CSW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1308

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1308

File number(s):

SYG2587 of 2016

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

11 June 2021

Catchwords:

 MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa (SHEV) – whether the decision and reasons of the Immigration Assessment Authority is affected by error of law – whether the Authority overlooked and misinterpreted and misapplied the law – whether based on the evidence on file, the decision reached by the Authority is unreasonable and illogical – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5, 36, 473, 476

Cases cited:

BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091

FCS17 v Minister for Home Affairs (2020) FCR 644

Minister for Immigration and Border Protection v CED16 [2020] HCA 24

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FAFC 10

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Number of paragraphs:

34

Date of last submission/s:

9 June 2021

Date of hearing:

9 June 2021

Place:

Parramatta

Solicitor for the Applicant:

The Applicant appeared in person.

Solicitor for the Respondents:

Mr Hutton appeared on behalf of the First Respondent.

Table of Corrections
Paragraph 5, 2nd bullet point.	Name removed.
Paragraph 5, 4th bullet point.	Name removed.

ORDERS

SYG 2587 of 2016

BETWEEN:

CSW16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	11 JUNE 2021

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.The application is dismissed.

3.Order 2 is stayed for 14 days from today.

4.The Applicant to pay the First Respondent’s costs fixed in the amount of $5600.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant claims to be a citizen of Iraq. The applicant departed Iraq in July 2012 and arrived in Australia that year, as an unauthorised maritime arrival.

2. In December 2015, the applicant applied for a Safe Haven Enterprise Visa (“SHEV”). On 6 July 2016, a delegate of the Minister for Immigration and Border Protection (“the Delegate”) refused to grant the applicant his SHEV.

3. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 26 August 2016, the Authority affirmed the delegate’s decision not to grant the applicant a SHEV.

4. The applicant now seeks judicial review of the Authority’s decision.

   THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

5. After setting out the relevant background, the Authority summarised the applicant’s claims as follows at paragraph 7:

   •The applicant is an Iraqi citizen of Arab ethnicity who was born in Karbala province, but moved to Baghdad with his family when he was approximately 5 years old. He has resided in Al Amiriyah, Mansour district of Baghdad for most of his life, apart from a 6 year period (1996-2002) when he was undertaking compulsory military service as a border guard in Misan province. His mother and six siblings continue to reside in Baghdad, one sister resides in Karbala with her spouse and two siblings are in Indonesia. The applicant also has a sibling who resides in Australia with her spouse.

   •The applicant claims that following the completion of his military service in Misan province he worked in Al Mansour district in Baghdad as a street seller of goods such as cigarettes, tissues and chocolates for 3 years. In 2005 he commenced working in his brother’s convenience store, which was also located in the Al Mansour district, a predominantly Sunni area. The applicant and his family lived in a nearby area of Al Amiriyah.

   •In mid-2006 (around June) a car bomb exploded approximately 150 metres from his brother's shop. When the fire brigade arrived to extinguish the fire a second bomb in the car was detonated. The applicant claimed that the bomb targeted his brother's shop and the shops next to them which were owned by Shias.

   •In July 2006, while the applicant was working in his brother's shop, armed men climbed out of a vehicle and fired shots into the shop and the bakery next door which were both open at the time. The applicant was wounded in the head and his younger brother who was visiting the shop received injuries in his leg and stomach. The applicant was hospitalised for 5 days. He saw the faces of two of the assailants and gave a description to the Iraqi police who advised him that a Sunni extremist group, the Omar Brigade, controlled the area where his brother's shop was located and was responsible for the incident. After the incident the applicant returned occasionally to the supermarket to work but he was very fearful and it affected his health. In 2011 his brother closed the shop because of the deteriorating security situation.

   •At the protection interview the applicant  stated that  in approximately  December  2015, his brother in Baghdad advised him that the police had come to  the  shop  and  their house asking for the applicant, as they had arrested  one  of the  people  they believed was involved in the shooting incident in 2006. The person arrested by the police was affiliated with Omar Brigade and the other person involved is connected to Islamic State of Iraq and Syria (ISIS). The arrested person had testified against other people who were part of the Omar Brigade (now affiliated with ISIS) and are active in the same neighbourhood. The applicant fears that he will be targeted on return by ISIS /Omar Brigade as he would give testimony against this person. The investigations under the Anti-Terrorism Act are very rigid and can take years. It is therefore likely that he will be targeted on return as he would become known throughout the investigation and testimony process, and be tracked down even in the south of Iraq and killed.

