Cje19 v Minister for Immigration

[2020] FCCA 267

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJE19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 267

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority failed to give proper and genuine consideration to the evidence before it – whether the Authority’s reasoning process was illogical or irrational – whether the Authority unreasonably failed to exercise its power under s.473DC of the Migration Act 1958 (Cth) – whether the Authority failed to take into account relevant considerations – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: CJE19

First Respondent: MINISTER FOR IMMIG RATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1478 of 2019

Judgment of: Judge Street

Hearing date: 12 February 2020

Date of Last Submission: 12 February 2020

Delivered at: Sydney

Delivered on: 12 February 2020

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law Firm

Counsel for the Respondents: Ms K Hooper

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Leave is granted to the applicant to rely upon the amended application filed on 17 December 2019.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $4,800.00.

DATE OF ORDER: 12 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1478 of 2019

CJE19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 14 May 2019 under pt.7AA of the Act affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Temporary Protection visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival. On 26 May 2016, the applicant applied for a protection visa.

3. The applicant claimed to fear harm by reason of being a Sunni Muslim from a Sunni family living in the Karbala province. The applicant also claimed to fear harm as a result of threats relating to a coffee shop that the applicant bought in Karbala in 2009.

4. The applicant alleged that members of the Mahdi Army came to his coffee shop in 2009 and asked about his father’s whereabouts. The applicant alleged that he informed them that his father had died in 2007. The applicant claimed that he feared for his life but that he remained in Karbala as he needed money to support his family and to take care of his aunt.

5. The applicant alleged that, at the end of 2012, three Mahdi Army members entered his coffee shop and tried to kidnap the applicant. The applicant alleged that he then travelled to his uncle’s house. The applicant also alleged that Shia militias raided his aunt’s home in Karbala searching for the applicant and his father.

6. The applicant alleged that his uncle was evicted by a group of AAH members in 2015 as a result of which his family moved to Haswa, south of Baghdad. The applicant alleged that his uncle was killed when a bomb was placed on the door of their home in Haswa in March 2017 and that the perpetrators remain unknown and that the family did not report the incident to the authorities.

7. The applicant alleged that his uncle’s family and his family then moved to Kirkuk after this incident and continue to reside there.

8. On 14 December 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a protection visa.

9. On 19 December 2016, a differently constituted Authority informed the applicant that his application for a protection visa had been referred to the Authority for review and gave the applicant an opportunity to put on new information and submissions. That differently constituted Authority’s decision on 6 February 2017 was set aside by orders of this Court on 11 February 2019.

10. On 18 February 2019, the Authority wrote to the applicant informing the applicant of the reconsideration of the applicant’s case in relation to his protection visa application and providing the applicant an opportunity to put on new information and submissions. The applicant put on new information and submissions that were expressly referred to and considered by the Authority.

11. The Authority identified the background to the protection visa application. The Authority had regard to the material provided by the Secretary under s.473CB of the Act.

12. The Authority referred to the applicant’s submissions and had regard to the same to the extent that they discussed the findings of the Delegate.

13. The Authority identified new information and considered the same against the criteria under s.473DD of the Act. The Authority expressly referred to both provisions under s.473DD of the Act. The Authority’s reasons reflect an application of that provision consistent with taking into account the whole of the provision.

14. Relevantly, for the purpose of the argument before the Court in respect of new information in respect of the alleged death of the applicant’s uncle and his family’s move to Kirkuk, the Authority found that there were exceptional circumstances justifying considering the same.

15. The Authority summarised the applicant’s claims.

16. The Authority found that the applicant’s family still have a house in Karbala and that his aunt continues to reside in that province. The Authority found that Karbala is the area to which the applicant would return in Iraq.

17. The Authority did not accept that the applicant was a Shia. The Authority accepted that the applicant and his family are of the Sunni Muslim faith as claimed.

