DFL18 v Minister for Immigration
[2019] FCCA 2356
•27 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFL18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2356 |
| Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) visa – decision of the Immigration Assessment Authority – whether the IAA actively engaged with the applicant’s claim in relation to persecution – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, ss.5J, 5H, 473CB, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affair [2003] FCAFC 184 AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Other Materials Cited: |
| Applicant: | DFL18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 328 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 27 June 2019 and 29 July 2019 |
| Date of Last Submission: | 29 July 2019 |
| Delivered at: | Perth |
| Delivered on: | 27 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 18 June 2018.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 328 of 2018
| DFL18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is a most unfortunate case. The applicant in these proceedings is a young Arab Shia male who arrived in Australia in 2012 from Iraq as an unauthorised maritime arrival. He was 17 at that the time of his arrival. Whatever hopes the applicant had for a better future soon fell away. It appears the applicant fell into drug use not long after his arrival and became involved in serious criminal activities to fund his drug habit. His criminal record is serious and his crimes will undoubtedly affect those against whom they were committed for many years to come. The applicant was ultimately incarcerated in Australia and, while in prison, was the victim of a serious sexual assault. This resulted in significant mental health issues. The applicant is now in detention.
On 18 June 2018, the Immigration Assessment Authority (the “IAA”) affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) to refuse to grant a Safe Haven Enterprise (subclass 790) visa (the “visa”) to the applicant.
By application filed in this Court on 21 June 2018, the applicant now seeks judicial review of that decision.
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the IAA.
In writing this judgment, the Court has referenced the application filed by the applicant and a supporting affidavit (which only annexes the IAA’s decision). The Court also had before it a Court Book (“CB”), numbering 169 pages (marked as Exhibit 1), an outline of written submissions filed by the Minister on 28 May 2019 and further written submissions filed by the Minister on 11 July 2019. This matter was heard over two days: 27 June 2019 and 29 July 2019. The applicant was unrepresented. He appeared with the assistance of an interpreter on both occasions.
Background
In his visa application (CB 19-20 and CB 27-58), the applicant provided a ‘Statement of Claims’ (CB 79-88) that, relevantly, made the following protection claims:
a)he grew up in a “mixed neighbourhood”, made up of Sunni and Shia Muslim families (CB 81 at [26]);
b)throughout his childhood he had grown up near a girl, who will be referred to in this judgment as “Z” (CB 81 at [27]). Z’s family were Sunni Muslims (CB 81 at [28]);
c)a few months before he left Iraq, he was walking back from school with Z and was talking to her. This was not something he had done in the past, as he knew it was not something that would be considered appropriate, but on this day he had spoken to her without giving it much thought (CB 81 at [29]). As they approached Z’s house, her father came out, grabbed Z and took her back into their home (CB 81 at [30]);
d)the next day, the applicant’s brother told him that Z’s family had killed her. His brother had gone to Z’s house and had been shown her body. His brother was told by Z’s father that, as he had killed his daughter in punishment, the applicant’s family needed to do the same thing to him (CB 81 at [31]);
e)his family told him he would have to go to Baghdad to stay with his uncle (CB 82 at [33]). The next morning, some men were knocking on the family’s door and yelling angrily (CB 82 at [34]). Fearing the men had come for him, the applicant ran out of the house (CB 82 at [34]). When he looked back he saw the men had guns and he believed them to be people from Z’s family (CB 82 at [34]). He had nothing with him except for some money and his identity documents (CB 82 at [36]) which he used to get a shared car service to Baghdad (CB 82 at [35]);
f)he remained in Baghdad for a few months before he was able to depart through the airport around the beginning of October 2012 with his brother-in-law (CB 82 at [37]);
g)since leaving Iraq, his family had had ongoing problems with Z’s family, including his family having a “bad name” (CB 82 at [39]-[40]). Z’s family made a number of threats to his family that they had to arrange for the applicant to be killed or otherwise one of his brothers needed to be killed as an alternative (CB 82 at [40]). His family had to leave their home in Nessan and move to Basra (CB 83 at [41]) but problems continued (CB 83 at [42]);
h)after coming to Australia, the applicant had started using drugs. By the end of 2015, he became involved in criminal activities to fund his drug habit and living costs (CB 83 at [45]-[47]);
i)whilst in custody in 2016, he was the victim of two serious physical and sexual assaults at the hands of another male prisoner, which resulted in mental health issues and difficulties with his memory (CB 83-85 at [48]-[52] and [59]-[62]);
j)the perpetrator of the sexual assaults against the applicant called the applicant’s family in Iraq and told them about the sexual assaults. His family have told him that they want to kill him because he has brought shame on the family because of the sexual assaults. Sex with a man, even if non-consenting, is forbidden in his religion and he would face severe punishment for this, even death (CB 84 at [56]-[57]). As a result of the sexual assaults, his family disowned him (CB 84 at [55]);
k)his family will also now turn him in to Z’s family or the Al Jabouri tribe because of this incident (CB 86 at [68]);
l)he fears being abducted, assaulted or killed by Sunni extremist groups and he believes that as a committed and practising Shia Muslim he would be particularly targeted (CB 86 at [71]-[74]);
m)he also fears being targeted because he will be known to have spent considerable time in Australia and will be suspected of supporting Western governments. It will also come to be known that he has engaged in activities that are prohibited in his religion, while in Australia (CB 86 at [75]); and
n)if returned to Iraq, he would be unable to receive the treatment he requires for his mental health conditions (CB 87-88, [82]-[85]).
