COE17 v Minister for Immigration
[2020] FCCA 1327
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COE17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1327 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming a decision not to grant a Safe Haven Enterprise visa – whether Authority failed to take into account relevant considerations – whether Authority’s decision unreasonable – whether the Authority made a jurisdictional error by failing to disclose an invalid certificate purportedly issued under s.473GB of the Act – whether failure to disclose such certificate with or without the documents covered by it was material – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), pt.3, sch.1 Migration Act 1958 (Cth), ss.5, 36(2)(a), 36(2)(aa), 473, 473CB, 473GB, 476 |
| Cases cited: BVD v Minister for Immigration and Border Protection [2019] HCA 34 |
| Applicant: | COE17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1821 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 April 2020 |
| Date of Last Submission: | 30 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Applicant in person, assisted by an interpreter |
| Solicitors for the First Respondent: | Ms D Watson of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1821 of 2017
| COE17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Iraq, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
Claims for Protection
The applicant stated his claims for protection on a number of occasions. It would be convenient to set out the claims the applicant stated in his statutory declaration that forms part of his application for a SHEV. Those claims are as follows:
a)The applicant is a Shia Muslim. He was born in the province of Basra. His father is a Sunni Muslim, his mother is a Shia Muslim, and all of the applicant’s brothers and sisters are Sunni Muslims.
b)The applicant’s family used to be famous traders in foodstuff. They are a very rich family. They imported foodstuff from the United Arab Emirates (UAE) or Iran.
c)One of the applicant’s brother (brother A) managed the import side of the business; the applicant and his three other brothers managed the wholesale side of the business; and one other brother managed the warehouse.
d)The applicant and his brothers witnessed hatred by the local community and local traders because most of the applicant’s family are Sunnis; local traders insulted the applicant’s family and called them “Sunni” and “Wahabi”; and the government created a lot of problems for the applicant’s family when, for example, the family business tried to clear goods from UAE.
e)In 2011 brother A was kidnapped in an area near the border between Iran and Iraq. The kidnappers blindfolded brother A and the applicant believes he was taken across the Iranian border. The applicant’s family paid the kidnappers a ransom and secured brother A’s release. The kidnappers threatened to kill brother A and the applicant’s family if brother A were to report the kidnapping to the authorities.
f)After he returned to Iraq brother A reported his kidnapping to the Iranian consulate, but the consulate did not believe brother A. They called him a liar and called the police who kicked him out of the consulate.
g)Brother A informed others in the market about what happened to him, and warned traders about what will happen to them if they go to the area in which brother A was kidnapped. One day people from inside a yellow Iranian car started shooting at brother A, but he managed to get inside the house. Brother A subsequently left Iraq for Indonesia. He there applied to the United Nations High Commissioner for Refugees (UNHCR), and he was resettled in Australia.
h)Because of brother A’s complaints to the authorities, another of the applicant’s brothers (brother B) was shot and killed in late 2011. The murderer used brother B’s telephone, and called another of the applicant’s brothers (brother M) telling him that this was the beginning, and that they are going to kill all of the members of the applicant’s family. After brother M received this threat, most of the applicant’s family moved to Hillah in the centre of Iraq. Another of the applicant’s brother (brother AR) moved to an area in Basra where he lived with his maternal uncle.
i)In 2012 brother AR’s barbershop was burned. The police report concluded the shop was deliberately burned, and two witnesses observed two people standing in front of the shop who spoke Persian. Brother AR left Iraq, and is now in Australia seeking protection.
j)In late 2016 (corrected to 2015 in the interview before the delegate) a group belonging to Asaeb Ahl Alhaq (AAH) came to the applicant’s family home. They questioned two of the applicant’s brothers about the family’s history in Basra. The group stated they have some information that the family fled Basra, the family is Sunni, and that they suspected the family was hiding something. The applicant’s family decided to go and live in Erbil in the northern Kurdish region. The applicant’s family overstayed their stay in Erbil, but they have nowhere else to go.
Before the delegate, the applicant said that, despite past insults, he was never personally seriously harmed by anyone because of his association with his wealthy Sunni family; he did not leave Iraq with brother A in 2011 because he was not personally at risk of harm; after his family moved to Hillah he was not frightened to return to Basra because, as a Shia, he was a member of the majority religion, and he would not be harmed, and that other Shia’s would have compassion for him; it was the Sunni members of his family who feared harm; and that “he has nothing wrong” in Basra.[1]
[1] CB169, [25]
Authority’s reasons
The Authority accepted or found that:
a)the applicant was raised in a mixed Shia-Sunni household; he and his mother identify with the Shia faith; and the applicant’s father (now deceased) and siblings are Sunni.