18. The Authority did not accept that the applicant’s father and family departed Karbala to reside with his uncle in Baghdad in 2007 as claimed. The Authority referred to money transfers being identified between the applicant’s father in Karbala and the applicant in Australia in 2013. The Authority did not accept the applicant’s explanation in relation to those transactions in the context of whether or not it was safe for his father to be in Karbala and whether there were Mahdi Army still seeking the applicant’s father. The inconsistencies and implausibilities in the applicant’s evidence on this matter led the Authority to conclude that the applicant’s father and family remained in Karbala until at least 2013.

19. The Authority referred to the central aspect of the applicant’s claim in relation to the coffee shop that he acquired in Karbala. The Authority identified inconsistencies in the applicant’s assertions that he was unemployed before he acquired the coffee shop and his family lacking funds.

20. The Authority accepted that the applicant worked in and managed the coffee shop between May 2009 and November 2012.

21. The Authority did not accept that the applicant was the subject of threats in 2009 or an attempted kidnap in 2012.

22. The Authority expressed plausibility concerns in relation to the Mahdi Army allegedly threatening the applicant in 2009 and then doing nothing for three years until July 2012. The Authority did not accept that the Mahdi Army, if they were interested in either the applicant or his father, would regularly attend the coffee shop over three years but only ask about the applicant’s father on two occasions or that they would not harm the applicant on any of those occasions but then attempt to kidnap him in 2012.

23. The Authority also referred to different accounts by the applicant in relation to the number of persons involved in the kidnap attempt and the absence of mention of particular detail in relation to the kidnap attempt. The Authority did not accept the applicant’s explanations for the differences in his evidence.

24. The Authority referred to the significance of 2012 incident in respect of the applicant’s alleged claim as to his decision to leave Iraq. The Authority also identified concerns in relation to the applicant’s alleged claim as to his decision to leave Iraq. The Authority also identified concerns in relation to the applicant’s claim in respect to the expiry of the lease of the coffee shop in 2012.

25. In light of the finding by the Authority that the applicant’s father and family remained in Karbala, the Authority found that the applicant’s father and the applicant were not of ongoing interest to the Mahdi Army or anyone else at the time the applicant left Iraq.

26. The Authority was not satisfied that the applicant’s father or his family was of interest to the Mahdi Army or anyone else after an incident in 2007.

27. The Authority was not satisfied that the applicant was the subject of any threats or extortion attempts by the Mahdi Army or anyone else in 2009, 2012 or in the intervening years or that the Mahdi Army or anyone else tried to kidnap the applicant in 2012 for any reason.

28. The Authority accepted that the applicant sustained an injury to his arm but did not accept that he was stabbed by Mahdi Army as claimed.

29. The Authority was not satisfied that the Mahdi Army raided the applicant’s aunt’s home searching for the applicant or his father.

30. The Authority was not satisfied that the applicant was of any interest to the Mahdi Army for any reason, including as a Sunni, his father’s former position with the Ba’ath Party and as mayor or because they were members of the Al-Janabi tribe. The Authority was not satisfied that the applicant faces a real chance of any harm on return to Iraq now or in the reasonably foreseeable future due to being targeted by the Mahdi Army in the past.

31. The Authority referred to the applicant’s family sometime after 2013 moving to his uncle’s home in Baghdad. The Authority accepted that the applicant’s family were evicted from his uncle’s home in Baghdad and that his family moved to a farm in Haswa in 2015. The Authority referred to the applicant’s claims concerning the family home in Haswa being targeted in March 2017 and referred to the applicant’s claims as to fleeing to Kirkuk. The Authority referred to a death certificate.

32. The Authority was prepared to accept that the applicant’s family were residing with his uncle at the time of his death. The Authority found that the applicant’s evidence was that they did not know the perpetrator of the attack. The Authority did not accept that the applicant’s uncle or family were targeted for any reason associated with the applicant’s father’s profile, or that the applicant’s family were targeted as members of the Al-Janabi tribe or as Ba’athists The Authority found that the applicant’s uncle and family were harmed as part of sectarian violence against Sunnis at the hands of the PMF at the time. The Authority was not satisfied these incidents evidence that the applicant faced a real chance of harm due to his association with his family on returning to Karbala now or in the reasonably foreseeable future. The Authority accepted that the applicant’s family moved to Kirkuk as claimed in March 2017.