The applicant attended an interview with a delegate on 28 February 2018 (CB 122). On 24 April 2018, the delegate refused to grant the applicant the visa (CB 127-138).
The delegate’s decision was referred to the IAA for review on 2 May 2018 (CB 144).
On 18 June 2018, the IAA affirmed the delegate’s decision (CB 148-160).
IAA’s Decision
The IAA’s decision appears at CB 148-164. It numbers 44 paragraphs and contains 4 pages of relevant legislative provisions. The Minister’s first set of submissions (at [8]-[15]) summarise the key findings made by the IAA. The Court has read the IAA’s decision in detail and adopts the Minister’s summary as accurate. With some minor additions, that summary provides as follows.
The IAA had regard to the material given to it by the Secretary pursuant to s.473CB of the Act (CB 149, [3]), with the exception of a schedule of criminal convictions relating to the applicant, which the IAA did not consider relevant to its review of the issue of whether the applicant is a person to whom Australia has protection obligations (CB 149 at [4]).
The IAA summarised the applicant’s claims at [5].
At [6]-[9] the IAA:
a)accepted that the applicant is an Arab Shia, has lived with his family most of his life and worked in sales in his father’s shop for a number of years while in Iraq;
b)described in detail the applicant’s claim that he says caused him to flee Iran;
c)referred to the applicant’s claim that he was sexually assaulted by an Iraqi male while in prison in Australia who then contacted his family and told them about this and the applicant’s concern that he has caused great shame to his family because of what happened; and
d)noted that the applicant said that a number of factors affected his ability to give complete and correct details in his arrival interview. These included his young age (being 17), the fact that he was very nervous and did not know what to expect (having never been interviewed before), that he had just travelled by boat to Australia, was away from his family and in detention and his concern that these factors affected him mentally and should be taken into account should there be anything missing or incorrect in his evidence given in the arrival interview.
The IAA confirmed that it had listened to the audio recording of the applicant’s arrival interview (CB 151 at [10]) and the visa application interview with the delegate (CB 152-154 at [15]-[19]).
The IAA found that, at the entry interview, the applicant was unable to provide much detail about his claims (CB 151 at [10]), even though the events with Z’s family were said to have occurred some six months prior to that interview (CB 151 at [11]). Whilst the IAA was willing to accept that the applicant was nervous during the arrival interview, and that this may have affected his ability to provide more detail about his claims (including dates) (CB 151 at [11]), the IAA did not accept that this explained significant inconsistencies in the applicant’s evidence as provided at the arrival interview and the evidence provided later at the interview with the delegate (CB 151-154 at [11] and [15]-[19]). The IAA found that the applicant’s evidence lacked consistent contextual detail (CB 155 at [21]) and that the applicant had raised significant details about the incident with Z at the interview with the delegate which he had not raised previously (CB 155 at [21]).
At [11]-[15], the IAA considered the sexual assault that occurred in prison, his drug use, the impact on him of his past experiences and his mental health issues generally and the effect of all of this on his ability to provide credible evidence. In full, the IAA noted:
11.The applicant was relatively young at the time of the arrival interview (18). He had been in Australia for about three months. He was accompanied by his brother in law on his journey to Australia. Being placed in detention on arrival, not being familiar with the process and travelling to Australia by boat are all experiences commonly faced by applicants. The applicant’s main claims related to events said to have occurred some six months prior to his arrival interview. In light of the above, I am wiling to accept the applicant may have been nervous during the arrival interview which may have affected his ability to provide more detail about his claims, including dates, but I do not accept this explains any significant inconsistencies in his evidence provided in the arrival interview with his evidence later provided in his SHEV application or interview.
