Cax18 v Minister for Immigration - [2021] FCCA 531

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAX18 v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 531

Catchwords:
MIGRATION – Application for judicial review – Temporary Protection Visa – review of decision of Immigration Assessment Authority – protection visa – Sunni Iraqi – whether the Authority failed to properly consider applicant’s claim to fear harm as member of a particular social group – whether the Authority failed to first consider whether the particular social group ‘son of a Moazin or prayer caller’ existed – whether Authority required to do so in light of factual finding – whether the Authority erred by reconciling two conflicting country information reports – whether the Authority failed to properly consider country information – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5J, 476

Cases cited:

AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053

BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543

Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26; (2003) 197 ALR 389

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30;

(2001) 206 CLR 323

MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 134; (2005) 147 FCR 51

Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200

SZJRU v the Minister for Immigration and Citizenship [2009] FCA 315

SZNOE v Minister for Immigration and Citizenship [2012] FCA 96

Applicant:

CAX18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1138 of 2018

Judgment of:

Judge Baird

Hearing date:

5 November 2019

Date of Last Submission:

1 November 2019

Delivered at:

Sydney

Delivered on:

23 March 2021

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Mr R Pathmanathan, Westside Legal

Solicitors for the Respondents:

Mr L Dennis, Minter Ellison

ORDERS

THE COURT:

AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
DISMISSES the amended application filed 16 August 2019.
ORDERS that the Applicant pay the First Respondent’s costs fixed in the sum of $7,328 (inclusive of the costs ordered on 15 August 2019).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1138 of 2018

CAX18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) in which the Applicant seeks judicial review of a decision of the Immigration Assessment Authority made on 27 March 2018, affirming the decision of a Delegate of the First Respondent, the Minister for Home Affairs (now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), made on 8 February 2018 to refuse to grant the Applicant a Temporary Protection (subclass 785) Visa.
On 20 April 2018, the Applicant filed in this Court his application for judicial review of the Authority’s decision. When the matter was listed before me for hearing on 15 August 2019, on the oral application made by Mr Zipser of counsel on behalf of the Applicant, I granted leave to the Applicant to file and serve an amended application substantially in the form handed up to the Court dated 15 August 2019. I also granted the application for an adjournment, and adjourned the hearing to a date to be fixed administratively, after consultation with the parties’ legal representatives. Further to that grant of leave, the Applicant relies on an amended application filed 16 August 2019, and the two grounds in that amended application. At final hearing, Mr Zipser, counsel appearing for the Applicant, confirmed that he pressed both grounds.

Background

The Applicant is a Sunni Muslim from Basra Province in the South of Iraq. He entered Australia by boat on 9 September 2012, as an unauthorised maritime arrival.
By letter dated 11 August 2016, the Minister exercised his discretion under sub-s.46A(2) of the Act, allowing the Applicant to make a valid application for a temporary protection (subclass 785) visa (TPV), or a safe haven enterprise (subclass 790) visa (SHEV). On 31 October 2016, following the lifting of the bar by the Minister, the Applicant applied for the Visa, which was received by the Department of Home Affairs on 1 November 2016. The application for the Visa included a statutory declaration of the Applicant dated 17 September 2016.
On 6 December 2017, the Applicant attended an interview with the Delegate, and on 8 February 2018, as I have said above at [1], the Delegate issued a decision refusing to grant the Applicant the Visa.
On 16 February 2018, the Authority sent the Applicant a letter informing him of the referral of the Delegate’s decision to the Authority for review as a fast track reviewable decision under Part 7AA of the Act. On 3 March 2018 the Applicant’s then migration agent provided a written submission to the Authority. As I have said above at [1], the Authority made its decision affirming the decision of the Delegate.

