DFC16 v Minister for Immigration

[2017] FCCA 1292

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1292

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority properly considered whether the applicant could relocate – whether the Authority asked itself the wrong question – whether the Authority failed to take into account relevant evidence – whether the Authority failed to take into account relevant considerations.

Legislation:

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

Applicant: DFC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2947 of 2016

Judgment of: Judge Street

Hearing date: 15 June 2017

Date of Last Submission: 15 June 2017

Delivered at: Sydney

Delivered on: 15 June 2017

REPRESENTATION

Counsel for the Applicant: Mr A Moutasallem

Solicitors for the Applicant: T & T Lawyers

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 13 June 2017.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2947 of 2016

DFC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 21 September 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Iraq and his claims were assessed against that country.

Claims for protection

1. The applicant claimed to fear harm arising from his father's profile, including his father's wealth and status, and as a consequence of the applicant's work for Al Andalus between 2005 and 2009 at a former military base used by Iraq and US military forces and because of a perception that the applicant was assisting and associated with the Americans and because of his Shia faith.

2. The applicant was found to be a Shia Muslim who was born in Baghdad. The applicant also claimed to fear harm from the Mahdi army and also from extremist Shia and Sunni groups. The applicant travelled from Iraq to Turkey in October 2009 and stayed there for about a year. The applicant left Turkey in January 2011 and travelled to Malaysia as a tourist. The applicant stayed in Malaysia for about eight months. The applicant then travelled to Indonesia in about August 2011 and lived there for approximately one year. In August 2012, the applicant travelled by boat to Christmas Island. On 29 June 2016, the applicant lodged an application for a Safe Haven Enterprise visa.

The delegate’s decision

1. On 5 August 2016, the delegate declined to grant the applicant a Safe Haven Enterprise visa and found that the applicant failed to meet the criteria under the Act. The delegate in the delegate's reasons expressly referred to country information concerning the reasonableness of relocation to the southern governorates in Iraq and found that relocation is a reasonable option for the applicant and, therefore, there is no real risk of significant harm if he is returned to Iraq.

2. The delegate also addressed the issue under s.5J as to whether the applicant has a well-founded fear of persecution relating to all areas of the receiving country and identified according to country information the southern governance of Iraq, including Basra, Kerbala, Najaf and Muthanna, Thi-Qar, Missan, Quadissiyah and Wassit are predominantly populated by Shia Arabs. The delegate found that the applicant's chance of persecution did not extend to all areas of Iraq and found that there was no real chance of persecution of the applicant in the southern governorates of Iraq.

The Authority’s decision

1. By letter dated 8 August 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter attached a fact sheet and Practice Direction and explained that there are only limited circumstances in which the Authority could consider new information. The letter provided an opportunity for the applicant to put on new information and submissions.

Information before the Authority

1. On 7 September 2016, submissions were provided by the applicant's migration agent. Those submissions advanced that the applicant had a well-founded fear of persecution for Convention reasons at the hands of Shia and Sunni militias should he be forced to return to Iraq. The submissions expressly addressed the delegate's finding in relation to refugee status that the risk of persecution had to extend to all areas of Iraq. It was submitted that the applicant's fear of persecution extended to all areas and that it would be unreasonable for him to relocate to the southern governorates.

2. The submissions referred to the applicant having been singled out by Shia militias on two prior occasions, reinforcing the assertion that he is perceived to be an infidel and that there is a strong likelihood that he will be targeted by the militia should he be forced to return to Iraq. The submissions also sought to advance new country information, specifically relevant to the southern Iraq governorates.

3. The Authority, in its reasons dated 21 September 2016, identified the applicant’s visa application and identified having regard to the material referred to the Authority under s.473CB. The Authority made express reference to the applicant’s submissions dated 7 September 2016, including submissions concerning new information in respect of economic hardship faced by migrants in southern Iraq.

4. The Authority identified that it was satisfied there were exceptional circumstances to justify receipt of the new information in addition to the submissions.