   •The applicant fears harm from the Omar Brigade and ISIS because he can testify against the person who was arrested and they will be informed that he has returned through the neighbours who are Sunni. The applicant cannot relocate to Karbala where his sister is as these groups are present everywhere and infiltrate the police. ISIS previously infiltrated Karbala among displaced people from Anbar province and it is very difficult for the applicant to relocate in the south as strict security investigations are conducted before a person is allowed to relocate.

   •The Iraqi authorities cannot protect him as the security is so poor that the government is unable to protect itself.

   •The applicant also fears that his health will deteriorate on return and he will have heart seizures.

6. At paragraph 11 of its decision, the Authority accepts the applicant’s identity as claimed and that he is a citizen of Iraq. At paragraphs 13 to 15 of its decision, the Authority was not satisfied the applicant has any medical conditions that would result in serious harm if the applicant were returned to Iraq.

7. At paragraphs 16 onwards of its decision, the Authority accepted that in 2006 a car bomb exploded 150 metres from the applicant’s brother’s shop in Baghdad. The Authority was not satisfied due to the distance from the shop and country information that the applicant and/or his brother were specifically targeted. At paragraph 20 of its decision, the Authority accepted that the applicant and his brother were wounded in a shooting and that they were targeted as Shias working in a Sunni dominated area.

8. The Authority was prepared to accept that local police had visited the applicant’s family home in Baghdad seeking the applicant’s assistance in relation to a person that they had arrested in relation to the shooting. The Authority was not able to accept that the applicant’s testimony was the only evidence available to the police in relation to the shooting. However, the Authority accepted that if he returned to Baghdad, the police would seek his assistance and the applicant would be viewed as an informer by Islamic State of Iraq and Syria (“ISIS”)/Omar Brigade operatives and be at risk of serious harm upon return to Bagdad.

9. At paragraph 28 of its decision, the Authority considered the risk of harm to the applicant if he were to relocate to southern Iraq, which is a Shia dominated area. The applicant has a sister living in Karbala in southern Iraq. The Authority was satisfied, based on country information that the applicant would not be at risk of serious harm if he relocated to Karbala.

10. The Tribunal noted that pursuant to s 36(2B) of the Migration Act 1958 (Cth) (“the Act”), a person is not taken to be at real risk of serious harm if it would be reasonable for them to relocate to another area of the receiving country. Given that the applicant was born in Karbala, and has a sister residing there, the Authority was satisfied that, as an able bodied male of working age, it would be reasonable for the applicant to relocate to Karbala.

11. Accordingly, the Authority affirmed the delegate’s decision under review.

    GROUNDS OF JUDICIAL REVIEW

12. The grounds of judicial review relied upon by the applicant are set out in an Initiating Application filed with the Court on 23 September 2016. They are as follows verbatim:

    Ground One

    The Decision and Reasons of the Immigration Assessment Authority is affected by error of law as the Delegate misunderstood my situation and denied my fear of persecution contrary to the evidence before the Department.

    Ground Two

    My life is in danger wherever I go in Iraq and the Reviewer overlooked and misinterpreted and misapplied the law by stating that I can relocate.

    Ground Three

    Based on the evidence on file the decision reached by the Reviewer is unreasonable and not logical.

    THE APPLICANT’S SUBMISSIONS

13. The applicant appeared before the Court unrepresented.  The applicant was assisted by an interpreter in the Arabic language.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books, and that a copy of the first respondent’s written submissions had been interpreted to him. The Court also provided the applicant with a pen and paper so that he could take notes during the course of the hearing should he wish to.

14. At the commencement of the hearing, the Court explained to the applicant that it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.

15. Despite Court orders, no written submissions in support of the application or other evidence was provided by the applicant to the Court. The applicant told the Court how he was shot in Baghdad. The applicant said that he had real fears of persecution if returned. The applicant stated that he had no family, other than his sister in Karbala and did not know his brother in law. The applicant said that he would have nowhere to live and that he needed the financial and other assistance from the rest of his family to be able to survive but Baghdad was not safe for him.

