CDG16 v Minister for Immigration

[2019] FCCA 1749

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDG16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1749

Catchwords:
MIGRATION – Application to review decision of Immigration Assessment Authority – whether IAA failed to consider an integer of the Applicant’s claims – whether IAA made a finding in the absence of any probative evidence or that was irrational or illogical.

Legislation:

Migration Act 1958 (Cth), Part 7AA

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
BZC17 v Minister for Immigration and Border Protection [2018] FCA 902
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Minister for Immigration and Border Protection v BBS16 [2017] FACFC 176
Minister for Immigration and Border Protection v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505

NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774

SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26

Applicant: CDG16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2063 of 2016

Judgment of: Judge Barnes

Hearing date: 26 June 2018

Date of Last Submission: 17 July 2018

Delivered at: Sydney

Delivered on: 28 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Searle and Mr Lawrence

Solicitors for the Applicant: Shelly Legal

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ of certiorari issue quashing the decision of the Second Respondent dated 28 June 2016.

2. A  writ of mandamus issue directed to the Second Respondent requiring it to determine the application for review of the decision of a delegate of the First Respondent dated 27 May 2016 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2063 of 2016

CDG16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Immigration Assessment Authority (the IAA) dated 28 June 2016 affirming a decision not to grant the Applicant a Temporary Protection visa.

2. The Applicant arrived at Christmas Island in October 2012.  In May 2015 he was invited to apply for a Temporary Protection (Subclass 785) visa.  He did so in June 2015.

3. In a statutory declaration in support of his visa application, the Applicant claimed that he was a Shia Muslim and an Iraqi citizen of Bidoon ethnicity who was born in Kuwait.  He had lived in Iraq from 1991 to 2012.  He claimed he left Iraq because “the government of Iraq is targeting me and arrest me whenever there is an explosion or terrorist act in the city of Dhi Qar”.  He claimed that this was because of his “Khaliji background” as he had lived in Kuwait and sounded like “a person who is originated from the gulf countries”.  He claimed that the Iraqi government and the local provincial councils “think that we who came from gulf states are responsible for the chaos in Iraq”.

4. The Applicant claimed that the first “incident” was an explosion in June 2009 in Ba’atha (the town in which he lived in Dhi Qar province, variously spelt in material in the Courtbook as Bat’ha, Al Bat’ha and Ba’atha, but referred to for convenience as Ba’atha).  As elaborated on at his departmental interview, the Applicant claimed that after this bombing the Iraqi police came to his home, started shouting, handcuffed him and took him to a police station in the town of Nasiriyah.  He claimed the police detained, arrested, interrogated and insulted him and accused him of participating in the “terrorist act”, saying that people “from Kuwait are behind all these explosions”.  He claimed he remained in police custody for three months until September 2009 when he was brought before a court.  He was acquitted because there was no evidence against him and local people had testified that he was of good character.  He provided the Department with a copy of a document said to record the judgment of the Dhi Qar Criminal Court of 15 September 2009 and a translation. 

5. The Applicant claimed that after his release he felt that some people suspected him and that he suffered psychological problems.

6. The Applicant claimed that he was again arrested at his home after an explosion near Ba’atha on 5 January 2012.  He told the delegate that there was a suicide bombing at the Ba’atha checkpoint and that he was at his home/workplace about eight kilometres away when the bomb went off.  He was arrested on 15 January 2012 and was taken to the same police station and imprisoned for two months.  He claimed that the trial judge “was surprised and shocked that the reason for [his] arrest was because his Kuwaiti accent” and because he “was not born in Iraq”.  He was acquitted by the court because of lack of evidence.  He provided a copy of a Dhi Qar Criminal Court document dated 15 March 2012 and a translation.

7. The Applicant also claimed that after his 2012 release he was afraid that because he had been arrested people would suspect that he had been involved in these explosions and would attack him.  He claimed that after he left Iraq, the police came to his house and interrogated his brother, who was now in Australia.  The Applicant also claimed that his family had moved to another city in Iraq, but that they were still scared.  He claimed to fear that if he returned to Iraq militias would assassinate him for “mere suspicions”.

8. In August 2015 the Department wrote to the Applicant inviting him to apply for a Safe Haven Enterprise (Subclass 790) visa.  It appears that he did not do so.  On 27 May 2016 a delegate of the First Respondent notified the Applicant that his application for a Temporary Protection visa had been refused.  The delegate did not accept that the Applicant had been arrested and detained by the police for suspected involvement in the bombings.

9. On 31 May 2016, the Applicant was notified that the matter had been referred to the IAA on 30 May 2016.  His new migration agent emailed the IAA on 9 June 2016 indicating that a submission would be provided “very soon”.  However, according to the IAA, no submissions were provided to it.  This is not disputed.

The IAA’s Decision

1. In its reasons of 28 June 2016 the IAA summarised the Applicant’s claims as claims that he had been detained on the basis of his “Bidoon background” after bombings in the Ba’atha area in southern Iraq in 2009 and 2012 and held in detention until his release by the Dhi Qar Criminal Court on each occasion.  It stated that he claimed to fear returning to Iraq as people would misinterpret his arrests and believe he was associated with the bombings and also that he would be assassinated by Shia militias if they suspected he had any association with bombings. 

