DHH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 12
•30 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DHH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 12
File number(s): SYG 2325 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 30 September 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant’s fears found not to be well founded – whether the Authority failed to properly consider an extortion claim or failed to consider integers of other claims considered – no jurisdictional error Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36, 46A, 477 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Craig v State of South Australia (1995) 184 CLR 163
CSV15 v Minister for Immigration and Border Protection [2018] FCA 699
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Kaur v Minister for Immigration and Multicultural Affairs [2000] FCA 1401
Khan v Minister for Immigration and MulticulturalAffairs [2000] FCA 1478
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
NABEv Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Rajaratnam v Minister for Immigration and Multicultural Affairs(2000) 62 ALD 73
Sunchen Pty Ltd v Commissioner of Taxation(2010) 264 ALR 447
SZDCD v Minister for Immigration and Border Protection [2019] FCA 326
SZSFK v Minister for Immigration & Anor [2013] FCCA 7
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
SZSXE v Minister for Immigration and Border Protection [2014] FCA 867
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175
ZRLK v Minister for Immigration & Anor [2012] FMCA 1155
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 2 September 2021 Place: Sydney Counsel for the Applicant: Ms U Okereke-Fisher Solicitors for the Applicant: Abu Legal Counsel for the Respondents: Ms K Hooper Solicitors for the Respondents: Minter Ellison ORDERS
SYG 2325 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRLAIA (DIVISION 2)
BETWEEN: DHH19
Applicant
AND: MINISTER FOR IMMGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
30 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application as amended on 11 March 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 July 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a Shia Muslim citizen of Iraq who arrived in Australia on 19 August 2013 as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 147
On 22 September 2016, the applicant was informed that the Minister had exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow the applicant to make a valid application for a temporary protection visa or a Safe Haven Enterprise (subclass 790) Visa.[2]
[2] CB 32–33
On 6 April 2017, the applicant lodged an application for a temporary protection visa.[3]
[3] CB 38–104
On 16 May 2019, the applicant attended an interview with the delegate.[4]
[4] CB 116, 148
On 6 June 2019, the delegate refused the application for a temporary protection visa.[5]
[5] CB 141–158
On 12 June 2019, the delegate's decision was referred to the Authority.[6]
[6] CB 163–164
On 1 July 2019, the applicant's representative provided a submission containing new information to the Authority.[7]
[7] CB 178–200
On 23 July 2019, the Authority affirmed the decision not to grant the applicant a temporary protection visa.[8]
[8] CB 201–223
Applicant’s claims
In a statement attached to his temporary protection visa application,[9] the applicant claimed that his father was a member of the Ba'athist People's Army and had fought in the Iraq-Iran war. After the fall of Saddam Hussein's Ba'athist regime, his father was unable to obtain a job and was unemployed for many years.
[9] CB 88-93
During the Sawlat Al-Forsan or “Cavaliers Offensive” (a war fought between the Mahdi Army[10] and the Iraqi Army), the applicant and his father were encouraged to support the Mahdi Army. They refused to join and subsequently faced “curses and accusations”.
[10] a Shia militia
The applicant claimed that at that time, his father opened a grocery store. The applicant claimed that the Mahdi Army would raid the grocery store under the pretext of searching for contraband and forbidden material. The applicant claimed that his father was extorted by the Mahdi Army.
The applicant also claimed to have faced difficulties from the Mahdi Army himself as a member of a Mahdi Army-governed soccer club and in the course of his work at a clothing store. He claimed that members of the Mahdi Army demanded that he join them. At his interview with the delegate, he claimed that he was badly beaten by member of the Mahdi Army when he objected to them taking things from the store.