Assessment of claims

1. The Authority summarised the applicant’s claims and accepted that the applicant’s father is known in Baghdad to be a wealthy man and was willing to accept that his father was a chairman of a body associated with the media in Iraq that is connected to the government. The Authority was also prepared to accept that the applicant’s brother had been kidnapped and a ransom paid for his release and that occurred as a result of the father’s profile. The Authority also accepted the applicant’s brother was killed by a suicide bomber at a checkpoint in Baghdad.

2. The Authority accepted as plausible the applicant’s evidence that he worked at a military airport as claimed from 2005 until 2009. The Authority accepted that the applicant was attacked by the Mahdi Army in 2005 - 2006 and in 2006 as claimed. The applicant also identified an alleged incident in 2009 where petrol was poured on his car and the Authority is willing to accept that he was attacked by Al-Qaeda.

Refugee assessment

1. The Authority correctly identified the relevant law including in relation to a well-founded fear of persecution under s.5J that the real chance of persecution relate to all areas of the receiving country.

Harm as a perceived infidel

1. Whilst the Authority accepted that the applicant had been previously of interest to the Mahdi Army because of his work with the military airport, the Authority did not accept the applicant would be of continued interest to Shia militias on this basis. The Authority did not accept the applicant’s former role as a painter at the military airport was of such significance that Al-Qaeda would seek to harm him after this period of time and was not satisfied that there was a real chance of harm to the applicant on this basis.

Harm as a Shia

1. The Authority again made express reference to the security situation in Iraq and it was satisfied that there is a real chance that the applicant would face serious harm on the basis of his Shia faith if he returned to Baghdad. The Authority then referred to s.5J(1)(c) and that in order to find a well-founded fear of persecution, the real chance of harm must relate to all areas of Iraq. The Authority referred to DFAT and UNHCR country information that Shias are most vulnerable to attacks by armed Sunni groups in Sunni-dominated governorates.

2. The Authority then referred to DFAT reports that, while generalised violence occurs in southern governorates, it is of a significantly lower level than in Baghdad and that southern Iraq has remained significantly more secure than central Iraq in recent years. The Authority made reference to the DFAT assessment that Shias in the Shia-dominated governorates of south Iraq faced a low risk of generalised violence and internal relocation to southern Iraq might be reasonable and practical option for Shia Iraqis.

3. The Authority made reference to the UK Home Office report providing more detailed information regarding the situation in the southern governorates and, in particular, that the governorates of Muthanna and Quadissiyah experienced the lowest monthly rates of civilian casualties in the period of 2003 to 2013, while the Basra and Kerbala governorates record the highest monthly rates. The Authority made express reference to the information provided by the applicant’s representative concerning a suicide bombing carried out in August 2016 in the governorate of Kerbala as being consistent with the UK Home Office report.

4. The Authority found from the information identified that the southern governorates of Iraq are significantly safer for Shia Iraqis than other areas of Iraq and that, of these, the governorates of Muthanna, Quadissiyah, Missan and Thi-Qar are safest, having recorded the lowest number of civilian casualties. The Authority also took into account the Home Office report that relocation to the southern governorates of Iraq would generally not be inconsistent with protection obligations.

5. The Authority was satisfied that the real chance of harm to the applicant does not relate to the southern governorates of Muthanna, Qadissiyah, Missan and Thi-Qar. The Authority found, having regard to the information referred to, that the Authority was not satisfied there was a real chance of serious harm as a result of Shia violence related to all parts of Iraq.

Harm related to his father’s profile

1. The Authority turned to the applicant's father's profile and the kidnapping of his brother. The Authority found that it could not rule out the applicant could face similar harm in Baghdad, where the applicant's father's profile may be known. The Authority considered the chance that the applicant would be harmed on this basis to be small but nevertheless real. It was on that basis the Authority was satisfied there was a real chance the applicant would be harmed on the basis of his father's profile in Baghdad. The Authority identified the requirements of s.5J(1)(c) and proceeded to consider whether the applicant had a well-founded fear of persecution relating to all areas of Iraq.