2. The IAA observed that although the Applicant’s registered migration agent had indicated that a submission would be provided, no submission or information had been received within the 21-day period provided for in the IAA Practice Direction or thereafter.  However the IAA stated that it had obtained new information, specifically country information on a bombing reported to have occurred near the Ba’atha checkpoint on 5 January 2012.  In circumstances where that bombing formed part of the Applicant’s claims and there was no country information before the delegate in that respect, the IAA was satisfied that there were exceptional circumstances to justify considering such new information.

3. The IAA referred to the Applicant’s claims that he was born in Kuwait as a stateless Bidoon, that his family moved to Iraq and that he was granted Iraqi citizenship in 1991, but that they were viewed as traitors in Iraq. 

4. The IAA set out the Applicant’s claim in his statutory declaration that he left Iraq in May 2012 because the Iraqi government targeted and arrested him “whenever there was an explosion or terrorist act due to his ‘Khaliji’ background”.  The IAA explained that Khaliji referred to an “Arab from a country in the Persian Gulf”.  It also recorded that the Applicant claimed that the government “suspected those who came to Iraq from the Gulf States as being responsible for the conflict in Iraq”.

5. The IAA summarised the Applicant’s claims to have been detained twice; for three months in 2009 and two months in 2012, and on both occasions acquitted by a judge.  It recorded that the 2009 bombing was a car bomb in the marketplace of Ba’atha, approximately 300 metres from the Applicant’s home.  He claimed that he was arrested four days later at his home and taken to a police station in Nasiriyah.  He claimed that 15 to 20 people were arrested at the same time for investigation and questioning.  The IAA recorded that the Applicant claimed that he was heavily questioned by the police twice a day, insulted, sworn at and accused of participating in a terrorist act, but that he was not physically hit or assaulted.  He claimed he was shown pictures of people to see if he could identify any of them or had relationships with them.  It recorded that the Applicant claimed that he was acquitted as there was no evidence against him and residents of Ba’atha who were questioned by the authorities had testified that he was of good character.  He claimed that he experienced mental distress after his release in 2009 as he feared that people suspected him of involvement in the bombing.

6. The IAA described the January 2012 explosion as a suicide bombing on the main road near the Ba’atha checkpoint.  It set out the Applicant’s claim that he and a number of other people who were Bidoons had been arrested ten days later.  He was taken to the same police station and imprisoned for two months before he appeared before a judge and was acquitted.  He was worried people had misinterpreted his arrest and believed he was involved in this bombing.

7. The IAA summarised the Applicant’s evidence about when he obtained an Iraqi passport.  It referred to inconsistencies in his evidence about when he had travelled to Iran.

8. The IAA accepted that the Applicant was a Bidoon who was born in Kuwait, that he moved to Iraq in 1991 and acquired Iraqi citizenship.  It was satisfied that the Applicant held a genuine Iraqi passport that he had provided to the Department and that he had used this passport to visit Syria in 2011 and Iran in April 2012, as well as to depart Iraq legally in May 2012 to travel to Australia.

9. The IAA accepted that there was widespread societal discrimination against ethnic and religious minorities and a moderate level of official discrimination against stateless Bidoon in Iraq.  However, in light of cited country information and the absence of independent evidence of “targeted violence” against Bidoon communities and having regard to the Applicant’s personal circumstances and his integration into the community, the IAA was not satisfied that he would suffer discriminatory treatment in the reasonably foreseeable future as a result of his Bidoon background.

10. Under the heading “Detention and fear of harm by the authorities and families of bombing victims” the IAA again recorded that the Applicant stated in his visa application that he had been targeted by the Iraqi government and arrested whenever there was an explosion or terrorist act in Dhi Qar due to his “Khaliji background”.  It also stated that he had “consistently claimed” that he was detained in 2009 and 2012 following bombings “in or near” Ba’atha because of his “Bidoon background”, but that he had not otherwise been arrested.  It noted that he had provided two court documents as evidence of the length of his detention and his release from custody on each occasion.  It recorded that he told the delegate he feared harm from the families of the bombing victims. 

11. The IAA found that the Applicant’s account of the timing and circumstances of both bombings was consistent with independent information.  It had regard to the fact that the car bombing in 2009 occurred in Ba’atha market which the Applicant had said was very close to his shop and home.  The IAA stated that reports indicated that this was a “rare incident”, being the first bombing in two years directed at civilians in that area of Iraq.  The IAA also found that reports in relation to the 2012 bombing near the Ba’atha checkpoint indicated it was the first incident in the province in ten weeks, the first suicide bombing in the south of Iraq in over four months, and one of a series of bombings targeting Shia pilgrims on an annual trek to holy shrines.

12. Given what the IAA described as the Applicant’s “close proximity” to the 2009 bombing, the ire of the local population against the police (who were regarded as having been lax in enforcing security measures) and the reported dismissal of the local police chief, the IAA accepted that the Applicant and “other local residents” had been arrested “for questioning” as part of the police investigation into the 2009 incident.  However it did not accept that the Applicant was “targeted by the police because of his Bidoon ethnicity”.