12.The applicant states he has struggled with a number of problems while in Australia including having been the victim of serious physical and sexual assaults while in prison in about July 2016. He has felt a great deal of shame about his sexual assaults and has kept the details of this incident to himself and has not felt comfortable raising the issues he has experienced with his family because of this, with anyone including his close friend in Australia, as he does not think people will understand his family’s reaction. He claims these incidents have had a detrimental impact on his mental health and he has difficulties with memory, concentration and sleeping. He says he has difficulty recalling the timing of certain events and dates and that he sometimes gets confused when trying to explain his memory of past incidents in Iraq.
13.The applicant provided a copy of a forensic psychological report, dated 25 July 2017. The report comprises a psychologist’s expert opinion as to whether there were any psychologically mitigating factors to be taken into account in relation to the applicant’s sentencing for criminal offences committed in Australia. The report was based on a two hour interview between the psychologist and the applicant. The report diagnoses the applicant as suffering from Post- Traumatic Stress Disorder (PTSD), amphetamine type substance use disorder and major depressive disorder with anxious distress. The writer states “In discussing the reason for his relocation to Australia…he explained that his life was in danger as a result of him being in a relationship with a female, and that relationship was ‘forbidden’…when his partner’s family became aware of her association...she was murdered….he further elaborated that due to cultural values in his country, he was also required to be killed for his involvement in the relationship”. The writer states that the applicant’s claimed physical and sexual assaults in about July 2016 while in prison are consistent with his Justice and Forensic Mental Health Network records. The writer states the applicant was prescribed with Seroquel to assist with managing his mental health symptoms and that the applicant had reported he had not taken any illicit substances for about 16 months. In examining the cause of his mental condition the writer broadly stated that while the applicant had witnessed violence during the war in Iraq and had had a forbidden relationship the applicant denied any significant psychological sequalae from those experiences with the writer stating that this may have been because such incidents were culturally “normal”. His drug use, physical and sexual assaults while in Australia and uncertainty about his future were identified as the causes of his mental condition.
14.Based on the evidence before me I accept the applicant was physically and sexually assaulted while in prison in about July 2016. The psychologist’s report, based on an interview held two month prior to the SHEV interview, stated the applicant was oriented in time, place and person, there was no evidence of perceptual disturbance and that his depressed mood was congruent with his current circumstances and his presentation was not considered abnormal. At the time of his SHEV interview it had been about two and half years since he had been assaulted and he was no longer in prison. In his SHEV application he stated that he continued to receive regular treatment for his mental health issues, seeing a psychologist every two weeks, however other than this and a reference to his taking medication in the psychologist’s report (issued about a year ago), the applicant provided no further detail about his treatment in the SHEV application (about nine months ago) or interview (about four months ago) and did not indicate he continued to see a psychologist at the time of the SHEV interview. The applicant also appears to have abstained from drug use for about two and a half years. I found the applicant was unable to provide much contextual detail in relation to his claims regarding Z and when he did elaborate this was often inconsistent with his other evidence. I place little weight on the account of the applicant’s experiences in Iraq in relation to Z as detailed in the psychologist’s report which provides no more detail than that in his SHEV application and only reflects what the applicant told the psychologist during a two hour interview in 2017. In light of the above, while the applicant provided very brief responses to questions about his relationship with Z during the SHEV interview I consider this was because the claim lacked credibility rather than because of the condition of his mental health at that time.
(Without alteration)
At [16]-[19], the IAA referred extensively to the evidence given during the interview with the delegate and noted inconsistencies and matters it “considered at odds” with what the applicant was claiming.
The IAA also considered country information which it determined did not support the applicant’s claims that he was to be killed following the alleged honour killing of Z (CB 154 at [20]). The IAA noted that the country information also indicated that, since the applicant’s departure, society’s views and practices appeared to have shifted to some extent, including in relation to dating, and men and women interacting socially (CB 154 at [20]).
