DCT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 155
•16 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DCT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 155
File number(s): SYG 2092 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 16 February 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant’s fears found not to be well-founded – Authority making a quick decision following remittal from this Court – whether the Authority should have re-opened the review to consider new information submitted by the applicant or whether the Authority otherwise erred in making its decision considered – no jurisdictional error – observation on the desirability of the Authority notifying applicants of the time available for a submission following remittal by the Court Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 46A, 473EA, 473EB, 473HB Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
BOA18 & Ors v Minister for Immigration & Anor (No 2) [2020] FCCA 1608
Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
SZTZY v Minister for Immigration and Border Protection [2018] FCA 911
Number of paragraphs: 34 Date of hearing: 2 February 2021 Place: Sydney The Applicant appeared in person Solicitor for the Respondents: Mr L Dennis of Minter Ellison ORDERS
SYG 2092 of 2019 BETWEEN: DCT19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
16 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application filed on 16 August 2019 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 July 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 27 January 2021.
The applicant is a citizen of Iraq who arrived in Australia on 2 May 2013 and is an unauthorised maritime arrival. The Minister exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa. The applicant subsequently applied for a SHEV[1] on 7 February 2017.[2]
[1] Safe Haven Enterprise Visa
[2] Court Book (CB) 23
On 15 June 2017, the delegate refused to grant the applicant a SHEV.[3] The delegate's decision was a “fast track reviewable decision” and was referred by the Minister to the Authority for review. On 16 February 2018, the Authority affirmed the decision under review.[4]
[3] CB 84
[4] CB 113
On 26 June 2019, this Court made orders, by consent, remitting the matter to the Authority for redetermination according to law (SYG785/2018).[5] On 12 July 2019, the Authority affirmed the decision under review.[6]
[5] CB 124
[6] CB 145
Applicant’s claims
The applicant claimed to be at risk of harm from Shia militias due to his running of a music shop and then failing to close down that shop when ordered to do so after he received threatening letters. The applicant claims that the Mehdi Army will carry out a threat they had made to kill him.
Authority decision
The Authority accepted the applicant was a citizen of Iraq and found he would return to his home town.[7] The Authority accepted the applicant's “core claims” including that he opened a music store selling CDs for the month of January 2013, that he received two threatening letters from the Mehdi Army, and that the Mehdi Army visited his family including once after his departure.[8]
[7] CB 148: [12]
[8] CB 148: [15]
However, the Authority had regard to country information which indicated the situation has changed.[9] Further, while the Authority accepted the applicant's claims, it noted no action was taken against the shop or the applicant's family. The Authority also noted that no one has been looking for him since mid-2013 and the Mehdi Army no longer exists. The Authority found the possibility of the applicant being of adverse interest to be farfetched.[10] The Authority found the risk of the applicant being harmed because he opened a music store selling CDs for the month of January 2013 was “too remote to amount to a real chance”.[11]
[9] CB 148–149: [16]–[17]
[10] CB 149: [18]
[11] CB 149: [18]
The Authority found there was not suggestion the applicant would return to selling CDs. In any event, the Authority found it would be reasonable for the applicant to modify his behaviour to avoid harm.[12]
[12] CB 150: [19]; Migration Act, s 5J(3)
Having regard to country information and the applicant's profile, the Authority did not accept the applicant would face harm as a Shia Muslim,[13] as a failed asylum seeker,[14] or on account of an imputed political opinion having worked for a western company.[15]
[13] CB 150–151: [20]
[14] CB 151: [21]
[15] CB 151: [22]
For these reasons, the Authority rejected the applicant's claims and found he did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act.[16] For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion.[17]
[16] CB 151: [23]
[17] CB 152: [26]–[27]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 16 August 2019. The applicant continues to rely upon that application. There are four grounds of review advanced in it:
1. The applicant's matter was referred from the Federal Circuit Court to the authority on 1-7- 2019, the authority advised the applicant to act quickly in his dealings with the authority, the letter stated that a decision may be made at any time. On 12-7-2019.At 2:50 pm, the applicant emailed the authority signed statutory declaration in which he described new events that occurred to his family in Basra, at 2:49 pm of the same day, the authority emailed the applicant its decision to affirm the decision of the department to refuse to grant the applicant protection visa. On the 13th of July 2019, the applicant requested that the authority to reopen its review process due to the events described above, however, the authority refused to reopen its review of the matter, the authority's decision in this regard was unreasonable and irrational especially that the authority letter did not put a time limit for the applicant's responses or submissions and especially that the applicant's statement was signed on the 10th of July 2019, the one minute difference between the authority's decision and the applicant's submission should have been considered by the authority.
