CDH16 v Minister for Immigration
[2017] FCCA 1063
•22 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDH16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1063 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority erred in attributing the applicant with an incorrect statement – whether the Authority failed to consider statements made on behalf of the applicant – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 473DD, 476 |
| Applicant: | CDH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2064 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 22 May 2017 |
| Date of Last Submission: | 22 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Mostafa |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2064 of 2016
| CDH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority under Part 7AA, dated 8 July 2016, affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia on 23 August 2012, and on 21 September 2015 made an application for a Safe Haven Enterprise visa.
Claims for protection
The applicant claimed to fear harm from Sunni Militia on account of his Shia religion and also claimed a fear of harm from Shia militia throughout Iraq because of his name, part of which is said to be a Southern name which may have caused him to be deemed to be a Sunni. The applicant, in his claims, identified an incident in 2006 whilst traveling in a bus between Syria and Iraq when armed men boarded the bus and asked passengers whether they were Shia or Sunni and the applicant on that occasion claimed to be Sunni and was released.
The applicant also says that he worked between July 2007 and January 2012 for a construction company and that for part of that period he worked at an Iraqi army base which shared with American soldiers. The applicant alleges that in 2010 he was accosted by men belonging to the Mahdi Army in a Shia area of Baghdad. The applicant alleges that he was asked for identity documents where they noticed the first part of his name and accused him of being Sunni. The applicant alleges that he was taken to the base and released after his father came and verified his Shia faith.
The applicant alleges in 2012 his house was shot at by Sunni Militia who were guarding the headquarters of a Sunni politician. The applicant alleges about a month later his father received a threatening letter and allegedly three bullets from a Sunni extremist group. The applicant says his brother was killed about a week later and the applicant believes the particular Sunni extremist group was responsible for his brother’s death. The applicant says that his father received another threatening letter in July 2012 and the applicant claims that his brother was killed at the end of 2014.
The Delegate’s Decision
The applicant was represented before the delegate and detailed submissions were put on by his migration representative specifically addressing the issue of relocation to the South in Iraq and also specifically addressing information in a DFAT country information report, dated 13 February 2015. Part of those submissions expressly dealt with South Iraq potentially being a reasonable option for Shia and, again, in addressing the applicant’s name and referring to the DFAT information.
At the time of the hearing before the delegate the applicant had provided information identifying that his father, mother and a brother were in Romania. In the applicant’s statement the applicant referred to an alleged robbery in 2010 when he found certain young men sitting in his car who alleged that his name is known to be Sunni. The applicant says he was dragged to the street and a fishmonger, whom he had bought some fish from, saw him and came over and confirmed that he was Shia and said he knew his father and his father was no longer in that area because he used to teach and used to shop in that area.
The applicant says that he was taken to the Mahdi base camp because the fishmonger asked for that to occur so that he could confirm that he was really Shia. The applicant was interrogated by a person wearing a black turban and the applicant explained, relevantly, that his father was from Al-Nasiriyah. The applicant’s father then was called and the applicant’s father came to the office and after that the applicant identified they were satisfied that he really was Shia and he was released.
Consideration
The delegate’s decision identified that the applicant was born and lived in Baghdad prior to his departure from Iraq. The delegate expressly referred to the applicant’s brother joining his parents in Romania and that he also had a paternal uncle who had acquired a Romanian visa. The delegate accepted that the incident occurred in 2006 in which there was an attempt to steal the applicant’s car and that his father arrived and vouched for him and he was released. The delegate did not accept that the applicant’s family in April 2012 received a threatening letter or in early July 2012. The delegate found the applicant departed Iraq in July 2012 using a genuinely issued Iraqi travel document issued in his name.
Refugee criterion assessment
Relocation considerations
The delegate turned to consider whether the applicant faced a real chance of persecution relating to all areas of the receiving country and made reference to the overwhelming population of the Southern governorates of Iraq being Shia. The delegate expressly referred to looking whether the applicant can safely and legally access the South of Iraq to avoid harm on account of being a Shia and also considered whether the applicant will face a real chance of persecution if he were relocated to the South.
The delegate made reference to a 2015 country report on Iraq from DFAT identifying that relocation to Southern Iraq might be a reasonable and practical option for Shia. The delegate expressly referred to Shia-populated cities in the South in respect of which attacks were rare and that the areas were considered secure and safe for Shias. One of those cities was the city in which the applicant’s father was born.
Regarding the applicant’s name
The delegate turned to the applicant’s claim of fear of harm due to his name and, in particular, the problems the applicant may face in Baghdad.