The applicant also claimed to hate religion and to have “lived and endorsed the secular ideas of [his] father”. He claimed to have been overcome by fear of harm from the Mahdi Army and accordingly made arrangements to leave Iraq.[11]
[11] CB 88–90
In the covering letter of the temporary protection visa application, the applicant's representative raised further claims that the applicant would be imputed as having become more secularised in Australia and would therefore be regarded as an apostate and that the applicant's sporting status gave him a heightened profile which increased the risk of harm at the hands of Mahdi Army.[12]
[12] CB 40
At the interview with the delegate, the applicant raised a further claim that he feared for the life of his partner (a Buddhist of Chinese ethnicity) if he and his partner were to return to Iraq.[13]
[13] CB 150
Authority decision
The Authority accepted the applicant's claims relating to his father's background but noted that, apart from his lack of employment, the applicant had not claimed that he or his father had been targeted or harmed on the basis of his father's involvement in the Ba'athist People's Army. Accordingly, the Authority was not satisfied that applicant would suffer harm on this basis.[14]
[14] CB 211–212: [24]–[25]
The Authority accepted, as consistent with country information, the applicant's claims relating to the requests to join the Mahdi Army during the Sawlat Al-Forsan, his and his father's refusal to join them and the verbal threats that followed. The Authority also accepted the applicant's claims that the Mahdi Army raided his father's store.[15] However, given the length of time that had passed since these claimed incidents, and lack of information to indicate the applicant had suffered ongoing repercussions, the Authority was not satisfied there was a real chance the applicant would face harm on this basis.[16]
[15] CB 212: [27]
[16] CB 212: [28]
The Authority noted that the applicant had provided inconsistent evidence with respect to his interactions with the Mahdi Army and his reasons for leaving Iraq between an entry interview and the protection visa interview. The Authority took into account the applicant's comment on the differences but found it difficult to accept, on the basis of country information, that the Mahdi Army had threatened to forcibly recruit him or that he was able to avoid these advances for a number of years.[17] Accordingly, the Authority did not accept the applicant's claimed reasons for leaving Iraq or his claim that he was of interest to the Mahdi Army.[18]
[17] CB 212–213: [29]–[34]
[18] CB 214: [35]
The Authority accepted that the applicant was a soccer player but was not satisfied the mere fact he was a soccer player was evidence that soccer players were targeted and harmed in Iraq.[19]
[19] CB 214: [36]
The Authority was satisfied that the applicant identified as a Shia Muslim[20] but, on the basis of country information and the fact that he had not claimed to have experienced any harm on that basis, was not satisfied he faced a real chance of harm on the basis of his faith.[21]
[20] CB 214: [37]
[21] CB 214–215: [39]–[43]
The Authority accepted that the applicant held secular beliefs, personally preferred the ideology of the Ba'athist movement and publicly wore a necklace of the Christian cross in Iraq.[22] It also accepted that Iraq's government included conservative elements. However, on the basis of country information, the Authority was not satisfied that Iraqi society was so rigid as to preclude the applicant's secular views. The Authority noted that the applicant had not claimed to have been ever targeted or harmed in the past as a consequence of his secular views or of wearing a cross. Accordingly, the Authority was not satisfied that the applicant faced a real chance of harm on the basis of his secular views or of wearing a necklace with a cross on return to Iraq.[23]
[22] CB 215: [44]–[46]
[23] CB 216: [47]
The Authority accepted that the applicant was “married” to a Chinese Buddhist woman but noted there was no country information to support a finding that his relationship would raise concern or give rise to the applicant having any type of actual or perceived profile. Accordingly, the Authority was not satisfied there was a real chance he would face harm for this reason on return.[24]
[24] CB 216: [48]
The Authority accepted that the applicant would be returning to Iraq after a period of residence in a western country, and that he was affected by the 2014 data breach.[25] In this respect, the Authority accepted that the applicant left Iraq legally using his own passport but, as the applicant no longer possessed his passport, he would return to Iraq using a laissez passer.[26] On the basis of country information, the Authority was not satisfied the applicant faced a real chance of harm from returning to Iraq on a laissez passer, or having been subject to the data breach, or being proficient in English.[27]
[25] CB 216: [51]. This data breach involved the inadvertent publication of applicants’ personal information on the Department’s website