The Applicant’s claims

The Applicant claims to fear harm on account of his Sunni religion and general sectarian violence in Iraq.
In his arrival interview (undated) he said:
I seek protection and I seek asylum. I left Iraq because they killed by brother and father.
In support of his claims the Applicant claimed, as summarised by the Authority at [5] of its decision:
(a)he was born in [redacted] in Basra province. He and his family are Sunni Muslims. He lived in [redacted, Area], which has a population of about 30% Sunni. In 2005, men came to the family home and told his mother that the family had five days to leave or their house would be burned down. The men said that they were from the Mehdi Army. The family relocated to [redacted, Suburb] a suburb of Basra City;
(b)the Applicant worked as a taxi driver in Basra. He suffered discrimination due to being Sunni. When he was stopped at the checkpoints they would make him wait for a prolonged period, which led to passengers leaving and taking another cab. He was also vilified by the local mayor, or mukhtar, who would say to people that their family were terrorists and criminals. Because of the problems associated with driving a taxi the Applicant undertook some alternate work driving a truck, but he still encountered delays at the checkpoints due to being Sunni;
(c)on 20 November 2011 four men burst into the family home early in the morning. They were armed and dressed all in black, like the Mehdi Army. They put all of the family in one room, tied and blindfolded them, and beat them with their rifle butts. They took away the Applicant's father and his brother [redacted, Brother]. After the men left, the neighbours came in and freed the family. One of the neighbours described the car that the men had been in, which had a sticker of Moqtada al-Sadr on it;
(d)after they treated their wounds they went to the police, then started searching for the Applicant’s father and Brother. On 23 November 2011 the same car drove up to the Applicant’s family home and threw out the bodies of his father and Brother. They had been shot;
(e)ten days after this the family left Basra and returned to the Area. They lived on a farm in a remote area outside of the Area. The Applicant stayed in hiding until departing Iraq in July 2012. If he returns to Iraq they will kill him because he is a Sunni.
In his statutory declaration dated 17 September 2016 (made in support of the application for Visa), the Applicant said in relation to his father’s and brother’s death as follows:
[7]My father was recently killed in Iraq through and attack by members of Shia militias. My mother is a widow and living in Iraq.
[8]I had two brothers, my [Brother] was killed in the same Shia militia attack that killed my father. I also have three sisters who are all living in Iraq…
and further described the attack on his father in 2011 as summarised by the Authority: see above at [9].

The Delegate’s decision

As I have said at [5], the Applicant attended an interview with the Delegate on 6 December 2017. His migration agent was present at the interview. The Delegate recorded in its decision the further details of the attack on his father, and the Delegate’s concerns as follows (third paragraph under the heading ‘Abduction and murder of father and brother’ on the un‑numbered third page of the decision):
At his PV interview the applicant stated that the men didn’t say anything apart from swearing and making comments about the family being Sunnis. The applicant stated the men were in the house for 30 minutes. The applicant stated that the BMW had a logo on it and a picture of Moqtada al-Sadr, the leader of the Mahdi army. When asked why the applicant’s father and brother were targeted, the applicant noted that his father and his brother cleaned at the mosque and the applicant’s agent stated that the father was an assistant to the caller (for prayers).
The Delegate accepted that the Applicant’s father and brother were abducted and then killed. The Delegate noted the above testimony of the Applicant regarding his father and brother being targeted but observed (at the first paragraph under the heading ‘Murder of father/brother’ on the un-numbered fourth page of the decision):
Nonetheless this is speculative and not supported by evidence.
The Delegate found in relation to the targeting of the Applicant’s father and Brother as follows (at the last paragraph on the un-numbered fourth page of the decision):
I find that the [Brother] and his father were targeted by the militants for reasons which are unclear either because the applicant is not aware of them or has not provided information about. The applicant could have easily been kidnapped or killed by the men on 20 November 2011 or in the days that followed. That the applicant’s relatives were taken away rather than killed on the spot suggests the motive was more than purely sectarian and is indicative of a desire to interrogate the relatives for information. This would indicate [Brother] and the applicant’s father held a specific interest to the persons who abducted and killed them, that the applicant did not share.
The incident took place over seven years’ ago. Based on the reasons outlined above, I find that the applicant does not face a real chance of serious harm in the foreseeable future for the reason that his father and brother were abducted and killed in November 2011.
The Delegate further noted that apart from incidents in 2005, and the abduction and killing of his father and brother in November 2011, the Applicant does not claim to have been harmed or threatened due to his religious beliefs while expressing that he “lived in an atmosphere of sectarian tension and fear.”

