DCL17 v Minister for Immigration

[2018] FCCA 441

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCL17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 441

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a protection visa – whether the Authority misapplied the test in s 5J(3) of the Migration Act 1958 (Cth) – whether the Authority misapplied the “real chance” test in s 5J(1)(b) of the Act – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant: DCL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2185 of 2017

Judgment of: Judge Street

Hearing date: 26 February 2018

Date of Last Submission: 26 February 2018

Delivered at: Sydney

Delivered on: 26 February 2018

REPRESENTATION

Counsel for the Applicant: Mr D Hughes

Solicitors for the Applicant: D'Ambra Murphy Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: MinterEllison

ORDERS

1. Grant leave to the applicant to file in Court the amended application dated 26 February 2018 initialled and dated today by the Court and the Court dispenses with the need for an electronic copy of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2185 of 2017

DCL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 made on 13 June 2017 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 13 May 2013. 

3. The applicant claimed that he was a photographer who had worked at a photography shop in Nasiriyah, Iraq for nearly five years. The applicant claimed the shop where the applicant worked came to the attention of local militias because of photographs of women displayed in the shop window who made threats. The applicant alleged he was a photojournalist who would photograph protests for newspapers. The applicant alleged in January 2013, he travelled to Ramadi to photograph a protest. The location of Ramadi is a Sunni area and the applicant is Shia.

4. The applicant alleged when he returned to Nasiriyah, the applicant was picked up by persons in an unregistered car who took his camera and laptop bags, inspected the photos he had taken of the protest. The applicant alleged they told him if they saw him having anything to do with protests they would kill him. The applicant stated he left Iraq on 20 February 2013. The applicant alleged in or around October 2013 after he left Iraq, militia members raided the applicant’s former workspace and the newspaper at which he worked and enquired about the applicant. 

5. In Part C under “Reason to Leave” of the applicant’s Irregular Maritime Arrival Entry interview, the applicant was asked the question, “Why did you leave Iraq?”, and the applicant set out the following answer:

   ·   A: Like I said before, I was working at the newspaper as well as the photography shop and one time the editor called me and said that I need to go to a protest at Al Ramadi in January and asked me to take a few photos so he could put in a newspaper, on the 3rd of January, it was Thursday, I went to Baghdad to stay overnight with a friend, he's called X and from another friend called Y, who works in Baghdadi TV Channel and I knew those 2 friends are going to the protest the following day and I didn't want to go alone, so I waited and we went together.

   ·   I was going to the protest with Y the next morning and he called me to tell me we'd be going in the morning. So I told him that I'm staying with a friend, he said the next morning to meet me at People's Square, so I took the taxi to Al Ramadi and I saw there there's a TV channels, satellites.

   ·   So around 8.30-9 in the morning, I left from Baghdad, left to go to Al Ramadi, it took about 2-2 and a half hours, then we arrived to Al Ramadi to Alaz Wa alkarraama Square. So we arrived around 1130, so everybody prepared themselves to take photos and cover the story, like I had all the equipment that I needed to take photos, I stayed behind when all the protestors start leaving, I stayed and just start taking photos of the placards, everything around, so I took about 20-30 photos extra of the surroundings.

   ·   So I stayed in that square about 2 hours, then I stayed with my friend Y who is with Baghdadi Channel, I told him I'm finished and only wanted me to take photos, so they stayed about 5-6 days and I returned to Baghdad. So I went back to Baghdad, took 2-2.5 hours to get back, I went back to X’s place, after I rested and had a shower, I went around 5/6 o'clock, I went back to Nasiriya, I reached Nasiriya around 9-9.30 pm, where the car depot is where you take the taxis, it's called Garage Baghdad, so I went to the next street to take a taxi, while I'm going to that street, one car without a registration number pulled over next to me.

   ·   So this car, it's Toyota, stopped next to me and asked me to get in the car, so I got in the car, there were 3 people in there, they asked me to see my bag and they've got procedure going on, they want to search my bag, so they looked at my laptop and my camera and they saw photos on my camera and asked me where these photos from, so I told them it's from, no they asked me where you coming from, I said Al Ramadi, they asked why are you there, you are Shia, I said it's because of my work, my editor asked me to go and do my job over there, so I'm not into that sectarian issue.

