CWZ18 v Minister for Home Affairs

[2018] FCCA 3193

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWZ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3193

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether it was legally unreasonable for the Authority not to exercise its powers under s 473DC of the Act – whether the adverse findings by the Authority was attend by doubt – whether the adverse findings by the Authority lack an evident and intelligible justification – no arguable case of jurisdictional error made out – amended application dismissed.  

Legislation:

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

Cases cited:

MZZJO v Ministerfor Immigration and Border Protection (2014) 239 FCR 436

Applicant: CWZ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1564 of 2018

Judgment of: Judge Street

Hearing date: 6 November 2018

Date of Last Submission: 6 November 2018

Delivered at: Sydney

Delivered on: 6 November 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Minter Ellison

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 22 October 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

DATE OF ORDER: 6 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1564 of 2018

CWZ18

Applicant

And

MINISTER FOR HOME 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”) under Part 7AA of the Act made on 14 May 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Iraq, and his claims were assessed against that country. The applicant claimed to fear harm from militia groups or groups because of his actions against militias, as well as being considered a collaborator due to fighting with and being trained by various coalition forces. The applicant was found to be a Shia Muslim from a particular area in the Muthanna province. The applicant left Iraq on 12 April 2013 and arrived in Australia as an unauthorised maritime arrival on 25 April 2013.

3. On 5 April 2018, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. In the course of the delegate’s reasons, the delegate accepted the applicant worked with the Iraqi Army from 2003 until 2013, but found the applicant did not hold a high-ranking position with the army. The delegate referred to the applicant’s assertion that he was on a ‘list of targets’ and did not accept that the applicant was on a list of targets and did not accept the applicant’s transfer within the military was anything other than routine.

4. The delegate found the applicant had not been identified or targeted by militia for his role as an army officer in any or all of the locations advanced. The delegate did not accept the applicant had an individual profile with the militias in Iraq, including the Mahdi Army and Asa’ib Ahl al-Haq (“AAH”).

5. The delegate referred to two alleged threat letters and did not give weight to the two threat letters, and did not accept that the applicant had an unusual profile of interest with any militia in Iraq or was known to the militia in Iraq in his own right. The delegate found the applicant was able to return to the Muthanna province without being targeted. The delegate also did not accept that the applicant deserted from the Iraqi Army or has a profile as a military deserter and as such, fears harm by way of imprisonment on return to Iraq. The delegate expressly referred to a document dated 26 February 2018 titled ‘Verdict in Absentia’, and the delegate gave no weight to the document.

6. The delegate did not accept the applicant had a personal profile of interest with the AAH or the Mahdi Army in Iraq. The delegate did not accept the applicant fled the Iraqi Army without proper discharge. The delegate did not accept the applicant failed to return a private pistol assigned to him by the Iraqi Army. The delegate did not accept the applicant has a profile of a military deserter in Iraq. The delegate did not accept the applicant’s divorce was caused for reasons of his risk profile in Iraq. The delegate did not accept the applicant had an ongoing profile of interest to anyone in Iraq.

7. Following the delegate’s decision, on 10 April 2018, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached factsheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did provide submissions that were expressly referred to and taken into account in the Authority’s reasons. The Authority identified the background to the visa application and had regard to the information provided by the Secretary under s 473CB of the Act.

8. The Authority found the submission provided by the applicant relates to the delegate’s decision and findings, and had regard to the same. The Authority summarised the applicant’s claims for protection and referred to the two threatening letters that the applicant relied upon. The Authority noted that the two letters purport to be internal memos between the Basra and the Khodar offices of the AAH. The Authority referred to the content of the first memo and the memo from the Khodar office dated 28 April 2008 and its content.

9. The Authority identified having significant concerns as to the veracity of these two letters, which were not mentioned by the applicant in his 2013 interviews. The Authority referred to the fact that, first, they are not the usual letters directed to a person threatening them directly with harm including death, and the Authority noted that it is unclear why the applicant’s tribe member would have been handed two AAH internal memos to give to the applicant’s brother. The Authority noted their second concern is that the memo from the Khodar branch does not mention the applicant’s name at any point. In this regard, the Authority observed that had the Basra officer received this response, it would have been unable to identify to whom the Khodar office referred. The Authority found there is no reference number or other identifier included.