Relevant information submitted to the Authority

In the submission made by the Applicant’s agent to the Authority, the agent referred to the Delegate’s finding that the Applicant’s conclusions as to why his relatives were targeted were speculative and not supported by evidence, and stated, in a paragraph on which Mr Zipser relies:
The applicant’s father was a person who used to be a “prayer caller” which puts him under the category of “Imam” or religious scholar, hence the reference to the applicant’s opinion about his father’s killing motives as “speculative” is not based on the country information of these perspective (sic) years, Overall the delegate accepted that the applicant’s father and brother were killed.
The agent referred to country information and submitted “…I refer to the above-mentioned country informations (sic) to support the idea that the father and the brother were killed for religious reasons, and that the applicant is at risk because he is a member of his family MPSG as “son of Muezzin or prayers caller”.

The Authority’s decision

The Authority had regard to the material referred to it by the Secretary under s.473CB of the Act. The Authority referred to the agent’s submission, and at [3] stated:
The submission [by the agent] restates the applicant’s claims and addresses the delegate’s decision and findings. As such, those parts may be regarded as argument rather than new information and I have had regard to it”.
The Authority considered quotes from country information referred to by the agent and dealt with them in a manner which is not the subject of review.
The Authority accepted the incidents in 2005 and 2011 occurred. The Authority found however that the Applicant himself was not targeted, nor was he of any interest to, the Mahdi army or other Shia militia groups at the time of or as a result of the claimed events. The Authority observed that “He has not indicated that any groups were seeking him and I conclude that none were”. The Authority did not accept that the Applicant did not leave the farm for the whole period after he, his mother, sisters, wife and children moved to it, until he departed Iraq (at [7], [9] respectively).
In relation to the Applicant’s Sunni religion, the Authority at [12] observed that the Applicant is from Basra Province in the south of Iraq and that the overwhelming majority of the population of southern Iraq is Shia.
The Authority had before it two country information reports - a UK Home Office report and a DFAT country report - both published in June 2017 which it stated, “are authoritative sources of information about Iraq published at similar times” (at [15]), which offered “apparently differing assessments”.
The Authority introduced into its decision at [12] the two country information reports as follows:
(a)in relation to the DFAT country report, “DFAT reports that contacts in Iraq have said that tolerance of religious minorities remains higher in southern Iraq than in central Iraq.”;
(b)In relation to the UK Home Office report,
In June 2017 the UK Home Office assessed that while there are some reports that Sunnis have experienced human rights abuses at the hands of Shia militia or unknown perpetrators in the southern provinces, it does not appear to form part of consistent or systemic risk to Sunnis in the southern province. The same report notes that various nonstate actors, primarily the power Shia militia (who number, in some estimates, in the tens of thousands), have violated the human rights of Sunnis in a number of governorates.…
The Authority continued at [13]:
In the view of the UK Home Office, in general a Sunni will not face a real risk of persecution or serious harm in the southern provinces, although the Home Office encourages decision makers to consider whether there are particular factors specific to the individual applicant which would place them at real risk. The Home Office suggested that a Sunni may be able to demonstrate a real risk of persecution or serious harm from Shia militia, but this will depend on their personal profile, including their family connections, profession and origin. I note that the UK report draws on a UK Upper Tribunal ‘country guidance case’ that was heard in late August 2016 and promulgated in January 2017.
Further in relation to the DFAT country report, the Authority stated at [14]:
The DFAT country report on Iraq, also published in June 2017, appears to offer a less favourable assessment of the situation faced by Sunnis in the south of Iraq. DFAT assesses that Sunnis in Shia‑dominated areas, including Shia areas of Baghdad and the southern provinces of Iraq, face a high level of societal discrimination and violence. DFAT does not elaborate on the nature of the risks, or the incidents of violence faced by Sunnis in these areas, but reports generally that official and societal discrimination and violence towards Sunnis in Iraq is increasing and tolerance for Sunnis in non‑Sunni areas has declined.
Having referred to both reports, the Authority then stated at [15]:
I consider that it is possible to reconcile the apparently differing assessments offered by the DFAT and UK Home Office reports, both of which are authoritative sources of information about Iraq published at similar times. DFAT offers an overall assessment of the level of violence faced by all Sunni Iraqis in all Shia areas, while the UK Home Office report recognises that Sunnis in the south of Iraq may face a real chance of harm depending on their individual circumstances. I conclude that some Sunnis, depending on their profile, may face a real chance of harm in the south of Iraq.
The Authority at [16] said as follows:
The applicant has claimed that he and his family were forced to move from their home in [Area] in 2005 by the Mehdi Army and I accept that this occurred. I have also accepted that his father and brother were killed in Basra city by a Shia militia group in November 2011. I have however found that the applicant was not of adverse interest to any militia groups prior to his departure from Iraq in July 2012. I am not satisfied that being the son of a Moazin or prayer caller has led to him being of adverse interest to Shia militia groups or individuals, that it would do in the foreseeable future or that he faces a real chance of harm due to this. The applicant has not claimed to have been of interest to the Iraqi authorities. The applicant has claimed that he was subject to discrimination, such as more intrusive inspections and consequent delays at checkpoints, also that he was harassed and verbally abused by the local mukhtar in their previous neighbourhood in Basra city. I accept that these things occurred and that similar events would likely occur in the future. The applicant has not claimed that he or his family were threatened at all by the mukhtar. Having regard to the extensive examples provided in s.5J(5) of the Act, I do not accept that such discrimination or verbal harassment as the applicant suffered and may suffer in the future, constitutes serious harm.
At [17], the Authority did not accept the Applicant would face harm on account of his Sunni faith. It also found that the Applicant’s capacity to subsist would not be threatened, to the extent that it would amount to serious harm, nor would any unemployment be experienced due to matters set out in sub‑s.5J(1)(a) of the Act.
The Authority did not accept that having regard to the country information and the Applicant’s profile, the Applicant would face harm on account of sectarian or generalised violence (at [18] – [19]).
At [20], the Authority noted that the Applicant did not claim to fear harm as a failed asylum seeker, but nevertheless found he would not face harm for this reason. It rejected the Applicant’s claims, affirming the Delegate’s decision.