The delegate referred to the incident in 2010 where the applicant was stopped and threatened in Baghdad by a group of Shia youth who claimed to be from the Mahdi Army. The delegate was satisfied the incident was isolated and the overriding motive for the action of the youth was criminal. The delegate found the applicant had not claimed any other incidents which caused him fear for reasons of his name, despite having had the same name since he was born. The delegate found that the possibility that the applicant would be targeted by the Shia militias for reasons of his name was remote and that the country information indicates that an additional factor, such as the profile of the individual, would raise the chance that they would come to harm at the hands of sectarian militias.
The delegate found in the applicant’s case that the applicant did not have a profile and, therefore, his risk of being targeted due to his name was remote. In this regard the delegate found that the applicant’s fear was not well-founded.
The delegate found that the applicant failed to meet the criteria under the Act and on 6 June 2016 refused the grant of a protection visa. The delegate found that the applicant was not an excluded fast-track review applicant.
The Authority’s Decision
On 9 June 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review.
The Authority identified that it had been provided with all the documents that the Department had considered relevant to the applicant’s case. The Authority explained the limited circumstances in which it could consider new information and provided an attached fact sheet in that regard and a Practice Direction providing opportunity to put submissions and new information.
Submissions to the IAA
On 23 June 2016, submissions were provided by the migration representative on behalf of the applicant. Those submissions addressed the adverse findings of the delegate and commenced by reference to the applicant having stated that his father was born in Nasiriyah while the rest of the family were born in Baghdad.
The submissions took issue with the adverse findings of the delegate in relation to the applicant facing harm because of his name and expressly referred to the rhetorical question of, “Who will support the applicant or intervene in his case in the Shia dominant South?” The submission referred to the applicant having no familial or tribal connections in the South of Iraq and that he and his family lived all their life in Baghdad. The reference to who would intervene is clearly a reference to the intervention that had occurred when he was released after his father attended.
The submission does not take issue with the fact though that the applicant’s father was born in the South at Nasiriyah. The submissions repeated that the applicant has no familial or tribal connections anywhere in Iraq apart from Baghdad and that that would add to problems as to how he would defend himself in the South and as to who would protect him and would stand for him if there was a problem. The submissions referred to a UNHCR report of 2012 that existing tribal and family ties and common and religious backgrounds in the area of relocation are crucial when assessing the availability of relocation as they generally ensure a certain level of community protection and access to services, both in towns and rural areas.
The submissions referred to the part of the applicant's name that was said to be of Sunni significance, and he was very unlikely to find that name in the South of Iraq, and that he would be more vulnerable to persecution than someone who is Sunni. The submissions took issue with the adverse findings of the delegate and repeated that the applicant does not have familial or tribal protection and that his father intervened and protected him in a particular incident and that his father now lives in Romania.
The submission was put that the applicant will be in a position where no one will expect that a person with his name in that particular part of Baghdad is a Shia, and being an area in Baghdad that is pure Sunni.
Regarding the interview before the delegate
Before the delegate, the applicant was the subject of an interview on 23 November 2015. Materially in that interview, the applicant made reference to the alleged incident in 2010 and his explanation seeking to assert that he was a Shia and asserting that he told the relevant person that his father used to work as a teacher in the school and that his father was well-known in the area, and the applicant made reference to:
Of course, that person didn’t know my father personally, but you know, in Iraq, they will ask you first where you are originally from, like, where you from.
And the applicant stated:
So I told him, like, my father originally from Al-Nasiriyah.
The applicant made reference to the person saying they would have to contact his father to find out whether he is telling the truth or not, and the applicant said that is what happened and that his father came to the office and the applicant was released. The applicant was asked by the delegate questions about relocation and in particular his name, and then said:
So in other words, why, again, I’ve already asked the question but I'll give you another opportunity, why would you be at risk in a Shia area if you're called [X].
The applicant responded:
Um, even though, as I said to you before, like my um, er, my tribe is Al-[Y], Al-[Y] means with majority are Shia, but yeah there is some people actually, the name [Y], and a few, like er, only a ce-, a certain amount of people Al-[Y], and they are Sunni.
You because um, if I say to people like, my name is [X], and um, I'm Shia, like if he's going to, to er, to see [X], if he's going to read [X], and he's going to say [X] Al-[Y], automatically going to assume [X] Al-[Y] and that's Sunni, not Shia.
The interview also records the submissions put orally by the migration agent on behalf of the applicant taking issue with the ability of the applicant to relocate to the South, and the applicant's objection because of part of his name.