[26] an “emergency travel document issued by an Iraqi embassy”: CB 216: [51]
[27] CB 216–217: [52]–[54]
The Authority also noted country information that reported the practice of seeking asylum was well‑accepted amongst Iraqis. Accordingly, the Authority was not satisfied the applicant faced a real chance of harm on this basis.[28]
[28] CB 217: [55]–[56]
The Authority also had regard to country information relating to the general security situation in Iraq[29] but found there was not more than a remote chance the applicant would be harmed through generalised violence on return to Basra, “the area in which he last resided and has family”. Accordingly, the Authority was not satisfied the applicant would face a real chance of persecution from ISIS/Daesh or any other groups on return to Iraq on any of the bases claimed.[30]
[29] CB 217–218: [57]–[59]
[30] CB 218: [60]
Accordingly, the Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act and, therefore, did not meet s 36(2)(a).[31]
[31] CB 218: [62]
With respect to the complementary protection criterion, the Authority noted that “real risk” involved the same standard as “real chance” and found that it was also not satisfied the applicant faced a real risk of significant harm on any of the bases claimed.[32] Accordingly, the Authority found the applicant did not meet s 36(2)(aa).[33]
[32] CB 219: [65]
[33] CB 219: [66]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 10 September 2019. That application was filed outside the period prescribed by s 477(1) of the Migration Act and the applicant sought an extension of time. A proposed amended application annexed to the applicant’s affidavit filed on 11 March 2020 raised alternative grounds for judicial review and on considering that application, I granted an extension of time under s 477(2) of the Migration Act on 13 March 2020. There are three grounds in the application as amended:
Ground One
Jurisdictional Error - The [Authority] failed to exercise jurisdiction in that it failed to consider whether (i) the Applicant's Father was subjected to extortion by the Mahdi Army for convention reason and if so, whether such extortion by itself could constitute persecution; and (ii) there was a real chance that the Applicant would suffer persecution from extortion for convention reason as a result of his father's past experience, if he returned to Iraq.
PARTICULARS
a)The Applicant claimed that the Mahdi Army would not let his father run his grocery and foodstuff store smoothly. They would raid his store under the pretext of searching for contraband and forbidden material and take items without paying. They would be threatened I asked to pay and only leave after collecting demand bribes and tributes imposed under the pretext that they would protect him because his father was vulnerable (“Extortion Claim”) [Paragraph 27, CB 212]
Ground Two.
Jurisdictional Error: The Authority focused on the Wrong Issue, failed to consider integers of the Applicant’s protection claims cumulatively leading to a failure to exercise jurisdiction.
PARTICULARS
a)The Applicant claimed that (i) he was a peaceful man who hated religion and hypocrisy, lived and endorsed secular ideas of his father and Baathism, stood firmly against sectarianism and decided to leave Iraq because he was a sportsman of unbiased thinking; (ii) he played in the second class of the General League Championship as a player of [redacted] team and Australia 2015 its club [CB 88 & 89].
b)The Representative submitted on behalf of the Applicant "Our Client is a moderate Moslem considered to be hostile to both the Shia fundamentalist Islamists and the radical Sunni Islamists. He will be imputed to have been more secularized in Australia and he we would therefore be regarded as kafir, an apostate- an enemy of Islam who deserves only death, no matter what Iraqi civil law may decree". The Representative further notes "The cumulative effect of [the applicant’s] sporting status creates a heightened profile for which realistically and appreciably increases the risk of severe persecutory treatment at the hands of Shia radical armed groups". [CB 40]
c)In his IAA submission, the Applicant stated, "I came here with the same heart and spirit and married a Buddhist Chinese girl. Our hearts and bloods mixed together" [CB 181]
Ground Three
Jurisdictional Error - The Authority failed to consider an integer of the Applicant's claim under the complementary protection regime, pursuant to s 36(2)(aa).
Particulars
a)In his IAA submission, the Applicant stated, “I came here with the same heart and spirit and married a Buddhist Chinese girl. Our hearts and bloods mixed together”. [CB 181]
b)The Applicant claimed his life will be at risk because he married a Buddhist Australian female of Chinese Origin ("C"). He claimed C will be easily recognizable as being Chinese and he fears for her life on return. [Paragraph 48, [CB 216].
(errors in original)
Apart from the applicant’s affidavit annexing the amended application, the only evidence I have before me is the court book filed on 31 October 2019.