33. The Authority noted that the incidents of harm to the applicant’s family were in a different province to where the applicant will be returning. The Authority was not satisfied that the applicant will face a real chance of harm in returning to Karbala now or in the reasonably foreseeable future as a member of the Sunni Al-Janabi tribe.

34. The Authority found that there is no real chance the applicant will come to adverse attention of anyone on return to Iraq due to his father’s profile.

35. Given the applicant’s limited profile and circumstances and country information, the Authority was not satisfied that the applicant faces a real chance of harm for any reason associated with his father’s role with the Ba’ath party, his role as mayor or on the basis that he himself will be accused of being Ba’athist.

36. The Authority was not satisfied that the applicant has an additional profile that would indicate he had a real chance of harm from the PMF, ISF, Shia militias or anyone else now or in the reasonably foreseeable future.

37. The Authority referred to the applicant’s family having a home in Karbala and his aunt continuing to reside in Karbala. The Authority was satisfied that the applicant would not be prevented from practising the Sunni religion on returning to Karbala now or in the reasonably foreseeable future. The Authority was not satisfied that the applicants faces a real chance of harm due to official or societal discrimination on return to Karbala now or in the reasonably foreseeable future.

38. The Authority was not satisfied that the applicant faces a real chance of any harm on returning to Karbala now or in the reasonably foreseeable future, including due to his father’s profile, any association with his family, as a member of the Al-Janabi tribe and/or for any reason associated with his Sunni faith, including as a Sunni male.

39. The Authority found that there was nothing in the applicant’s profile or accepted circumstances to indicate that he will face any real chance of being caught up in any intra-Shia violence on return to Karbala now or in the reasonably foreseeable future.

40. The Authority was not satisfied that the applicant faces a real chance of harm due to the general security situation in the southern governorates of Iraq, including Karbala, now or in the reasonably foreseeable future.

41. Taking into account the totality of the evidence, the Authority found that the applicant does not face any real chance of harm on return to Karbala in the southern governorates of Iraq now or in the reasonably foreseeable future, including due to being sought by the Mahdi Army in the past, his father’s profile, including his former work with the Ba’ath Party and mayor of their area, for any reason associated with his Sunni faith including as a Sunni male, as a member of the Al-Janabi tribe, and/or his association with his family, including any reason associated with the July 2015 and March 2017 attacks on his family, or due to the general security situation.

42. The Authority referred to the applicant departing Baghdad International Airport without difficulty and that that airport remains in operation. The Authority found that the applicant can safely access Karbala without facing any real chance of harm for any reason now or in the reasonably foreseeable future.

43. The Authority found that the applicant did not meet the definition of “refugee” in s.5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s.36(2)(a) of the Act.

44. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Iraq there is a real risk that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s.36(2)(aa) of the Act.

45. Accordingly, the Authority affirmed the decision under review.

Grounds in the Amended Application

1. The grounds in the application are as follows:

   1. The Immigration Assessment Authority (“the IAA”) found in its decision dated 14 May 2019 at [21] that Karbala was the area to which the applicant would return if required to return to Iraq. The IAA committed a jurisdictional error in making this finding. The error can be described in one or more of the following ways:

   a) The IAA failed to give proper and genuine consideration to the evidence before it that the applicant’s family had left the family home in Karbala in or about 2013, had chosen not to return to the family home in Karbala, and now lived in Kirkuk.

   b) The IAA’s reasoning process was illogical or irrational

   c) The IAA unreasonably failed to exercise, or consider exercising, its power under s 473DC of the Migration Act to obtain further information from the applicant as to the place in Iraq he would reside if required to return to Iraq.

   2. A relevant question before the IAA was why the applicant’s family left Karbala at some time after 2013. The IAA did not address or deal with this question. This was a jurisdictional error.

Ground 1(a)

1. In relation to ground 1(a), on 17 April 2019, the Authority wrote to the applicant identifying the general security situation relevantly in the southern governorates of Iraq and referring expressly to Karbala and identifying the accessibility of the southern governorates by air and identifying that the information may lead the Authority to conclude that the applicant does not face a real chance of serious harm or a real risk of significant harm in Iraq, including in Baghdad or in the southern governorates of Iraq, including Karbala.