Information before the Authority
The Authority made express reference to the submissions provided on 23 June 2016, and the return of the same requesting a submission that complied with the practice direction.
A revised submission was provided on 24 June 2016. The Authority expressly noted that the revised submission contained discussions around areas of disagreement with the delegate's decision. The Authority identified five items of new information. The Authority was not satisfied in relation to those five matters that they met the criterion under s.473DD(b) and found that the Authority was prevented from considering that new information. The five items of new information were not a reference to the applicant's submissions that sought to take issue with a finding of the applicant's ability to relocate to the South in the context of the assertion of whether the applicant had familial or tribal ties.
Consideration of claims
The Authority set out the applicant's claims for protection and identified the relevant law to be applied. The Authority accepted that the applicant was from Baghdad. The Authority found that the applicant did not have a well-founded fear as a result of the bus incident in 2006. The Authority made express reference to the applicant having claimed that he was released after his father convinced the army leader that he was Shia and not Sunni. The Authority did not accept that the applicant would now be of interest to the Shia militia. The Authority found the attention of the Shia militia groups, including the Mahdi Army, is now focused on the much larger objective of the fight against Daesh. The Authority did not accept that the applicant will face a real chance of harm from the Mahdi Army or any other Shia military group on return to Iraq.
The Authority found that the threatening letter lacked credibility and did not accept the applicant's assertion as to the perpetrator of his brother's death, allegedly being the Al-Rashideen Army, and found that was based on speculation and gave it no weight. The Authority found the evidence gave no indication of the circumstances of the applicant's brother's death involved the Al-Rashideen Army or had any connection to the applicant. The Authority considered the applicant did not face a real chance of harm from Sunni militia groups in connection with his brother's death.
The Authority did not accept the credibility of the second letter in 2012 and did not accept that the applicant faces a real chance of harm from Sunni extremists as a result of an argument with electricity workers and as a result of the alleged threatening letter.
The Authority found that the applicant did not have a well-founded fear of persecution due to his brother's employment. The Authority found that the applicant did not face a real chance of harm as a result of returning to Iraq from a western country.
The Authority accepted that there is a risk the applicant could be killed or seriously harmed in a mass casualty attack targeting Shia in Baghdad. It was in these circumstances the Authority identified under s.5J(1)(c) the question of a real chance of persecution must relate to all areas of the receiving country. The Authority then said:
At the protection visa interview, the applicant stated that he has tribal ties to Nasiriyah, a city in Thi-Qar Governorate, from where is father originates and where his two brothers were born.
The Authority identified that the governorate was located in the South and that its population was predominantly Shia. The Authority made reference to DFAT information assessing Shias in Shia-dominated provinces of Southern Iraq being at a low risk of generalised violence. The Authority identified that the particular area had seen very few instances of insurgent violence in recent years. The Authority was not satisfied there is a real chance of the applicant being killed or otherwise harmed as a consequence of violent crime or from a bomb attack resulting from generalised violence if he returns to Nasiriyah. The Authority found that the applicant would not face a real chance of persecution as a Shia Muslim if he relocated to Nasiriyah.
The Authority referred to the alleged harm from part of the applicant's name being a Sunni name. The Authority accepted the country information reports of instances of harm occurring to persons in Iraq with a particular name was an issue in Baghdad, reflecting the high level of Sunni-Shia sectarian tension there. The Authority made express reference to the incident in 2010 and found that to be an isolated incident, and made reference to the applicant having been living at Baghdad since 2010 and the applicant experienced no further attention because of his name, even when he operated his vehicle in Baghdad as a taxi service.
The Authority made reference to the interview at which the applicant stated that the majority of people bearing his family name are Shia. The Authority made reference to the applicant's assertion that a small portion of persons having his family name are Sunni, and that from a combination of his given name and his family name, people automatically impute him, wrongly, to be a Sunni. The Authority did not accept this to be the case and considered it to be speculation on the part of the applicant. The Authority made express reference to the applicant's father originating from Nasiriyah, and found that if the applicant relocates to Nasiriyah, his tribal family name would be known there as Shia.
The Authority did not accept that the applicant would be perceived by local Shia as being a Sunni and persecuted on that basis. The Authority found the applicant's family name identifies him as a Shia, and his tribal ties in Nasiriyah through his father afford him a level of protection, to the extent that the Authority found the risk of the applicant being harmed as a result of his name is remote. The Authority found that there is not a real chance the applicant will be targeted for any reason under s.5J(1)(a) of the Act. The Authority found that the applicant did not meet the definition of refugee under s.5H(1) of the Act and found that the applicant did not meet the criteria under s.36(2)(a) of the Act.