b)the applicant’s family operated a profitable and well-known wholesale trading business in Basra, importing food from the UAE and Iran and selling it in Iraq, and the family were considered wealthy;
c)brother A managed the business; and brother A was required to travel to and from the UAE and Iran;
d)the applicant’s Sunni siblings were subjected to hatred and harassment; and the government created problems for the business;
e)the applicant was also subject to harassment, even though Shia, because many in his family are Sunni, but the applicant had not been personally threatened or otherwise subjected to serious harm;
f)brother A was kidnapped and held for ransom because of his status as a wealthy businessman; he was released after the payment of a ransom, but was warned not to tell the authorities; brother A reported his kidnapping to the Iranian embassy, and informed other traders of his kidnapping; unknown persons waited outside the applicant’s family home and shot at brother A, but he managed to escape without injury, and then he left Iraq and came to Australia; and in 2011, before his departure, brother A closed the family business, selling all the stock;
g)after the family business closed the applicant ceased his employment with the business, and has not worked for his family or in any other business since that time;
h)brother B was killed in retaliation for brother A’s actions, and the applicant’s family were threatened, as a result of which the family moved to Hillah in the Babil province;
i)brother AR remained in Basra and was targeted in 2012 when his business was deliberately burned down; he left and is now in Australia;
j)the applicant returned to Basra in 2011, and remained there until 2012;
k)members of the AAH visited the applicant’s family in Hillah; they said they knew the family were Sunnis from Basra and believed the family was up to something; and the family moved to Erbil to avoid further threats; and
l)brothers of the applicant have rented a shop in Erbil and have a small business of selling food locally.
Having made these findings the Authority considered whether the applicant faced a real chance of harm because of the actual or perceived wealth of his family, or because of their Sunni religion. The Authority was not satisfied the applicant faces a real chance of any harm from Shia militias, the government, members of the community, other traders, or anyone else because of the applicant’s membership of a mixed Shia-Sunni family, or because of his membership of a rich or wealthy Sunni family, or because of his association with his Sunni family, or his association with the previous or current business of his family, or because of the actual or perceived wealth of the applicant or of his family. The Authority relied on the following:
a)Country information that Sunnis in Shia-dominated and in mixed provinces face a high risk of violence from Shia armed opposition groups, although such attacks appear to be more common in central Iraq and contested areas than in the applicant’s home area of Basra.[2]
b)The evidence the applicant gave to the delegate I have set out in paragraph 3 of these reasons.[3]
c)The finding, based on the applicant’s evidence and country information before it, that the applicant would be identified as a Shia Muslim on his return to Basra, including by the government, members of the community, and Shia militias.[4]
d)The Authority’s finding that it does not accept the applicant’s family would continue to be wealthy or rich, or wealthy or rich business owners, given that six years have passed since brother A closed the previous business and the majority of the applicant’s family left Basra, and the business some of the applicant’s siblings established in Erbil consists of a small shop.[5]
e)The absence of any suggestion in the country information to which the Authority referred that individuals from a mixed Shia-Sunni family face harm from Shia militias or anyone else on that basis.[6]
[2] CB169, [24]
[3] CB169, [25]
[4] CB169, [25]
[5] CB170, [26]
[6] CB170, [27]
The Authority also considered whether there was a real chance the applicant would face significant harm for any other reason. The Authority found there was nothing in the evidence before it to suggest the applicant will be unable to obtain access to employment in the future;[7] and it was not satisfied the applicant faces a real chance of any harm from the government, or at a societal level, because of his Shia religion, or Arab ethnicity, if he returns to Basra;[8] or from Sunni militias, including Daesh;[9] or from generalised violence in Basra.[10] The Authority was satisfied that the security situation in Basra remains relatively stable, and that the applicant can safely access his home in the Basra province.[11]
[7] CB170-171, [29]
[8] CB170-171, [29]
[9] CB171, [30]
[10] CB171, [31]
[11] CB171, [31]
On the basis of these findings the Authority found the applicant does not meet the requirements of the definition of “refugee” given in s.5H of the Act. Further, relying or repeating findings it had already made, the Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country there is a real risk the applicant will suffer significant harm.[12]
[12] CB172-174, [37]-[47]
Grounds of application
The applicant, who is not legally represented, relies on the following grounds contained in the application (errors in original):
1.The Immigration Assesment Authority “IAA” failed to takeinto relevant consideration, the “IAA” took into account irrelevant consideration.
2.The Immigration Assessment Authority “IAA” failed to test all the refugee convention elemnts against my circumstances.
3.The Immigration Assessment Authority “IAA” decision is unreasonable.
