BZC17 v Minister for Immigration
[2017] FCCA 2981
•1 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZC17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2981 |
| Catchwords: MIGRATION – Immigration Assessment Authority – it was open to the Authority to treat the photographs as not relevant and therefore not new information within s 473DC of the Migration Act 1958 (Cth) – the Authority’s reasons made express reference to consideration of both limbs of s 473DD of the Migration Act 1958 (Cth) in the evaluation of whether there are exceptional circumstances – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 476 |
| Cases cited: CHF16 v Ministerfor Immigration and Border Protection [2017] FCAFC 192 |
| Applicant: | BZC17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1398 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 1 December 2017 |
| Date of Last Submission: | 1 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Hearn Legal |
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1398 of 2017
| BZC17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 12 April 2017 affirming a decision of the delegate refusing to grant the applicant a Temporary Protection visa (“TPV”).
The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia on 15 February 2013 as an unauthorised maritime arrival. The applicant lodged the application for a TPV on 6 May 2016. The delegate on 19 January 2017 found the applicant failed to meet the criteria for the grant of a visa under the Act.
Claims for protection
The applicant claimed to fear harm as a result of his imputed association with the Ba’ath Party by reason of his father being a prominent officer in Saddam Hussein’s army and consistently with this, the applicant feared harm by reason of being targeted by the unknown assailants who murdered his father and his brother in their home in 2008.
The applicant also claimed to fear harm because he is a Shia Muslim who would be targeted by Sunni militia and Islamic State. The applicant claimed to fear harm because the Shia militia might mistake him for a Sunni Muslim. The applicant maintained that he was not safe anywhere in Iraq and it would be unsafe for him to relocate, including to Basra.
The delegate’s decision
The delegate in his decision made adverse findings and did not accept the applicant's father was an active member of the Ba’ath Party and did not accept that the applicant's father and brother were killed due to the father's links to the Ba’ath Party or any association with the former Saddam regime. The delegate did not accept the applicant's father was of interest to the militia in Iraq prior to his death. The delegate did not accept the applicant's father was a well-known Ba’athist in the South of Iraq. The delegate did not accept the applicant's father's family were well-known in Basra for his father's Ba’athist connections, and the delegate did not accept the applicant has been imputed with a political opinion of being a Ba’athist and has a personal profile of interest in Iraq due to his father's profile. The delegate did not accept the applicant moved to Syria in 2008 due to the murder of his brother and father.
The delegate did accept that the applicant would not be able to safely return to Baghdad and that there is a very real chance the applicant could become a target of sectarian violence there. The delegate did, however, consider whether the situation in Basra in the Southern Governorate of Iraq was one in which the applicant could safely relocate. The delegate took into account that the applicant originates from Basra. The delegate made reference to the Basra functioning international airport and that the airport was used by the applicant to depart Iraq in 2012 and would enable international access to the applicant's home in Basra.
The delegate found that the applicant returning to the Southern governorate and more specifically, to the governorate of Basra in Iraq where the applicant's extended family from his father's side resides, would be a safe and legal option for the applicant.
It was in those circumstances the delegate found that the real chance of persecution did not relate to all areas of the receiving country and the applicant did not meet the requirements of s 5J(1)(c) of the Act. The delegate made reference to having assessed the applicant's individual circumstances and found that there is no real risk of significant harm if the applicant was to return to Iraq in the foreseeable future.
The Authority’s decision
Following the decision of the delegate, the Authority wrote to the applicant on 24 January 2017 identifying that the matter had been referred to the Authority for review. The letter explained that there were only limited circumstances in which the Authority could consider new information. The letter attached a fact sheet and practice direction giving the applicant an opportunity to put on new information and also to put on submissions.
Applicant’s submissions dated 13 February 2017 with attachments
Following that letter, the applicant's migration representative requested a recording that was provided, following which on 13 February 2017 an email was sent with the subject "Submission in Relation to Client X" with the client's name and under the heading Attachments a reference “Submission re X; form f2.pdf; medical reports (1).pdf, medical reports (2).pdf; photos.docx".The email from the solicitor stated “Please find attached my submission in relation to Client X.” What followed was a submission document which sought to engage with the adverse findings made by the delegate. Those submissions also specifically addressed the finding that the father was not a member of the Ba’ath Party. The submissions also included certain country information.
