DBE19 v Minister for Immigration
[2020] FCCA 811
•8 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBE19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 811 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Temporary Protection Visa (TPV) – whether the Authority erred in law by failing to find the Applicant satisfies the criterion for a TPV under s 36(2)(a) of the Migration Act 1958 (Cth) – whether the Authority failed to apply the ‘two-stage test’ – whether the applicant had a subjective fear of harm – whether jurisdictional error made out – no jurisdictional error made – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36 |
| Cases cited: AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 BCX16 v Minister for Immigration and Border Protection [2019] FCA465 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] 163 FCR 285 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 SZSGA v Minister for Immigration, multicultural affairs and citizenship [2013] FCA 774 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | DBE19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2043 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 8 April 2020 |
| Date of Last Submission: | 8 April 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 8 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Olsen |
| Solicitors for the Applicant: | Landers & Rogers Lawyers |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7467
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2043 of 2019
| DBE19 |
Applicant
And
| MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iraq. The applicant arrived in Australia on 16 July 2013 by boat, as an un-authorised maritime arrival. On 28 April 2017, the applicant lodged an application for a Temporary Protection Visa (TPV application). On 30 May 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the visa.
The applicant sought merits review at the Immigration Assessment Authority (“the Authority”). In a decision dated 18 July 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Authority’s decision.
The Immigration Assessment Authority’s Decision
Paragraphs 3 to 9 of the Authority’s decision, deals with new information that was provided to the Authority by the applicant. The new information consists of photos of two different vehicles, a white van and a white sedan, both with body damage and a close-up of a vehicle with bullet holes. The applicant also provided reference letters from two employers.
In terms of the photos showing the damaged vehicles, there is no evidence of ownership, or a link to the applicant and his claims. A second reference letter in respect of the applicant’s work on oil pipelines, indicates that the applicant worked for the employer from 2013 and 2015, yet the applicant arrived in Australia in 2013 and has been in Australia since. The applicant did not explain this discrepancy. The Authority concluded that the second reference letter was not credible. A statement about an investigating Judge’s decision, not to order an autopsy on the applicant’s neighbour out of fear of retaliation by armed militias, is unsupported and very brief. The Authority was not satisfied that any of this information, had it been known, would have affected consideration of the applicant’s claims and there were no exceptional circumstances to justify considering it.
At paragraph 7 of its decision, the Authority notes the applicant’s submission, that he states, verbatim:
It is to be remembered that Saddam Hussein threatened to open the prison gate and set the prisoners free to cause an endless and uncontrollable chaos and disorder. I was threatened within this context. Praise is to Allah, that I managed to escape and that am still alive.
The Authority notes that the applicant did not tell the Department that he was threatened in connection with this particular claim and has not explained any detail, including why it was not provided earlier. The Authority was not satisfied that there were exceptional circumstances to consider this material.
Some of the names of people, who the applicant claims are militia group leaders, which he has not provided before, are also provided in his submission and comprise new information. No information is provided, as to how this material is central to the applicant’s claims for protection and the Authority was not satisfied that there were exceptional circumstances to justify its consideration.
At paragraph 9 of its decision, the Authority notes a medical report that was provided by the applicant, which states that a patient was admitted to the hospital on 19 September 2006, for the treatment of a bullet injury. The name of the patient, the year and description of the injury in the medical report, bear no resemblance to the claimed events in 2012 in 2016, in relation to the applicant’s neighbour and older brother respectively. The Authority did not consider that this information was relevant to the applicant’s claims.
At paragraph 10 of its decision, the Authority summarises the applicant’s claims for protection. They are as follows:
·The applicant is a Shia Muslim of Arab ethnicity of about 38 years of age from Southern Iraq.
·After the applicant finished his studies, from about 2009 to about 2012, he worked with concrete in constructing Sports City.
·Three cousins, who worked for American forces in the kitchen where American troops were stationed, were shot at while getting in a car. The applicant’s maternal cousin was injured and hospitalised. Once the applicant’s maternal cousin had recovered, all three went to Finland, where they had been accepted in that country.
·A close friend and neighbour of the applicant, was assassinated by militia in front of his house.
·In 2013, for about seven months, the applicant worked for an international company as a labourer in the construction of oil pipelines. People who worked for the company were threatened not to work with foreigners but they had no choice. The applicant did not receive any direct threats, only indirect threats, from unknown people he believes were from militia or political groups, requesting him to leave the company.
