon return to Iraq. The Authority found it was reasonable for the applicant to avoid consuming alcohol so as to avoid a real chance of persecution. The Authority did not accept that the drinking of alcohol is a part of the applicant or that he is addicted to it. The Authority did not accept drinking alcohol is part of the applicant’s personality, identity or innate or immutable characteristic. The Authority was satisfied that this is not the type of modification prohibited by s 5J(3) of the Act as the Authority was not satisfied that this modification would conflict with a characteristic that is fundamental to the applicant’s identity or conscience or conceal an innate or immutable characteristic of him, or would otherwise fall within s 5J(3)(c) of the Act. The Authority was not satisfied, on the evidence, that the applicant will face a real chance of harm now or in the reasonably foreseeable future on the basis of alcohol consumption. 

11. The Authority found the applicant will not face a real chance of serious harm, including economic harm, if he were to return to his home region and continue to operate his music shop in the manner that he did in the past, now or in the reasonably foreseeable future.

12. The Authority was not satisfied, on the evidence, that the applicant will face a real chance of harm in his home area by JAM, Dawa Party or other Shia militant groups for reasons of his religion now or in the reasonably foreseeable future. The Authority found that there is only a remote chance the applicant will be caught up in generalised violence in Southern Iraq upon return.

13. The Authority found the applicant will not face a real chance of harm as a returnee failed asylum seeker who resided in Australia, now or in the reasonably foreseeable future. 

14. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) of the Act. 

Assessment of Complementary Protection criteria

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

Before this Court

The sole ground in the application

1. The only alleged error raised by the application was as follows, as a result of orders made permitting the solicitor for the applicant to raise this ground:

   The Authority erred by misconstruing or misapplying the meaning of “exceptional circumstances” in s 473DD.

The Court’s reasoning

1. As to the above ground, it is apparent from the reasons of the Authority as summarised above, that the Authority did not fail to have regard to both limbs of s 473DD of the Act. The Authority’s reasons do not reveal any erroneous understanding of the meaning of exceptional circumstances or s 473DD of the Act as a whole. No jurisdictional error is made out in respect of the above ground.

2. In the course of arguing the ground identified above, the solicitor for the applicant also took the Court to part of the submissions which was not the subject of paragraph 6 of the Authority’s reasons and sought to argue that this was a matter that was not taken into account and should have been the subject of reasons in support of the adverse finding in paragraph 6.

3. It is apparent that the subject matter in the reasons to which the applicant referred was something that the Authority identified was not new information and took into account. The Authority’s reasons in support of the adverse finding under s 473DD of the Act is not deficient for want of adequate reasons. No jurisdictional error of a failure to give reasons is arguable.

4. The solicitor for the applicant properly conceded that no jurisdictional error, as alleged in grounds 1 to 5 of the application was made out. That was a proper concession by the solicitor entirely consistent with the solicitor taking into account the statutory obligations arising under s 486E of the Act.

5. However, it is apparent that the solicitor for the applicant has reviewed the material and identified what was an arguable ground that it would have been much more preferable for steps to have been taken to file an amended application consistent with the orders made by the Court.

6. The Court indicated in argument, via the solicitor for the first respondent, that it would permit a further ground to be raised in respect of deficient reasons in support of s 473DD of the Act. This was in circumstances where there had not been compliance with the Court’s earlier order and where the Court did give the solicitor for the applicant the opportunity to formulate and rely upon a further ground as identified above. However, for the reasons already articulated, the proposed additional ground as to want of reasons is not found to have had sufficient prospects of success to warrant granting leave to rely upon the same, in any event.

7. In these circumstances, the application is dismissed. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 February 2018