Grounds of the amended application

The grounds of review set out in the amended application are as follows (without alteration, save for the removal of underlining):
1.Ground 1: The Immigration Assessment Authority (“the Authority”) had before it a UK Home Office report and a DFAT country report which provided competing assessments concerning the risk of harm to Sunnis in the southern provinces of Iraq. The DFAT country report assessed that “Sunnis in Shia‑dominated areas, including …the southern provinces of Iraq, face a high level of societal discrimination and violence”: Authority’s decision at [14]. The Authority at [15] found “that it is possible to reconcile the apparently differing assessments offered by the DFAT and UK Home Office reports” and, on undertaking a reconciliation, “conclude[d] that some Sunnis, depending on their profile, may face a real chance of harm in the south of Iraq:. The Authority went on to conclude at [16]-[19] that the applicant did not face a real chance of harm if required to return to Iraq. The Authority erred in the manner in which it reconciled the two reports. By reconciling the two reports as explained at [15], the Authority discontinued and failed to properly and genuinely consider the assessment in the DFAT report.
2.Ground 4: The applicant, through his agent, claimed at CB 141 that he faced a real chance of harm on return to Iraq as a member of a particular social group “son of Moazin or prayer caller”. The Authority at [16] was “not satisfied that being a son of a Moazin or prayer caller has led to him being of adverse interest to Shia militia groups or individuals, that it would do in the foreseeable future or that he faces a real chance of harm due to this”. The Authority failed to properly consider the membership of particular social group as an element in its assessment of the applicant’s claims. Among other reasons, the Authority failed to first consider whether the particular social group existed in Iraq.