   ·   They said we know you, we know where you work and where you live and they said the full address of both places and they said to me if you ever go to protest against the government and took photos, we will make you disappear from the face of the Earth and said leave you camera and your bag, we know where you are, so get down from the car. So I went down from the car and went home.

   ·   So the following day come and I waited and waited for my camera and bag to come and kept waiting 2-3 days. Til now, I didn't get my stuff back until I left Iraq, but all this time I was scared because those people know me very well, even I never used to get out of work much and I know that my life is in danger, so I was scared because they know me very well and who I am and I don't know them and I don't know who to go to complain, so I left the country. Before that, I called the editor and told him and he apologised for putting my life at risk and I said no problem, this is my job anyway.

   (Underlining emphasis added)

6. The applicant alleged in the second last paragraph that the 3 interrogators said when the applicant stepped into a car at their invitation, “we know you, we know where you work and where you live and they said the full address of both places” and said to the applicant, “if you ever go to protests against the government and took photographs, we will make you disappear from the face of the earth.”

7. The delegate made reference to this incident following the applicant’s travel and due to the randomness of the applicant’s movements that day, did not consider that a militia unit would be able to successfully target the applicant in the manner claimed. The delegate observed that if the applicant was feeling targeted by militias, it would have been more effective and therefore likely that he would have been kidnapped at his workplace or home, not on the side of the road waiting for a taxi.

8. The delegate made reference to the applicant stating that the men in the car knew his name and details. The delegate referred however, to the fact that in the protection visa interview, the applicant stated that they asked him where he had been, why he went there and was he a Shia or Sunni Muslim. The delegate found that if the militia men knew the applicant’s identity details as claimed by the applicant, then it is not likely to be that he would have been questioned as such.

9. The delegate found the applicant was the victim of being detained by a militia unit for the random purpose of harassment and then robbery.  Further, the delegate made reference to the applicant being released unharmed but his equipment was kept. The delegate did not accept the applicant was warned to leave his job and was satisfied the militia unit was a rogue element which had randomly targeted the applicant as a criminal enterprise. The delegate referred to country information in that regard and did not accept the applicant had been profiled as a person of adverse interest to the militia because of his job or adverse political opinion. On 10 March 2017, the delegate found the applicant failed to meet the criteria for grant of the protection visa. 

The Authority’s decision

1. By letter dated 16 March 2017, the Authority wrote to the applicant explaining that the delegate’s decision to refuse the applicant’s protection visa had been referred to the Authority for review. The letter explained that there are limited circumstance in which new information could be considered and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The Authority’s reasons identified the background to the applicant’s review application, and referred to having regard to the material referred under s 473CB of the Act. The Authority referred to the applicant’s background, and in particular, that he had worked in the cafeteria for some months and in retail sales appliances for some two years, and then worked in a photo shop where he managed the lab, and undertook digital printing, took photos for weddings and similar occasions and filmed conferences.

3. The Authority identified that from 2012, the applicant also worked for a newspaper on a casual basis as a photographer. The Authority identified the applicant’s background that he had travelled to Iran in 2008, Syria in 2010 and Turkey in 2012 for tourism. The Authority made reference at paragraph 5 to the applicant’s protection claims relevantly as follows:

   ·   Iraq is controlled by militia groups. There are a number of active groups in Nasiriyah. In 2010 the photo shop received a letter threatening to kill the staff if they did not take down the photos that adorned the front of the shop. These photos were of weddings and included girls wearing revealing clothes. The authors of the threat letter claimed that these images were provocative, obscene and sexual in nature. There were also two bullets in with the letter. They took the photos down straight away. The owner of the shop reported the threat to the police but they heard nothing more about it;

   ·   In January 2013 the applicant went to Ramadi to take photographs of the Sunni uprising/ protests. He had been hired to do so by Sarmad, the proprietor of the Al Wasat newspaper. The applicant had frequently been hired to take photos of various protests and demonstrations in Nasiriyah. He travelled to Baghdad and then to Ramadi with two friends. He returned to Nasiriyah the following day, arriving around 9pm;

   ·   While trying to find a taxi, a car with no number plates pulled up next to him and the occupants told him to get in. They took his camera and laptop bags, they inspected the photos he took in Ramadi and asked where he had come from. When he responded that he had been in Ramadi the men asked why had he been there as it was a Sunni area and the protests were against the government. He explained that he was just a photographer and had nothing to do with the sectarian divide between Sunni and Shia. The men told him that if they saw him having anything to do with protests in the future he would be killed. They knew where he lived and worked and would know how to take action against him. They said that they would bring his belongings back to him at work but they never did;