·The applicant was seized with fear following these events and feared he might be targeted next and fled Iraq, bound for Australia.
·In about June 2016, when returning home from working at the Iraqi ports, the applicant’s older brother was shot at. The applicant’s older brother, was hit in the shoulder and crashed his vehicle and was hospitalised for four weeks. The family changed their residence and the applicant’s older brother now lives in Turkey.
·If returned, the applicant fears he will be targeted by extremists on both sides. The applicant will be unable to find a job and is at risk of being forcibly recruited by militia or political groups. The applicant is not psychologically well.
At paragraph 12 of its decision, the Authority accepts that the applicant is a Shia Muslim, but does not accept that he is a moderate Shia Muslim, nor does the Authority consider him a non-practising Muslim.
At paragraph 13 of its decision, the Authority notes the claims that the applicant is not psychologically well. The applicant has not provided any supporting information in relation to this and has not indicated that he is on medication, has attended counselling or that he requires other ongoing treatment or support. The Authority does not accept that the applicant suffers significant mental health issues that require ongoing treatment, or that his condition materially affected his ability at interviews.
In relation to the applicant’s employment, at paragraph 14 of its decision, the Authority accepts that he worked from about 2010 to 2013 in construction and then worked for an international company as a labourer on oil pipelines, as claimed. The Authority notes the claims of threats and that the applicant was unable to elaborate on these threats, despite being given the opportunity to do so. The Authority does not accept that the applicant was personally targeted whilst working for the international company and does not consider that he was personally targeted while working at a particular construction site.
At paragraph 15 of its decision, the Authority notes the applicant’s claims that he was threatened and harassed by militia and political groups to join them while in Iraq and that to get jobs, you have to join them. The Authority accepts that the applicant may have been asked and even possibly pressured to join militia or political groups in the past, like many other young male Iraqis at the time. The Authority does not accept however, that the applicant was threatened, harmed or forced in this regard, noting that he was gainfully employed from about 2010 until his departure for Australia some three years later.
At paragraph 16 of its decision, the Authority deals with the applicant’s claims in relation to his cousins. The Authority was willing to accept that the applicant’s cousins may have been targeted six or more years ago by unknown people, because they were working in close proximity to American troops at that time and that they have since, successfully sought asylum in Finland. The Authority does not accept that this led to the applicant’s family being targeted by Shia militia or other groups.
At paragraph 17 of its decision, the Authority does not accept that the applicant was targeted by militia or any other groups in relation to the killing of his neighbour. The applicant had not detailed any incidents of having been targeted, harassed, or harmed as a result of the murder or assisting with the investigation.
Paragraph 18 of the Authority’s decision, deals with the shooting of the applicant’s brother in June 2016. The Authority noted that the applicant had not specified any incident to indicate that his family were harmed or harassed by militias, or other groups in connection with this incident. In the applicant’s visa application, he said his family had changed residence after the incident, which the Authority considered plausible, but there is nothing to suggest that they left their home town at that time. The Authority accepts that the applicant’s older brother was injured while driving, however it considers it more plausible that his older brother was the victim of generalised violence. There was nothing before the Authority indicating that the incident is linked to the applicant or his family, or that he and his family were targeted in connection with this.
At paragraph 21 of its decision, the Authority does not accept that the applicant was wanted by Shia militia or any other group when he left Iraq bound for Australia in 2013.
At paragraph 23 of its decision, the Authority notes that the applicant is a Shia Muslim, which is the dominant faith in Iraq. The Authority notes that Shia’s face little to no discrimination including official discrimination in Iraq.
At paragraph 24 of its decision, the Authority notes that there is country information which indicates a moderate risk of violence from armed opponents of the government and lower-level officials and office-based public servants face a low level risk of violence. The Authority does not accept that the applicant was personally targeted harassed or harmed by any groups, in connection with his cousins or his older brother’s past employment. The Authority also notes it has been a number of years since these positions were held and that the applicant’s cousins and older brother no longer reside in Iraq.
At paragraph 25 of its decision, the Authority does not accept that the applicant faces a real chance of harm on account of his faith, profile or his family’s past experiences in Iraq.
At paragraph 26 of its decision, the Authority accepts that the applicant may have, in the past, been asked to join groups, as were many young Iraqi men at the time. The Authority did not accept that the applicant was ever harmed or threatened by these groups in this regard. The Authority also notes that the applicant is almost forty years of age. Whilst country information indicates increased tensions, it is speculative at most, about what may follow for Iraq, in terms of increased tensions between Iran and the United States. The Authority is not satisfied that the applicant is facing a real chance of being harmed, including being forcibly recruited by Shia militia groups.