At the hearing before me the applicant made submissions that did not address the grounds stated in the application. The applicant said that the law and the country in Iraq are against the disadvantaged and the poor; political parties, tribes, and gangs govern the country; and these are much stronger than the government itself. The applicant said Iraq is not safe; there is killing, kidnapping, and assassination. He referred to the killing of his brother for no reason; and that all he wants is to live his life in peace and security, away from fear of terror.
None of these matters discloses any jurisdictional error; they are an appeal to the merits of his claims for protection. As I informed the applicant, this Court does not have jurisdiction to determine whether the applicant should be granted protection; the role of the Court is to determine whether the Authority had reviewed the applicant’s claims according to law.
I then read to the applicant each of the grounds stated in the application and, after each ground, I asked the applicant whether he wanted to make any submissions in relation to the ground I read out.
Ground 1
In relation to ground 1 the applicant said that Iraq is a “family society” in that if one member of a family does something wrong, the whole family bears responsibility for that member’s wrongdoing. The applicant submitted the Authority did not take into account this factor.
The Authority understood the applicant claimed he faced harm because of his membership of a family that was of mixed Sunni and Shia religion, and is wealthy or perceived to be wealthy. The Authority also understood the applicant claimed that brother A had been shot at, brother B had been killed, and the applicant’s family had been threatened because, or at least partly because, brother A approached the Iranian embassy, and informed other traders of his kidnapping. The Authority considered these claims and accepted them. The Authority, however, was not satisfied these matters gave rise to a real chance of significant harm; and it was not so satisfied largely because of the country information the Authority identified, and the applicant’s own evidence that he was not personally at risk of harm; he was not frightened to return to Basra after his family moved to Hillah because as a Shia he was a member of the majority religion; and it was the Sunni members of his family who feared harm.
I do not, therefore, accept the Authority failed to take into account family relationships. Given ground 1 as framed otherwise does not disclose any jurisdictional error because it does not identify the consideration the Authority is claimed not to have taken into account. Ground 1, therefore, fails.
Ground 2
The applicant did not make any submission in relation to ground 2.
The ground does not identify the elements of the definition of “refugee” contained in s.5H of the Act it failed to test against the applicant’s circumstances, or the circumstances of the applicant against which each of those elements ought to have been tested. For that reason alone ground 2 fails.
In any event, there is nothing in the material to suggest the Authority did not consider the applicant’s claims by reference to the criteria for the granting of a protection visa under s.36(2)(a) or s.36(2)(aa) of the Act. The Authority identified and considered the applicant’s claims, it accepted the factual premises of the applicant’s claims, but, for the reasons it gave, the Authority was not satisfied the applicant faced a real chance of significant harm in the reasonably foreseeable future for the reasons on which the applicant relied or was taken to have relied he feared harm.
Ground 3
In response to my question why the applicant claims the Authority’s decision is unreasonable, the applicant said that in Iraq there is, and the applicant feels, fear and terror, and because of what happened to his brother. This does not disclose any unreasonableness by the Authority; it repeats the substance of the applicant’s claims for protection the Authority did not accept.
The Authority’s decision not to accept the applicant’s claims would have been unreasonable if no reasonable decision-maker in the position of the Authority could have refused the applicant’s claims for protection for the reasons it gave, given the information that was before it. I am satisfied it was reasonably open to the Authority to find as it did for the reasons it gave. Ground 3, therefore, also fails.
473GB certificate
Although not raised as a ground, the Minister identified as a potential issue a delegate of the Minister having issued a certificate purportedly under s.473GB of the Act (473GB Certificate). The Minister accepts the 437GB Certificate is not valid; and that the Authority did not refer or disclose to the applicant the existence of the 473GB Certificate. The Minister submits, however, that these matters do not mean the Authority made any jurisdictional error; and that is because the documents are not material. The Minister further made the formal submissions that, to the extent the judgment of Derrington J in CED16 v Minister for Immigration and Border Protection applies, his Honour’s judgment is incorrect.[13]
[13] CED16 v Minister for Immigration and Border Protection [2018] FCA 1451
The Minister has filed a form of affidavit made by Ms Watson that annexes the documents covered by the 473GB Certificate.[14] As submitted by the Minister, the documents fall into two classes. One class relates to inquiries that had been made about the applicant’s time in the Netherlands, and about whether the applicant may have the benefit of protection in a third country. These questions were potentially relevant to whether the applicant was an “excluded fast track applicant” as that expression is defined in in s.5(1) of the Act. The second class of documents consists of Australian records and emails recording transactions between the applicant, the applicant’s brother (which I infer is brother AR), and various people overseas. The Minister submits the Authority did not rely on matters to which these two classes of documents could have been relevant and, for that reason, any non-disclosure to the applicant of the 473GB Certificate or of the documents covered by the certificate could not have been material to the Authority’s decision.