Relevant to the circumstances of the present case, the photographs provided, included a picture of what was said to be a “certificate of bravery during the Iraq-Iran war” which in the applicant's statement that was provided to the delegate, was clearly a picture of his father.
A further picture of three medals was provided which Figure 2 described as “bravery medals granted to the applicant's father from Saddam Hussein during the Iraq-Iran war.”
The annotation to Figure 2 is as follows:
“We think that the first medal on the left is a bravery medal, it dates to the Gulf War 2 era.”
In respect of Figure 2, there was a reference made to the second medal which is as follows:
“The second (medal) in the middle is known as the mother of all battles medal, it was awarded to all troops who participated in the invasion of Kuwait and the subsequent battles the following years.”
Figure 2 also referred to the third medal being “the Ba’ath Party badge” which it was asserted, identifies the wearer as a member of the Ba’ath Party.
There was then a photograph provided which at Figure 3 is allegedly of the applicant's father with another three army officers. There is then another photograph at Figure 4 allegedly of the applicant's “father in the army during the 1980 war”.
Another photograph was provided allegedly of the applicant's father at Figure 5 with the description “first lieutenant" and a further photograph of the applicant's father under which appears a description at Figure 6 "applicant's father as second lieutenant".
Irregular Maritime Arrival Entry Interview
In the Irregular Maritime Arrival Entry Interview, the applicant was asked questions under Part C Reason to leave. Such questions included “Tell me briefly why you moved from Iraq to Syria in 2008?” to which the applicant responded “Because they killed my father and my brother and I could not live in Iraq.” The applicant was asked “Who killed them?” and the applicant responded “Unknown people.” The applicant was subsequently asked “Why?” to which the applicant responded “because he was in the army.”
There were further questions put to the applicant which included as follows:
“What group did these unknown people belong to?”
“Why was your brother killed?”
“Are there any other reasons why you left Iraq?”
Following these questions, the applicant was asked “What was your father’s rank was in the military?” to which applicant responded “Brigadier General” and a follow up question “Is that a high position?” to which the applicant responded “Yes.” The applicant was also asked “What was his role?” and he responded “He was in the army. He was controlling a base but I did not know anything about his job.”
Following the Irregular Maritime Arrival Entry Interview, the applicant subsequently provided a statement in which he identified that he feared harm because of an imputed political opinion due to his father's army service and Ba’ath Party membership. There was also a reference to the applicant fearing harm from militia groups who target members of the old regime and their families.
After referring to the incident in which his father and brother were murdered in 2008, the applicant indicated that his father was an officer in the pre-invasion Iraqi army under the Saddam Hussein regime. The statement asserted that the applicant “held the rank of a three-star officer which translates to Captain in English”. The statement asserted that “this was misinterpreted as the rank of a Brigadier general in my arrival interview.” The reference to three-star was, presumably, a further error referring to three pips.
The applicant's statement continued as follows:
“My father was in the regular Iraqi army, not the Republican Guard. I am not sure when he joined the army or what tasks he did specifically, I just remember that he was in the army the whole time I was growing up and until the invasion in 2003. No one else in my family was a member of the army.”
The statement asserted that the applicant's father was a member of the Ba’ath Party.
Information before the Authority
The Authority's decision dated 12 April 2017 identified the background of the visa application. The Authority's decision identified having regard to the information under s 473CB of the Act. The Authority expressly referred to receiving a submission on 13 February 2017 from the applicant’s representative, which the Authority noted had subsequently withdrawn and that the applicant was now unrepresented.
The Authority referred to the submission including argument addressing the delegate’s decision. The Authority identified that that was not new information by reason of which it is apparent the Authority had regard to that information. The Authority then referred to the submission which contained a reference in detail to six items of information. Following those six items, the Authority referred to s 473DD of the Act and summarised the requirements of the whole of the limbs of the provision.
The Authority evaluated the respective items, and in respect of two of the items, the Authority was satisfied that they were important matters for consideration and the Authority was satisfied that exceptional circumstances existed to justify considering that information. The Authority’s reasons in relation to those two items make express reference to the credibility of the information that was not previously known and had it been known, may have affected the outcome of the applicant’s claims.