At paragraph 27 of its decision, the Authority accepts that the applicant may have difficulties in finding employment in the south where his family reside. The Authority does not accept that this would threaten the applicant’s capacity to subsist or otherwise amount to serious harm. Nor is the Authority satisfied that the applicant faces a real chance of harm on account of being a failed asylum seeker and involuntary returnee, who has been in Australia for some six years.
Accordingly, the Authority was not satisfied that the applicant meets the requirements of the definition of a refugee in s 5H(1) of the Migration Act 1958 (Cth) (“the Act”) or the requirements under s 36(2)(a) of the Act.
Paragraphs 32 to 36 of the Authority’s decision deal with complimentary protection considerations. Whilst accepting that the applicant may have difficulty finding employment, the Authority is not satisfied that this would amount to significant harm. The harm that the applicant is likely to suffer, does not include the arbitrary deprivation of life, the death penalty or torture, nor was the Authority satisfied that the applicant would be subject to cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in s 36(2A) of the Act.
The Authority was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to the receiving country, there is a real risk the applicant would suffer serious harm. Accordingly, the applicant did not meet the test in s 36(2)(aa) of the Act.
Grounds of Appeal
In an amended application filed on 20 March 2020, the applicant abandoned the two original grounds of appeal that were relied upon and instead, relies on two new grounds as follows, verbatim:
3. The Second Respondent erred in law by failing to find that the applicant satisfies the criterion for a Temporary Protection Visa in section 36(2)(a) of the Migration Act 1958, in that:
3.1 The Second Respondent failed to apply section 5J(1) of the Act, in particular at paragraphs [24] – [25] and [29] of its reasons, because it failed to determine (a) whether the applicant subjectively fears being persecuted if he is returned to Iraq and (b) whether there is a real chance that if the applicant were returned to Iraq, he would be persecuted for the reason he fears;
3.2 The Second Respondent relied on an irrelevant consideration, namely its finding that the Applicant was not “personally targeted” when he lived in Iraq.
4. Further, or in the alternative, the Second Respondent erred in law by failing to find that the Applicant satisfies the criterion for a Temporary Protection Visa in section 36(2)(aa) of the Act in that:
4.1 The Second Respondent misstated the law at paragraph [35] of its reasons, by reasoning on the basis that there is no relevant difference between the criterion in section 36(2)(a) and section 36(2)(aa) of the Act.
4.2 The Second Respondent failed to give adequate consideration to the Applicant’s claim under section 36(2)(aa) of the Act, in that it reasoned at paragraph [35] of its reasons that its rejection of the applicant’s claim under section 36(2)(a) also necessitated the rejection of the Applicant’s claim under section 36(2)(aa).
The Applicant’s Submissions
After setting out the relevant legislation, Counsel for the applicant submitted that the relevant test for ‘a well-founded fear of persecution’ involves a subjective element (is the applicant afraid) and an objective element (is such fear well-founded). Both elements of this test must be considered by the decision-maker (see AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 (“AKH16”) at [46] – [47]). It was submitted that the Authority did not apply the two stage test established by s 5J(1) of the Act. The Authority did not question or determine whether the applicant genuinely feared the persecution by the militia, due to his employment history or social connections. Rather, the Authority’s findings were focused on the question of whether or not there was a real chance that the applicant would be harmed.
In doing so, Counsel for the applicant submits that the Authority fell into the error identified in AKH16, in that the Authority failed to engage with the positive question as to whether there is a sufficient basis on the evidence, to describe that the applicant’s fear of persecution is well-founded.
Counsel for the applicant submits that the Authority also erred in its approach to the single issue it did not purport to determine, being, whether there was “a real chance” that the applicant would be harmed. The Authority’s factual findings focused on whether the applicant had been “personally targeted” when he lived in Iraq. The conclusion that the applicant had not been “personally targeted” was the Authority’s essential reason for dismissing the applicants claim, that he stood a real chance of being persecuted as a result of his work of the construction project, the attack on his cousin’s at their work for the American forces, the killing of his neighbour and the attack on his older brother.