Complementary protection assessment
The Authority did not accept that if the applicant returned to Nasiriyah he would face a real risk of significant harm. The Authority made reference again to the 2010 incident, being an isolated incident, and found that the applicant was not of interest to the Shia militia groups, including the Mahdi Army. The Authority did not accept that the applicant would now be of interest to the Shia militia when, as previously outlined, the attention of the Shia militia groups, including the Mahdi Army, is now focused on a much larger objective with the fight against Daesh. The Authority was not satisfied the applicant would, upon return to Nasiriyah, face a real chance of harm from the Mahdi Army, and any other Shia armed group or member of the Shia community, from Daesh or any other Sunni militant group.
Having considered the material cumulatively, the Authority was not satisfied the applicant would, upon return to Nasiriyah, face a real chance of harm now or in the reasonably foreseeable future. The Authority was not satisfied the applicant faces a real risk of harm in Nasiriyah for the purpose of s.36(2)(aa).
The Authority made express reference to the applicant's claim that he could not relocate to anywhere in Iraq due to fear given that his given name imputes him as a Sunni. The Authority made reference to the applicant's father originating from Nasiriyah, and found that if the applicant relocates to Nasiriyah his family name would be known there as Shia, and the Authority did not accept that he would be automatically perceived by the local Shia as being Sunni and subjected to harm on that basis.
The Authority found that the applicant's family name identifies him as Shia, and while there may be a small proportion of people named the applicant's family name who are Sunni, his tribal ties within Nasiriyah through his father afford him a level of protection, to the extent that the Authority found that the risk of the applicant being harmed as a result of his name was remote. The Authority found it was not satisfied the applicant would face a real risk of significant harm in Nasiriyah for reason of his given name now or in the reasonably foreseeable future.
The Authority turned to whether or not it was reasonable for the applicant to relocate and identified country information identifying relocation to the South being reasonable and practical. The Authority made reference, as noted above, that the applicant has tribal connections in Nasiriyah from where his father originates and his two brothers were born. The Authority found that Nasiriyah could be accessed through Southern Iraq via Basra, which remains a reasonably secure area. The Authority was satisfied that it would be reasonable for the applicant to relocate to Nasiriyah, an area of the country where there would not be a real risk that he would suffer significant harm. The Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Iraq, there was a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act.
Proceedings before this Court
Grounds of the application
The grounds of the amended application are as follows:
1. The Authority erred in holding that the applicant had stated in his protection interview that he had tribal connections in Nasiriyah, and in relying on this holding to reject claims made by the applicant or to conclude that it was reasonable for the applicant to relocate to Nasiriyah.
Particulars
a. At [32], the Authority stated that at “the protection visa interview the applicant stated that he has tribal ties to Nasiriyah, a city in Thi-Qar governorate, from where his father originates and where his two brothers were born”.
b. The applicant claimed to fear harm from Sunni militants on the basis of his Shia religion: Authority’s Decision [7].
c. The Authority accepted that the applicant faced a real chance of being killed by Sunni militants in Baghdad: Authority’s Decision [31].
d. The Authority found that the applicant did not face a real chance of persecution on the basis of being a Shia Muslim in Nasiriyah: Authority’s Decision [33].
e. The Authority accepted that the applicant faced a real risk of significant harm in Baghdad: Authority’s Decision [40]
f. The Authority found that it would be reasonable for the applicant to relocate to Nasiriyah, and in doing so said “[a]s noted above, the applicant had tribal connections in Nasiriyah”: Authority’s Decision [46]-[47].
g. The applicant claimed to fear harm from Shia groups on the basis of his first name, being a name associated with Sunnis: Authority’s Decision [7].
h. At [36], the Authority stated that the applicant’s “tribal ties in Nasiriyah” was a factor that showed that the applicant did not face a real chance of harm as a result of his name in Nasiriyah.
i. The applicant did not state in his protection interview that he had tribal ties in Nasiriyah.
2. The Authority erred in failing to consider statements made on the applicant’s behalf that he had no tribal connections in the south of Iraq.