In respect of the other information, the Authority was not satisfied that exceptional circumstances existed to justify their consideration. Other than the reference to having received the submissions, there is no express reference to the photographs that were provided with the submissions or the annotations to those photographs.
The applicant’s claims
The Authority identified the applicant’s claims, relevantly identifying the claim that his father was a well-known officer who held the rank of Captain in the Iraqi military under the former Ba’athist regime. It was asserted that the applicant’s father was a Ba’ath Party member.
The Authority took into account the applicant’s mental health and was not satisfied that the applicant’s ability to give evidence was significantly impaired due to his poor mental health.
The Authority referred to the applicant’s practise of religion and that he had not actively practised his Shia religion. The Authority did not accept the applicant was or is of adverse interest to armed Shia groups, or any other group or person, on the basis that he does not actually practise his Shia faith.
The Authority referred to the alleged kidnapping in 2007. The Authority was of the view that this was of a short duration and a minor nature taking into account the amount of time that has since elapsed since it is claimed to have occurred. The Authority found it likely the reason for the applicant’s detention by the militia group was his presence in the course of his work as an unfamiliar non-resident in an area of Baghdad. The authority did not accept that Shia militia groups or any other groups or person had or have any adverse interest in the applicant on the basis of his appearance. The Authority did not accept the applicant who was at the time a junior employee at Pepsi who undertook this work at least 10 years ago, would be of current interest to any armed group on the basis of his involvement with that company.
The Authority made reference to a car bomb incident and found that the attack did not target the applicant individually.
The Authority made reference to the father’s role in the Iraqi military and the Ba’ath Party. The Authority made reference to the applicant claiming that his father was an officer with the rank of Captain in the Iraqi military during the Ba’ath regime and a member of the Ba’ath Party. The Authority referred to the applicant’s statement that during Saddam’s time, everyone had to be a member of the party. The Authority made reference to there being independent information indicating that membership of the Ba’ath Party was a precondition for state employment under the former regime. The Authority made reference to the applicant’s claim that after the fall of the Ba’ath regime in 2003, his father left the military and worked on his garden. The Authority noted that the applicant said that his father had no involvement in the Ba’athist political activities after the fall of the regime.
The Authority made reference to the Irregular Maritime Arrival Entry interview in which the applicant described his father’s role as “Brigadier-General”, and indicated that his father’s role was a senior one. The Authority made reference to the fact that in the TPV application, the applicant claimed that his father’s rank was misinterpreted in the entry interview and that his father was in fact a Captain. The Authority made reference to the proposition that the rank of captain is significantly more junior than that of “Brigadier-General”.
The Authority made reference to the applicant’s claims that his father was well-known due to his military role and involvement in the Ba’ath Party. The Authority made reference to the applicant’s claim that he would be imputed with a political opinion due to his father’s prominent position as an officer in the Saddam Hussein regime and his membership of the Ba’ath Party.
The Authority then made reference to the proposition that the basis for the applicant’s father being well-known and holding a prominent position in the military is unclear, and that the applicant has not provided any evidence in support of this assertion. The Authority continued that it is not clear whether this claim rests solely on the applicant’s father’s rank in the military or whether there are other aspects to his roles or actions that might have led him to have a higher profile than other mid-level officers. The Authority did not accept the applicant's father's rank of Captain on its own would result in the applicant's father being perceived to have had a prominent position in the army.
The Authority made reference to the applicant being unable to describe the nature of his father's duties in the military in the TPV interview other than to say he was in charge of a base. The Authority referred to the claims involving his father's involvement in the Ba’ath Party and that the applicant referred to his father being well known because he was in the military and said everyone knew his father was in the Ba’ath Party. The Authority noted that the applicant did not claim his father was well known for any particular achievement, any involvement in any particular military action, any particular level of political activity, or any other reason other than his mere rank and membership of the Ba’ath Party.
The Authority accepted that the applicant was a child when his father's military career and involvement in the Ba’ath Party came to an end. It was understandable that he would have limited knowledge of his father's military duties or Ba’ath Party activities. The Authority observed however, that if it was the case that the applicant's father was particularly well known for any reason associated with his former role in the military or the Ba’ath Party other than his mid-level officer rank and ordinary membership of the Ba’ath Party, the Authority considered that the applicant would be aware of this, particularly given the claim that his father was killed due to his profile arising from these roles.