13. The IAA accepted that the Applicant was detained for approximately three months in 2009 and was acquitted by a court due to lack of evidence, as stated in the court document dated 15 September 2009.

14. The IAA did not accept the Applicant’s claim that he was shunned by the local community for three years after his September 2009 release from detention because of his suspected involvement in the 2009 bombing.  It had regard to the fact that the Applicant had stated in his visa application that local people had testified to the court in 2009 that he was of good character and that their testimony had contributed to his release from prison.  It found that the willingness of local residents to provide such testimony was indicative that the Applicant was not suspected by them of any involvement in the 2009 bombing and was an accepted member of the local community.  The IAA accepted that local residents may have been cautious and nervous given the recent events and greater police vigilance, but not that they suspected the Applicant.

15. The IAA accepted that the Applicant was detained in 2012 following a suicide bombing on the main highway near the Ba’atha checkpoint which targeted Shia pilgrims.  It accepted that the Applicant and “other locals” may have been “questioned as the [2012] bombing occurred within a few kilometres of Ba’atha” and that the 2012 court document was evidence of the Applicant’s detention and release by the criminal court. 

16. However the IAA did not accept the Applicant’s claim that he and other Bidoons were detained due to their background.  It had regard to country information about Bidoons from Kuwait in Iraq.  It took into account the fact that the Applicant was a Shia who was living in a Shia dominated area which had been settled by many Bidoons.  The IAA accepted that it was plausible that the other people detained were also Bidoons and Shia and they were “picked up by the police for questioning”.  However the IAA considered that this was due to their proximity to the bombing rather than their ethnicity or religion.  It also found that:

    …the applicant’s subsequent release from detention by the criminal court (as evidenced by his court document) indicates he was no longer suspected by the Iraqi authorities of involvement with the bombing.

17. In light of inconsistencies in the Applicant’s evidence in relation to whether he went into hiding in 2012 and his travel and activities after his release from custody, the IAA did not accept that he went into hiding as claimed.  The IAA was of the view that the Applicant’s movements in 2012 indicated that, contrary to his claims, he did not have a genuine subjective fear of harm “from the local population” at that time.  It also found that if the Applicant was of interest to the families of victims from the 2012 bombing incident, they had ample opportunity to locate and harm him. 

18. The IAA took into account the fact that the bombings had targeted Shias, that the Applicant was a Shia and that it was well-documented that attacks of this type were made by Sunni insurgents.  It did not accept that there was any basis on which the families of victims would have implicated the Applicant (as a Shia and a Bidoon) with involvement in the bombings.

19. The IAA did not accept there was a real chance of the Applicant facing serious harm on return to Iraq “from the families of the bombing victims” for reasons of any perceived connection with bombings in 2009 and 2012.

20. Having regard to country information, the IAA also found that there was no credible evidence (apart from the Applicant’s “speculative assertions”) to suggest that Shia militias would now implicate or suspect him of involvement in the bombings.  It was not satisfied there was a real chance the Applicant would face serious harm from Shia militias on return to Iraq.

21. Although the Applicant had not made any express claims in relation to a fear of harm as a Shia, the IAA considered that issue.  However it had regard to the fact that, on the Applicant’s own evidence, he was a Shia Muslim living in a Shia dominated area who had not experienced any issues in Iraq due to his religion and whose family continued to reside in southern Iraq.  The IAA accepted that Shia communities were subject to both general and targeted violence by Sunni linked insurgent groups and terrorists, but found that the violence against Shias was more prevalent in Baghdad than in the rest of Iraq and that Shias in Shia dominated provinces were at a low risk of generalised or sectarian violence.  It also referred to evidence of security measures taken in Dhi Qar in relation to entry of non-residents into the province that had been implemented to prevent further attacks by armed groups.  These measures were said to have significantly reduced isolated incidents.  The IAA stated that there was no evidence that returnees to southern Iraq had faced significant problems.  While the IAA acknowledged that there were some incidents, it was of the view that, notwithstanding the two bombings in or near the Applicant’s hometown, the number of such attacks had been very low and had targeted public places.  The IAA also found that the Iraqi authorities had taken greater protective measures to minimise the chance of recurrence and that the local people continued with their daily life.  It did not accept there was a real chance of the Applicant facing persecution in Ba’atha in Dhi Qar province due to his religion.

22. The IAA concluded that after considering the Applicant’s claims both individually and cumulatively he did not have a well-founded fear of persecution on return to his home area of Ba’atha in Dhi Qar province.

23. The IAA also considered the complementary protection criterion.  In that context it accepted that the Applicant may have been looked down upon and not welcomed in the past due to his “Bidoon ethnicity” and that country information indicated that there was societal discrimination against ethnic and religious minorities, including Bidoons, who had reported difficulty in accessing employment, housing and services, including education.  However it found that this was generally due to patronage, nepotism, sectarian identity and societal prejudice, rather than discriminatory government policies, although there were instances of discrimination by officials. 