2. The Authority found that the chance of harm to the applicant was because of his father's profile in Baghdad. The Authority did not accept that the applicant's father's wealth and media role would be known outside Baghdad. The Authority made express reference to there being no evidence before the Authority to suggest that to be the case. The Authority was satisfied that the real chance of harm to the applicant on the basis of his father's profile and wealth does not relate to the southern governorates of Muthanna, Quadissiyah, Missan, and Thi-Qar.

Harm as a failed asylum seeker

1. The Authority then turned to the applicant being a failed asylum seeker from a western country. The Authority was not satisfied there was a real chance the applicant would be harmed on the basis that he is a failed asylum seeker who has lived in Australia or as a result of his western behaviour. The Authority referred to the applicant's claims as a Shia from Baghdad who had worked on a military base, as the son of a wealthy father who holds a media-related position connected to the government, has a western lifestyle, and would be returning as a failed asylum seeker, and was not satisfied that any combination of the applicant's circumstances, including the chance of harm due to his Shia faith and the chance due to general violence in Iraq, would combine to expose the applicant to a real chance of harm outside Baghdad.

2. The Authority referred to the applicant's submissions in relation to the Shia militia and the assertion that he would not be safe anywhere in Iraq. The Authority made reference to the Shia militia having been integrated into the Iraqi ISF and the political process. The Authority said it does not follow from this that all Shia militia have access to all Iraqi government information or, even if this was the case, that Iraqi government information in all locations would include readily accessible consolidated information about the applicant's life in Baghdad, including his former employment or his father's wealth.

3. It was in these circumstances the Authority did not accept that knowledge of the applicant's employment seven years ago, his father's profile, his return from the west as a failed asylum seeker would be readily available and combined outside of Baghdad. The Authority was not satisfied that there was a real chance of harm to the applicant on the basis that it does not relate to the southern governorates of Muthanna, Quadisiyyah, Missan and Thi-Qar.

4. The Authority was not satisfied the applicant had a well-founded fear of persecution under s.5(1) of the Act. The Authority was not satisfied the applicant met the definition of refugee in s.5H(1) and found the applicant did not meet the criteria under s.36(2)(a) of the Act.

Complementary protection assessment

1. The Authority then turned to the issue of complementary protection and correctly identified the relevant law. The Authority made reference to s.36(2B), providing that it is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm.

2. The Authority made reference to having found that the applicant would not face a real chance of serious harm in the southern governorates of Muthanna, Quadissiyah, Missan and Thi-Qar for the reason of his Shia faith, his father's wealth and status, a combination of his father's wealth and status, his former employment or his return as a failed asylum seeker from the west. The Authority was not satisfied the applicant would face a real risk of significant harm in these governorates for the purpose of s.36(2)(aa) on these grounds.

3. The Authority referred to the UNHCR report of October 2014 in relation to asylum claims and potential relocation and referred to the new information provided by the applicant's representatives in this regard. The Authority also made reference to the DFAT reports of many returnees who have sought asylum overseas being returned to southern Iraq and that DFAT has been advised by a credible international organisation that it is aware of over 100 Iraqis who have returned to southern Iraq having failed to obtain asylum in Australia.

4. The Authority made reference to the 2015 UK Home Office report on the security situation in the southern governorates. The Authority made express reference to considerations concerning a person's age, gender, health, ethnicity or religious sect, disability and profession increasing the level of risk and found that those risk factors did not apply to the applicant. The Authority found there is an international airport in the southern city of Basra, which provides access to the south of Iraq.

5. The Authority found, having considered the totality of the information referred to, that the Authority was satisfied there was not a real risk of significant harm to the applicant in the southern governorates of Muthanna, Quadissiyah, Missan and Thi-Qar. The Authority then made reference to the applicant's submissions that he cannot live outside Baghdad and that he had no family outside Baghdad and had never lived without his family and his fear of economic hardship as well as his concern about escalating violence in the south of Iraq and that he would not be able to be protected. The Authority made reference to the applicant’s contention that people from the capital cannot live in the south. The Authority found it was not satisfied there is a real risk the applicant will be harmed as a result of his occasional consumption of alcohol or wearing of western clothes.