2-At [15], the authority accepted that the applicant's claims as credible, the authority accepted that he operated a music store for the month of January 2013. The authority accepted that he received two threatening letters from the Mahdi Army. The authority accepted that he closed his store, his at his uncle's house, and his brothers later sold off the stock. The authority accepted that the militia who had threatened him visited his family around that time and visited one more time after he left Iraq. However, the authority found that there is no real chance that the applicant will be harmed if he to return to his home country. This finding is infected by jurisdictional error for one or more of two reasons as follows:
a)A central part of the IAA's reasoning process at [13] was that, following the occasion on which the applicant departed Iraq in April 2013, the militia members did not continue to look for the applicant at the applicant's house. However, an aspect of the applicant's claims was that after his departure his family "circulated the news about my departure from Iraq in order to avoid any contact with the Mehdi militias". This evidence, or integer of the applicant's claims, explains why the militia group did not continue to search for the applicant after the applicant left Iraq. The IAA did not address or deal with this evidence or integer of the applicant's claims. This is a jurisdictional error.
3- The IAA at [16] “considered whether the security situation in southern Iraq would give rise to protection obligations”. The IAA concluded at [16] that the applicant did not face a real chance of serious harm arising from the security situation. This finding is infected by jurisdictional error for one or more of three reasons as follows:
a)The IAA at [16] relied on a country information document which, according to the IAA, referred to the Mahdi army fighting of ISIL and that the Mahdi army created the peace brigade for that purpose, the authority suggested at [18] that “It is also possible the local members of the Mahdi Army who targeted him at that time are no longer in …”. This possibility is not supported by any country information quoted by the authority, In the circumstances, the IAA either made a critical finding of fact where there was no evidence to support the fact, or the IAA misunderstood the country information evidence before it. This is a jurisdictional error.
4-The IAA at [16, 18, 20, 21] considered the risks of persecution to the applicant. For each risk, the IAA found that the risk did not give rise to a real chance of serious harm. However, the IAA failed to consider whether the two risks cumulatively gave rise to a real chance of serious harm. This is a jurisdictional error.
(errors in original)
The application is supported by an affidavit by the applicant’s former solicitor, Mr Ali Alkafaji, made on 14 August 2019. I received that affidavit. Mr Alkafaji withdrew from the record in this matter on 25 January 2021.
I also have before me as evidence the court book filed on 16 October 2019.
Only the Minister filed pre-hearing written submissions in accordance with procedural orders made by me. I invited oral submissions from the applicant, who was assisted by an Arabic interpreter in court and a friend who attended by telephone with the applicant.
The applicant was unable to advance any argument bearing upon the legal issues in this case. Nevertheless, the circumstances in which the Authority made its decision in this matter warrant close attention, not limited to the specific grounds advanced in the application.
CONSIDERATION
Ground 1 – did the Authority err by failing to consider the applicant’s statutory declaration made on 10 July 2019?
I accept the Minister’s submissions in relation to Ground 1.
This ground contends the Authority erred by failing to consider information provided after its decision was made. In particular, the following events occurred:
(a)on 26 June 2019, this Court made orders, by consent, remitting the matter to the Authority;[18]
(b)by letter dated 1 July 2019, the Authority wrote to the applicant about the remittal noting that the matter was referred to the Authority on 20 June 2017 and advising him to “act quickly in your dealings with us, as a decision may be made at any time”;[19]
(c)on 12 July 2019, at 2:10pm, the Authority affirmed the decision under review;[20]
(d)on 12 July 2019, at 2:49pm, the Authority emailed the applicant's representative notifying the applicant of its decision;[21]
(e)on 12 July 2019, at 2:50pm, the applicant's representative emailed the Authority seeking to provide “new information”;[22]
(f)by email dated 13 July 2019, the applicant's representative requested that the Authority “reopen the matter” so that the “new information” could be considered;[23] and
(g)on 16 July 2019, the Authority wrote to the applicant explaining that the decision was finalised and the Authority had “no power to vary or revoke a decision after it is made”.[24]
[18] CB 124
[19] CB 129
[20] CB 145
[21] annexure A of the affidavit of Ali Alkafaji, dated 14 August 2019
[22] CB 136
[23] annexure D of the affidavit of Mr Alkafaji, dated 14 August 2019
[24] annexure E of the affidavit of Mr Alkafaji, dated 14 August 2019
The Authority's decision was made on 12 July 2019 at 2:10pm. At that point, the application for review was finally determined and the Authority was functus officio.[25] On 12 July 2019, at 2:49pm, the Authority emailed the applicant's representative notifying the applicant of its decision.[26]