1. The IAA found that country information indicated that there was no evidence of “targeted violence” against Bidoons.  It also had regard to the fact that the Applicant had been able to undertake a further three years of education in Iraq, had resided in a family-owned house and had owned and operated a business until his departure from Iraq.  While there was said to be evidence of discrimination against “stateless” Bidoons, it noted that the Applicant was an Iraqi citizen with the rights of an Iraqi citizen.  On the evidence before it, the IAA it was not satisfied the Applicant faced a real risk of significant harm “as a Shia and a Bidoon”.

2. The IAA stated that it had found that the Applicant “does not face a real chance of persecution on return to Iraq from the Iraqi authorities”, or from Shia militias, the families of bombing victims or Sunni groups “on account of his religion or any perceived association with the 2009 and 2012 bombings”.  For these reasons (and having regard to the fact that the real risk test imposes the same standard as the real chance test (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505)), the IAA found that it was not satisfied that there was a real risk of the Applicant suffering significant harm on return to his home area in southern Iraq, which it described as an area of safety for Shias.

3. The IAA concluded that the Applicant did not meet the complementary protection criterion and affirmed the delegate’s decision.

Whether the IAA failed to consider an integer of the Applicant’s claims

1. The Applicant relies on a further amended application filed with leave of the court.  There are two grounds in the further amended application.  The first ground is as follows:

   Error of law – The Tribunal (sic) erred, amounting to jurisdictional error, by failing to exercise its jurisdiction, by failing to consider the full integers of the Applicant’s claim, which included a claim that squarely arose on the materials, being that he faced continued arbitrary detention by the authorities in Iraq if returned, such arbitrary detention having been found to have occurred in 2009 and 2012 by the Tribunal (sic).

2. The references to the Tribunal in this and the other ground of review are intended to be references to the IAA. 

3. The Applicant contended that the IAA had failed to consider a claim that arose squarely on the material before it (and that was also said to have been made expressly) that was relevant in relation to the prospect of the Applicant suffering “significant harm” within the complementary protection criterion (see s.36(2A) of the Act). 

4. It was pointed out that in the statutory declaration in support of his protection visa application, the Applicant had claimed that:

   I left Iraq because the government of Iraq is targeting me and arrest me whenever there is an explosion or terrorist act in the city of Dhi Qar, the reason for such a thing is that because of my Khaliji background, as I lived in Kuwait and I sound like a person who is originated from the gulf countries, the government of Iraq suspect all those who came to Iraq from the gulf states, the government of Iraq and the local provincial councils think that we who came from gulf states are responsible for the chaos in Iraq.

5. Further, the Applicant claimed that the trial judge who acquitted him in 2012 “was surprised and shocked that the reason for my arrest was because my Kuwaiti accent, and because I was not born in Iraq”.

6. The Applicant was submitted that apart from the express claim that he was being targeted by authorities (which he stated was because of his Khaliji background as an Arab from the Gulf States and/or because of his Bidoon background, as the IAA suggested he had claimed to the delegate), a claim that he feared being targeted and arbitrarily detained by the authorities “whenever” there was an explosion or terrorist act in his home area “squarely” arose on the material before the IAA (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]) but that this aspect of his claims was not considered by the IAA.

7. The Applicant acknowledged that the delegate had not been satisfied that he was arrested or detained for alleged or imputed involvement in two bombings in Iraq and hence had not assessed his claim to fear harm on the basis of such imputed involvement, either in the context of the Refugees Convention criterion or the complementary protection criterion.  However it was said to be critical that the IAA made fundamentally different findings of fact.  The IAA had accepted that the Applicant was arrested and detained twice as part of the police investigations into each of the 2009 and 2012 bombings. 

8. In addition, the Applicant submitted that while the IAA had recorded his claims about the manner in which he was treated by the police (including that after his 2009 arrest he was heavily questioned twice daily, insulted, sworn at, accused of participating in a terrorist act and being shown pictures of people to see if he could identify any of them), it had not made any findings as to the Applicant’s treatment while in police custody.  Nor had it addressed his claim that on release in 2009 he was mentally distressed.  Hence it was submitted that the possibility of such harm as a result of future arbitrary detention also had to be considered in the context of the complementary protection criterion. 

9. Counsel for the Applicant observed that if the Applicant’s claims as to his detention were accepted (as the IAA had done), he had spent some five months of his last three years in Iraq in arbitrary detention on the basis of no evidence.  It was also pointed out that the Applicant claimed that after he left Iraq his brother had been subjected to police interrogation.

10. The Applicant also contended that in considering the Refugees Convention criterion, the IAA’s findings were limited to a rejection of the claim that he was targeted by the police in either 2009 or 2012 because of his Bidoon background or ethnicity and a finding that his release from detention in 2012 indicated he was no longer suspected by the Iraqi authorities of involvement with the past bombing.