The IAA then determined as follows:
21.In light of the country information, lack of consistent contextual detail, late raising of significant details in relation to his claims regarding Z as well has his own admission that his distressed psychological state was not the result of his experiences with Z and that he wanted to leave Iraq even before the claimed incident with Z, I am willing to accept the applicant may have walked and talked with Z at some stage but I do not accept she was killed by her family in an “honour killing” or that her family or tribe were after the applicant because of this or that the applicant fled Iraq in fear of his life because of this. While I accept the applicant went to Baghdad to make arrangements to leave Iraq with his brother in law and that he left in October 2012, I do not accept Z’s family or tribe tracked him down in Baghdad. I do not accept Z’s family or her tribe harassed the applicant’s family when looking for the applicant or threatened to kill one of his brothers in place of him when he left Iraq. I accept his family has relocated to Basra since he left Iraq but I do not accept this was because they were being harassed by Z’s family or her tribe.
22.I found the applicant’s claim that the perpetrator of the sexual assault in Australia called his family and told them about the incident, unconvincing. He said that the man called and told his family about the assault as punishment because he told the police, yet in his SHEV application the applicant said he did not press formal charges fearing the repercussions. While he could have told the prison and police and decided not to press formal charges, it is unclear why the perpetrator would want to punish the applicant in these circumstances. I also found the applicant’s account of his family’s desire to have him killed after being told about his sexual assault while in prison, unsupported. Other than stating his father said he wished he had handed the applicant over to Z’s family, which the applicant claims was the last time he spoke with his father, the applicant has provided very little detail about this. I do not accept Z’s family or tribe wanted the applicant killed and so I do not accept his father made this statement, particularly given its very late raising. He has also previously claimed his family did not want him killed after his relationship with Z and the claim they now want him killed appears out of character. He has also provided inconsistent evidence about when he last had contact with his family. I also consider it implausible that his family would want to kill him because of an incident reported to them by a stranger from another country over the phone. I do not accept the perpetrator of the assaults called the applicant’s family or that the applicant’s family know about the assaults because of this. While I am willing to accept he may have lost contact with his family, as it has been consistently claimed and his responses to questions regarding this seemed natural and spontaneous, I consider it more plausible that this is because of his lengthy absence from Iraq, long period of incarceration and history of drug usage while in Australia rather than because they have disowned him and want him killed because he was the victim of a sexual assault while in Australia. As I do not accept Z was killed because she walked with the applicant or that Z’s family or tribe wanted the applicant killed because of this it follows that I do not accept his family want him killed because of this.
(Without alteration)
Under the heading “Refugee Assessment”, and having outlined the relevant legislative provisions, the IAA found:
26.I accept the applicant is a Shia Arab from the south of Iraq who has spent the last five years in Australia and will be identifiable as someone who has attempted to seek asylum in a Western country. I accept he had a platonic relationship with Z while in Iraq. I do not accept Z’s family or the Al Jabouri tribe wanted the applicant killed because of this. I accept the applicant was the victim of physical and sexual assaults while in prison in Australia some two years ago and that he was diagnosed with PTSD, amphetamine type substance use disorder and major depressive disorder with anxious distress a year ago. I do not accept the perpetrator of the assaults called and told the applicant’s family about the assaults or that his family want to kill or otherwise harm him because of this or his relationship with Z. I accept he does not have a valid passport.
(Without alteration)
Having assessed the country information (at [27]), the IAA was not satisfied that there was a real chance that the applicant would be harmed on return to Iraq by reason of his ethnicity, origin or faith, his past experiences in Iraq, or his time spent in Australia (CB 157 at [29]), or as a returning asylum seeker (CB 159 at [32]-[38]).
In relation to the effect of the sexual assault that occurred while the applicant was in prison, the IAA determined:
30.The applicant claims that he will suffer societal discrimination or violence at the hands of his family because of his sexual assault in Australia. He claims that if he returns to Iraq he will not be able to tell a mental health professional about the assaults as this would expose him to further harm. I do not accept the applicant’s family know he was a victim of the sexual assaults in Australia or that they have disowned him or want him killed because of this. He is not claiming to be gay or to have engaged in sodomy while in Iraq but rather that he was the victim of two isolated sexual assaults while in prison in Australia some two years ago. I consider even if the assaults were to become known to his family or a mental health professional there is nothing in the material before me to indicate that male victims in these circumstances are subject to societal discrimination or violence. Based on the evidence before me I am not satisfied that there is a real chance the applicant will suffer harm on his return to Iraq by reason of being a victim of the sexual assault while in Australia.