2. The applicant provided a response to that information, which included referring to the applicant’s family relocation to Kirkuk. There was, however, no suggestion that the applicant would not relocate to Karbala and, indeed, the submission document on page 221 of the Court Book clearly identified an understanding in terms of the significance of the procedural fairness letter and the applicant potentially returning to the governorate of Karbala. Nowhere in the applicant’s statutory declaration dated 26 February 2019, which referred to the incident in 2015 and then the incident in March of 2017, did the applicant contend that he would return to Kirkuk.

3. Mr Zipser of counsel on behalf of the applicant in relation to ground 1(a) referred to the information provided by the applicant in relation to the relocation of his family to Kirkuk and that the Authority had not given real genuine consideration as to why the applicant’s family moved from Karbala and now live in Kirkuk.

4. It is apparent from the Authority’s reasons that the Authority engaged with the new information provided by the applicant in relation to Kirkuk and made express findings in relation to the applicant’s claims concerning that relocation and made dispositive findings that were open to the Authority. There is no basis to find that the Authority did not have a real, genuine or proper consideration of the applicant’s new information in relation to the relocation.

5. The Authority’s reasons in relation to the applicant returning to Karbala were open to the Authority in circumstances where the applicant had identified that his origin was from Karbala, as identified in the applicant’s entry interview. The adverse findings by the Authority in relation to the applicant returning to Karbala were open to the Authority for the reasons given by the Authority, as set out as above. Ground 1(a) in substance is an invitation to this Court to engage in impermissible merits review.

6. No jurisdictional error as alleged in ground 1(a) is made out.

Ground 1(b)

1. In relation to ground 1(b), the Authority identified that the applicant would be returning to Karbala and not to Kirkuk. That was an adverse finding open to the Authority. There is no basis to find that the Authority’s reasons were illogical or irrational.

2. The Authority rejected the applicant’s account of his family departing Karbala for Baghdad in 2007 as claimed. The Authority made a finding that, after the applicant had left Iraq, his family continued to reside in Karbala until 2013 and then moved in with uncle in Baghdad. There was no evidence or submission put to the Authority as to the reason for this move and the Authority was not obliged to speculate upon such. The Authority made findings dispositive to the applicant’s claim to fear harm by reason of an adverse interest in the applicant and his father. The adverse findings by the Authority cannot be said to lack an evident and intelligible justification.

3. No jurisdictional error as alleged in ground 1(b) is made out.

Ground 1(c)

1. In relation to ground 1(c), the only reference to s.473DC of the Act in the submissions advanced by the applicant in response to the letter dated 17 April 2019 was not in the context of requesting an explanation but rather an identification of information that was before the Authority. No request was advanced to the Authority to exercise any power under s.473DC of the Act.

2. Given the opportunity provided to the applicant to put on new information and submissions in relation to the reconsideration of the applicant’s application for the protection visa before the Authority and the provision of those submissions and new information and the consideration of the same by the Authority, the absence of any express consideration of the exercise of power under s.473DC of the Act in relation to where the applicant would return cannot be said to lack an evident and intelligible justification.

3. Further, given the finding by the Authority that the applicant’s family continued to reside at Karbala after the applicant’s departure and the existence of the family home in Karbala and an aunt, the absence of expressed consideration of exercising a power under s.473DC of the Act cannot be said to lack an evident and intelligible justification.

4. No jurisdictional error as alleged in ground 1(c) is made out.

Ground 2

1. In relation to ground 2, for the reasons already given, it is apparent that no reason was advanced by the applicant as to why his family did leave Karbala in 2013. In these circumstances, Mr Zipser’s submission that there was integer of the applicant’s claim that was not the subject of findings or that the Authority did not deal with this question as to why the applicant’s family left Karbala does not give rise to any error. There was no claim advanced of fear harm or a reason advanced in relation to the 2013 relocation. There is no integer of the applicant’s claims that was not the subject of dispositive findings by the Authority.

2. No jurisdictional error as alleged in ground 2 is made out.

3. Accordingly, the amended application is dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 12 February 2020 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  23 April 2020