16. Following the first respondent’s oral submissions, the applicant was asked if he wished to state any further in reply.  The applicant reiterated that he would have nowhere to go in Karbala. The applicant simply wanted to stay in Australia, he had mental health issues.

    THE FIRST RESPONDENT’S SUBMISSIONS

17. In relation to ground one, this ground asserts that “the delegate misunderstood my situation and denied my fear of persecution contrary to the evidence before the Department”. It was submitted that this Court does not have jurisdiction to review the decision of the delegate (see; s 476(2)9a) and (4)(a) of the Act).

18. Assuming that the first ground alleges error by the Authority, it does not particularise the specific claims made by the applicant which weren’t misunderstood or the evidence on which the applicant relies.  In any event, the Authority considered the applicant’s claims and found that they did not satisfy the criteria for the grant the visa (see; paragraphs [16]-[24] of the Authority’s decision).

19. The second ground asserts that the applicant is in danger wherever he goes in Iraq and the reviewer overlooked and misinterpreted and misapplied the law by stating that he can relocate. It was submitted that the Authority can consider relocation when applying s 5J(1)(c) of the Act.  The Authority clearly understood this requirement (see; paragraph 29 of the Authority’s decision) and concluded the applicant would not face a real chance of persecution as a Shia or a potential witness against a member of the Omar Brigades/ISIS on return to Southern Iraq (and in particular Karbala) (see paragraph 35 of the Authority’s decision ).

20. It was submitted that when considering a relocation under s 5J(1)(c) of the Act, the Authority was not required to consider whether that relocation was reasonable.  The reference to “all areas of the receiving country” should mean all areas where there is safe human habitation and to which safe access is lawfully possible.  However, relocation under the section, is not otherwise qualified by notions of reasonableness: (see; FCS17 v Minister for Home Affairs (2020) FCR 644 at [21] and [81]).

21. At paragraphs 31 and 32 of its decision reason, the Authority found that Karbala is a Shia dominated government-controlled province in southern Iraq which the Department of Foreign Affairs and Trade (“DFAT”) reports that Shia’s face little to no discrimination in government-controlled areas.  Southern Iraq has remained significantly more secure than central Iraq. DFAT has stated that if Shia’s relocate to Shia dominated provinces, which have experienced fewer violent attacks, they are less likely to become victims of sectarian based violence and internal relocation to southern Iraq is viable for Shias.  Further, there was no evidence of ISIS targeting people with a profile like the applicants in a Shia dominated area which is firmly in the control of the security forces, such as Karbala.

22. In relation to complimentary protection, the Authority was required to consider the reasonableness of relocation pursuant to s 36(2B)(9)(a) of the Act.  That provision makes it an express requirement that the decision-maker be satisfied that “it would be reasonable for the noncitizen to relocate to an area of the country where they would not be a real risk that the noncitizen will suffer significant harm”.  The Authority was clearly aware of that requirement.  The Authority found at [43]-[45] of its decision, that, based on country information, there was not a real risk of the applicant facing harm on the basis of the general security situation in Karbala or Southern Iraq. The applicant was born in Karbala and he lived there for the first five years of his life. The applicant’s sister lives in Karbala, the applicant would not be restricted from entering Karbala because restrictions only apply to Internally Displaced People (“IDP’s”) from Anbar and that the applicant is an able-bodied male of working age, who has family living in Karbala as support.

23. Ground three asserts that the Authority’s decision is unreasonable and not logical.  This ground is not particularised.  The first respondent contends that the conclusions of the Authority were coherent and open to it on the available material.

24. As a matter of fairness, the first respondent notes that there was a certificate issued under

    
    

    s 473GB of the Act. It was further conceded that, the underlying document and the certificate were not disclosed to the applicant. That certificate covered a document which is an “identity assessment form” relating to the applicant. The first respondent accepts that the certificate issued under s 473GB of the Act, is invalid.  It was conceded for the reasons given in Minister for Immigration and Border Protection v CED16 [2020] HCA 24 at [12] that the claim that the form was a Departmental working document was an insufficient basis for a claim by the Crown in the right of the Commonwealth in a judicial proceeding for the purposes of s 473GB(1)(a) of the Act. It was conceded that the existence of the certificate and the underlying document were not disclosed to the applicant. By reason of s 473DA(1) of the Act, the Authority is under no duty, to disclose the fact of the notification under s 473GB(2) of the Act to a referred applicant: (see; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at [2] and at [29]-[31]). Nor, given the terms of s 473DA(2) of the Act  was the Authority required to disclose the contents of the identity assessment form to the applicant.