Both the applicant and the Minister filed pre hearing written submissions and made oral submissions through their counsel at the trial on 2 September 2021.
CONSIDERATION
Applicant’s contentions
Ground One
Under Ground One, the applicant argues that the Authority failed to consider whether the extortion claim arose because of a Refugees Convention (Convention) reason and whether there was a real chance that the applicant (as a result of his father’s past experience) would suffer persecution from extortion by the Mahdi Army, for a Convention reason, if he returned to Iraq.
The finding
The Authority accepted the applicant’s extortion claim. However, it found that:[34]
At least eight years has now passed since Saulat-al-Fursan and the events at his father’s grocery and foodstuff store and there is no credible information to indicate that the applicant has suffered any ongoing repercussions or harmed on this basis. I am not satisfied that there is a real chance that the applicant will suffer any repercussions or harm on this basis on return.
[34] CB 212: [28]
The applicant’s complaint to the Court is that the Authority failed to address the possible convention-related character of the applicant’s extortion claim. The question arises as to whether the applicant’s family had been selected because of a Convention reason or whether they had been selected because they are perceived to provide the advantage sought by the extorting party, the Mahdi Army. The applicant submits that, having accepted the applicant’s extortion claim, it was therefore necessary for it to address the reasons the Mahdi Army sought to extract money from the applicant. It failed to do so.
The applicant accepts that he is not entitled to a generic guarantee by the state that he will be safe from harm occasioned by private individuals. However, the point raised is that the Authority failed to engage genuinely with the question whether the extortion arose from a Convention reason. The decision record does not reflect any detailed consideration of the extortion claim from a Convention perspective. The Authority merely found that considering the passage of time and the absence of credible information that the applicant has suffered any ongoing repercussions or harm on that basis, it was satisfied that there is no real chance the applicant will suffer harm on return.
The applicant submits that it was impermissible and not open to the Authority to have rejected the extortion claim on the basis of passage of time, the absence of ongoing repercussions and an assessment of the likelihood that the extortion will not occur on his return, without having proper regard to the circumstances of the extortion.
The applicant contends that it is apparent from the facts that the applicant’s father and family were targeted because of their vulnerability, being their political opinion. The father was a member of the People’s Army who participated in the Iraqi-Iranian war and the family refused to back the Mahdi Army in the Cavaliers Offensive.[35] Notably, the Authority is said to have accepted that the applicant and his family suffered persecution when they refused to join the Mahdi Army.[36]
[35] CB 88-89
[36] CB 211: [26]
In his claim, the applicant pointed out that the extorted money was imposed “under the pretext that they protect him because he is vulnerable and do not support them”. This is said to starkly suggest that the reason for the extortion was because of the applicant’s family vulnerability, arising from their refusal to back the Mahdi Army. In the alternative, the extortion is said to have arisen because of their membership of a social group, the Mahdi Army had identified them as members of the group of citizens who did not back the Mahdi Army. The applicant submits that this was clearly a Convention-related extortion.
In Rajaratnamv Minister for Immigration and Multicultural Affairs[37] at [46]-[48], Finn and Dowsett JJ highlighted the potentially multi-faceted nature of extortion. In SZTAP v Minister for Immigration and Border Protection[38] at [15], Logan J stated:
Extortion related refugee claims require very particular care in the analysis of the underlying occasion for the claimed extortion. This may reveal that the occasion for the extortion is multi-factorial but nonetheless founded in part in a particular vulnerability to extortion for a Convention-based reason.
[37] (2000)62 ALD 73
[38] [2015] FCAFC 175
Logan J then proceeded to cite the decision in Rajaratnam at [46] and [48], where Finn and Dowsett JJ stated:
As this court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a reason: see, e.g., Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134; (1999) 95 FCR 517 [at 521-522]; [1999] FCA 1134; 57 ALD 8; 166 ALR 641 at 645-6. The need for this is apparent enough. In the usual case of extortion, the extorting party will be acting for a self-interested reason (i.e. to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a convention reason. The extorted party may have been chosen specifically as the target of extortion for a convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.