(Without alteration)
The IAA accepted that the applicant had been diagnosed with Post Traumatic Stress Disorder, amphetamine type substance use disorder and major depressive disorder with anxious distress (CB 157 at [31]). Having regard to country information and the lack of evidence of recent treatment and the applicant’s future health needs, the IAA was not satisfied that there was a real chance the applicant would suffer harm on return to Iraq by reason of his mental health condition (CB 157 at [31]).
Further, the IAA found that there was nothing in the material before it indicating that the applicant would be exposed to societal discrimination or violence if he told a mental health professional in Iraq about the sexual assaults during the course of his treatment (CB 157 at [31]).
The IAA then referred (at [37]) to a claim from the applicant’s lawyers that he would be unable to earn a living in Iraq which would threaten his capacity to subsist. It noted that no further details were provided about this issue. The IAA then referred to the finding that the applicant had worked in his family’s business in sales for about four years while in Iraq and found that, while he might have difficulty securing employment on his return, this did not rise to a level to be considered ‘serious harm’ within the meaning of s.5J(4)(b) of the Act.
Overall, the IAA was not satisfied that anything the applicant might experience as a returning asylum seeker (including the requirement to obtain a laissez passer and other civil documentation or difficulties in securing employment) would amount to “serious harm” (CB 159 at [38]).
In assessing the applicant’s claims under the complementary protection provisions, the IAA relied on its anterior findings to conclude that the applicant would not face a real risk of significant harm (CB 160 at [42]-[43]).
Proceedings in this Court
The applicant’s application for judicial review contains 4 grounds:
1. The Immigration Assessment Authority did not take into consideration the Applicant personal Circumstances, and did not apply the benefit of the doubt rule according to law.
2. The Immigration Assessment Authority applied irrelevant and wrong laws and regulation in taking its decision.
3. The Immigration Assessment Authority did not apply relevant laws and regulation in taking its decision.
4. The Immigration Assessment Authority did not take into consideration the Tribe rules in Countries like the Applicant's Country.
The applicant was afforded an opportunity by a Registrar of this Court (in orders dated 15 August 2018) to file an amended application, any affidavits and a written outline of submissions. No materials were filed by the applicant.
The Court notes the comments of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] about the need for the Court to assist unrepresented applicants, particularly those who do not speak English and who are claiming protection.
To assist the applicant, the Court explained to him at the first hearing date (on 27 June 2019), through the interpreter, that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [111]; Salahuddin v Minister for Immigration & Border Protection [2013] FCAFC 141 at [22].
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant that this Court cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”). This Court cannot grant him the visa he seeks. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above.
The applicant was asked to explain to the Court what he thought the IAA “did wrong”.
Unfortunately, the applicant was unable to explain his concerns in a way that did not go to merits review.
This leaves the Court with little to work with other than the applicant’s (unparticularised) grounds of review and the Court’s own assessment of the IAA’s decision as a whole. In this context, the Court notes the comments of Mortimer J in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [100] and [112] that in circumstances akin to those seen here, the Court should be astute to the possibility of legal error in the IAA’s decision and raise any such matters with the Minister for comment.
In this regard, the Court notes that during the first hearing of this matter the Court queried whether the IAA had properly assessed the applicant’s claims in relation to the sexual assault that occurred while he was in prison in Australia. The Minister was asked to provide written submissions on this issue. Submissions were received on 11 July 2019. The applicant did not provide written submissions in response but was asked if he had any comments on the arguments advanced by the Minister when the matter returned before the Court on 29 July 2019. Unfortunately, the applicant was again unable to address anything that went to jurisdictional error.
As an aside, the Court is mindful of just how traumatic any discussion of sexual assault can be for those who have been abused sexually. The applicant here struck the Court as courageous and forthcoming and thanks him for the assistance he attempted to give the Court. The Court also thanks Ms Oliver for the professionalism and compassion she showed in addressing this issue. Others would do well to emulate her efforts in this regard.
Ground 1
The Immigration Assessment Authority did not take into consideration the Applicant personal Circumstances, and did not apply the benefit of the doubt rule according to law.