[14] The affidavit is not sworn, but I admitted it as an exhibit.
The Minister does not accept the Authority came under an obligation to disclose to the applicant the 473GB Certificate.[15] The Minister’s submissions on materiality, however, assume that the Authority’s not disclosing a certificate issued under s.473GB is capable of giving rise to a jurisdictional error. Subject to the judgment of Derrington J in CED16, which I will consider below, I find that the Authority’s not disclosing to the applicant the 473GB Certificate, with or without the documents covered by that certificate, did not amount to a denial to the applicant of procedural fairness but, if it did, the Authority’s failure to disclose that certificate with or without the documents it covered would not have been material. That is, the Authority’s failure to disclose the 473GB Certificate would not have deprived the applicant of a realistic chance of the Authority making a different decision.[16] Neither class of documents could reasonably be considered to be relevant to the grounds on which the Authority relied for not being satisfied the applicant met the criteria for the grant of a protection visa as provided for by s.36(2)(a) or s.36(2)(aa) of the Act.
[15] The Minister relies on Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, at [99] and [100], and on BVD v Minister for Immigration and Border Protection [2019] HCA 34
[16] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [4], [45], [46]
That, then, leaves me to consider CED16. In that case a document known as an “Identity Assessment Form” (IA Form) was before a delegate of the Minister at the time the delegate refused to grant a protection visa to a fast track applicant. The “review material” that was given to the Authority pursuant to s.473CB(2) of the Act included the IA Form, but is was the subject of a certificate purportedly issued under s.473GB (purported Certificate). The certificate was invalid. It was contended that the Authority purported to exercise the power under s.473GB(3) of the Act in relation to the IA Form in circumstances where the condition for doing so, namely, the existence of a valid certificate under s.473GB(2), was not satisfied. Derrington J accepted this contention.
Derrington J appears to have accepted that whether the Authority’s relying on an invalid 473GB certificate would result in the Authority making a jurisdictional error depends on whether its having done so was material. That is apparent in the manner in which his Honour dealt with the Minister’s submission that even if the Authority made an error by relying on the purported Certificate the error was not material. Derrington J accepted that before it could be concluded that the Authority’s reliance on the purported Certificate resulted in the Authority making a jurisdictional error it was necessary to establish that the Authority’s reliance on that certificate was material to its decision. His Honour, however, was satisfied the Authority’s reliance on the purported Certificate was material; and for two reasons. First, the Minister “chose, as he was entitled to do, not to disclose the IA Form, for the purposes of the appeal”; and, second, the Minister’s assertion of public interest immunity in relation to the IA Form “heightened the import of the information in the IA Form”.[17]
[17] CED16 v Minister for Immigration and Border Protection [2018] FCA 1451, [59]. The High Court has granted special leave to appeal against the orders his Honour made: Minister for Immigration and Border Protection v CED16 & Anor [2019] HCATrans 246
I am of course bound by Derrington J’s judgment in CED16. The circumstances of the case before me, however, are relevantly distinguishable from those in CED16. In CED16 the document covered by the purported Certificate (the IA Form) was not in evidence before Derrington J. In the case before me, on the other hand, the documents covered by the 473GB Certificate are in evidence, which means the materiality of the Authority’s non-disclosure of the 473GB Certificate and of the documents covered by that certificate can be assessed. I have already concluded that the Authority’s not disclosing the 473GB Certificate was not material to the Authority’s decision. That conclusion is based on the irrelevance of any of the documents covered by the 473GB Certificate to any of the issues the Authority decided adversely to the applicant. It follows, therefore, that even if, on the basis of Derrington J’s reasoning in CED16, the Authority in the circumstances before me was required to disclose to the applicant the 473GB Certificate or the 473GB Certificate and the documents covered by that certificate, its failure to do so did not deprive the applicant of a realistic chance of the Authority making a different decision.[18]
[18] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [4], [45], [46]
Thus, the Authority’s not disclosing to the applicant the 473GB certificate or the documents covered by that certificate did not result in the Authority’s making a jurisdictional error.
Disposition and costs
The applicant has not succeeded on any of the grounds on which he has relied. I propose, therefore, to order that the application be dismissed.
At the hearing I explained to the applicant that the usual order as to costs is that the successful party is entitled to recover his or her costs. The applicant made no submission that the usual order as to costs should not be made in this case. Ms Watson, who appeared for the Minister, indicated that if the Minister were to succeed, he would seek costs and also ask that the costs be fixed in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) at the time the applicant commenced this proceeding on 13 June 2017, that amount being $7,206.
In my opinion, there is no reason why costs should not follow the event. I also propose to order, therefore, that the applicant pay the Minister’s costs, and that the costs be set in the amount of $7,206.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 29 May 2020
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