6. The Authority noted that the applicant was in his 30s and had lived in Australia for four years. The Authority made reference to the fact that the applicant travelled all alone to Australia after spending more than a year in Malaysia and Indonesia enroute. The Authority also made reference to the applicant having travelled to Turkey from Iraq and having lived there alone for approximately 10 months. The Authority identified the applicant’s experience as a painter, hairdresser, taxi driver, and baker. The Authority also made reference to the applicant’s father being wealthy and having previously supported the applicant and paid for his travel to Turkey, Malaysia, Indonesia and Australia.

7. The Authority found the applicant is a self-sufficient and resourceful individual with a number of skills who has been able to successfully make his way in different countries over a number of years. The Authority found the applicant had a range of portable skills that would enable him to compete in employment opportunities in a new location. The Authority was satisfied that if the applicant was unable to provide employment, his father would be able to and willing to support him financially as he had done in the past. The Authority found that the applicant is a man in his 30s who has lived alone in a number of different countries and was satisfied the applicant was capable of making a life for himself in a new location without a family or social network.

8. The Authority made reference to having considered the totality of the applicant’s individual circumstances in the context of information before the delegate regarding conditions in Iraq and was satisfied that it would be reasonable for the applicant to relocate to the southern governorates of Muthanna, Quadissiyah, Missan and Thi-Qar. The Authority was not satisfied there is a real chance that the applicant would suffer harm in Iraq and the Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence if the applicant returned to Iraq from Australia there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criterion under s.36(2)(aa) of the Act.

Proceedings before this Court

Grounds of the application

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

   1. That the Immigration Assessment Authority (“IAA”) acted without and in excess of its jurisdiction in finding at [38] that the real chance of harm to the applicant on the basis of his father's profile did not relate to the southern governorates of Muthana, Quadissiya, Missan and Thi-Qar.

   Particulars

   a) The finding was made in the absence of evidence and/or was not supported by some probative material or logical Grounds.

   b) The IAA failed to consider whether modern communication and the effects of information sharing through social media and the internet meant that the father's profile could be known throughout Iraq.

   2. That the IAA acted without and in excess of its jurisdiction in failing to consider whether modern communication and the effects of information sharing through the internet and social media meant that the potential perpetrators of harm including Shia militias would be able to locate the applicants in another part of Iraq when the IAA considered the issue at [44].

   3. When considering whether it was reasonable for the applicant to relocate pursuant to s36(2B) the IAA acted without and in excess of its jurisdiction in failing to ask itself the correct question namely, whether, acting reasonable the applicant would in fact relocate.

   4. When considering whether it was reasonable for the applicant to relocate pursuant to s36(2B) the IAA acted without and in excess of its jurisdiction in failing to consider the question of whether the applicant could reasonably be expected to remain in those areas of identified by the IAA.

   5. When considering whether it was reasonable for the applicant to relocate pursuant to s36(2B) the IAA acted without and in excess of its jurisdiction in failing to take into account relevant evidence and/or relevant considerations.

   Particulars

   a) The actual persecution that the applicant had suffered and the feared persecution, noting that the IAA had accepted key claims made by the applicant about past persecution and instances of serious harm.

   b) The trauma of the actual and feared persecution.

   c) The fact he had a partner and a child who were Australian citizens.

Consideration

Ground 1

1. In relation to Ground 1, Mr Moutasallem of counsel submitted that there was no evidence to support the finding in paragraph 38 in relation to the applicant’s refugee status that the applicant does not face a real chance of harm in relation to the southern governorates of Muthanna, Quadissiyah, Missan and Thi-Qar because of the applicant’s father’s profile. Mr Moutasallem of counsel submitted that in considering whether there was a real chance of harm, the Authority had not taken into account the father’s profile and that there was no evidentiary basis for the finding in paragraph 38.