The proceeding before this Court

As I have said, at hearing the Applicant was represented by Mr Zipser of counsel. The Minister was represented by Mr Dennis, solicitor. Mr Zipser and Mr Dennis addressed ground 2 and then ground 1, and I consider them in the same order.

Ground 2

By Ground 2 the Applicant contends that the Authority erred by failing to consider or properly deal with the Applicant’s claim to fear harm as a member of a particular social group (as I understand the acronym “MPSG” used in the agent’s submission to propound) because he was a “…son of Moazin or prayers caller.”; the Authority failed to first consider whether such a social group existed.

Submissions

Mr Zipser drew attention to the Authority’s summary of claims at [5], and findings at [7] and [9], and stated that the Applicant does not challenge the Authority’s findings that at the time the Applicant left Iraq no groups were seeking him.
He notes that the Authority accepts that the Applicant’s father and brother were killed in Basra city by a Shia militia group in November 2011. The Applicant does not challenge the finding that the Applicant was not of adverse interest to any militia groups prior to his departure from Iraq in 2012.
Mr Zipser contends that the Authority’s error lies in how it dealt at [16] of its decision (see at [25] above) with the above claim to fear harm as a member of a particular social group (noting, as above). He submits that the Authority in its consideration conflated a number of issues, and failed to first, determine whether the particular claimed social group exists, and secondly, whether the Applicant is a member of the particular social group, in order to then determine whether he faces a real chance of harm as a result of his membership.
Mr Dennis for the Minister submits that in circumstances where the Authority has found that the Applicant’s claims are not well founded, it does not need to determine whether any claimed particular social group exists. He submits that the Authority’s finding at [16] was dispositive of the Applicant’s claim.
It was unnecessary for the Authority to consider whether the particular social group existed. Mr Dennis drew attention to SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78] per Greenwood J (citations omitted):
Further, as Burnett FM correctly notes, there is clear authority for the proposition that the principles exposed by Dranichnikov v Minister for Immigration and Multicultural Affairs do not require the Tribunal to consider whether the particular social group of which the appellant claims to be a member (either expressly or implicitly by reason of the material) is a “social group” for the purposes of Art 1A(2) of the Refugees Convention (and the Act), in circumstances where the Tribunal has found that the appellant does not hold a well-founded fear of persecution as contemplated by s 91R(1) of the Act for any Convention reason. Unless the Tribunal makes a jurisdictional error, on the question of fact of whether the applicant holds a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to identify and consider the precise social group to which the applicant claims membership.
Mr Dennis submits that the Applicant’s reference to the particular social group in his agent’s submission to the Authority was part of the pool of information already before the Authority from the Delegate’s decision, and, accordingly, the submission was not such as to require the Authority to consider the application of s.473DD of the Act other than in the way it did at [3] of its decision.
Referring to the decision of Farrell J in AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053 at [49], Mr Dennis submits that it is possible for an applicant to make a new claim from an existing pool of information, and therefore the Authority does need to go through the issues applying to the consideration of new information under s.473DD of the Act, and may go to the substance of the claim as it has done so in the present case. Whilst the Authority could have set out its consideration in [16] in a different manner, there is no jurisdictional error because the Authority’s consideration was sufficient to dispose of the claim.