The Authority accepted the applicant's father was a mid-level officer and a member of the Ba’ath Party under the Ba’athist regime. The Authority did not accept that the father was perceived to have held a prominent or senior position in the military or that the father was perceived to have any association with the Ba’ath Party beyond what was required of all members of the military at that time. The Authority accepted that the former role of his father in the military and the past membership of the Ba’ath Party may have been known in his community in Baghdad and in his area of origin in Basra following the fall of the regime.
The Authority referred to the deaths of the applicant's father and brother. The Authority made reference to having found that the applicant's father was a former mid-level officer in the military and a former Ba’ath Party member who may have been known in his community in Baghdad at the time of the fall of the regime in 2003. The Authority noted that it did not accept that the applicant's father was perceived to have held a prominent position or any role in the Ba’ath Party beyond that required at the time. It was in those circumstances the Authority found it unlikely that the applicant's father or brother would have been targeted in the way claimed in 2008.
The Authority accepted that the brother and father were killed in 2008. The Authority found it more likely that the father and brother were killed as part of the generalised violence in Baghdad at the time. The Authority found however, that it could not be sufficiently confident that the applicant's father was not killed for any reason associated with his past military and/or links to the Ba’ath Party and therefore proceeded on the basis that the applicant's father and brother were killed in 2008 for reasons related to the applicant's father's former role in the military and the Ba’ath Party under the Ba’athist regime.
The Authority, having considered the information before it and the risk to members of the military and members of the Ba’ath Party under the Ba’ath regime, the more than eight years that have passed since the deaths of the applicant's father and brother and the absence of any threat to the applicant's mothers and sisters since the incidents, the Authority did not accept that the applicant is of current adverse interest to any armed group or other group or person anywhere in Iraq on the basis of his relationship to his father.
The Authority did not accept the applicant would be perceived to be opposed to the government on the basis of his deceased father’s membership of the Ba’ath Party or his former military role or for any other reason, or that the applicant would be of adverse interest to any group or person on this basis.
Assessment of Refugee Convention Criteria
The Authority did not accept the applicant was of adverse interest to any Shia military group on the basis of his relationship to his deceased father who was a mid-level officer in the Iraqi military and a member of the Ba’ath Party under the former Ba’ath regime, his brief past employment by Pepsi, his appearance, or his failure to actually practise Shia faith.
The Authority did not accept that the applicant would be of adverse interest to Shia militia group or any other armed group on the basis that he would be returning to Iraq as an unsuccessful asylum seeker who lived in Australia for approximately four years and Syria for approximately four years.
The Authority found there was no credible evidence to suggest the applicant would be of any adverse interest to Shia militia groups anywhere in Iraq for any of the reasons discussed in the future. The Authority was not satisfied there was a real chance of harm to the applicant now or in the reasonably foreseeable future.
The Authority made reference to having found that it did not accept the applicant was of any adverse interest to any armed group or on the basis of his relationship to his deceased father, who was a mid-level officer in the Iraqi military and a member of the Ba’ath Party under the former Ba’ath regime, on the basis of his appearance, or as a result of his failure to actually practise his Muslim faith, or on the basis that he would be returning to Iraq as an unsuccessful asylum seeker who lived in Australia for approximately four years and approximately four years in Syria.
The Authority, in considering the risk of harm from Sunni groups and the security situation in Baghdad, accepted that the applicant is a Shia from Baghdad. It was in those circumstances that the Authority found there is a real chance the applicant would face serious risk of harm on the basis of his Shia faith if he returned to Baghdad. The Authority made reference to the requirements of s 5J(1)(c) of the Act that the applicant have a well-founded fear of persecution in respect of a real chance of harm being one that must relate to all areas of Iraq.
The Authority made reference to the southern provinces including Basra, having remained significantly more secure in recent years, and that Shias in southern Iraq face a low risk of generalised violence and overall, internal relocation to southern Iraq could be a reasonable practical solution for Shia. The Authority was not satisfied that as a Shia, the applicant faces a real chance of serious harm in these areas.
