DEE17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 989
Federal Circuit and Family Court of Australia
(DIVISION 2)
DEE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 989
File number: SYG 2226 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 29 November 2022 Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA’s decision was affected by legal unreasonableness – whether the IAA overlooked a claim made by the applicant in his arrival interview – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 46A, 476 Cases cited: AGC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1572
BHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1211
CRU18 v Minister for Home Affairs [2020] FCAFC 129
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Tsvetnenko v USA (2019) 269 FCR 225
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 24 August 2022 Place: Perth Counsel for the Applicant: Mr D Godwin Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley
Table of Corrections 30 November 2022 In paragraphs 2 and 76, the name referenced in line 2 of the paragraph extracted from the applicant’s arrival interview record has been redacted pursuant to s 91X of the Migration Act 1958 (Cth). ORDERS
SYG 2226 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEE17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
29 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application (as amended on 10 August 2022) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(AS CORRECTED)JUDGE KENDALL:
Background
The applicant is a citizen of Iraq (Court Book (“CB”) 4). He arrived in Australia in June 2013 as an unauthorised maritime arrival (CB 53).
On 13 July 2013, the applicant took part in an “arrival interview” with an officer from the then Department of Immigration (the “Department”) (CB 2-26). During that interview, the applicant claimed to fear harm from the “Militias (Mehdi Army)” because he was working with “foreigners” or “ex-pats”. The applicant also claimed that he was threatened “every time he left the company” and that “the militia had come to his house and spoken with his mother” (CB 14). The applicant is also recorded as stating in the arrival interview that (CB 14):
I spoke to my mum yesterday [(date omitted)] and she said that mum (sic) came to the house and asked about me and said ‘Why isn’t [redacted] coming to work anymore?’ and I asked if they were from my work - because I used to invite workmates home. She said ‘No, they are strangers’.
On 11 August 2016, the first respondent (the “Minister”) lifted the bar (under s 46A(1) of the Migration Act 1958 (Cth) (the “Act”)) and the Department invited the applicant to apply for a protection visa (CB 27-31).
On 22 November 2016, the applicant applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “visa”) (CB 32-81). The applicant provided a statutory declaration with his application in which his protection claims were detailed as follows (CB 73-74):
(a)the applicant worked with his father in a kebab shop until January 2009 when he joined RONCO (a company specialising in providing security services to the Iraqi Mine Clearance Organisation (“IMCO”)) undertaking general “security duties” and working as a “body guard for the foreigners who supervised [the] mine clearing operations” (at [3]);
(b)in April 2011, some “unknown” men came to his family home and spoke with his mother, “threatening to kill [the applicant]” if he continued to work for RONCO. The men said that it was “haram” or “against the religion of Islam” to work for foreigners. Though he wanted to stay in his job, he resigned from his position at RONCO in April 2011 (at [4]);
(c)also in April 2011, the applicant joined Sabre International (another security company) working “as a driver and body guard”. During the last few months of his work, he was assigned to another security company called Near East Security Services (“NESS”), who took over the contracted work in that area (at [5]-[6]);
(d)in April 2013, the applicant was followed by a car and shot at on his way home from work by a “shooter [who was] wearing a mask on his head”. The applicant “managed to escape through the nearby market” and he left Iraq a few days later (at [7]); and
(e)the applicant fears that he will be killed if he returns to Iraq (at [8]).
On 7 December 2016, the Department acknowledged receipt of the visa application and asked the applicant to provide a “current passport photo” and a “fully completed Part C of the visa application form” (CB 83-92).
On 31 January 2017, the Department invited the applicant to attend an interview scheduled for 14 February 2017 (CB 94-105).
The applicant attended that interview on 14 February 2022.
On 12 March 2017, the applicant’s representative provided written submissions and additional documents to the Department in support of the applicant’s visa application (CB 106-139).
On 3 April 2017, a delegate of the Minister refused to grant the applicant the visa
(CB 143-154). The delegate was not satisfied, on balance, that there was “enough evidence … to indicate that the applicant [would face] a real chance of persecution in Iraq because of his claims of an imputed political opinion” and ultimately determined that there was no “real risk” that the applicant would suffer significant harm if returned to Iraq (CB 149-150).
The delegate’s decision was referred to the Immigration Assessment Authority (the “IAA”) on 6 April 2017 (CB 155).
On 15 May 2017, the applicant’s representative wrote to the IAA and provided a completed “Appointment of Representative” form, a copy of an email sent to the Department on 12 March 2017, written submissions sent to the Department and further written submissions in support of the applicant’s visa application (CB 162-177).
On 15 June 2017, the IAA affirmed the delegate’s decision refusing to grant the applicant the visa (CB 180-194).
On 17 July 2017, the applicant applied to this Court for judicial review of the IAA’s decision. The application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
The IAA’s decision
In this matter, the IAA’s decision is 15 pages long and spans 43 paragraphs. It also includes four pages of relevant legislative provisions. Those provisions are summarised at [14]-[15] and [40]-[41] of the IAA’s decision.