Section 5H(1)(a) of the Act, defines a refugee as a person who fears persecution in circumstances where there is a well-founded fear because per s 5J(1)(b) of the Act, there is a real chance it may occur, if he or she returns to the receiving country. It is not the law, that a person must wait until he or she has already been a victim of persecution before seeking protection to establish that the applicant was a refugee. The applicant needed to prove that he had a genuine fear of persecution in Iraq and that such fear was well-founded. Doing so, did not require the applicant to prove that he was ever ‘personally targeted’.
Counsel for the applicant submitted that there were a number of findings which supported a well-founded fear of persecution, including: that militia groups are powerful in southern Iraq and exercise a high degree of control over employment; that the applicant had worked on a major construction project for a Western company on oil pipelines; that the applicant’s cousin was shot at and injured by militia because of their work for American troops; that the applicant’s brother who worked for the Basra Ports Authority was injured by gunfire and that the applicant’s neighbour was shot and killed in his home, possibly for political reasons. It was submitted that on the basis of these findings, that the Authority ought to have concluded that the applicant did have a well-founded fear of persecution.
Further, a well-founded fear can exist if there is much less than a 50% chance that persecution will actually happen (see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572). Counsel for the applicant submits that the applicant’s fear of persecution was neither remote nor far-fetched, for the following reasons, which follow from the Authority’s findings verbatim:
1. Firstly, the applicant was a member of a class of people - those associated with government or Western interests who were identified by the country information as being at risk of harm.
2. Secondly, threats of harm had been actually been made against both projects on which the applicant was employed.
3. Thirdly, numerous people within the applicant’s immediate social circle who also had an association with Western or government interests had already suffered serious physical harm.
Counsel for the applicant submits that it does not matter that the applicant was not “personally targeted” when he lived in Iraq. The applicant feared he would be, if he was returned and for the reasons given above, that fear was well-founded.
In relation to ground two, Counsel for the applicant submits that he is eligible for a TPV if there are substantial grounds for believing that there was a real risk he would suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia.
The Authority’s only reason relating to complimentary protection criterion is contained at paragraph 35 of its decision, where the Authority said verbatim;
In considering the applicant’s refugee status, I have otherwise concluded that there was no ‘real chance’ the applicant would suffer harm on his return to Iraq for the other reasons claimed. ‘Real chance’ and ‘real harm’, involve the same standard. For the same reasons, I am also not satisfied that the applicant would face a ‘real risk’ of significant harm.
Counsel for the applicant submitted that as apparent from paragraph 35 of its decision, the Authority gave no independent consideration to the complimentary protection criterion pursuant to s 5J(4)(c) of the Act. Persecution, for the purposes of refugee status criterion, must involve systematic and discriminatory conduct. If the Authority had given proper separate consideration to the complimentary protection criteria, there would have been even less reason to focus on whether the applicant had been targeted, because systematic discrimination is not an element of significant harm for the purposes of the complimentary protection. Multiple attacks against people within the applicant’s immediate social circle and the threats against his employers would have assumed added significance, because even without any fact or linking these incidents to each other or the applicant, these events are capable of evidencing a real risk of significant harm.
The First Respondent’s Submissions
In respect of the first ground, the applicant submits that the Authority, in assessing his claims under s 5J of the Act, failed to apply the ‘two-stage test’ to consider whether the applicant had a subjective fear of harm. The applicant submitted that this is an essential step in the decision-making process. The applicant relies in aid of this proposition on AKH16. Counsel for the first respondent submits that this case needs to be read with some caution as Mortimer and Middleton JJ expressly stated at [32] of AKH16, that the case involved a consideration of whether the Tribunal had misunderstood or misapplied the definition of a refugee in Article 1A of the Convention, as it arose prior to amendments of the Act in 2018 that introduced s 5J of the Act.
Mortimer and Middleton JJ emphasise the importance for administrative decision-makers to focus on and apply the statutory language, as a focus on different language, for instance, the question of whether or not the risk of serious harm is remote, can lead the decision-maker away from the statutory task. In this case however, Counsel for the first respondent submits that the Authority did not make any findings about the remoteness of risk of harm. Rather, the Authority assessed the applicant’s claims made, factual determinations about whether those claims satisfy the Authority that the applicant had a well-founded fear of persecution. The Authority did not fail to overlook the applicant’s expression of fear.