The Court notes that the IAA:
a)summarised the applicant’s claims at [5];
b)carefully detailed the applicant’s evidence about “Z” at [7] and [10] and [16]-[17];
c)acknowledged the applicant’s submissions and evidence as to matters that caused him to be inconsistent and vague in his arrival interview and accepted that these matters, to an extent, explained certain evidentiary issues and concerns (at [8]-[11]); and
d)canvassed the struggles the applicant has had with mental health issues and the contents of the psychological report at [12]-[14].
Generally, it can be said that the IAA took into account the matters the applicant raised, and addressed those matters methodically and logically to ensure that it had addressed these issues. The IAA expressly made findings concerning the applicant’s mental health issues and took into account the effect of these issues in the presentation of his claims and evidence.
Despite this, the Court has some concerns.
At the hearing of this matter, the Court queried with Counsel for the Minister whether the IAA had adequately engaged with the applicant’s claim that he would face harm in Iraq as a victim of male rape. The IAA simply says that there is no evidence that harm will result if the applicant tells his family or mental health providers that he was raped by a man while in prison. The question here is: is this enough given the nature of the claim made and the particular cultural setting relevant to this applicant?
The Minister was asked to provide written submissions in this regard and the Court has reviewed those submissions in writing this judgment.
The applicant’s claim is that “sex with a man, even if non-consenting, is forbidden in his religion and he would face severe punishment for this, even death” if he returns to Iraq.
The IAA seeks to address this issue at [30] and [31] in its written reasons when it says:
…He is not claiming to be gay or to have engaged in sodomy while in Iraq but rather that he was the victim of two isolated sexual assaults while in prison in Australia some two years ago. I consider even if the assaults were to become known to his family or a mental health professional there is nothing in the material before me to indicate that male victims in these circumstances are subject to societal discrimination or violence. Based on the evidence before me I am not satisfied that there is a real chance the applicant will suffer harm on his return to Iraq by reason of being a victim of the sexual assault while in Australia. (at [30]); and
…There is nothing in the material before me indicating he would be exposed to societal discrimination or violence if he told a mental health professional in Iraq about the sexual assaults during the course of his treatment. (at [31]).
The question here is whether the IAA actively engaged with the applicant’s claim as put. That claim plainly references harm that he says will result because he “had sex with a man” (albeit without consent and through force). The IAA seems to infer that because the applicant does not claim here to be a gay or bisexual male that he will not be harmed. Rather, it need only assess whether there is evidence that victims of male rape are stigmatised and harmed. It concludes that there is no such evidence.
Counsel for the Minister argued, in effect, that the IAA had done all that was required of it because the applicant did not claim that he would be harmed because he might be deemed to have engaged in gay male sexual activity.
The Court disagrees. With respect, when read in context, that is precisely what the applicant is claiming.
At its core this is a claim about same-sex sexual violence/male rape and how it is perceived, culturally, in Iraq. It is not enough to assume and conclude that because someone does not identify as a “gay male” in Iraq that they will not face the types of harms inflicted on those who do so identify.
If, for example, the bias targeted against gay men, culturally, is a bias that targets same-sex sexual “activity” (as opposed to “identity”) then, arguably, an assessment needs to be made, on the country information, as to whether those who have engaged in same-sex sexual activity (even when forced to do so) are placed in the same category as those who self-identify as “gay” and who, as such, are persecuted and harmed.
Here, that analysis is lacking and the Court is not convinced that the IAA adequately turned its mind to the complexity of the claim as advanced.
All that is said is that there is no evidence that victims of same-sex sexual assault are disadvantaged or harmed. With respect, that conclusion simply “floats”. While there may not be country information that specifically addresses the issue of male rape, there is certainly country information that addresses the plight of those who identify or who are identified as gay men. The question that needs to be addressed in this context is, culturally, why gay men are persecuted. If the harms inflicted on gay men arise because they engage in same sex sexual activity (and, as such, are deemed to have violated a religious norm and “sinned”), can it be said that those who do so in any context (even when forced through violence to do so and even when someone is not self-identified as a gay male) will be deemed to have “sinned” and, as such, face persecution?