The IAA began by explaining that the applicant claimed to be a Shia Arab from Iraq (noting that he had lodged his visa application in November 2016 and that a delegate of the Minister had refused to grant the applicant that visa on 3 April 2017). The IAA confirmed that it had had regard to the material referred to it by the Secretary and further confirmed receipt of submissions provided by the applicant’s representative. The IAA did not consider the submission to be “new information” (at [1]-[4]).
The IAA continued:
5. The applicant’s claims can be summarised as follows:
•He lived in Basra in the south of Iraq prior to travelling to Australia. His wife, children, parents, and some siblings still live in the family home in the Al Zubair area of Basra. They live above a restaurant which his father previously operated but which is now leased to another person.
•He completed approximately 20 months of compulsory military service as an ordinary soldier in the Iraqi Army up to the fall of Saddam Hussein’s regime in 2003.
•He then worked in the family restaurant until January 2009, when he commenced work for RONCO, a company which provided security services to the Iraqi Mine Clearance Organisation (IMCO) as a security officer.
•On 23 April 2011 some men came to his home and spoke with his mother, threatening to kill him if he continued to work with RONCO because working for foreigners was inconsistent with Islam and / or because he was considered to be working with the US occupying forces. His mother was distressed and asked him to stop working for the company. He resigned from RONCO in April 2011.
•He then joined Sabre International, a security services company. His work involved protecting the pipelines on the oilfields. In the last few months of his work he was reassigned to another security company, Near East Security Services (NESS), when NESS took over the contract for the work previously done by Sabre.
•On 12 April 2013, he was shot at on the way home from work but managed to escape. Shortly after this incident, he left Iraq.
•He fears that if he returns to Iraq he will be killed by Shia militia groups such as the Al Mahdi Army or the Badr Organization because of his past employment and the associated perception that he supported or supports foreign interests.
•If he returns to Iraq he may again take up security work. There are many American companies based in the oilfields and they are targeted by Shia militia groups. All security guards are targeted in attacks.
•The security situation in Basra has deteriorated as a result of a power vacuum created by the diversion of resources to the fight with the Sunni insurgent group Daesh in other parts of Iraq.
The IAA accepted that the applicant is an Arab Shia Muslim who was born in Basra, Iraq (at [6]).
In relation to the applicant’s employment with RONCO, the IAA accepted that:
(a)the applicant “was employed by RONCO as a security officer” (at [7]);
(b)in April 2011, the applicant’s mother “was visited by unknown men who threatened … [to] kill the applicant if he continued to work” with the company (at [8]-[9]);
(c)the applicant left his employment with RONCO because of the threat (at [9]); and
(d)the threat “emanated from a Shia militia group”. In this regard, the IAA noted that the applicant had not claimed to have received any other threats due to his employment with RONCO. The IAA did not accept that he applicant was “of any adverse interest” to any Shia militia groups after he resigned (at [9]).
In relation to the applicant’s employment with Sabre International and NESS, the IAA:
(a)outlined the applicant’s claim that he was “shot at by an unknown masked man when he was on his way home from work” and, while he was uninjured, decided to leave Iraq after that incident (at [10]);
(b)accepted that the applicant was in a company car, that he was shot at by an unknown man after being dropped near his home by a colleague and that he was shot at by members of a Shia militia group on the basis of a pro-western imputed political opinion (at [11]); and
(c)considered it highly likely that the applicant was targeted because he was an employee of NESS (rather than “on an individual basis”) (at [11]).
The IAA continued:
12.During the SHEV interview the applicant claimed that in June 2013, after his departure, unknown men came to his home in Basra and asked his mother why the applicant was not coming to work anymore. The applicant claimed these men were not friends from work as his mother would have recognised his friends. He said the men wore black clothes and had beards. I consider it somewhat implausible that members of a Shia militia group, or other armed group, would monitor the applicant’s work attendance, and that if they did visit his mother, they would ask her about the applicant’s absence from work without expressing their opposition to his employment with a company they considered to be associated with the US or west in general. Given that the applicant claims he left Iraq without providing any notice, or otherwise contacting his employer, it seems considerably more likely these men were employees of NESS seeking to establish whether the applicant intended to return to work than that they were men seeking to harm the applicant.
13.The omission of this claim from the applicant’s SHEV application, prepared with the assistance of his representative, also leads me to question whether this event took place in the manner claimed during the SHEV interview. I consider it highly likely that the applicant embellished his evidence in relation to this incident, for example by adding that the men were bearded and wore black, in order to enhance his claims for protection. I am willing to accept that the applicant’s mother was visited by men asking why the applicant did not come to work anymore following his departure from Iraq, but I do not accept that the men were members of a Shia militia group or any other armed group, instead, I consider it very probable that the men employees of the applicant’s former employer, NESS. While I have accepted that Shia militia shot at the applicant in April 2013 because he was seen to have been travelling in a NESS company vehicle, I do not accept that he was otherwise individually pursued or targeted by Shia militia groups on the basis of his employment for NESS, Sabre, or RONCO.