Consideration

In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, the High Court of Australia set out a series of steps that a decision maker (in the present case, the Authority) must follow when determining whether an applicant falls within the Convention definition of ‘refugee’ by reason of a well‑founded fear of persecution due to membership of a particular social group. The majority (Gummow, Hayne and Callinan JJ at [26]) identified the steps to be taken by a decision maker, which may be summarised as follows:
(a)first, to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the convention. This question involves, in part, a question of law;
(b)if that question is answered affirmatively, the next question is one of fact, whether the applicant is a member of that class;
(c)there then follows the questions whether the applicant has a fear, whether the fear is well-founded, and, if it is, whether it is for a convention reason,
(see adoption of steps by Collier J in BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [16]).
At [16] of its decision, the Authority identified its earlier factual findings of the Applicant’s and family’s flight in 2005, and his father’s and brother’s deaths in 2011 by a Shia militia group, which it accepted. Further to those findings, it found that the Applicant was not of adverse interest to any militia groups prior to his departure. As I have set out above, at [16] it was “not satisfied that being the son of a Moazin or prayer caller has led the Applicant to being of adverse interest to Shia militia groups or individuals, that it would do so in the foreseeable future or that he faces a real chance of harm due to this”.
The Authority thus finds that the Applicant’s fear of harm is not well founded, and in relation to the future, addresses the third question in Dranichnikov.
In BRGAE the Federal Court held that moving to this last step in Dranichnikov can be proper, and it is proper to avoid (or, I consider not to undertake the task of) identifying the appropriate “particular social group” if it is unnecessary to do so. If there is a finding that an applicant did not have a well-founded fear of persecution as a matter of fact, it is not necessary to address whether any claimed particular social groups exist: see also at [21] – [25].
I note that at [77] of SZNOE, his Honour held that in circumstances where a tribunal makes a positive finding that there is no real chance that an applicant would face convention-related persecution, now or in the reasonably foreseeable future, for any reason, it was not necessary for the tribunal to consider whether a particular social group was constituted for the purposes of the Act, and whether the applicant is – and, at the relevant time, was – a member of such a group in order for the tribunal to properly discharge the statutory review function.
The Authority identified and applied the Applicant’s description of himself (as a son of a Moazin or prayer caller - MPSG) and found that so being did not lead the Applicant to have a well-founded fear of persecution. The Authority’s analysis is that described in SZNOE at [77]‑[78], and that it failed to identify and consider whether there was such a “social group” of persons being MPSGs, or whether being a MPSG was being a member of a particular social group (to put the obverse) does not in the present case constitute error.
As Greenwood J there said, ‘Put another way, this is a case where “the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection.’ (referring to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [95] per McHugh, Gummow, and Hayne JJ).
Whilst Mr Zipser submits that Greenwood J in SZNOE put the proposition too broadly, and that the cases to which he refers do not support such a broad reading, in the present circumstances, and given my view that the Authority’s analysis is the same as that described in SZNOE, it is not necessary to analyse in detail each of the cases to which his Honour refers, and so go behind the decision.
It suffices to observe that in MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [13]-[18], and [25]-[28], Finkelstein J held it is not necessary to address the test set out in Dranichnikov where the factual finding was that the claim of fear in that case was on the person’s individual action, and not his affiliation with any particular group. So also, in SZJRU v the Minister for Immigration and Citizenship [2009] FCA 315, Besanko J at 50, held:
It is not necessarily an error for the Tribunal (in the present case the Authority) not to begin with (or even to deal with) the question of whether there is a particular social group. The relevant part of the definition of refugee consists of a number of elements and, although they each form part of a compound conception, failure to comply with one is sufficient to defeat the claim. If the serious harm results from the application of a law of general application, and there is no discrimination, and therefore, o persecution, the claim must fail (citations omitted).
In BRGAE, Collier J accepted that the tribunal there found that … the appellants did not have a well-founded fear of persecution for any reason … because it did not accept their claim, and that:
… it was realistically unnecessary then for the Tribunal to identify the particular social group of which the appellants claimed to be members.
For the above reasons, applying the above mentioned authorities I consider that the Authority, at [16] of its decision, having accepted the incidents that occurred in 2005 and 2011, and having found that the Applicant was not of adverse interest to any militia groups prior to his departure from Iraq in July 2012, did not fall into error in its finding that it was not satisfied that the Applicant would face a real chance of harm due to being the son of a Moazin or prayer caller. The Authority’s findings and conclusions as to the facts and circumstances at and prior to the Applicant’s departure from Iraq was sufficient to found its conclusion as to the Applicant’s future – that being a MPSG would not lead him to being of adverse interest to Shia militia groups or individuals in the foreseeable future, or that he faces a real chance of harm due to this. It follows that I have concluded that there is no jurisdictional error as contended by Ground 2.
Ground 2 is not made out.