…
In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of convention-related persecutory conduct. For this reason, the correct character to be attributed to extortive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: “Was the perpetrator’s interest in the extorted personal or was it convention related?” In a given instance the formation of the extortive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator’s part. But they may also be convention-related. Accordingly, any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.
In SZTAP at [16], Logan J continued:
to conclude that the “overriding aim” of the CID officers was “simply to extort money from [the appellant’s] mother” (Tribunal reasons, paragraph [51]) was to fail to grapple with why the mother was a target for extortion at all.
(emphasis in original)
In the same vein, the applicant submits that the Authority’s finding, without attempting to determine whether the past extortion was for a Convention reason, is tantamount to a failure to grapple with why the applicant’s father was a target for extortion in the first place, and whether the extortion will continue if the applicant returns to Iraq.
The applicant submits that on a fair reading of the Authority’s finding, it does not properly address the risk to the applicant of extortion by the Mahdi Army, where the extortion is Convention-related. The applicant further submits that a failure to grapple with the question whether the extortion had a Convention nexus was a failure to exercise jurisdiction, leading to jurisdictional error.
In NABEv Minister for Immigration & Multicultural & Indigenous Affairs (No 2)[39] at [55], [58] and [63] the Full Federal Court stated in part:
[55] … Where the Tribunal fails to make a finding on “… a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction …
[58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: …. There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; 199 ALR 265; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal…
[63] … It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
[39] (2004) 144 FCR 1
Given the object of s 36(2)(a) and the task of the Authority, to conclude that the applicant was not a person to whom Australia owed protection obligations without undertaking the necessary steps required by statute, was a complete failure to exercise jurisdiction. The applicant argues that a question that clearly arose from the material before the Authority and its findings was whether the extortion amounted to persecution, and if so, whether the extortion was for a Convention reason and whether there was a real chance that the applicant would be persecuted for the Convention reason if he returns to Iraq.
The applicant submits that the Authority should have evaluated evidence of past events of extortion and made findings with respect to the requirements of s 36(2)(a). The applicant relies on the authorities and arguments cited above to conclude that failure to consider whether the extortion claim arose for a Convention reason amounts to failure to complete the task of jurisdiction embarked on, leading to jurisdictional error.
Ground Two
In Ground Two, the applicant contends that the Authority identified the wrong issue and asked the wrong question; and failed to consider his protection claims cumulatively.
Identified the wrong issue and asked the wrong question
The applicant claimed that:
(a)he had married a non-Muslim Buddhist Australian of Chinese origin (“C”);
(b)if he returned to Iraq his life will be at risk because of his relationship with C;
(c)C will be easily recognisable as being Chinese; and
(d)he fears for her life on return.
At [48],[40] the Authority considered the marriage claim. The question before the Authority is said to have been whether, given the applicant’s cumulative profile and circumstances, there was a real chance that he would face harm on return to Iraq because of his marriage to a non‑Muslim Buddhist. The Authority is said to have failed to grapple with this question. Rather, the Authority is said to have identified the wrong issue, being whether C will accompany the applicant to Iraq. The Authority stated that “[t]he issue of whether the applicant’s Australia[n] citizen partner will be able to accompany him to Iraq is a matter for the Iraqi authorities and Iraqi immigration law”.
[40] CB 216
Consequently, the Authority concluded that it was not satisfied that if the applicant returns to Iraq he would be accompanied by his Australian citizen partner. The applicant submits that, having identified the wrong issue, the Authority then proceeded to find that there was no country information to support the view that the applicant will face harm if his relationship with the “Chinese Buddhist in Australia” became known to the authorities. The applicant argues that this conclusion is founded on the erroneous assumption that:
(a)the applicant’s fear of harm in respect of the marriage claim arises from the fear that the authorities will discover that he was married to a non-Muslim Buddhist; and
(b)C will not reside in Iraq with the applicant. This was not the case advanced by the applicant.
The applicant’s claim was that his life will be at risk because of his relationship with C, if he were returned to Iraq.[41] Judging from the way in which the applicant framed the marriage claim as outlined at [49] above, it is said to be apparent that the applicant was contemplating circumstances where C will physically return with him, to Iraq. Furthermore, there was no material before the Authority to suggest that C would not join him in Iraq or would not be eligible for an Iraqi visa.