Particulars
a. On 23 June 2016, the applicant provided submissions to the Authority (the Submission): CB 530-5.
b. The Submission included statements that “the applicant has no familial or tribal connections in the south of Iraq, he and his family lived all their life in Baghdad” and “the applicant has no familial or tribal connections anywhere in Iraq apart from Baghdad” (Statements): CB 532.
c. The Authority failed to consider the Statements in disposing of the review as pleaded at particulars 1(a)-(h) above. That failure was an error for each of the following reasons:
i. the Statements constituted new information. The Authority failed to consider Statements without considering whether the Statements met the test set out in s 473DD; and
ii. the Statements were relevant submissions of substance that were not evaluated by the IAA: SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 at [82].
Consideration of the grounds
Ground one
In relation to ground 1, Mr Mostafa of counsel submitted that the reference in paragraph 32 of the Authority's reasons, which say that the applicant stated that he has tribal ties in Nasiriyah at the protection visa interview was wrong in fact and was a material error. Mr Mostafa took the Court to the evidence in relation to the applicant having lived in Baghdad and the balance of his family in terms of parents and another being in Romania, and also the incident that occurred in 2010, in which his father was able to intervene.
Mr Mostafa took the Court to the transcript of the interview with the delegate and submitted that nowhere did the applicant expressly say that he has tribal ties in Nasiriyah. Mr Mostafa submitted that the error was a material error in relation to the Authority's reasoning that the applicant could reasonably relocate and that the applicant did not have a well-founded fear of persecution in the whole of Iraq. Mr Mostafa submitted that the evidence that the applicant had given at the interview in which he had made reference to his father being originally from Nasiriyah was not a statement that the applicant had tribal ties in Nasiriyah.
In relation to the applicant's evidence in the transcript at paragraph 59, "My tribe is Al-[Y]," Mr Mostafa accepted that the tribe with the applicant's family name was a tribe with connections in Nasiriyah. Mr Mostafa sought to argue that there was a difference between the concept of "my tribe is" and "a connection between my tribe". That is a distinction without substance. The applicant at the protection visa interview clearly identified that his father was born in Nasiriyah and clearly identified that he had a tribe that he identified with. It is in those circumstances that the Court comes to consider whether or not there is an error by the Authority of fact in paragraph 32.
The Authority’s reasons are not to be read with a keen eye for error and are to be read as a whole. The second sentence at paragraph 32 is clearly a summary by the Authority of a combination or propositions. The description of where Nasiriyah is and the observation that that is from where the applicant originates would not reasonably be read as something that the applicant had stated, nor that his two brothers were born in that city, as being something that the applicant had expressly stated. On a fair reading of the Authority's reasons as a whole, the Authority was summarising the effect of the applicant's evidence, and the statement that the applicant has tribal ties in Nasiriyah was a statement derivable from and referable to the evidence of the applicant in the interview, that his father was born in Nasiriyah, and that he has a tribe that has a name that is identified by the applicant and that that tribe is one in respect of which there is a connection with the city in which the applicant's father was born.
That it is the applicant's father's name is also of significance in relation to that finding being open to the Authority on the evidence before the tribunal. There was no error in paragraph 32 on a fair reading of the Authority's reasons as a whole. In that regard, it is of importance that the Authority expressly referred further in its reasons to Nasiriyah being a place where the applicant's family name is known as Shia and made express reference to the applicant having tribal connections in Nasiriyah from where his father originates and his two brothers were born. I accept the first respondent's submission that if there was an error in relation to paragraph 32 as a literal statement of quotation, it was not a material error.
The Authority's reasons in relation to relocation correctly identify the applicant's father's place of birth and that the applicant's father's name was connected with that city, and the applicant himself had accepted that he had an existing tribe. It was open to the Authority to make the adverse findings in relation to relocation. On a fair reading, those adverse findings were not based on an error as to what the applicant had stated but were based upon where his father had come from and the applicant having admitted a tribal connection with that city through his father. Accordingly, no jurisdictional error as alleged in ground 1 is made out.
Ground two
In relation to ground 2, on a fair reading of the Authority's reasons, it is apparent that the Authority had regard to the submissions provided by the applicant's migration agent.
The issue taken in those submissions as to whether the applicant had familial or tribal ties with a particular city was not a material submission of substance with which the Authority had to expressly refer, and I accept the submissions of the first respondent that the assertion in those submissions that the applicant had no familial ties with the city was inconsistent with that part of the submission that identified the applicant's father was born there. The submission was also contrary to the applicant’s admission of a tribe. There is no substance in the proposition that the Authority failed to have regard to the submissions in relation to the familial ties, or that that constituted new information that the Authority disregarded under s.473DD. The limited information excluded under s.473DD was clearly identified by the Authority. No jurisdictional error was made out as alleged in ground 2.
Conclusion
The amended application is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 6 June 2017