The concerns raised by the applicant here (and the fears evident in what he is saying) are assessed in a recent article by M McMahon in “Access to Justice for Male Victims of Sexual Violence”. That article addresses the situation of gay men in Uganda, where homosexuality is illegal, as follows:
Homosexuality in Uganda is illegal as explicitly stated in its archaic laws, which have deep-seated links to cultural and societal attitudes regarding the issue of same-sex relations and sexual violence against men. The fact that homosexuality is illegal in Uganda creates an initial obstacle to the reporting of SGBV/P by male victims. If a man wants to report SGBV/P he runs the risk of being prosecuted. According to the Refugee Law Project, there are cases where police, rather than going after the perpetrators, have accused male survivors of rape of engaging in homosexual acts. This clearly hinders the reporting of sexual violence suffered by men and boys. There is no distinction between consensual and non-consensual “carnal knowledge” under Ugandan law. Reference to consent is simply omitted thereby making it irrelevant in the eyes of the law. This is a determinative factor in hindering victims of SGBV/P perpetrated by someone of the same sex from reporting it.
Although raised within the context of the situation in Iraq, these are the very concerns raised in this applicant’s claim that he will be targeted in Iraq as a victim of male rape.
The claim requires an analysis of what male same sex activity means, culturally, legally and in context. Without that assessment, it is simply unclear whether the “reality” of what being sexually assaulted as a man and by a man means in Iraq and for this applicant in particular. An assessment of that sort would require the IAA to, at a minimum, canvas the relevant country information in relation to anti-gay discrimination and persecution and then determine whether, culturally and legally, this applicant, as a victim of male rape but who is not a gay male, will nonetheless be persecuted because he is seen to have engaged in an immoral act.
Admittedly, this is a complex undertaking. But that is precisely the point. It is complex. It requires critical analysis and scrutiny. Applicants seeking protection deserve as much, with those who have been traumatised through sexual violence even more so. The consequences of any failure to do so are serious. Here, what is potentially at risk is the applicant’s physical safety and mental health. If it is the case that victims of male rape cannot disclose the violence, humiliation and degradation that is male rape, then the only “option” upon return to Iraq for a young man like this young man, would be silence and denial. No one seeking to address the harms of male rape would support that “option” as appropriate or humane.
It may well be that once an assessment of this sort is undertaken, the IAA will nonetheless determine, on the basis of the country information before it, that the applicant will not be persecuted. That might well be a finding that this Court would then find had been open to the IAA. But that is not a finding that can be made at this stage on the material before the Court. Here, the analysis provided is lacking.
Overall, the applicant’s concerns are not addressed by the IAA in a way that allows the Court to conclude, with confidence, that the IAA intellectually engaged with the applicant’s claim about sexual violence as put.
On the basis of the above, the Court concludes that the IAA has fallen into jurisdictional error in failing to properly assess the applicant’s claim that he would face harm as a victim of same-sex sexual assault.
Grounds 2 and 3
2. The Immigration Assessment Authority applied irrelevant and wrong laws and regulation in taking its decision.
3. The Immigration Assessment Authority did not apply relevant laws and regulation in taking its decision.
In effect, grounds 2 and 3 assert the same thing – that is, that the IAA misapplied the law.
The Court notes that the IAA extracted the relevant provisions of the Act in an attachment to its reasons: CB 161-164.
At [24]-[25], the IAA outlined the statutory definition of “refugee” as provided in s.5H of the Act and identified a “number of components” that are included, and which must be considered, when determining if an applicant has a “well-founded fear of persecution” (as that term is defined in s.5J). These provisions were not “irrelevant” or “incorrect”. They were “relevant” and they were “applied”.
Throughout its decision, the IAA utilised the language of the statute when making findings (see [29]-[31]). While utilising the language of the statute does not necessarily mean that the IAA applied the correct legal test, here the Court is satisfied that the IAA has in fact done so. It made affirmative findings and there is nothing on the face of the decision to indicate that the IAA misunderstood the “real chance” aspect of the relevant test.
The Court notes that (at [32]) the IAA states “I consider it highly unlikely that extremist groups would come to know of the applicant’s activities while in Australia”. The authorities are clear that “unlikely” is not the test for a “real chance”. However, the Court is satisfied the IAA did not substitute the well-founded fear test for a standard of “likelihood”. Rather, the characterisation of the risk or chance of the applicant coming to be known by extremist groups was a finding of fact from which the IAA concluded, based on other matters, there was no real chance of harm as a returning asylum seeker: DZAAM v Minister for Immigration & Citizenship [2013] FCA 128.