[41] CB 216:[48]
The applicant submits that the Authority erred by identifying the wrong issue in circumstances where there was no fact, information or evidence before the Authority to support the conclusion that if the applicant returns to Iraq, C will not accompany him. In Kostas v HIA Insurance Services Pty Ltd[42] at [91], the High Court held that a tribunal that decides a question of fact when there is "no evidence" in support of the finding makes an error of law. Secondly, the Authority’s findings and conclusion failed to deal with the applicant’s claim as advanced.
[42] (2010) 241 CLR 390
The applicant argues that the Authority’s error flows from asking the wrong question and/or identifying the wrong issue. Identifying the wrong issue is said to have led to its failure to:
(a)assess and determine whether the applicant had a well-founded fear of persecution arising from the substance of the marriage claim; and
(b)register factual findings or state whether it was satisfied that the applicant would face harm upon return to Iraq because of the marriage claim, leading to a failure to exercise jurisdiction. The applicant submits that this is a clear case where an error of jurisdiction is made because the decision-maker identified the wrong issue or asked the wrong question.[43]
[43] Craig v State of South Australia (1995) 184 CLR 163 at 198
Failure to deal with the applicant’s claims cumulatively
The second limb of Ground Two contends that the Authority failed to consider the applicant’s claims cumulatively. At [17] and [18],[44] the Authority listed the applicant’s claims as advanced. However, it failed to give cumulative consideration to the applicant’s claims. In Minister for Immigration and Border Protection v DDK16[45] at [33], the Full Federal Court noted the parties’ agreement that the obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. However, at [34], the Court held that when all individual claims or bases for establishing an entitlement to a visa are dismissed, there is no obligation to consider the cumulative effect of those matters. In such a case, no amount of cumulative consideration of rejected claims is capable of producing a different result. The applicant submits that this is not a case where all individual claims or bases for establishing an entitlement to a visa were dismissed and as such the obligation to give cumulative consideration to a visa applicant’s claims remained afoot. Thus, a failure to consider the claims both individually and cumulatively may constitute jurisdictional error.[46]
[44] CB 210
[45] [2017] FCAFC 188
[46] Kaur v Minister for Immigration and Multicultural Affairs [2000] FCA 1401 at [11]-[12]; Khan v Minister for Immigration and MulticulturalAffairs [2000] FCA 1478 at [31]
Ground Three
In Ground Three, the applicant contends that the Authority failed to assess his claims as outlined in particulars (a) and (b) as reproduced above against the complementary protection regime as required under s 36(2)(aa). Section 36(2)(aa) provides that a criterion for the grant of a protection visa under that provision is that the applicant is a non-citizen in Australia in respect of whom the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. Section 36(2A) identified the circumstances which constitute “significant harm”.
At [48],[47] the Authority purported to consider the marriage claim pursuant to s 36(2)(a). The Authority found that:
(a)the issue of whether C will accompany the applicant to Iraq was a matter for the Iraqi authorities and Iraqi immigration law;
(b)there was no information before the Authority to indicate she is able to enter and reside in Iraq; and
(c)country information did not support the view that the applicant’s relationship would raise concern if it became known to Iraqi authorities or any groups or individuals. Consequently, the Authority concluded that it was not satisfied that if he returns to Iraq he would be accompanied by his Australian citizen partner.
[47] CB 216
After considering an applicant’s claims against the refugee criterion, the decision-maker must then consider those claims, and any of its own findings that leave alive a basis for applying the complementary protection criterion, against the criterion in s 36(2)(aa).[48] Having concluded that the applicant did not meet the requirements of the definition of refugee in s 5H(1), the Authority proceeded to a section labelled “Complementary protection assessment”.[49] However, the Authority is said to have failed to consider the marriage claim under the complementary protection framework.