11. In effect, it was submitted that even if these findings were sufficient to address the Refugees Convention criterion, in the context of considering the complementary protection criterion the IAA had to engage in a prospective assessment of the risk of potential harm.  The Applicant contended that this necessarily required a determination of whether he may face what had been found to have occurred previously  (or at least had not been rejected by the IAA as having happened), including arbitrary arrest, lengthy detention, abuse by the police and extensive twice daily questioning (for whatever reason) leading to mental ill health. 

12. The Applicant submitted that such conduct was capable of amounting to torture, cruel or inhuman treatment or punishment and/or degrading treatment or punishment within the definitions in s.5 of the Migration Act 1958 (Cth) (the Act) for the purposes of the definition of significant harm in s.36(2A) of the Act.

13. In response to the First Respondent’s contention that in considering the complementary protection criterion it was open to the IAA to rely on its anterior findings of fact and that such findings of fact sufficiently disposed of the Applicant’s claim to fear future harm as advanced on the material before it, the Applicant pointed out that, in contrast to the circumstances considered by the Full Court of the Federal Court in SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26, this was not a case in which the Applicant’s account of past events was not believed. The IAA did not find that no claimed past harm was suffered, such as to dispose of any claim under the complementary protection criterion (cf SZSHK at [31] to [32]).

14. It was submitted that despite the IAA’s rejection of elements of the Applicant’s claims in considering the Refugees Convention criterion, what remained were unchallenged factual findings that following bombings in 2009 and 2012 the Applicant was arbitrarily detained.  Further, while the IAA did not accept that the past targeting and detention was because of the Applicant’s Bidoon ethnicity or background, it was pointed out that he had also claimed generally that he left Iraq because the government was targeting and arresting him wherever there was an explosion or terrorist act.

15. It was submitted that the IAA had erred in failing to consider whether there was a real risk of the Applicant being subjected to significant harm in the future consisting of arbitrary targeting, arrest, detention and mistreatment as he claimed had occurred in the past.   

16. The Applicant also submitted that if the finding by the IAA “[i]t is plausible that the other people detained [in 2012] were also Bidoons and Shia and they were picked up by the police for questioning but I consider that this was due to their proximity to the bombing rather than their ethnicity or religion” was understood as referring only to the “proximity” of detainees other than him then this ground was strengthened, as the 2012 detention had not been explained on a basis that suggested that it may not reoccur.

17. The Applicant contended that the IAA’s failure to consider the risk to him of future arbitrary detention in addressing the complementary protection criterion amounted to a constructive failure to exercise jurisdiction and a jurisdictional error.

18. The First Respondent submitted that the IAA had no obligation to determine whether the Applicant might face what he claimed had occurred to him in the past (including “arbitrary arrest, lengthy detention, abuse from police, extensive twice daily questioning… leading to mental ill health”).  It was contended first that the IAA had not “accepted” that while detained the Applicant was abused by police, subjected to twice daily questioning or any other conduct leading to mental ill health. 

19. Secondly, the First Respondent submitted that the Applicant’s claim to fear harm due to arbitrary arrest and detention had to be considered in the context in which it had been advanced.  It was contended that, as noted by the IAA at paragraph 22 of its reasons, the Applicant had consistently claimed that he was detained in 2009 and 2012 following bombings in or near Ba’atha because of his “Bidoon” background but that he had otherwise never been arrested.  However, in support of this proposition the First Respondent pointed to the Applicant’s claims in his statutory declaration that in 2009 the police who arrested him said that “all those people who came from Kuwait are behind these explosions” and that the judge who acquitted him in 2012 was surprised and shocked that his 2012 arrest was because of his “Kuwaiti accent, and because [he] was not born in Iraq”.

20. In addition, the First Respondent submitted that the IAA relevantly had not accepted that the Applicant was targeted by the police in 2009 because of his “Bidoon ethnicity”, albeit it accepted that, given his close proximity to the 2009 bombing, the ire of the local population against the police and the reported dismissal of the local police chief, the Applicant and other local residents were arrested by the police for questioning as part of the investigation into the incident.

21. Similarly, it was pointed out that the IAA had not accepted that the Applicant and other Bidoons had been detained in respect of the 2012 bombing due to their background.  The IAA considered that this was “due to their proximity to the bombing rather than their ethnicity or religion”.

22. The First Respondent also pointed to the fact that the IAA found that the Applicant’s release from detention indicated that he was no longer suspected by the Iraqi authorities of involvement with the 2009 or 2012 bombings.

23. The First Respondent submitted that as the IAA had “rejected the factual premise of the detention claim”, it was not required to consider or make specific findings as to whether the Applicant faced the risk of future arbitrary detention by the authorities if he returned to Iraq.  Reference was made to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] in support of this proposition.

24. It was contended that in considering the Applicant’s claims in relation to the complementary protection criterion it was open to the IAA to rely on its anterior findings of fact in concluding that the Applicant did not face a real risk of significant harm on return to Iraq from the authorities or Shia militias and that such anterior findings of fact sufficiently disposed of the claim as advanced on the material before the IAA.  There was said to be no jurisdictional error in the IAA referring to such previous findings in determining whether the Applicant met the complementary protection criterion (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] and SZSHK at [32]).