   (Underlining emphasis added)

4. The Authority made findings accepting that the applicant was a member of the Iraq Society Photography from 1 March 2008 and the Union of Arab Photographers from 10 October 2012. The Authority also relevantly accepted that the applicant was contracted by the newspaper to attend a protest at Ramadi and take photographs, that he did so on 3 January 2013 and that on return, he was accosted in the street by a group of men in an unregistered vehicle who questioned him about the protest and threatened him with harm should he attend and photograph protests in the future, and that they retained his camera and laptop computer. 

5. The Authority then referred to a central contention being that the men in the vehicle knew him. The Authority made a positive finding, rejecting that proposition and held that not to be the case. The Authority made reference to the applicant’s evidence regarding the questions that they did not know where he had been or what he was doing until he told them.

6. It was in those circumstances the Authority at paragraph 8 considered that the men’s comments “along the lines, “we know where you live and where you work’” were made to increase his fear and give weight to their threats and if they saw him again at protests, they would kill him. The Authority considered that the applicant was a random target of a militia gang at that time. The Authority accepted that his life was in danger during the event but did not consider that he was in any way targeted due to his attendance at the Ramadi demonstration.

7. The Authority then referred to the applicant submitting that after he arrived in Australia in October 2013, he had been told that his two workplaces were raided by militia. The applicant alleged that the Authority recorded the applicant’s evidence in relation to this event has varied, and that in his statutory declaration of May 2016, he stated his brother told him the militia was searching for pictures, and the newspaper proprietor S was asked whether he had seen the applicant and had sent the applicant to Ramadi. The Authority noted in the protection interview the applicant stated that his brother told him that a friend of his told him (the brother) that “they came looking for the applicant and they took all the computers and the laptops.” The Authority made reference to the applicant further stating that the owner does not know those people. 

8. In view of the variations and the fact that this appears to be second or third hand evidence, the Authority decided to place little weight on it. The Authority was not satisfied that if a raid or raids did occur, they were in any way related to the applicant’s activities, and in particular, his trip to Ramadi at the beginning of 2013. The Authority concluded that the applicant was not of interest to any militia group after the events of 3 January 2013. 

9. The Authority was not satisfied there was a real chance the applicant would be harmed in the foreseeable future should he return to Iraq due to his employment in the photo shop at that time. The Authority then turned to the applicant’s central claim. Again, the applicant’s central claim was that he was targeted by militia after attending a protest at Ramadi on 3 January 2013. The Authority noted that it had accepted the applicant was accosted by a carful of men, likely militia, on that day, threatened and had his camera and laptop taken. The Authority made reference to having found that it had not accepted the applicant was specifically targeted by these men or that they had known who he was or where he lived or worked prior to speaking to him.

10. The Authority made reference to the fact the applicant continued to live and work at his usual home and workplace for the next six weeks or so, until he departed Iraq, without any further contact from the militia group or adverse attention. The Authority accepted that the applicant reduced his hours at the photo shop but had not stated whether he undertook further work for the newspaper during that time. The Authority concluded that if the militia wished to question the applicant further or harm him, they had ample opportunity to do so. The Authority noted its finding that it had not accepted that the photo shop and a newspaper were raided by militia seeking him after his departure from Iraq. The Authority concluded the applicant does not have a real chance of being harmed on this basis, on the basis that he is of interest to the militia groups. 

11. The Authority made reference to the photography work of the applicant and was satisfied the type of images that the applicant provided for the Al Wasat newspaper constituted photojournalism. The Authority made reference to country information and to journalists who have disappeared or been killed and stated that in view of the applicant’s stated concerns, following the threats and theft of his camera and laptop on 3 January 2013, the Authority was satisfied that, because of a fear of serious harm, he would not return to work as a photojournalist.  The Authority found on the country evidence cited, that it was satisfied that such fear is well-founded.

12. The Authority then turned to the provisions of s 5J of the Act, that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification. The Authority noted the applicant did undertake some work as a photojournalist for the Al Wasat newspaper. The Authority referred to the applicant’s statutory declaration, that the proprietor offered him a contract because he liked the applicant’s work and the applicant had the necessary accreditation.