The Court observes that at [37], the IAA states:
…relevantly included the claim that he would be unable to earn a living in Iraq which would threaten his capacity to subsist. However no further details were provided about this in the applicant’s statement of claim accompanying his SHEV application or in his interviews. The applicant worked in his family business in sales for about four years while in Iraq. Based on the country information and that the applicant has not worked for the past five years I accept he may have difficulty securing employment on his return but I do not accept this would amount to ‘serious harm’ within the meaning of s.5J(4)(b) of the Act.
It is arguable that the IAA should have gone further here and explained why it was not satisfied that “difficulty securing employment” would not amount to serious harm, particularly when s.5J(5)(f) states:
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist
“Difficulty securing employment” could in fact meet the definition of a “denial of capacity to earn a livelihood of any kind”. However, the Court is prepared to accept that “difficulty” does not amount to a “denial”. Further, the “difficulty” that the IAA appears to refer does not arise from systematic and discriminatory conduct, rather it arises from a general lack of employment and the fact that the applicant has not worked for some five years (a circumstance that cannot be said to be for a reason identified in s.5J(1)).
The Court is satisfied, save for its findings in relation to ground 1 as above, that the IAA considered the relevant legal provisions and applied the relevant legal principles when determining if it was satisfied the applicant met the refugee criterion.
As for the complementary protection criterion, the Court notes that at [40]-[41], the IAA summarised the legislative provisions relevant to this matter. The IAA also correctly identified that a “real chance” and “real risk” involve the same standard and that it was entitled to rely on its reasons in respect of the assessment under the refugee criterion, for the purpose of the complementary protection criterion: Minister for Immigration & Citizenship v SZQRB [2013] 210 FCR 505.
The IAA identified the relevant legislative provisions and applied the appropriate legal principles in determining if the applicant met the criterion. The IAA did so within the confines of the strict legislative regime of pt.7AA of the Act and the Court cannot identify any error of the type alleged in grounds 2 and 3.
Grounds 2 and 3, accordingly, are dismissed.
Ground 4
4. The Immigration Assessment Authority did not take into consideration the Tribe rules in Countries like the Applicant's Country.
As relevant to this issue, it is noted that the IAA summarised the applicant’s claims as follows:
In about July 2012 a young Sunni woman, Z, who the applicant had a relationship with, was killed by her family in an “honour killing” after her father saw her and the applicant walking and talking together. Z’s family told the applicant’s brother that the applicant’s family now had to also kill the applicant. Men, who the applicant believes were Z’s father and brothers, came to his house with weapons looking for him and Z’s tribe, the Al Jabouri, were also after him. His family arranged for him to go to Baghdad to stay with his uncle. He could not stay there as Z’s family and her tribe would get him and so he left Iraq in fear of his life.
Since leaving Iraq the Al Jabouri tribe, who are everywhere and well-connected, have threatened his family that they will kill one of his brothers in place of him. His family eventually had to relocate to Basra because of the harassment and the tribe found them there.
At [20], the IAA referred to country information reports titled “Arab Tribes in Iraq” and “Tribal Structures” and noted there had been a shift in the society’s views and practices concerning couples walking around together and mixing. The IAA found at [21] that :
In light of the country information, lack of consistent contextual detail, late raising of significant details in relation to his claims regarding Z as well has his own admission that his distressed psychological state was not the result of his experiences with Z and that he wanted to leave Iraq even before the claimed incident with Z, I am willing to accept the applicant may have walked and talked with Z at some stage but I do not accept she was killed by her family in an “honour killing” or that her family or tribe were after the applicant because of this or that the applicant fled Iraq in fear of his life because of this.
The difficulty with this ground as articulated is that the IAA did expressly consider factors and country information concerning the Tribal system. The claim of harm from the Al Jabouri tribe was inextricably linked to the claim concerning Z. The IAA had rejected this claim as being a basis upon which the applicant would be targeted. The need to consider the “Tribe rules” any further was, therefore, subsumed into that finding: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affair [2003] FCAFC 184.
Unfortunately, the applicant was unable to explain to the Court why he thinks the IAA failed in this regard. Without more, the Court is not in a position to conclude that further assessment was required of the IAA in relation to this issue.
Ground 4 is, accordingly, dismissed.
Conclusion
The Court is satisfied that the IAA has fallen into error in failing to actively, properly and intellectually engage with the applicant’s claim to fear harm as a victim of sexual assault. The IAA has misconstrued a core element of the applicant’s claim to fear harm. For this reason, the matter must be returned to the IAA for reconsideration.
The application for judicial review is, therefore, allowed.
I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 27 August 2019
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