The applicant appears to submit that the Authority failed to consider, at least expressly, whether he feared being persecuted for reasons of race, religion, nationality, or membership of a particular social group or political opinion as set out in s 5J(1)(a) of the Act and instead focused on the question of whether there was a real chance of harm. Counsel for the first respondent submitted that the Authority properly understood and applied the statute as it:
a. Found at paragraph 14 of the Authority’s decision, to be a lack of specificity in the applicant’s claims concerning threats made to companies he had worked for between 2010 and 2013.
b. The Authority did not accept that the applicant was personally targeted. The Authority did not accept, as a fact, that the applicant had been threatened harm by militia or political groups as he claimed.
c. The Authority found at paragraph 16 of its decision, no credible evidence linking the incident of harm concerning his cousin, with the applicant. A similar finding was made in relation to claims concerning the applicant’s brother, who the Authority accepted, was the victim of generalised violence.
d. The Authority found at paragraph 17 of its decision, that the applicant had exaggerated the claim to fear of harm involving having witnessed the murder of his neighbour. The applicant provided no details of any incident where he was targeted, harmed or harassed in connection with the killing of his neighbour or subsequent investigation.
It was further submitted by the applicant that the Authority erred in its assessment of real chance that he will suffer harm if returned to Iraq, because it focused on whether the applicant had been ‘personally targeted’. Counsel for the first respondent submits that the Authority’s findings in relation to the applicant having not been personally targeted, arose principally in the context of consideration of his claim that he was at risk for having worked at a construction site in 2013. It was the applicant that had never claimed to have been personally targeted. Whether the applicant was personally a target, was a relevant question as to whether his fear of harm, was well-founded.
There is no error in the applicant’s reference to having not been personally targeted by militia or political groups, nor was this an irrelevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, in that it was a consideration that the Act prescribed the Authority from taking into account. The fact that the applicant had not been personally targeted was centrally relevant to determine whether he had a well-founded fear of being persecuted.
In relation to the second ground, the applicant is correct to submit that the kinds of harm to which s 36(2)(a) and s 36(2)(aa) of the Act, are different by reference to the defined terms of ‘serious harm’ and ‘significant harm’ that applies under each of the sections respectively, however, the Authority was correct to note that the ‘real chance’ standard that applies under s 36(2)(a) of the Act, is the same for
s 36(2)(aa) of the Act (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (“SZSGA”) at [56]). Accordingly, the Authority was entitled to rely upon its earlier factual findings provided that it applied the correct legal test to them.
Counsel for the first respondent submits that the Authority made a number of factual findings at paragraph 14 through to 18 and then 26 to 28 of its decision, which included the previous factual findings made in relation to the refugee test, but also made findings that there was not a real chance that the applicant would be harmed, including being forcibly recruited by militia groups. At paragraph 26 of its decision, the Authority did not accept that the applicant’s difficulties in finding employment would threaten his capacity to subsist. At paragraphs 27 and 28 of its decision, the Authority found that the applicant would not face harm on account of being a failed asylum seeker and involuntary returnee. These findings were open to the Authority and the second amended ground fails to make out any jurisdictional error.
Consideration
In relation to the first ground of appeal, the applicant submits that assessing the claims under s 5J of the Act, the Authority failed to apply the ‘two-stage test’. The Authority failed to make a clear finding that the applicant had subjective fears of being persecuted based on the reasons set out in s 5J(1)(a) of the Act. It was submitted that this is an essential first step in the Authority’s decision making process under s 36(2)(a) of the Act, before going on to determine whether or not the person had objectively a “well-founded fear of persecution” pursuant to s 5J(1)(b) of the Act.
At paragraph 10 of its decision, the Authority set out the applicant’s claims. These included that the applicant’s cousin, who worked for American forces in the kitchen, was shot at while getting in a car, the applicant’s close friend and neighbour was assassinated by the militia in front of his house and the applicant worked for an international company as a labourer in the construction of oil pipelines and some people who worked for the company were threatened not to work as refiners. The Authority also set out that the applicant stated that he will be unable to find a job and this will increase the risk of being forcibly recruited by militia or political groups. The applicant is also not physiologically well.
The Authority then went on to carefully make relevant factual findings on each of those claims in paragraphs 11 through to 18 of its decision. At paragraph 19 through to 30 of its decision, the Authority then makes findings on each of those claims, as to whether or not the applicant has a ‘well-founded fear of persecution’.
Decisions of a body, such as the Authority, should not be read with too keen an eye for error (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]). The Court does not accept that the Authority failed to consider whether or not the applicant had subjective fears of being persecuted. It is implicit from the way the Authority set out the applicant’s claims at paragraph 10 and then dealt with them, that it considered and accepted that he was subjectively fearful. For example, at the sixth dot point in paragraph 10 of its decision, the Authority relates verbatim:
He was seized with fear following these events and the situation in Iraq and feared he might be targeted next and fled Iraq bound for Australia in fear of his life in about July 2013.