The Authority did not accept the applicant would be perceived to be wealthy on the basis of his relationship to his deceased father, or that he would face any increased harm or extortion or kidnap for this reason. The Authority did not accept that the applicant would be targeted in criminal attacks perpetrated by any group or person if he returned to the south of Iraq.
The Authority took into account country information and while accepting that incidences of violence, including criminal violence, occur in the south of Iraq, the Authority was not satisfied there was a real chance of harm to the applicant on the basis of his Shia faith, his Shia name, his relationship to his deceased father who was a mid-level officer in the Iraqi military and a member of the Ba’ath Party under the former Ba’ath regime, his brief past employment by Pepsi, his appearance, his failure to actively practise his Shia Muslim faith, or as a result of the security situation in the south of Iraq, including in Basra. The Authority was therefore not satisfied there was a real chance of serious harm to the applicant on this basis relates to all parts of Iraq.
The Authority took into account the applicant’s health, and was not satisfied the applicant faced a real chance of harm on the basis of his mental condition now or in the reasonably foreseeable future.
The Authority took into account the applicant being an unsuccessful asylum seeker from the West, and the Authority was not satisfied that in combination with the other matters that the applicant’s circumstances would combine to expose him to a real chance of harm in Basra. The Authority found the applicant failed to meet the definition of refugee in s 5H(1) of the Act, and that the applicant did not meet the criteria under s 36(2)(a) of the Act.
Assessment of Complementary Protection criteria
The Authority made reference to the requirements of s 36(2B) of the Act in considering the applicant's claims under complementary protection. The Authority made reference to having found that the applicant would not face a real chance of harm in the southern provinces including Basra, on account of his Shia faith as a result of the general security situation, including the incidence of crime in the south of Iraq, as the son of a deceased former member of Iraqi military and the Ba’ath Party under the former Ba’athist regime, as a person who does not actively practise his faith, as a result of his health or appearance, on the basis of his former employment with Pepsi, as an unsuccessful asylum seeker who has lived in Australia, a western country for approximately four years and outside Iraq for a considerable period, or as a result of any combination of these matters.
The Authority took into account the country information in relation to southern Iraq being a reasonable and practical option for Shia Iraqis. The Authority found it would be reasonable for the applicant to relocate to Basra. The Authority made reference to the country information in relation to the southern governorate. The Authority made reference to the applicant's personal circumstances and the fact that he was born in Basra, although he left there at a young age.
The Authority took into account that the applicant's father's family and tribe come from Basra. The Authority noted that the applicant had not been in regular contact with his father's tribe and that the applicant said people from his father's tribe used to visit his home in Baghdad when he was a child. The Authority made reference to the applicant's claim that his tribe, including his uncles’, contributed to his costs when he moved to Syria in 2008. The Authority referred to the applicant having seen his tribe and his father's family at his father's funeral and wake which was organised in Basra where the applicant's father's family came from. It was in those circumstances that the Authority found that the applicant has relatives and tribal connections in Basra and that his relatives and members of his tribe would if required, act as sponsors and provide assistance or other support to the applicant in Basra on return to Iraq.
The Authority made reference to the applicant being a young man who received schooling to year 9 and in Iraq held several low-level short-term jobs. The Authority referred to the work that the applicant had undertaken. The Authority referred to the applicant's past positions and his mental health problems and found he was a resourceful man who demonstrated over a number of years that he is adaptable, able to live independently of his family and friends and capable of finding work in new settings. The Authority made reference to the position being that Basra is a large and relatively prosperous city, and the Authority was satisfied the applicant would be able to find some form of employment in Basra.
It was in those circumstances that the Authority was satisfied it would be reasonable for the applicant to relocate to and remain in Basra where the authority found that there is not a real risk that the applicant will suffer significant harm.
The Authority found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Iraq that there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act.
Before this Court
The grounds of the amended application are as follows:
Ground 1 - Error of Law - The Tribunal acted outside of jurisdiction in overlooking photographic evidence provided by the Applicant relating to his father's role in the military and accordingly failing to determine whether the evidence was able to be considered in the review pursuant to section 473DD of the Migration Act 1958 (Cth)
Particulars
The Applicant provided information to the Tribunal that had not been before the delegate, this information included the photographic material at CB236-242
This photographic material included photographs of a bravery medal and a bravery certificate awarded to the father of the Applicant.