[25] Migration Act, ss 5(9A)(e) and 473EA(2)
[26] Migration Act, ss 473EB and 473HB
The facts that the applicant provided new information to his representative two days before the Authority decision and that the applicant's representative sought to provide the new information to the Authority soon after a decision was made, while unfortunate, cannot affect the Authority's decision. In its letter dated 16 July 2019, the Authority correctly stated that it had “no power to vary or revoke a decision” after it is made.[27] Further, the Authority's decision was not affected by error such that it could be revisited.[28]
[27] Migration Act, s 473EA(3)
[28] cf. Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 at [71] per Flick, Griffiths and Perry JJ
I do have some concerns about the notification given by the Authority to the applicant through his representative on 1 July 2019.[29] In particular, the notification states that it is important that the applicant “act quickly in your dealings with us, as a decision may be made at any time”.[30] No time period was specified within which the applicant could provide anything further. This is in contrast to first notifications following referral to the Authority which invite a submission within 21 days. I am aware that some Authority members use that time period when matters are remitted by the Court for reconsideration. The speed with which the Authority can deal with a matter upon remittal will depend, among other things, upon the complexity of the task imposed on the Authority by the Court on remittal. This case was straightforward in that the error identified was simply the failure to consider a single piece of information, which was rectified by the Authority. In another case, a rushed reconsideration, coupled with the opaque and unhelpful notification as deployed in this case may give rise to a jurisdictional error.[31]
[29] CB 133
[30] CB 133
[31] see for example BOA18 & Ors v Minister for Immigration & Anor (No 2) [2020] FCCA 1608
In my view, it would be desirable if the Authority adopted a standard practice of notification following remittal and, if the Authority is to depart from the usual 21 day time period for submissions, that the different time period be specified.
Ground 2 – did the Authority overlook an integer of the applicant’s claims?
I accept the Minister’s submissions concerning this ground.
This ground contends that the Authority did not deal with the following statement made in the applicant's statutory declaration, dated 5 February 2017:[32]
After my departure from Iraq, my family circulated the news about my departure from Iraq in order to avoid any contact with the mehdi militias.
[32] CB 69: [9]
In circumstances where the Authority expressly referred to this claim, there is no basis to contend it was overlooked.[33]
[33] CB 147: [9.5]; cf. Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [52] per Kenny, Griffiths and Mortimer J; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [122] per Robertson J
Further, it is unnecessary to make a finding on a particular matter if it is subsumed in findings of greater generality or if a factual premise upon which a contention rests has been rejected.[34] In this case, the Authority found the situation had changed, no action was taken against the shop or the applicant's family, no one has been looking for his since mid-2013, and the Mehdi Army no longer exists.[35] The Authority was cognisant of the applicant's claims and evidence and its findings were sufficiently dispositive.
[34] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ
[35] CB 149–150: [17]–[18]
Moreover, the Authority also found it would be reasonable for the applicant to modify his behaviour to avoid harm.[36]
[36] CB 150: [19]; Migration Act, s 5J(3)
Ground 3 – did the Authority err by making a finding without evidence?
I also accept the Minister’s submissions concerning Ground 3.
This ground contends there was “no evidence” for the Authority's finding that, “[i]t is also possible the local members of the Mehdi Army who targeted him at that time are no longer in Al Qornah”.[37] There is no substance to this ground.
[37] CB 149: [18]
The Authority's findings were plainly based on country information indicating the Mehdi Army no longer existed. It was open to the Authority to speculate what might have happened to its members in performing its fact finding function. Further, the Authority's finding must be understood in context. That is, the Authority was considering the fact that the Mehdi Army no longer exists and some members may have joined other groups while others may have left the area.[38]
[38] CB 149–150: [18]
Ground 4 – did the Authority err by not considering the applicant’s claims cumulatively?
I agree with and adopt the Minister’s submissions concerning this ground.
This ground contends the Authority failed to consider the applicant’s claims cumulatively. No amount of cumulative consideration of the rejected claims was capable of producing a different result.[39]
[39] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [33]–[34] per Gilmour, Markovic and O'Callaghan JJ; SZTZY v Minister for Immigration and Border Protection [2018] FCA 911 at [10] per Logan J
CONCLUSION
I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 16 February 2021
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