25. In any event, no practical injustice occurred as a result of the non-disclosure the contents of the identity assessment form, as the Authority place no reliance on it in affirming the delegate’s decision.  The question of the applicant’s identity was not an issue before the Authority.  Accordingly, no jurisdictional error arises because of this issue.

    CONSIDERATION

26. Ground one asserts that the Authority’s decision is affected by error of law “as the delegate misunderstood my situation and denied my fear of persecution contrary to the evidence before the Department”. As noted by the first respondent, the Court has no jurisdiction in relation to the delegate’s decision: (see; s 476(2)(a) and (4)(9)(a) of the Act). Further, any error in the delegate’s decision is cured by the conduct of a de novo hearing by the Authority.

27. If the ground relates to the Authority, it does not particularise the specific claims made by the applicant which were misunderstood or the evidence on which the applicant relies. A bland assertion of jurisdictional error that lacks any particulars is liable for dismissal for that reason alone: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35]). A fair reading of the Authority’s decision indicates that the Authority considered all the applicants claims. The Authority accepted that the applicant was the victim of a targeted shooting that wounded him. The Authority accepted that there was a real risk of serious harm if he were to return to Baghdad. Having made these findings, the Authority then turned to look at the issue if relocation.  All the applicant’s claims were considered and taken into account.  Ground one has no merit.

28. Ground two is an assertion that the Authority overlooked or misinterpreted and misapplied the law that the applicant can relocate. Again, no particulars are provided as to what or how the law was overlooked, misapplied or misinterpreted. Under s 5J(1)(c) of the Act, there is no requirement that any relocation is reasonable. Reasonableness of relocation is applicable under complimentary protection considerations.

29. The Authority fully considered the capacity of the applicant to relocate to Karbala where it found that he has support from family available to him. It considered relevant country information and was satisfied that the applicant would be safe in a Shia dominated and controlled government providence where there is low risk of generalised or sectarian violence.  Further, there was a lack of evidence of ISIS targeting people with the applicant’s profile in areas such as Karbala. The Court is satisfied that there was no misapplication or misinterpreting of the applicable law. It is well settled that country information that the Authority has regard to and the weight it gives such information is a matter for the Authority: (see; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FAFC 10). Ground two has no merit.

1. Ground three is a bland assertion that the findings reached by the Authority are unreasonable and not logical.  No particulars are provided in support of this assertion.  A bland assertion does not constitute jurisdictional error in the absence of particulars: (see; WZAVW).

2. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could come to it: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (“Li”) at [28]), or where a decision that has been made lacks an “evident and intelligible justification”: (see; Li at [28]).

3. The test for unreasonableness is “stringent” and will only arises in rare cases.  Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see; Li at [30], [113]). In the current case, the Court is of the view that the Authority’s findings were open to it on the evidence and materials before it and for the reasons it gave. Those findings are not tainted by any failure to afford procedural fairness in a material manner (see below), reaching a finding without a logical or probative basis or unreasonableness. The findings may be harsh, but that is not the test that the Court must apply. The Court cannot undertake merits review. No error is apparent from the decision record. Ground three has no merit.

4. In relation to the non-disclosure certificate issued under s 473GB of the Act, the Court notes the concession of the first respondent that the certificate was invalid.  Further, the existence of the certificate and the underlying document were not disclosed to the applicant.  Given that the applicant’s identity did not appear to be in issue before the Authority and formed no part of the decision to refuse him a protection visa, the Court is satisfied that had the certificate been disclosed, it would not have resulted in a change of the outcome.  There is nothing in the Authority’s reasoning to indicate that it had taken any of the protected information into account and its failure to disclose the existence of the notification did not establish it had breached any other procedural obligations.  In these circumstances, the failure to comply with the statutory obligation is not material and no jurisdictional error arises: (see; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [60] and [66]-[67]).

   CONCLUSION

5. Accordingly, the application is dismissed.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       11 June 2021