25. Further, it was submitted that the Applicant had not advanced a claim that he would be arbitrarily arrested and detained if he again happened to find himself in proximity to a bombing in Ba’atha and that it could not be said that such a claim arose squarely on the material before the IAA in the sense considered in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J (as his Honour then was). Rather, it was submitted that the detention claim was advanced solely on the basis of the Applicant’s Bidoon ethnicity and that there was nothing in the material before the IAA that could lead to an inference of a claim that there was a real risk that the Applicant would be arrested and detained due to his close proximity to another bombing.

26. The First Respondent also submitted that the Applicant had not provided any material to suggest there would be a real risk of ongoing bombings in Ba’atha in which he would be subjected to arbitrary arrest and detention.  In fact there was said to be material before the IAA on the security situation in Ba’atha which suggested that the number of attacks had been very low, that the authorities had taken greater protective measures and that the local people continued with their daily life. 

27. On this basis the First Respondent submitted that it could not be said there was any information before the Tribunal that would raise a claim there was a real risk of significant harm in the form of arbitrary arrest if a bombing were to occur.

Consideration

1. For the reasons that follow I am satisfied that this ground is made out and that the IAA fell into jurisdictional error.

2. It is not in dispute that the IAA’s review function requires it to consider all the claims made by an applicant and the essential integers of those claims (see Htun at [42]). There was no suggestion that anything in Part 7AA of the Act affected the relevance of the existing case law on this issue (and now see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]).

3. It is also not in dispute that the IAA, like the Administrative Appeals Tribunal, is only required to consider claims which are the subject of substantial clearly articulated argument relying on established facts (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389) and claims which clearly emerge or are raised squarely on the material before it (as discussed in NABE (No 2) at [55] – [68] and also see Minister for Immigration and Border Protection v BBS16 [2017] FACFC 176).

4. As pleaded, this ground asserts that a claim squarely arose on the materials before the IAA.  However it was also submitted that an express claim made in support of the protection visa application was not considered by the IAA. 

5. The IAA suggested that the Applicant had consistently claimed he was detained in the past because of his Bidoon background.  However in his statutory declaration the Applicant claimed that he left Iraq because the government “is targeting” him and arrested him “whenever there is an explosion or terrorist act in the city of Dhi Qar” because of his Khaliji background (which the IAA recognised meant an Arab who came from the Gulf States) and the view of the authorities that people from the Gulf States were responsible for the chaos in Iraq.

6. In any event, the Applicant made an express claim that he left Iraq because he “is” being targeted and arrested whenever there is an explosion or terrorist act in Dhi Qar.  This express claim was not restricted to a fear based on past events.  He also claimed that after he left Iraq the police came to his home and interrogated his brother.  The IAA did not reject these claims.  Unlike the delegate, the IAA accepted that the Applicant had been detained for three months after the 2009 bombing and for two months after the 2012 local bombings after being “arrested” or “picked up” for “questioning”.  It also accepted that in each case he was only released after a criminal court found that the charges against him should be dismissed because of lack of evidence.  A claim by the Applicant to fear future detention (and associated mistreatment and consequences) in the event of further proximate explosions or terrorist acts clearly arose on the material before the IAA.  Given the IAA’s acceptance of the Applicant’s claims that he was twice subjected to arrest followed by not insignificant detention prior to hearings of charges against him, even if it was of the view that both past arrests and detentions were for reasons of the Applicant’s “proximity” to the bombings (and that this meant that there was no Refugees Convention nexus within s.5J(1) of the Act), the complementary protection criterion is not limited to a real risk of significant harm for a Convention reason.

7. The IAA dealt with part of the Applicant’s claim to fear detention by the authorities in considering the Refugees Convention criterion.  It rejected the claim that the Applicant was targeted by the police and detained in 2009 and 2012 “because of” his Bidoon ethnicity or background.  The IAA also found in paragraph 29 of its reasons that the Applicant’s 2012 release from detention by the criminal court indicated “he was no longer suspected by the Iraqi authorities of involvement with the bombing”.  Read in context, however, this was clearly a reference to involvement in the 2012 bombing. 

8. Further, the IAA’s finding in paragraph 29 set out in full at [81] below, on its face related only to the reason “other” Bidoons and Shias were “picked up for questioning” after the 2012 bombing, but even if this finding is seen as extending to the Applicant, it did not address the chance or risk to the Applicant of arbitrary detention in the event of future bombings or terrorist acts.

9. Indeed it may be thought that the finding the IAA made in relation to the Refugees Convention criterion did not address the Applicant’s express claim that, apart from his background as a (formerly stateless) Bidoon, the reason for the targeting by the authorities whenever an explosion or terrorist act occurred locally was his Khaliji background in that he came from the Gulf States and “the government of Iraq and the local provincial councils think that we who came from gulf states are responsible for the chaos in Iraq”. 

10. Insofar as the First Respondent submitted that the IAA’s findings in relation to whether the Applicant had a well-founded fear of persecution on return to Iraq sufficiently disposed of the claims arising on the material before the IAA, that is not the case.  The anterior findings about the Applicant’s fear of the authorities were based on the absence of a Refugees Convention nexus and were otherwise limited to whether there was a real chance of serious harm to the Applicant because of suspected involvement with the past 2009 or 2012 bombings.