10. The Authority noted the final concern is that the Operation Knights Charge commenced on 26 March 2008. The Authority referred to the applicant and his unit remaining in Basra after the completion of the immediate hostilities until the end of the war. The Authority noted that in those circumstances there would have been no opportunity for the Khodar office to record all the places the applicant goes to and spends time at in April 2008 because he was at that time in Basra. It was in those circumstances the Authority was not satisfied these letters are genuine, and found that the Provision of the documents undermines the applicant’s credibility. The Authority did not accept the applicant was specifically targeted or of any direct interest to the AAH, the Mahdi Army, or any other militia groups prior to his departure from Iraq.

11. The Authority also referred to the applicant’s statutory declaration and the claim that his commanding officer told him his name was on a list of targets and captured militants. The Authority noted the applicant did not mention this in his arrival interview. The Authority referred to what was in the written interview that the militias followed him but he was able to avoid them. The Authority observed it is unclear whether the applicant meant after he left the army or when he was furlough. It was in that context that the Authority said:

    As there was no audio record of this part of the interview I place little weight on the statement.

12. The Authority noted the applicant returned to the Muthanna province in August 2010 to obtain a passport, and referred to the proposition that the applicant was escorted to ensure his safety. The Authority did not accept that the applicant was advised that his name was on a list of targets and did not accept that such a service of escort would be provided to him. The Authority found the applicant remained in the Maysan province from 2009 until his departure from Iraq, but found that the applicant travelled to the Muthanna province on at least two occasions and did not come to harm on either of those two occasions.

13. The Authority then referred to the document titled “Brief account of verdict in absentia” and the applicant’s claim that he deserted from the army and was sentenced to two years imprisonment. The Authority noted the applicant made no mention of the desertion of having an ongoing matter before the courts in his protection visa application or any statutory declaration. The Authority also observed that there was a significant concern that the applicant’s name as listed on the document and that it is listed as his forename, followed by the names of his father, grandfather, great-grandfather and the applicant’s tribal name. The Authority noted that none of the applicant’s Iraqi identity documents identify his tribal name.

14. The Authority was not satisfied that the military court would refer to a former enlisted man by a name other than that which he used during his service. It was in those circumstances the Authority was not satisfied this document was genuine, and did not accept the applicant deserted from the Iraqi Army or that he had been charged with desertion.

15. The Authority referred to the applicant’s claimed fear that he had a pistol issued to him and would be the subject of further charges. The Authority found as the applicant had been out of the service for more than five years, the Authority considered this claim implausible and did not accept it.

16. The Authority found the applicant was not a deserter from the Iraqi Army and found that no charges were put relating to a pistol issued to him. The Authority concluded the applicant was not directly targeted for his actions prior to his departure from Iraq in 2013. The Authority was satisfied there is no longer a real chance that the applicant would face harm due to having been trained by and having worked for and fought with coalition forces.

17. The Authority referred to considering the applicant’s profile as a former member of the Iraqi Security Forces (“ISF”), and referred to country information indicating that the risks that former members of the security forces in northern and central Iraq, particularly Shias, increased in mid-2014 due to actions of ISIS and Daesh. The Authority found there is nothing, however, in this or recent information provided that assesses a risk to former soldiers in southern Iraq. It was in those circumstances the Authority was not satisfied that there would be a real chance of harm to the applicant in his home area in the Muthanna province due to his former enlistment in the Iraqi Army from 2003 to 2013.

18. The Authority took into account the applicant being a Shia Muslim and referred to country information, and was not satisfied the risk of harm rises to a real chance. Having considered the totality of the evidence, the Authority was not satisfied the applicant faced a real chance of harm as a Shia Muslim or due to sectarian violence or return to the Muthanna province in southern Iraq now or in the reasonably foreseeable future.

19. The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria in s 36(2)(a) of the Act.

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

The grounds

1. The grounds in the amended application are as follows:

   1. The applicant provided to the Department two threat letters from the AAH dated 20 April 2008 and 28 April 2008 and a document titled "Brief account of verdict in absentia" dated in 2016. The Immigration Assessment Authority ("the IAA") found that the three documents were not genuine. In the circumstances of the case, it was legally unreasonable for the IAA to not exercise its power under s 473DC of the Migration Act 1958 (Cth) to give the applicant an opportunity to comment on its concerns about the three documents before deciding that they were not genuine.