Under the heading “Refugee assessment”, the IAA summarised the legislative provisions relevant to an assessment of refugee status (as per s 5H of the Act) and detailed the meaning and interpretation of a “well-founded fear of persecution” (as per s 5J of the Act) (at [14]-[15]).
The IAA then assessed the applicant’s protection claims in relation to “Shia militia groups”, as follows:
(a)the IAA did not accept that the applicant was individually pursued or targeted by Shia militia groups on the basis of his past employment (at [16]);
(b)the IAA noted that the applicant claimed that he may work as a security guard again on his return to Iraq (despite his past experiences and associated fears) because it pays well and he is experienced in that area (at [17]);
(c)the IAA noted that the applicant had been working as a farm labourer in Australia, had previously worked in his family restaurant and the applicant had not worked in the security field in over four years (at [18]); and
(d)the IAA accepted that the applicant no longer has friends in the security industry in Iraq and that the applicant may seek future employment as a security guard. The IAA considered it to be speculation that the applicant would be able to secure employment and that, if he did, it would be associated with foreign forces (at [18]).
The IAA then explained:
19.While the applicant has claimed that all security guards in Iraq are targeted, regardless of their employer, there is little evidence before me to support this claim. I do not accept that security guards in general are targeted by Shia militia groups or any other armed group. Discussing the risks faced by Iraqis who have worked with western governments, DFAT reported in February 2015 that in government-controlled areas, the opposition to the US and other Western nations had diminished somewhat in recent years. Those most at risk in the past have included those who worked most closely with the US forces. Overall, DFAT assessed the risk of violence to those who have worked with the international community to be moderate.
20.During the SHEV interview and in the post-SHEV interview submission, the applicant’s representative referred to a recent January 2017 UK Upper Tribunal decision, which he suggested was supportive of the applicant’s claim that he may be harmed for reasons associated with his employment. The applicant’s representative submitted that the UK Upper Tribunal decision confirms that a security role working with a foreign company in Iraq exposes Iraqi employees to a high level of risk. The UK Upper Tribunal in that case made the following assessment of the evidence considered:
‘The evidence shows that those who worked for non-security related Western or international companies, or any other categories of people who would be perceived as having collaborated with foreign coalition forces, are still likely to be at risk in areas which are under ISIL control or have high levels of insurgent activity. At the current time the risk is likely to emanate from Sunni insurgent groups who continue to target Western or international companies as well as those who are perceived to collaborate with the Government of Iraq.
21.The UK Upper Tribunal emphasised that it did not consider any detailed evidence on the potential risk to perceived collaborators in other categories such as those who worked or had worked in a military or security setting, including interpreters, and it was unable to give any clear guidance relating to the possibility of an enhanced risk to such individuals without further evidence. Nevertheless, the Upper Tribunal commented that the evidence suggested that people working in these contexts are likely to be at risk in areas of Iraq that are under the control of Daesh. I note that DFAT reported in 2015 that Sunni insurgent activity was highest in the northern, western and central provinces, while levels of violence perpetrated by armed Sunni groups in the Shia-dominated southern provinces were much lower.
The IAA acknowledged that the applicant’s representative had submitted that foreign companies were associated with the deaths of Iraqi citizens based on a 2007 incident but noted that it had been “some time” since that incident and that the company involved provide security for diplomatic personnel (at [22]).
The IAA continued:
23.Despite the UK Upper Tribunal’s caution regarding its limited consideration of the evidence regarding the precise risks faced by Iraqi employees security and military contexts, and the risks outside Baghdad, the Upper Tribunal’s conclusions in relation to the risks faced by individuals who may be perceived as having collaborated with foreign coalition forces are nevertheless more detailed and specific, and substantially more recent, than DFAT’s brief and general 2015 assessment of the risks faced by ‘those who have worked with the international community’ across Iraq.
The IAA was ultimately not satisfied that the applicant would face a real chance of harm from Shia militia groups on the basis of this past employment as a security guard (even if the applicant worked as a security guard upon his return and that work was with an international company) (at [24]).
The IAA did not accept that the applicant would attract adverse attention from Shia militia as an unsuccessful asylum seeker. The IAA was, however, satisfied that the applicant would return to Basra and live with his family and was satisfied that the applicant would be able to safely return to his home from the airport in Basra (at [25]-[26]).
The IAA then considered if the applicant would suffer any harm from “Armed Sunni groups”, as follows:
28.The applicant does not claim to have been targeted by armed Sunni groups on the basis of his employment in the past. I have accepted that the applicant may seek to secure employment as a security guard on his return, although as discussed, whether or not he would succeed in finding this employment, and if he did so, who his employer might be, are matters requiring a significant degree of speculation. Even if the applicant did again secure employment as a security officer, and even if that employment was with an international company, having regard to the independent evidence before me, I am not satisfied that any risk associated with past or current employment by foreign companies, including security companies, exists in areas other than those that are under Daesh control or experience high levels of Sunni insurgent activity. As discussed, Basra is not such an area. I am not satisfied that there is a real chance of harm to the applicant, now or in the foreseeable future, from armed Sunni groups in Basra on the basis of his past or future employment.