[48] SZRLK v Minister for Immigration & Anor [2012] FMCA 1155 at [44]
[49] CB 218
The applicant submits that, pursuant to s 36(2)(aa), the Authority was required to assess the marriage claim pursuant to s 36(2)(aa). It failed to do so. Here, the Authority’s sole task was to determine whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia, there is a real risk that the non-citizen will suffer significant harm from the marriage claim. The applicant contends that the Authority fell into error when it failed to grapple with this task, as required by legislation.
Furthermore, the applicant submits that there are authorities, which support the view that, where the earlier findings reject claims for reasons specific to the refugee criterion, refusing claims under s 36(2)(aa) by reference to those findings may lead to error. In SZSFK v Minister for Immigration & Anor,[50] the Court held at [92] that given that the reviewer rejected certain claims under the Convention for reasons specific to the Convention, it was not open to the Reviewer to say that the complementary protection claim was rejected for the same reasons. The Court cautioned at [97] that the use of language drawn from the refugee criterion context (in that case, “systematic”) may suggest error if used in relation to the complementary protection criterion. In SZSHK v Minister for Immigration and Border Protection[51] Robertson, Griffiths and Perry JJ stated at [35]:
As to SZFSK v Minister for Immigration [2013] FCCA 7, relied on by the appellant at [20] of his written submissions, as Robertson J said in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57], each case must depend on its own facts and on what the decision-maker’s reasoning in fact was.
[50] [2013] FCCA 7
[51] [2013] FCAFC 125
It is the applicant’s submission that the case put forward by the applicant sufficiently raised a claim for consideration under the complementary protection criterion. The Authority failed to complete its review task.
Resolution
I prefer and adopt the Minister’s submissions concerning the grounds of review advanced.
Ground One: The Authority did not fall into jurisdictional error by failing to consider multiple motivations for extortion
I accept that:
(a)where an applicant claims to fear serious harm for reason of extortion; and
(b)the decision-maker accepts the applicant will be extorted; and
(c)the decision-maker finds that the extortion will be for criminal reasons; then:
(d)the decision-maker may fall into jurisdictional error by failing to consider whether the extortion was additionally practised for a Convention reason.[52]
[52] see Rajaratnam at [46] and [48]
The short answer to this ground of review, however, is that the applicant did not claim to personally face future extortion and there was no finding by the Authority that the applicant would face a real chance of future extortion, but that such extortion would be criminally motivated and not for a s 5J(1)(a) reason (a “Convention reason”).
The only reference to extortion in the material before the Authority is to past extortion practised upon the applicant’s father.[53] On the applicant’s evidence, he worked at his father’s shop between the years 2009 to 2013. As the Authority stated at [28],[54] the applicant’s evidence was that the shop closed as his father was old and no longer working.
[53] eg, CB 89, 149
[54] CB 212
The Authority found “[a]t least eight years has now passed since … the events at his father’s grocery and foodstuff store, and there is no credible information to indicate that the applicant has suffered any ongoing repercussions or [been] harmed on this basis. I am not satisfied that there is a real chance that the applicant will suffer any repercussions or harm on this basis on return”. This finding did not dispose of the claim concerning past extortion on the basis of the absence of a “Convention nexus” but on the basis that there was no real chance of future repercussions.[55] In short, the past events and the claim of “curses and accusations”[56] did not amount to anything. Ground One does not reveal jurisdictional error by the Authority.
Ground Two: The Authority did not identify the “wrong issue”/ask itself the “wrong question” or fail to consider the applicant’s claims cumulatively
[55] cf applicant’s submissions filed on 17 August 2021 at [7]-[18] and the authorities there cited
[56] CB 88-89 dealt with by the Authority at [28]
The Authority did not consider a “wrong issue” or ask itself the “wrong question” when it made factual findings concerning whether or not the applicant’s de facto partner C would return to Iraq with him. This contention, understood in light of the applicant’s submissions, invites merits review. Plainly, it was open to the Authority for the reasons given at [48][57] to find C would not return to Iraq with the applicant. As a finding of non-satisfaction, this finding cannot be impugned on a “no evidence” basis, in any event.[58]
[57] CB 216
[58] Sunchen Pty Ltd v Commissioner of Taxation(2010) 264 ALR 447 at [43]-[45]
The Authority otherwise expressly identified all integers of the applicant’s claims[59] and made findings of fact dealing with and disposing of them. No failure to give cumulative consideration to the applicant’s claims is demonstrated on a fair and holistic reading of the Authority’s decision.