This material was not referred to in the Tribunal's discussion of purported new information provided by the Applicant at CB258-259, leading to the conclusion it was overlooked.
The role of the Applicant's father in the Iraqi Army and whether he was 'well known' or not in that role, was in issue in the review undertaken by the Tribunal, at CB265-266.
The Tribunal held at CB265, “The basis for the claim that the applicant's father was well known or held a 'prominent position ' in the military is unclear and the applicant has not provided any evidence in support of this assertion. It is not clear whether this claim rests solely on the applicant's father's rank in the military or whether there were other aspects to his roles or actions that might have led him to have a higher profile than other mid-level officers. I do not consider that the rank of captain, on its own, would result in the applicant's father being perceived to have had a prominent position in the military''.
The Tribunal held at CB266 “I accept that the applicant's father was a mid-level officer and a member of the Ba’ath Party under the Ba'athist regime. I do not accept that he was perceived to have held a prominent or senior position in the military or that he was perceived to have had any association with the Ba’ath Party beyond what was required of all members of the military at the time. I accept, however, that his former role in the military, and his past membership of the Ba’ath Party, may have been known in his community in Baghdad, and in his area of origin in Basra, following the fall of the regime".
Ground 2 - Error of Law - The Tribunal acted outside of jurisdiction by proceeding on the basis of a certificate invalidly issued pursuant to section 4 73GB(5) of the Migration Act 1958 (Cth)
Particulars
The certificate at CB198 is invalid as it does not state the basis for a claim of public interest immunity in the same sense as the certificate the subject of decision in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (7 September 2016)
Ground 3: Error of Law - The Tribunal acted outside of jurisdiction in failing to complete the statutory task imposed by section 4 73DD of the Migration Act 1958 (Cth) by failing to consider whether purported 'new information' provided by the Applicant satisfied subparagraph (b) of the section
Particulars
The Tribunal considered six pieces of purported new information provided by the Applicant, at CB258.
The Tribunal in its decision, at CB259 stated the following as to the statutory test applicable to new information:
“Section 47 3DD requires that the IAA must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. In relation to information provided by the applicant, there is a further requirement that the applicant must satisfy the IAA that the new information was not, and could not have been, provided to the delegate before the delegate made her decision, or that the new information is credible personal information that was not previously known and, had it been known, may have affected the outcome of the applicant's claims".
However when considering each of the four pieces of new information which the Tribunal declined to consider the Tribunal did not apply the full statutory test, stating as follows:
CB260, “Information about the treatment of Ba’athists (item 'a') and crime in Basra (items 'b' and 'c ') “Having carefully considered the circumstances, I am not satisfied that there are exceptional circumstances to justify the consideration of this new information".
CB260, “Information about the risk of kidnap faced by unsuccessful asylum seekers (item‘d’)”. “There is other information before me regarding the incidence of kidnapping in Iraq, including for profit and in view of the equivocal nature of this new information, I am not satisfied that exceptional circumstances exist to justify its consideration".
In BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (18 August 2017) White J stated:
“For these reasons, I respectfully disagree with the conclusion of the FCC Judge on this point. In my opinion, the FCC Judge erred in failing to find that the IAA had considered only the subpara (a) requirement. The FCC Judge had accepted (at [23]) that it would have been erroneous for the IAA not to have considered the subpara (b) requirement. It follows that the FCC Judge should have found jurisdictional error by the IAA in failing to discharge the task of review imposed by s 473DB(1) ".
Ground 4: Error of Law - The Tribunal acted outside of jurisdiction in unreasonably and in the absence of evidence finding at [91] “I am satisfied that the applicant has relatives and tribal connections in Basra and that his relatives and members of his tribe would, if required, act as sponsors and provide assistance or other support to him in Basra on his return to Iraq".
Particulars
The Tribunal found at CB 275 that the Applicant faced, “a real chance of serious harm in Baghdad in the form of significant ill treatment, including possible loss of life, on the basis of his Shia faith and the security situation in Baghdad' and accordingly was required to consider relocation within Iraq.