29.In considering the chance of harm to the applicant from armed Sunni groups, I place weight on DFAT’s 2015 assessment that the southern provinces of Iraq have remained significantly more secure than central Iraq in recent years, and that Shias in southern Iraq face a low risk of generalised violence. Having regard to the evidence before me, including the applicant’s past employment and status on return as an unsuccessful asylum seeker who has lived in Australia for approximately four years, I find the chance that the applicant may be harmed by armed Sunni groups in Basra to be less than the real chance of persecution required to meet s.5J(1)(b).
The IAA went on to consider the “Security situation in Basra”, noting that the government had taken steps to address the criminal activity and tribal violence in Basra and that there had been “some improvement”. The IAA accepted that the applicant’s family was not involved in tribal activities and that the applicant did not come from a wealthy family. The IAA did not accept that the criminal activity in Basra was “at such a level that it would represent a real risk of harm to the applicant”. Further, the IAA determined that while violence (including criminal violence) occurs in Basra, the applicant would not face a real chance of harm as a result (at [32]-[34]).
In IAA accepted that the applicant would be returning to Iraq as a failed asylum seeker (having been living in a western country for approximately four years) but found that there was no evidence before the IAA to suggest that unsuccessful asylum seekers would be targeted. The IAA did not accept that the applicant would be targeted in criminal attacks on the basis of his status as a returnee or that he would be of any adverse interest to any Shia militia groups, armed Sunni group or the Iraqi government because he had sought asylum in Australia (at [35]-[37]).
The IAA ultimately concluded:
38.I have considered whether the applicant faces a real chance of harm as a Shia, as a former security officer employed by RONCO, Sabre International and NESS, as a person who may again seek to work in the security industry in Basra, as an unsuccessful asylum seeker who will be returning to Iraq after living in Australian for approximately four years, or as a result of the security situation in Basra. I am not satisfied that any combination of the applicant’s circumstances would combine to expose the applicant to a real chance of harm in Basra.
The IAA found that the applicant did not meet the definition of refugee outlined in s 5H(1) of the Act and thus did not meet s 36(2)(a) of the Act (at [39]).
The IAA outlined the legislative provisions in relation to “Complementary protection assessment” (at [40]-[41]) and determined as follows:
42.I have concluded that the applicant does not face a real chance of harm as a Shia Muslim, as a former security officer employed by RONCO, Sabre International and NESS, as a person who may again seek to work in the security industry in Basra, as an unsuccessful asylum seeker who will be returning to Iraq after living in Australian for approximately four years, as a result of the security situation in Basra, or as a result of any combination of these factors. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied that the applicant would face a real risk of significant harm for the purposes of s.36(2)(aa) on these grounds.
The IAA affirmed the delegate’s decision refusing to grant the applicant the visa.
Application to this Court
In submissions filed on behalf of the applicant on 10 August 2022, the applicant sought leave to amend his grounds of review. The amended grounds provide as follows:
1. The decision of the second respondent was affected by legal unreasonableness.
Particulars
The second respondent’s reliance upon the conclusions in the United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) “BA (Returns to Baghdad) Iraq CG” 23 January 2017 was perverse as that decision was specifically confined to non- security personnel employed by foreign companies in Baghdad – whereas the applicant was a security guard in Basra.
2. The second respondent failed to perform its duty to review.
Particulars
The second respondent failed to take into account information in the arrival and induction interview concerning the approach made to the applicant’s mother about why the applicant was not attending work which was cogent evidence providing substantial support to the applicant's case.
On 19 August 2022, Mr Godwin (counsel for the applicant) sent an email to this Court providing a copy of a decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) (BA (Returns to Baghdad) Iraq CG [2017] UKUT 00018 (IAC) (“UK Upper Tribunal decision”)). It was explained that the applicant would seek to tender this document before this Court.
The Minister, in submissions filed on 22 August 2022, did not oppose the applicant being granted leave to rely on the amended application (annexed to written submissions filed in this Court on 10 August 2022 on behalf of the applicant).
The matter proceeded to a hearing on 24 August 2022.
The applicant was represented by Mr David Godwin (“Mr Godwin”) of counsel. The Minister was represented by Mr Tim Reilly (“Mr Reilly”) of counsel. Both counsel provided outlines of written submissions (filed on 10 August 2022 and 22 August 2022 respectively).
Mr Godwin and Mr Reilly also appeared, respectively, at the hearing before the Court on 24 August 2022. Their oral submissions were clear and concise and the Court thanks both advocates for their considerable assistance with this matter.
The Court granted the applicant leave to rely on the amended application and written submissions (filed together as one document) on 10 August 2022. The Court also granted the Minister leave to rely on written submissions filed on 22 August 2022.
Mr Godwin also sought to formally tender the UK Upper Tribunal decision. The Court accepted the document and had it tendered as an exhibit for the purpose of the proceeding.