13. The Authority referred to the applicant being a member of the Union of Arab Photographers and made reference to the employment as a photojournalist being for a period of only three or four months and on a casual basis. The Authority also made reference in addition to this work, that the applicant worked for some five years in a photo shop, managing the lab, printing and taking wedding and event photos. 

14. The Authority was not satisfied that modifying the applicant’s behaviour by not working as a photojournalist would conflict with a characteristic that is fundamental to the applicant’s identity or conscience or would conceal an innate or immutable characteristic of himself or would constitute any other modification contemplated by s 5J(3)(c) of the Act.

15. The Authority was also satisfied in these circumstances that the applicant could take reasonable steps to avoid persecution, by not working as a photojournalist. In accordance with s 5J(3) of the Act, the  Authority found the applicant does not have a well-founded fear of persecution on this basis. The Authority concluded there is not a real chance the applicant as a Shia would be harmed if he returned to Nasiriyah province now or in the reasonably foreseeable future.

16. The Authority was not satisfied that harm due to general or random violence amounts to persecution as it affects the community generally, and is not for the reason of race, religion, nationality, membership of a particular social group or political opinion.

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

18. The Authority found the applicant would not return to work as a photojournalist and was not satisfied that any inability to work as a photojournalist amounts to significant harm.

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

Before this Court

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

   Ground 2. The IAA misapplied the test in s 5J(3) of the Act

   Particulars:

   a. The IAA accepted that the applicant had a well-founded fear that he would face serious harm if he returned to work as a journalist: [15].

   b. That IAA found that the applicant would not return to work as a result of that fear.

   c. The IAA found that the applicant did not have a well-founded fear of persecution, within the meaning of s 5J of the Act, because it was “not satisfied” that the applicant's modifying his behaviour by not working as a photojournalist would conflict with a characteristic that is fundamental to the applicant's identity or conscience; would conceal an innate or immutable characteristic of himself; or would constitute any other modification contemplated by s 5J(3)(c) of the Act: at [16].

   d. On the proper construction of s 5J(3) of the Act, the IAA needed to be positively satisfied that the modificatory behaviour proposed did not fall within one of the paragraphs of s 5J(3) of the Act.

   Ground 3. The IAA misapplied the “real chance” test in s 5J(1)(b) of the Act.

   a. The IAA made factual findings that it was not satisfied that persons who adducted the applicant knew who he was, and that it was not satisfied that if the photo shop where he worked was raided, that the raid was connected with the applicant's activities: at [8].

   b. The findings were made on the balance of probabilities, or alternatively were not findings made with any doubt.

   c. In the premises, the IAA was required to (but did not) consider the applicant's claims on the hypothesis that it was or might be wrong about the findings identified in particular a.

   Ground 4. The IAA made a jurisdictional error because it failed to consider an integer of the applicant's claim, or alternatively important corroborative evidence.

   Particulars

   In considering the applicant's claim that the militants who apprehended him knew who he was, the IAA overlooked and failed to consider the applicant's claim and evidence that the militia members state that they knew his work and home addresses and identified those addresses to him: “they said the full address of both places” at CB 23.

Ground 2

1. In relation to ground 2, Mr Hughes of counsel argued that the Authority had misapplied the onus in construing s 5J(3) of the Act. Mr Hughes argued that the Authority in its findings saying “I am not satisfied” was a failure to properly apply the legislative criteria, and that on a proper construction, the Authority had to consider whether it was positively satisfied, not whether it was not satisfied.

2. The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons reflect a correct identification of the legislative provision s 5J(3) of the Act and findings of fact which were open to the Authority for the reasons given by the Authority as summarised above. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Hughes argued that the Authority had failed to apply the real chance test in s 5J(1)(b) of the Act in respect of the incidents identified in paragraphs 8 and paragraph 9 of the Authority’s reasons. Mr Hughes argued that they were findings that expressed some doubt and accordingly, the Authority had to consider what if I am wrong proposition.

2. The Authority’s reasons do not reflect doubt, and there was no requirement on the Authority or the present case to consider the alternative of what if the Authority was wrong. On a fair reading of the Authority’s reasons, the Authority correctly applied the real chance test, the Authority in that regard correctly identified the relevant law, and the Authority’s reasons reflect correctly looking to the future in accordance with the real chance test. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Hughes argued that the Authority had failed to take into account an integer of the applicant’s claims and important corroborative evidence in respect of the reference by the applicant to the proposition that the men who accosted him in 2013 had not only stated that they knew where he lived and worked but had also stated the actual addresses. That was a proposition identified in the applicant’s entry interview and not in the application for protection or the applicant’s statutory declaration.