2. Mr Moutasallem submitted that the country information did not address the father’s media profile and, accordingly, it was submitted it was not a basis that supported the Authority making the finding made in paragraph 38. The country information supported the adverse finding identified by the Authority. This is not a case where it could be said there was no evidence in relation to the finding made by the Authority in paragraph 38, nor can it be said that the finding was irrational or illogical or unreasonable.

3. Mr Moutasallem then submitted that in relation to Ground 1 that the Authority had failed to consider the ability of modern communication to communicate throughout Iraq. That was not a submission that was advanced before the Authority or before the delegate. No such submission was identified in the applicant’s submissions dated 7 September 2016. No such claim arose on a fair reading of the material before the Authority.

4. It is apparent that the Authority made findings referrable to the applicant’s claims and found that the applicant’s claims concerning his father were ones confined to Baghdad. The Authority expressly identified that no evidence had been led to establish a profile outside of Baghdad, and this was in circumstances where the issue of relocation had been apparent before the delegate. No jurisdictional error as alleged by Ground 1 is made out.

Ground 2

1. In relation to Ground 2, this, in substance, picks up the same assertion of an obligation to consider the availability of media information throughout Iraq. No such submission was advanced before the Authority or before the delegate or on the submissions dated 7 September 2016. No such submission fairly arose on the material before the Authority. No jurisdictional error of the kind alleged in Ground 2 is made out.

Ground 3

1. In relation to Ground 3, Mr Moutasallem submitted that under s.36(2B) on its proper construction the Authority had to determine whether the applicant would, in fact, relocate to southern Iraq. The text of s.36(2B) does not support any such construction. The Authority correctly identified the relevant law and correctly applied the relevant law. No jurisdictional error as alleged in Ground 3 is made out.

Ground 4

1. In relation to Ground 4, Mr Moutasallem of counsel submitted that the Authority should have expressly made a finding as to whether or not the applicant could remain in southern Iraq in relation to the issue of complementary protection. On the face of the Authority's reasons the Authority correctly identified the relevant law in respect of complementary protection and relocation and correctly applied the relevant law and took into account the applicant’s personal circumstances. There was no obligation on the Authority to make an express finding using language referring to the applicant's ability to remain.

2. The language used by the Authority reflects a proper consideration of the applicant's personal circumstances in determining whether it was reasonable for the applicant to relocate under s.36(2B). No jurisdictional error is made out by Ground 4.

Ground 5

1. Ground 5 is, in substance, an invitation to this Court to engage an impermissible merits review. Mr Moutasallem of counsel submitted that in determining whether or not it was reasonable for the applicant to relocate in respect of complementary protection there had to be an express reference to the applicant's actual persecution, trauma that he had encountered, feared persecution and the fact that he had a partner and child.

2. There was no claim to fear harm advanced by the applicant in relation to his partner and child. The Authority identified the applicant's personal background as including having a partner and child. There is no basis to conclude that the Authority’s reference to having considered the totality of the information excluded the reference to the applicant's partner and child or to any part of the applicant's submissions of 7 September 2016 that included a reference to the applicant having alleged trauma and the applicant's fears of persecution.

3. It is not necessary for the Authority to refer to the whole of the evidence or every submission advanced. There was no failure by the Authority to consider the personal circumstances of the applicant in determining whether it was reasonable for the applicant to relocate. I am not persuaded that there was any failure by the Authority to take into account the content of the submissions advanced on behalf of the applicant of 7 September 2016, including the reference to trauma and feared persecution. Nor is there any reason to conclude that the Authority failed to take into account, to the extent relevant, that the applicant had a partner and child in relation to whether it was reasonable for the applicant to relocate.

4. There was no evidence in the present case to the effect that the partner and child would accompany the applicant or that the applicant had a fear because of his partner and child. No such claim arose on the papers. On a fair reading of the Authority's reasons the Authority has taken into account the totality of the information, including the applicant's actual persecution as identified and accepted by the Authority and the applicant's submissions in relation to and evidence in respect of his feared harm.

5. No jurisdictional error is made out as alleged in Ground 5.

Conclusion

1. The amended application is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  7 July 2017