The material before the Court thus includes an amended application and written submissions filed on behalf of the applicant on 10 August 2022, a Court Book numbering 194 pages (marked as Exhibit 1), the UK Upper Tribunal decision (marked as Exhibit 2) and written submissions filed on behalf of the Minister on 22 August 2022.
Consideration
Ground 1
As noted above, ground 1 provides:
1. The decision of the second respondent was affected by legal unreasonableness.
Particulars
The second respondent’s reliance upon the conclusions in the United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) “BA (Returns to Baghdad) Iraq CG” 23 January 2017 was perverse as that decision was specifically confined to non- security personnel employed by foreign companies in Baghdad – whereas the applicant was a security guard in Basra.
Applicant’s submissions
In written submissions (filed in this Court on 10 August 2022 at [12]-[14]), the following submissions were made on behalf of the applicant in relation to ground 1:
(a)the choice of country information and the weight given to that information is a matter for the IAA. However, the weight given to country information is subject to the principles of legal unreasonableness: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11];
(b)the IAA’s reliance on the UK Upper Tribunal decision over the DFAT assessment (which indicated that there was a moderate risk) on the basis that it was “more detailed and specific” was “perverse” because the UK Upper Tribunal decision related to Baghdad only and persons working in non-security roles (thus excluding the applicant);
(c)it is “perverse” to use a country report where the “personal attributes and location being assessed are explicitly excluded from being assessed by that report; and
(d)the applicant’s advisor made reference to the report to support the proposition that security personnel were considered to be in a different category to other workers linked to foreign companies.
In oral submissions before the Court, Mr Godwin essentially reiterated the submissions above and took the Court through various passages from the IAA’s written reasons and from the UK Upper Tribunal decision.
Minister’s submissions
In written submissions (filed in this Court on 22 August 2022), the following submissions were made on behalf of the Minister (at [20]-[21]):
(a)the IAA acknowledged that the decision did not consider evidence about persons who had worked in a security setting. Having done so, it was not legally unreasonable for it to nevertheless consider the decision of some relevance as indicating that persons perceived as having collaborated with foreign organisations were most at risk in areas controlled by Sunni insurgent groups (which did not include the southern provinces);
(b)reasonable minds could differ about whether country information expressly not considering evidence about persons who worked in a security setting, but containing statements about persons perceived as having collaborated with foreign coalition forces, could be relevant to the applicant’s situation, so no legal unreasonableness in the IAA referring to the UK Upper Tribunal decision is demonstrated: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [130]-[131].
(c)the IAA’s conclusion that the applicant did not face harm from Shia militia groups in Basra (set out at [24]) is not legally unreasonable because it is supported by the country information that the IAA cites (at [19] of its reason);
(d)the IAA’s comments about the UK Upper Tribunal decision (at [23] in its reasons) are of little relevance to this conclusion, and even if they were considered legally unreasonable, this would not be enough to show that the IAA’s conclusion (at [24] in its written reasons) was legally unreasonable given it is supported by the country information the IAA cites (at [19] in its reasons): CRU18 v Minister for Home Affairs [2020] FCAFC 129 (“CRU18”) at [36]; and
(e)it cannot be said that the IAA’s ultimate decision is legally unreasonable as the applicant must prove: Tsvetnenko v USA (2019) 269 FCR 225 at [85]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [33].
In oral submissions before the Court, Mr Reilly expanded on his written submissions and again stressed that, in accordance with the findings made in CRU18, where there are “different strands” to a conclusion or where a conclusion is supported by different elements, it is unlikely that finding one of those elements to be legally unreasonable will lead to a conclusion that the decision as a whole is legally unreasonable.
The IAA’s approach
Here, the IAA considered the UK Upper Tribunal decision, together with other country information sources when making its findings (for example, the Department of Foreign Affairs and Trade (“DFAT”) Country Information Report: Iraq which was dated 13 February 2015). Those considerations fall largely between paragraphs [19] and [29] of the IAA’s written reasons and, relevantly, provide as follows:
19.While the applicant has claimed that all security guards in Iraq are targeted, regardless of their employer, there is little evidence before me to support this claim. I do not accept that security guards in general are targeted by Shia militia groups or any other armed group. Discussing the risks faced by Iraqis who have worked with western governments, DFAT reported in February 2015 that in government-controlled areas, the opposition to the US and other Western nations had diminished somewhat in recent years. Those most at risk in the past have included those who worked most closely with the US forces. Overall, DFAT assessed the risk of violence to those who have worked with the international community to be moderate.
20.During the SHEV interview and in the post-SHEV interview submission, the applicant’s representative referred to a recent January 2017 UK Upper Tribunal decision, which he suggested was supportive of the applicant’s claim that he may be harmed for reasons associated with his employment. The applicant’s representative submitted that the UK Upper Tribunal decision confirms that a security role working with a foreign company in Iraq exposes Iraqi employees to a high level of risk. The UK Upper Tribunal in that case made the following assessment of the evidence considered:
‘The evidence shows that those who worked for non-security related Western or international companies, or any other categories of people who would be perceived as having collaborated with foreign coalition forces, are still likely to be at risk in areas which are under ISIL control or have high levels of insurgent activity. At the current time the risk is likely to emanate from Sunni insurgent groups who continue to target Western or international companies as well as those who are perceived to collaborate with the Government of Iraq.