2. The applicant’s statutory declaration dated 27 May 2016 is set out relevantly as follows:

   6. In January 2013, S rang me to go to Ramadi to cover the demonstrations prior to that S discussed the matter with me to prepare me to the trip, I liked the idea of going to Ramadi because it was very challenging and risky, especially that I am Shia person who is going to Sunni area which is very well known for its insurgency against the government in Baghdad, actually saw in it a good opportunity to promote myself, I thought of it as a case that might attract the attention of the major newspapers who might hire me if they see my work accordingly we agreed that i travel on 3/1/2013 to ramadi ,first, i travelled first to Baghdad , i stayed with my friend X for overnight in the second day i called my friend Y whi used work for Albaghdadia channel , Y told me to meet him next morning in a street near Alshaab stadium me and Y went to Ramadi's main demonstration square which is called by the demonstrators ( honour and dignity square) ,that was around 11 am , I then started taking some photos which showed how the demonstrators were praying inside the square, i then took some pictures of the slogans which was raised by the demonstrators these slogans refer to the injustice they suffer from in Iraq on the hands of the shia population i took different photos which reflect the emotions , the anger that these demonstrators have , after that i left to Baghdad and from Baghdad i went to nasiryah.

   7. I arrived Nasiryah around 9 pm , there and while was trying to find a taxi in one of the streets , a car (ute) which was without registration pulled over next to me , the people in the car requested that i get in their car, they opened the door, and i got in their car as i was fearful that they may shoot me if I don't do what they want , while inside the car they took my camera and laptop bags , they inspected the photos i have taken in Ramadi they said to me "where you coming from? i replied from Ramadi they asked me about the photos and said you are shia person they mentioned my work and my family as a sign that they know me ,then they said to me you shia why you go to these Sunni areas? I replied that it was just my work and i have nothing to do with sectarianism between shia and Sunni's , they then said that they know where I live and work , they said that they will kill me if they see me again doing this job, i did not know who these people were, it shocked me that they know me very well while I don't know them at all, when they took my stuff they said they will come back to me, I was very fearful as what they said means that they will get back to me to eradicate me after they decide my fate.

   8. After that I was very cautious in my movement from home to work and vice versa , i even reduced my work days and hours fearing that they may come to kill me, i called S and told him about what happened to me and the fact that they took all my pictures and equipments , he apologised to me and told me to be very cautious and not to mention his name to anyone

   (Underlining emphasis added)

3. Materially in that declaration, there was no reference to the applicant stating that the men stated the actual addresses of where the applicant lived and worked. I do not accept, given the reference by the Authority to the summarised incident in October 2013 in the dot points referred to above at [11], and in light of the Authority’s reasons in paragraphs 5 and 8 of the Authority’s reasons, that the Authority in its findings in paragraph 13 failed to take into account the applicant’s statement in the irregular maritime arrival entry interview. 

4. Mr Hughes submitted that the reference to knowing someone’s actual address by stating it, was a matter that would contradict the reasoning of the Authority which found that this was just intended to cause fear and apprehension in the applicant. The applicant however, as I identified above, has given different versions of the event and what occurred and the Authority rejected as a finding of credit the applicant’s version as summarised above.

5. The Authority does not have to refer to every piece of evidence. The reference by the Authority to “along the lines” referred to in [14] above is consistent with the Authority being aware of and taking into account the differing versions. In those circumstances, I am not satisfied that the Tribunal failed to consider an integer of the applicant’s claims in relation to the entry interview or that the Authority failed to take into account important corroborative evidence. The adverse finding by the Authority was open to the Authority for the reasons given by the Authority for the reasons summarised above and cannot be said to lack an evident and intelligible justification in respect of the finding that the applicant was not in any way targeted due to his attendance at the Ramadan demonstration.

6. The Authority’s reasoning correctly reflects the substance of the applicant’s claim and reflects a correct understanding by the Authority of the applicant’s claim, and was open to the Authority for the reasons given by the Authority. There was no failure by the Authority in considering the integer of the applicant’s claims or corroborative evidence.  No jurisdictional error as alleged in ground 4 is made out. 

7. Accordingly, the amended application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 March 2018