1. The IAA did not reject the factual premise of the claim to fear harm consisting of future detention and mistreatment in making the finding that the Applicant’s release by the criminal court indicated he was no longer suspected by the authorities of involvement with the 2009 or 2012 bombings.  This finding did not dispose of the need to consider the real risk of significant harm to the Applicant following any future bombing or terrorist act, having regard to the fact he had twice been detained in such circumstances and only released after a court determined that the charges should be dismissed. 

2. Further, the fact that the IAA did not expressly accept that claimed past mistreatment or harm occurred while the Applicant was detained or thereafter did not amount to a rejection of this aspect of the claims or render it unnecessary for the IAA to consider such matters in the context of considering the complementary protection criterion. The conduct complained of was capable of amounting to cruel or inhuman treatment or punishment and/or degrading treatment or punishment within the s.5 definitions.

3. Moreover, the IAA’s consideration of country information in the context of addressing whether there was a real chance or risk of physical harm to the Applicant as a Shia from sectarian or generalised violence was not dispositive of his claim to fear future arbitrary detention by the authorities.   

4. The IAA erred in failing to consider an integer of the Applicant’s claims arising squarely on the material before it.  This ground is established.  The matter should be remitted to the IAA for determination according to law.

Ground 2

1. The second ground in the further amended application is as follows:

   Error of law – The Tribunal (sic) erred (at [29]), amounting to jurisdictional error, by finding that the reason for the second detention was “proximity”, in circumstances where there was no probative evidence to support that finding.

2. This ground was raised in oral submissions, then included in the further amended application and addressed in post-hearing written submissions.

3. The Applicant pointed to the fact that in paragraph 24 of its reasons the IAA found, in relation to the 2009 bombing and the related detention of the Applicant, as follows:

   The car bombing in 2009 occurred in Ba’atha market which the applicant at interview stated was very close to his shop and residence and was the first such bombing directed at civilians near Nasiriya, a largely Shia area, in the last two years.  Given the applicant’s close proximity to the bombing, the ire of the local population against the police who they claimed had been lax in enforcing security measures and the reported dismissal of the local police chief, I accept that the applicant and other local residents were arrested by the police for questioning as part of the police investigation into the incident.  However I do not accept that the applicant was targeted by the police because of his Bidoon ethnicity.

   (footnotes omitted)

4. The Applicant also referred to the IAA’s summary of his claims in relation to the 2012 bombing, including that on 5 January 2012 there was a suicide bombing near the Ba’atha checkpoint on the main road, that on 15 January 2012, the police arrested him and a number of other people who were Bidoons and took him to the same police station where he had previously been held and that he was imprisoned for two months before he appeared before a judge and was acquitted.

5. The IAA went on to accept that the Applicant was detained following the 2012 suicide bombing, in the course of which it stated at paragraphs 28 and 29:

   28. … I accept that the applicant and other locals may have been questioned as the bombing occurred within a few kilometres of Ba'atha. I also accept the document provided as evidence of his detention and release by the criminal court.

   29. However I do not accept the applicant's claim that he and other Bidoons were detained due to their background. Country information indicates that more than 80% of Bidoons who fled Kuwait have settled in southern Iraq including the areas from Basra to Samayah and in Dhi Qar province, and Bidoons with Iraqi citizenship live integrated with their host community without discrimination from the government or the community. The applicant is a Shia who was living in a Shia dominated area which was settled by many Bidoons and was integrated into the local community. It is plausible that the other people detained were also Bidoons and Shia and they were picked up by the police for questioning but I consider that this was due to their proximity to the bombing rather than their ethnicity or religion. The applicant's subsequent release from detention by the criminal court (as evidenced by his court document) indicates he was no longer suspected by the Iraqi authorities of involvement with the bombing.

   (emphasis added in submissions, footnotes omitted)

6. The Applicant submitted that to the extent that paragraph 29 of the IAA’s decision involved a finding that he was detained 2012 because of his “proximity” to the bombing, it was a finding that was unsupported by probative evidence.  It was contended that in contrast to the 2009 bombing, there was no claim or evidence that the 2012 bombing occurred close to the home or workplace of the Applicant or that he was physically proximate to the bombing when it occurred.  In circumstances where the evidence the IAA referred to was that the suicide bombing was on the main highway near a checkpoint which was “within a few kilometres of Ba’atha”, there was said to be no basis in the evidence to find that the Applicant was detained due to his “proximity” to the bombing.

7. While the ground itself refers to an absence of probative evidence, in submissions the Applicant characterised the asserted jurisdictional error as irrational and illogical reasoning as discussed by Mortimer J in BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 at [89].

8. BZC17 concerned a finding made by the Authority in the context of considering the reasonableness of relocation to Basra which was an area of Iraq other than the appellant’s home area of Baghdad.  Having regard to information before it, the Authority in that case had been satisfied that the appellant had relatives and tribal connections in Basra who would, if required, act as sponsors and provide assistance or other support to him in Basra on his return to Iraq.  The Authority had made this finding on the basis that the Applicant’s national identity card indicated he had been born in Basra (although he left at a very young age) and that his father’s family and tribe (with whom he was not in regular contact) came from Basra. 