   2. The IAA was not satisfied that, if the applicant is required to return to Iraq, he would face a real chance of harm due to his former enlistment in the Iraqi army. A fair reading of the IAA's reasons indicate that the IAA had a real doubt that this finding was correct. In the circumstances, the IAA was obliged to take into account the possibility that there was a risk of harm to the applicant due to his former enlistment in the Iraqi army. The IAA erred by failing to take this possibility into account.

   3. The applicant claimed that in 2009 he was advised by his commanding officer that his name was on a list of targets found on captured militants. The IAA did not accept this claim. A reason the IAA did not accept this claim was because the applicant failed to make the claim in an entry interview shortly after he arrived in Australia. The manner in which the IAA relied, in a manner against the applicant, on his "failure to mention details at the entry interview", supports a conclusion that the IAA misunderstand its task on review in the manner explained in MZZJO v Minister (2014) 239 FCR 436 at [SS]-[57).

Ground 1

1. Mr Zipser of counsel on behalf of the applicant provided detailed written submissions and concise oral submissions in support of each of his grounds. In relation to ground 1, Mr Zipser referred to the three documents the subject of ground 1 and the relevant passages of the delegate’s reasons. Mr Zipser submitted that it was legally unreasonable for the Authority to fail to consider whether to exercise the power under s 473DC of the Act in the circumstances of the present case given that the reasoning of the Authority in relation to the three documents did not reflect the reasoning adopted by the delegate in respect of the three documents.

2. Mr Zipser referred to the Authority in respect of each of the respective documents finding the document was not genuine, whereas the delegate, in relation to the respective documents, found the documents should not be given any weight. Whilst there is a difference in reasoning as correctly identified by Mr Zipser, it is nonetheless apparent from the delegate’s decision that the issue as to whether the three documents should be accepted was a live issue on the face of the delegate’s decision. It was also apparent that it was a live issue from the delegate’s adverse finding in relation to the applicant’s alleged profile of interest for the AAH and Mahdi Army and the finding rejecting that the applicant left the Iraqi Army without a proper discharge or had a profile as a military deserter.

3. There was no new issue raised in the Authority’s reasons of a kind in respect of which it could be said that it was legally unreasonable for the Authority not to expressly consider the exercise of its power under s 473DC of the Act. Given the findings by the delegate, the Authority’s absence of express reference to considering s 473DC of the Act cannot be said to lack in evident and intelligible justification. No legal unreasonableness as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Zipser contended that the particular finding in the Authority’s reasons in paragraph 15 to the effect that the Authority was not satisfied there would be a real chance of harm to the applicant in his home area due to his former enlistment in the Iraqi Army from 2003 to 2013 should be construed as the subject of doubt. Mr Zipser, in that regard, referred to the negative “I am not satisfied” as supporting a contention of doubt. Mr Zipser contended that the Authority had not made a finding in its final sentence and that when analysed by reference to the profile and the country information and the concluding sentence, the findings on this issue were attended by doubt.

2. The Authority’s reasons are to be read without a keen eye for error. On the face of the Authority’s reasons in paragraph 15, the adverse finding was not attended by doubt, and this is not a case where the Authority had to consider the “what if I am wrong” possibility. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Zipser referred to the Authority’s reasoning concerning the information claimed by the applicant to have come from the commander that his name was on a target list. Mr Zipser referred to the fact that part of the Authority’s reasoning was that the applicant had failed to make the claim in an entry interview shortly after he arrived in Australia. Mr Zipser submitted that this reasoning supported a conclusion that the Authority has misunderstood its task in relation to the conduct of the review. Mr Zipser referred to the decision in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 (“MZZJO”) and, in particular, paragraphs [55] to [57].

2. Mr Zipser submitted that caution had to be exercised in relation to omissions by applicants of matters at the entry interview, and that the manner in which the Authority had addressed this matter supported a conclusion that the Authority had misunderstood its task. MZZJO does not support the conclusion that there is jurisdictional error by the Authority taking into account what was or was not said at an entry interview.

3. In the circumstances of the present case, it is apparent that the Authority gave detailed reasons in support of its conclusion in rejecting that the applicant’s name was on a list of targets. In that regard, the Authority also referred to the applicant returning to the Muthanna province in August 2010 to obtain a passport. The Authority referred to the applicant’s assertion that he had a number of bodyguards to ensure his safety, and did not accept that such a service would have been provided. It was in the context of this reasoning that the Authority did not accept that the applicant’s name was on a list of targets. The Authority’s reasoning cannot be said to be illogical or irrational or to lack in evident and intelligible justification. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. Accordingly, the amended application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 December 2018