21.The UK Upper Tribunal emphasised that it did not consider any detailed evidence on the potential risk to perceived collaborators in other categories such as those who worked or had worked in a military or security setting, including interpreters, and it was unable to give any clear guidance relating to the possibility of an enhanced risk to such individuals without further evidence. Nevertheless, the Upper Tribunal commented that the evidence suggested that people working in these contexts are likely to be at risk in areas of Iraq that are under the control of Daesh. I note that DFAT reported in 2015 that Sunni insurgent activity was highest in the northern, western and central provinces, while levels of violence perpetrated by armed Sunni groups in the Shia-dominated southern provinces were much lower.
…
23.Despite the UK Upper Tribunal’s caution regarding its limited consideration of the evidence regarding the precise risks faced by Iraqi employees security and military contexts, and the risks outside Baghdad, the Upper Tribunal’s conclusions in relation to the risks faced by individuals who may be perceived as having collaborated with foreign coalition forces are nevertheless more detailed and specific, and substantially more recent, than DFAT’s brief and general 2015 assessment of the risks faced by ‘those who have worked with the international community’ across Iraq.
…
28.The applicant does not claim to have been targeted by armed Sunni groups on the basis of his employment in the past. I have accepted that the applicant may seek to secure employment as a security guard on his return, although as discussed, whether or not he would succeed in finding this employment, and if he did so, who his employer might be, are matters requiring a significant degree of speculation. Even if the applicant did again secure employment as a security officer, and even if that employment was with an international company, having regard to the independent evidence before me, I am not satisfied that any risk associated with past or current employment by foreign companies, including security companies, exists in areas other than those that are under Daesh control or experience high levels of Sunni insurgent activity. As discussed, Basra is not such an area. I am not satisfied that there is a real chance of harm to the applicant, now or in the foreseeable future, from armed Sunni groups in Basra on the basis of his past or future employment.
29.In considering the chance of harm to the applicant from armed Sunni groups, I place weight on DFAT’s 2015 assessment that the southern provinces of Iraq have remained significantly more secure than central Iraq in recent years, and that Shias in southern Iraq face a low risk of generalised violence. Having regard to the evidence before me, including the applicant’s past employment and status on return as an unsuccessful asylum seeker who has lived in Australia for approximately four years, I find the chance that the applicant may be harmed by armed Sunni groups in Basra to be less than the real chance of persecution required to meet s.5J(1)(b).
It is clear from the extracts above that the IAA relied on both the UK Upper Tribunal decision and DFAT country information reports when making its assessment as to whether the applicant would face a real chance of harm in Basra.
Court’s consideration
As correctly submitted by the applicant in this matter, it is well settled that the use and assessment of country information, together with the weight given to that country information, is a matter for the IAA: NAHI.
As outlined above, in this matter the IAA chose to take into account country information in the form of DFAT country information and the UK Upper Tribunal decision. The decision to rely on those reports and the weight that was given to the information contained in each was a matter for the IAA as part of its fact finding function. In the extracts above, the IAA considers information contained in each report and, at times, compares the information contained in each report. Ultimately, however, having considered the information contained within that country information, the IAA was not satisfied that there was a real chance of harm to the applicant from Shia militia or Sunni groups in Basra (at [24] & [27]-[29]).
In relying on those reports, the IAA specifically acknowledged that the UK Upper Tribunal decision did not consider “any detailed evidence on the potential risk to perceived collaborators in other categories such as those who worked or had worked in a … security setting…” (at [21]). However, the IAA considered the UK Upper Tribunal decision’s comment that people in those contexts were likely to be at risk in areas of Iraq that were under Daesh control and, in considering that information, noted that the DFAT country information suggested that Sunni insurgent activity was highest in “northern, western and central provinces” and that violence in “Shia-dominated southern provinces was much lower” (at [21]).
In assessing whether an error arises in this regard, the Court notes the comments made in SZMDS, (per Crennan and Bell JJ), as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The Minister submitted (at [20] in written submissions filed on 22 August 2022) that, in the present matter, reasonable minds could differ about whether country information expressly not considering evidence about persons who worked in a security setting (but containing statements about persons perceived as having collaborated with foreign coalition forces) could be relevant to the applicant’s situation.
The Court agrees.
In circumstances where reasonable minds could differ and where there is room for a logical or rational person to reach the same conclusion, as set out in SZMDS, the conclusions reached by the IAA cannot be said to be illogical, irrational or unreasonable.