9. Mortimer J stated in BZC17 at [85] to [91]:

   [85]  It was on the basis of the facts recited at [90], and no other facts, that the Authority made the finding it did at [91]. I accept that after these paragraphs there are further findings about whether the appellant could safely access Basra if he arrived at Basra Airport, but these appear after the Authority has concluded the appellant has sufficient family support to meet the stringent sponsorship requirements it has accepted on the basis of country information would be imposed on him if he sought to return to Basra.

   [86]  While I do not accept the appellant’s submission that this finding should be characterised as legally unreasonable, I do consider it is capable of being characterised as irrational or illogical as those terms are explained in the judgment of Crennan and Bell JJ in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]:

   In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [87]  I accept the correct approach for a supervising court is to be “slow, although not unwilling” to find that the task of an administrative decision-maker miscarried in a jurisdictional sense for want of logic in its reasoning process, or for reasoning or findings which can be described as ones at which no rational or logical decision-maker could arrive.

   [88]  These are not new legal principles. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321, Deane J said (at 367):

   When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.

   [89] One way in which reasoning in a decision may be said to be irrational or illogical, is if it is unsupported by probative evidence. That is because rational and logical reasoning, in order to form the requisite state of satisfaction required by provisions such as s 65 of the Migration Act, needs to be based not only on actual factual material or information, but on factual material or information which is probative of the finding or conclusion reached. That is, factual material or information which tends to make out, or support, the finding or conclusion reached. There must be a rational connection between the factual information or material and the finding or conclusion reached.

   [90]  There is no doubt this kind of analysis by a supervising court involves a degree of evaluation, on which reasonable judicial minds might differ. So much is demonstrated by the divergence of opinion in SZMDS between Crennan and Bell JJ on the one hand and Gummow and Kiefel JJ on the other.

   [91]  The appropriate level of caution, and the critical requirement for the supervising court to find a connection between the lapse or want of logic or rationality and the task to be performed by the decision-maker is emphasised by the Full Court in ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174; 250 FCR 109 at [47]:

   Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration & Border Protection v SZUXN (2016) 69 AAR 210 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).

10. The Applicant contended that the IAA’s reasoning in paragraph 29 of its reasons was irrational and illogical because it was unsupported by probative evidence in the sense explained by Mortimer J at [89]. There was said to be no basis in the evidence for the IAA to find that the Applicant was detained in 2012 due to “proximity”.

11. The First Respondent contended that the ground should be rejected because the characterisation asserted for by the Applicant was not available when the IAA’s findings were read in context and that there was no basis for the contention that the findings were unsupported by probative evidence or otherwise lacked a logical connection to the evidence. 

12. As pointed out by Crennan and Bell JJ in SZMDS at [130], a court should be “slow, although not unwilling” to find jurisdictional error on the basis of illogicality or irrationality.  It is only if no rational or logical decision-maker could have made the finding in issue that the requisite “extreme” illogicality or irrationality will be established (see Minister for Immigration and Border Protection v SZRKT [2013] FCA 317; (2013) 212 FCR 99 per Robertson J at [148]). It is not enough that reasonable minds may come to different conclusions in that respect.

13. The Applicant claimed that he and a number of other Bidoons were arrested after the 2012 bombing.  The IAA recognised (at paragraph 28) that the bombing had occurred near the Ba’atha checkpoint on the main highway within a “few kilometres” of Ba’atha, where the Applicant lived.  The IAA also accepted that the Applicant and other “locals” may have been questioned.  It then referred to country information regarding the large number of Bidoons and Shia Muslims residing in southern Iraq, including in the Applicant’s province of Dhi Qar.  It was on this basis that the IAA accepted as plausible that the Applicant and other Bidoons who were Shia may have been picked up by the police for questioning. 

14. Insofar as the IAA’s finding that “this was due to their proximity to the bombing rather than their ethnicity or religion” (emphasis added) encompassed the Applicant, while reasonable minds may differ as to the circumstances which amount to “proximity”, there was evidence before the IAA that the bombing took place a few kilometres from where the Applicant lived and worked.  The fact that the Applicant was not in “close proximity” to the site of the 2012 bombing is not such as to establish that there was no probative evidence to support a finding that he and the other Shia Bidoons detained were in “proximity” to that bombing.  The IAA’s findings were made on the basis of country information to which it referred and the Applicant’s own evidence as to where the bombing took place and where he lived and worked.  While not every decision maker would necessarily have reached the same view, it has not been established that this was a finding “at which no rational or logical decision maker could arrive on the same evidence” as considered in SZMDS at [130] per Crennan and Bell JJ. There was a rational connection between the factual information and the IAA’s finding (see BZC17 at [89]).

15. This ground is not made out.  However as Ground 1 has been established the matter should be remitted to the IAA for consideration according to law.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:       28 June 2019