A fair reading of the decision clearly indicates that the Authority was accepting of the applicant’s subjective fear and does not reject it at any point as to its genuineness. This part of ground one of the appeal, fails on a factual basis.
The second part of ground one, asserts that the Authority failed to consider, at least expressly, whether the applicant feared being persecuted for one of the reasons set out in s 5J of the Act and instead focused on whether there was a “real chance” of harm. The applicant complains that the Authority focused on whether or not he had been “personally targeted” and because it determined he had not, it then rejected his claims of having a well-founded fear of persecution. It was submitted that evidence of actual past persecution was not essential for an applicant to demonstrate a well-founded fear of persecution. A well-founded fear, may have a chance of less than 50% of occurring.
The Authority is required to determine whether or not, if a person is returned to the receiving country, if the person would be persecuted for reasons of race, religion, nationality or membership of the political social group or political opinion (see s 5J(1) of the Act). This requires a forward looking approach which, of necessity, is informed by the applicant’s past experiences and other information, such as country information which assists the Authority in forming a conclusion as to whether not the fears are well-founded going forward. A relevant consideration in forming such a conclusion, is whether or not the applicant was personally targeted in the past. In this case, no evidence was provided that the applicant was the subject of any direct threats. Rather, the applicant relied upon occurrences to other people that led him to form a view that he might be targeted next.
There was no evidence before the Authority that if the applicant was returned, he would resume working for foreign companies, nor was there any other material to indicate that he would be under direct threat because of his profile or any other reason. The Authority carefully considered the applicants fears, but did not find them ‘well founded’. The Court is not satisfied that the first ground identifies any error in the Authority’s approach to s 5J or s 36(2)(a) of the Act. This ground has no merit.
In the second amended ground, the applicant’s complaint is that the Authority misconstrued or misapplied s 36(2)(aa) of the Act and failed to give adequate consideration to the applicant’s claims to be entitled to complimentary protection. It is submitted that the Authority, by relying on its previous factual findings, in relation to the applicants claims to be a refugee, did not properly consider his claims for complimentary protection. Reliance on earlier factual findings to consider whether or not complimentary protection claims can be made out, is entirely orthodox (see SZSGA at [56]). This was also noted and approved of, as pointed out by Counsel for the first respondent by referencing Charlsworth J in BCX16 v Minister for Immigration and Border Protection [2019] FCA 465 at [23], where the following was said:
As I have mentioned, the reasons given by a Tribunal in respect of the Complementary Protection Criterion must be read in the context of the reasons as a whole and especially having regard to any reasons given by the Tribunal for rejecting a non-citizen’s claim to have a well-founded fear of persecution for a Convention reason. The facts bearing on the alternate visa criteria in s.36(2)(a) and s.36(2)(aa) may partially or wholly overlap, particularly in cases where a claim to have an objectively well-founded fear of persecution for the purposes of s.36(2)(a) of the Act is supported by the same facts that are said to give rise to a real risk of significant harm faced by the visa applicant “personally”. To the extent of any such overlap in the factual bases for the claims, the Tribunal is entitled to rely on its earlier factual findings, provided that it applies the correct legal test to them: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285.
The Authority, at paragraphs 32 and 33 of its decision, set out the relevant tests. At paragraph 34 of its decision, the Authority accepted that the applicant may have difficulties in finding employment in the South but was not satisfied that this would amount to significant harm as defined. The Authority also considered the applicant’s claims made under s 36(2)(a) of the Act. The Authority did not consider there was a real chance that the applicant would suffer harm on his return to Iraq for those reasons. The applicant claims that, had proper separate consideration been given to the complimentary protection criteria, there would have been even less reason to focus on whether the applicant had been “targeted” because systemic discrimination is not an element of significant harm for the purposes of complimentary protection.
The Court rejects this assertion. The Authority clearly considered the applicant’s claims as they related to his refugee status and other relevant material, such as his capacity to earn a living, which pertained to the complimentary protection requirements, but was not satisfied that the complimentary protection requirements were made out. The issue of whether the applicant was targeted directly or indirectly, was irrelevant in consideration in relation to the complimentary protection requirements. It was considered and rejected. This was within the realm of the legitimate decisional freedom of the Authority. No error is made out.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Date: 8 May 2020
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