The Court also does not consider that the IAA’s conclusion (at [24] in its written reasons) that the applicant would not suffer harm from Shia militia groups in Basra was legally unreasonable. That conclusion was supported by country information (cited by the IAA at [19] in its written reasons). As submitted by the Minister (in written submissions filed on 22 August 2022 at [21] and in oral submissions at the hearing of this matter), even if the comments made by the IAA about the UK Upper Tribunal decision (at [23] in the IAA’s written reasons) were considered to be legally unreasonable, this would not be sufficient to give rise to the IAA’s ultimate conclusions being legally unreasonable in circumstances where those conclusions were supported by other country information (as cited by the IAA at [19] in its written reasons).
As highlighted in CRU18:
35In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J considered the vulnerability of administrative decision making to correction on account of jurisdictional error constituted by “illogical reasoning or illogical or irrational findings ‘on the way’ to the final conclusion”. His Honour observed (at 221 [55]-[56]):
Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].
An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
36Those observations have been the subject of repeated full court endorsement: CQG15 v Minister for Immigration (2016) 253 FCR 496, 517 [60] (McKerracher, Griffiths and Rangiah JJ); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81, 89 [35] (Charlesworth J, with whom Flick and Perry JJ agreed); BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109, [45] (Tracey, Farrell and Charlesworth JJ); DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260, 265-266 [19] (Tracey, Murphy and Kerr JJ); Singh v Minister for Home Affairs [2020] FCAFC 7, [92] (R Derrington J, with whom Logan and Reeves JJ agreed).
That reasoning applies here.
The Court does not consider, having reviewed the IAA’s decision as a whole, that the IAA relied solely on the UK Upper Tribunal decision. The IAA here considered various aspects of different country information reports and materials to come to its ultimate conclusion.
In this regard, the Court notes, in particular, the IAA’s reasoning at [19] as follows:
While the applicant has claimed that all security guards in Iraq are targeted, regardless of their employer, there is little evidence before me to support this claim. I do not accept that security guards in general are targeted by Shia militia groups or any other armed group. Discussing the risks faced by Iraqis who have worked with western governments, DFAT reported in February 2015 that in government-controlled areas, the opposition to the US and other Western nations had diminished somewhat in recent years. Those most at risk in the past have included those who worked most closely with the US forces. Overall, DFAT assessed the risk of violence to those who have worked with the international community to be moderate.
In the circumstances of this matter, the Court is satisfied that the IAA’s conclusion at [24] in its written reasons was supported by country information cited by the IAA at [19] in its written reasons (set out above). The Court does not consider that conclusion to be legally unreasonable.
No error arises in relation to ground 1.
Ground 2
As noted above, ground 2 provides:
2. The second respondent failed to perform its duty to review.
Particulars
The second respondent failed to take into account information in the arrival and induction interview concerning the approach made to the applicant’s mother about why the applicant was not attending work which was cogent evidence providing substantial support to the applicant's case.
Applicant’s submissions
In relation to ground 2, the applicant submitted (at [16]-[17]) in written submissions filed in this Court on 10 August 2022) as follows:
(a)there are inconsistencies in the applicant’s statements regarding an incident where unknown men approached his mother after he had left Iraq to ask why he had not been attending work;
(b)the IAA made no reference to the account given by the applicant in his arrival interview about this incident;
(c)the account of events in the arrival interview was given in close proximity to the event taking place and included the opinion of the applicant’s mother in that the persons were strangers and not work colleagues;
(d)where the IAA had failed to give reasons, the Court is entitled to infer “that any matter not mentioned … was not considered … to be material”: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [69];
(e)once the IAA raised concerns about the applicant embellishing the account of the incident, the account given in the arrival interview must have been material and the IAA ought to have specifically referred to it if it had in fact been considered: BHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1211 at [136]; and
(f)failure to take into account “cogent evidence” providing “substantial support” to the applicant’s case will amount to a failure to perform its duty on review: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [14] (citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317).
In oral submissions, Mr Godwin submitted that the circumstances of this case are analogous to those in AGC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1572 (“AGC17”). Mr Godwin noted that the Court in AGC17 found that there were three different versions of the same incident (one in the arrival interview, one in the SHEV statement and one in the SHEV interview) and that, in AGC17, the differences related to the time that an incident took place. Mr Godwin then referenced the conclusion in AGC17, which provides (emphasis added):
54I accept that the Authority did not consider the account of the timing of the alleged attack, or the account of the sequence of events, given in the entry interview when considering whether the appellant should be believed about whether the alleged attack occurred. The Authority was focussed only on the differences between the witness statement and the SHEV interview. The omission of any reference to the entry interview in that part of the decision where the Authority addressed the perceived inconsistencies in the accounts of the relevant events which the appellant had given is indicative, in the circumstances of this case, of a failure to consider it – see, for example: MZYTS at [49]-[50]. This is not the only conclusion open, but it is the preferable conclusion, given the absence of any reference to any aspect of the entry interview which was consistent with what the appellant had later stated.
Mr Godwin submitted that the above reasoning applies in the present matter “with equal force” and that the present matter is in fact a stronger case because the IAA in the present matter made no reference anywhere to anything said in the arrival interview.
Mr Godwin emphasised that the only inference that can be drawn in the present case is that the “preferable inference or conclusion” has been overlooked.