Ground 1.

By Ground 1 the Applicant contends that the Authority, at [15], did not give proper and genuine consideration to the country information, and that its “reconciliation” at [15] was merely a restatement, and an acceptance, of the conclusion in the UK Home Office report. The Authority considered both reports as “authoritative”, but did not explain why it preferred the UK Home Office report. The Applicant contends that preference, dressed up as reconciliation, cloaks the failure of the Authority to give genuine consideration to the DFAT country report.
It is well-established that a decision maker must give proper and genuine consideration to the evidence and claims before them. The Full Court in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [30] has restated the obligation as follows:
If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter (citations omitted).
The Full Court explained further, at [36]-[37] (citations omitted):
[36]The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
[37]In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1)First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a) the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”;
(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c) a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”.
Mr Zipser accepts that the DFAT country report was referred to in the Authority’s reasons, and submits that it does not follow thereby that it gave proper and genuine consideration to it, as was the case in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [212].
However, contrary to Mr Zipser’s submissions, as I explain below, I consider that it is apparent from its decision from [12] through [15] the Authority in the present case gave proper and genuine consideration to both reports.
First, at [12], the Authority refers to and considers country information in both reports – in the case of the DFAT country report, having first referred to it as being among the review material at [4]. In [12], the Authority relevantly refers to different aspects of country information drawn from the reports. At [13] it then further considers the UK Home Office report before, at [14] turning to, and considering and analysing the DFAT country report. In doing so, the Authority expands upon its reference to the DFAT country report at [12]. I consider that the Authority’s consideration at [12] and [14] discloses that it thereby was engaged in an ‘active intellectual process’ directed at the information and its application to the Applicant’s claims and circumstances. The Authority performed its obligation, as described in Singh.
The Authority’s reconciliation at [15] develops from its observation in the last sentence of [14], ‘DFAT does not elaborate on the nature of the risks or the incidents of violence faced by Sunnis in these areas, but reports generally that official and societal discrimination and violence towards Sunnis in Iraq is increasing and tolerance from Sunnis in non‑Sunni areas has declined.’
Following on from the Authority’s analysis at [12] through to [14] of both reports, the Authority’s consideration at [15] that DFAT country report offers an overall assessment of the level of violence faced by all Sunni Iraqis in all Shia areas, while the UK Home Office report recognises circumstances of Sunnis in the south, evidences that the Authority has actively engaged with and considered the country information, characterised it appropriately, and made findings that were open to it.
The Authority’s conclusion that the UK Home Office report was a more detailed and focused analysis of the circumstances of individuals is apparent from [13]. The reference at [13] to the personal profile, including family connections, profession and origin identified by the UK Home Office report, the reference at [14] to what DFAT’s “reports generally” as to the position faced, and the “overall assessment” offered by DFAT (see at [15]), demonstrates that the Authority sought to take the substance of both reports, and at [16] – [19] then apply them to the Applicant’s personal profile.
Fairly read, those paragraphs disclose that the Authority draws on and applies its consideration of the country information, including the DFAT country report, to the Applicant’s personal profile, its findings of fact, and in its assessment of his claims. The Applicant’s contention that at [15] the Authority discontinued and failed to properly and genuinely consider the assessment in the DFAT country report must be rejected.
Ground 1 is not made out. It follows that it must fail.

Conclusion

For the above reasons I find the Authority’s decision is not affected by jurisdictional error. The amended application must be dismissed with costs.
The parties have informed me that they are agreed that should the Minister succeed, costs should be awarded according to scale, fixed in the sum of $7,328, which such amount includes costs previously ordered on the adjournment allowed on 15 August 2019.
I will so order.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate:

Date: 23 March 2021