The Tribunal noted at CB276 that, “In UNHCR's view, an internal relocation alternative would only be available in the exceptional circumstances where an individual can legally access and remain in the proposed area of relocation, would not be exposed to a new risk of serious harm there, and has close family links in the proposed area, with the family willing and able to support the individual".
The Tribunal found at CB276, “He claims that his father's family and tribe come from Basra. Although he was not in regular contact with his father 's tribe, he said people from /t is father's tribe used to visit his home in Baghdad when he was a child. He claimed that 'his tribe, his uncles' contributed to his travel costs when he moved to Syria in 2008. He saw his tribe and his father's family at his father's funeral and wake which was organised in Basra, where his father's family came from, rather than in Baghdad, where his father died. Having regard to this information, I am satisfied that the applicant has relatives and tribal connections to Basra and that his relatives and members of his tribe would, if required, act as sponsors and provide assistance or other support to him in Basra on his return to Iraq”.
The evidence did not support the finding above and the finding as to relocation was unreasonable and made in the absence of evidence.
Mr Bodisco of counsel confirmed that ground 2 was abandoned.
Reasoning
Ground 1
In relation to ground 1, Mr Bodisco of counsel submitted that the photographs attached to the submissions were new information within s 473DD of the Act and that the Authority had failed to complete its task in the exercise of its jurisdiction in evaluating. Mr Bodisco submitted that the photographs were new information within s 473DC of the Act.
Section 473DC of the Act is as follows:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
Whether information is new information involves a consideration by the Authority whether it may be relevant. In the present case, the applicant’s claim in relation to the prominence of his father concerned his father’s rank and involvement in the army. The applicant made no particular claim as identified by the Authority that his father had prominence in the military for any particular reason.
The Authority’s reference to the applicant not having provided any evidence in support of his assertion of his father having a well-known or prominent position in the military, on its face, is correct. The provision of the photographs was not the subject of any submission or identification of the significance of the photographs in relation to an alleged claim of prominence. The Authority accepted that the father was of mid-level rank in assessing the applicant’s claims. It was a matter for the Authority to consider whether the photographs were new information.
On the face of the Authority’s reasons, it is apparent that the Authority took into account the submissions that were provided in which the photographs were annexures in considering whether or not there was new information within s 473DC of the Act. On the face of the photographs, it is not apparent why they were relevant to the claim being advanced by the applicant. It was not necessary for the Authority in its reasons to deliberate upon what, on any view, was not credible, relevant and significant information.
It was open to the Authority to treat the photographs as not being relevant and therefore not being new information within s 473DC of the Act. On a fair reading of the Authority’s reasons, that is precisely what the Authority did. It is not necessary for the Authority to refer to every piece of evidence adduced. The absence of reference by the Authority to the photographs is entirely consistent with the photographs being assessed by the Authority as not being relevant. No jurisdictional error as alleged in ground 1 is made out.
Ground 3
In relation to ground 3, Mr Bodisco of Counsel submitted that the Authority had erroneously focused on only one limb in respect of exceptional circumstances in considering the requirements of s 473DD of the Act. The difficulty faced by Mr Bodisco in that regard was that the decision of the Authority in the present case clearly referred to the whole of the provisions in s 473DD of the Act. That is a basis for distinguishing the cases most recently culminating in a decision in CHF16 v Ministerfor Immigration and Border Protection [2017] FCAFC 192, relevantly, at [44] and [45].
Further, the Authority’s reasons make express reference to consideration of both limbs in the evaluation of whether there are exceptional circumstances. No jurisdictional error as alleged in ground 3 is made out.
Ground 4
In relation to ground 4, Mr Bodisco of counsel submitted that a finding by the Authority in relation to the applicant being able to obtain support from his relatives and members of his tribe was either not the subject of any evidence or was unreasonable. Mr Bodisco argued that the finding by the Authority in paragraph 91 was no more than guesswork and speculation. It is apparent on the Authority’s reasons, that it was open to the Authority given the identified connections with Basra, to make the findings made in paragraph 91. It cannot be said that that finding was legally unreasonable. The finding was open for the reasons given by the Authority. No jurisdictional error as alleged in ground 4 is made out.
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 6 February 2018
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