[59] see eg CB 210 [18]
Ground Three: The Authority did not fail to consider a claim against s 36(2)(aa)
As revealed by the applicant’s submissions, his complaint is that the Authority failed to assess an aspect of his claims against s 36(2)(aa). It is said to have disposed of that claim in the context of s 36(2)(a) but relied on a requirement only applicable to an assessment under s 36(2)(a). An example of the asserted error would be where the decision-maker finds that s 36(2)(a) is not met because the claim does not have a “Convention nexus” as required by the definitions of “refugee” in s 5H and “well-founded fear of persecution” in s 5J(1)(a).
However, the Authority did not reason in this way. None of the Authority’s s 36(2)(a) findings were inextricably linked to or reliant on concepts only applicable to that criterion. Rather, they were ordinary factual findings.
There is no error in a decision-maker, including the Authority, making findings of fact in the context of an application of s 36(2)(a), and then applying the complementary protection criterion to the facts as found.[60] Further, it is also relevant to note that the test for “real risk” and “real chance” is the same.[61]
[60] see, for example, SZSHK per Robertson, Griffiths and Perry JJ at [32]-[35]; SZSXE v Minister for Immigration and Border Protection [2014] FCA 867 at [56] per Wigney J and SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54]-[56] per Robertson J
[61] see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at 551 [242], [246] and [247]
The Authority did not accept that the applicant would be accompanied by C, on his return to Iraq. It also found that the country information did not support the proposition that if the applicant’s “relationships and/or friendships and/or associations with Chinese Buddhist[s] in Australia became known to the Iraqi authorities or any groups or individuals it would raise concern or give rise to the applicant having any type of actual or perceived profile”.[62] These findings were equally relevant to the Authority’s s 36(2)(aa) assessment and it did not fall into jurisdictional error in that assessment.
Additional issue not relied on by the applicant: the Authority did not fall into jurisdictional error by failing to consider psychological harm because of the applicant’s removal from Australia leading to separation from his wife
[62] CB 216 [48]
At the extension of time hearing on 13 March 2020, I raised an issue as to whether the Authority had failed to consider psychological harm on return to Iraq because the applicant’s removal from Australia would lead to his being separated from his wife.
I accept the Minister’s submission that this was incapable of amounting to a claim to fear serious or significant harm because it was not harm inflicted by a third person.[63] Section 36(2)(a) of the Migration Act is concerned with persecution of an applicant by other parties for a Convention reason.[64] The s 36(2A) definition of significant harm is also framed in terms of harm suffered because of the acts of other persons.[65]
[63] SZDCD v Minister for Immigration and Border Protection [2019] FCA 326 at [43]
[64] CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 at [31] and [34]
[65] GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [37], [46]-[50]
Even if there was a claim to fear future psychological harm, it could not have satisfied the criteria for the grant of the visa and therefore does not constitute an integer of the applicant’s claims which the Authority was jurisdictionally required to consider.[66]
[66] cf Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [46]
Humanitarian considerations
There are humanitarian considerations in this case. At the time he applied for the visa in 2016, the applicant was single.[67] When the applicant was interviewed by the delegate, however, he had acquired a Chinese Australian Buddhist “girlfriend”.[68] When the matter reached the Authority, the applicant’s girlfriend was described as his “wife” on the basis that they had been married in a religious ceremony, which was accepted by the Authority.[69]
[67] CB 88
[68] CB 137
[69] see CB 216 [48]
At the trial before me, I was told that the applicant and his partner remained in a relationship and that they had no children.
The Authority, as noted above, proceeded on the basis that the applicant’s partner would not return with him to Iraq. This raises the question whether the applicant should be required to separate (possibly permanently) from his Australian citizen partner. This is beyond the scope of this proceeding but it is a matter which would in my view be properly considered by the Minister.
CONCLUSION
I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 30 September 2021
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