Minister’s submissions
In relation to ground 2, the Minister submitted (at [22]) in written submissions filed in this Court on 22 August 2022) as follows:
(a)the applicant claims that the IAA overlooked the applicant’s claim in his arrival interview regarding men asking his mother “why he wasn’t coming to work anymore”;
(b)the applicant bears the onus of establishing that that information was in fact overlooked, noting that the IAA is not required to reference every item of evidence before it: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”) at [27] & [43];
(c)the applicant has not discharged that onus; and
(d)the IAA refers (at [13] in its written reasons) to the applicant having “embellished” his evidence given at his SHEV interview by “adding” that the men in question wore black and had beards and that can only be by reference to the original claim made in the arrival interview.
In oral submissions, Mr Reilly sought to distinguish the facts of the present case from those in AGC17, noting in particular that the applicant in the present matter had not mentioned the relevant incident on three occasions (as the applicant had done in AGC17). Here, the applicant mentioned the incident in his arrival interview and in his SHEV interview. The applicant did not, Mr Reilly stressed, make any mention of the incident in his visa application.
Given that there were only two accounts of the incident given by the applicant in the present matter, Mr Reilly repeated what was set out in his written submission. That is, where the applicant had only mentioned the incident in his arrival interview and his SHEV interview, any reference to embellishments and additions in the account given at the SHEV interview must have been by reference to the account given at the arrival interview.
The IAA’s approach
Here, the IAA considered the applicant’s evidence about the relevant incident as follows:
12.During the SHEV interview the applicant claimed that in June 2013, after his departure, unknown men came to his home in Basra and asked his mother why the applicant was not coming to work anymore. The applicant claimed these men were not friends from work as his mother would have recognised his friends. He said the men wore black clothes and had beards. I consider it somewhat implausible that members of a Shia militia group, or other armed group, would monitor the applicant’s work attendance, and that if they did visit his mother, they would ask her about the applicant’s absence from work without expressing their opposition to his employment with a company they considered to be associated with the US or west in general. Given that the applicant claims he left Iraq without providing any notice, or otherwise contacting his employer, it seems considerably more likely these men were employees of NESS seeking to establish whether the applicant intended to return to work than that they were men seeking to harm the applicant.
13.The omission of this claim from the applicant’s SHEV application, prepared with the assistance of his representative, also leads me to question whether this event took place in the manner claimed during the SHEV interview. I consider it highly likely that the applicant embellished his evidence in relation to this incident, for example by adding that the men were bearded and wore black, in order to enhance his claims for protection. I am willing to accept that the applicant’s mother was visited by men asking why the applicant did not come to work anymore following his departure from Iraq, but I do not accept that the men were members of a Shia militia group or any other armed group, instead, I consider it very probable that the men employees of the applicant’s former employer, NESS. While I have accepted that Shia militia shot at the applicant in April 2013 because he was seen to have been travelling in a NESS company vehicle, I do not accept that he was otherwise individually pursued or targeted by Shia militia groups on the basis of his employment for NESS, Sabre, or RONCO.
Court’s consideration
The applicant claims that the IAA failed to take into account information provided by the applicant at his arrival interview. The applicant further claims that the IAA did not make specific reference to the arrival interview in its written reasons.
To the extent that the applicant submits that the IAA did not specifically reference the arrival interview, the IAA was not required to do so. There is no obligation on the IAA to reference every piece of evidence before it: NAHI at [14]. Further, a failure by the IAA to specifically refer to any piece of evidence does not necessarily mean that it has not been considered: SZSRS at [34].
The information that the applicant claims was overlooked by the IAA is set out at page 14 of the Court Book as follows:
I spoke to my mum yesterday [(date omitted)] and she said that mum (sic) came to the house and asked about me and said ‘Why isn’t [redacted] coming to work anymore?’ and I asked if they were from my work - because I used to invite workmates home. She said ‘No, they are strangers’.
As outlined by the IAA (at [13] in its written reasons set out above) and as submitted by the Minister, the applicant did not mention this incident in his visa application. The IAA correctly identified that the incident was omitted from that visa application in circumstances where the application was prepared with the assistance of the applicant’s nominated representative.
The evidence before the Court shows that relevant incident was only mentioned twice by the applicant (first in his arrival interview and, finally, at his SHEV interview). The Court notes that, as set out above, no description of the perpetrators was offered by the applicant at the arrival interview. They were simply referenced as “strangers”. In those circumstances, the Court considers that the IAA’s reference to any embellishments made by the applicant at the SHEV interview (such as “adding that the men were bearded and wore black”) could only have been embellishments or additions to the original iteration of the incident given by the applicant at his arrival interview.
The Court is satisfied that the IAA considered the information about the incident referenced in the applicant’s arrival interview.
No error arises in relation to ground 2.
Conclusion
The amended application for judicial review filed on behalf of the applicant (as an attachment to written submissions) on 10 August 2022 has failed to identify any jurisdictional error on the part of the IAA. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 November 2022
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