DJH16 v Minister for Immigration

[2018] FCCA 957

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJH16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 957

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority considered all claims made by the applicant – whether the Immigration Assessment Authority’s findings were open to it – whether the delegate failed to allow the applicant to tell his story – whether an admitted data breach resulted in any procedural unfairness – whether a certificate issued under s.473GB of The Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 473BA, 473BC, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473GB, 474, 476
Migration Regulations 1994 (Cth), reg.2.01; Sch 1.Treaties:
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration v BBS16 [2017] FCAFC 176

Applicant: DJH16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3092 of 2016

Judgment of: Judge Emmett

Hearing date: 10 April 2018

Date of Last Submission: 10 April 2018

Delivered at: Sydney

Delivered on: 2 May 2018

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter in the Arabic language.

Counsel for the Respondents: Ms Rachel Francois

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3092 of 2016

DJH16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) dated 18 October 2016, dismissing a review by the Authority of a decision of a delegate of the first respondent (“the Delegate”) made on 25 July 2016 refusing the applicant a Safe Haven Enterprise (class XE) (subclass 790) visa (“SHEV”).

2. The applicant is a citizen of Iraq and a Shia Muslim of Arab ethnicity, who claims to fear harm from the Al Mahdi Army in Iraq.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of the Delegate, and a summary of the Authority’s review and decision.

Background

1. The applicant arrived in Australia illegally by boat on 19 August 2013 and was therefore not immigration cleared.

2. On 22 October 2015 the Minister lifted the s.46A bar to allow the applicant to lodge either a Temporary Protection (class XD) (subclass 785) visa or a SHEV.

3. On 22 December 2015, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection (“the Department”).

4. On 25 July 2016, the Delegate refused the applicant’s application for a SHEV.

5. On 25 July 2016, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.

6. On 18 October 2016, the Authority handed down its decision affirming the decision of the Delegate not to grant a SHEV.

7. On 9 November 2016, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Safe Haven Enterprise (Class XE) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because 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.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:

   “Simplified outline of this Part

   This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

   Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

   Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”

8. Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.

9. Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

12. Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:

    “Material to be provided to Immigration Assessment Authority

    (1)  The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

    (a)  a statement that:

    (i)  sets out the findings of fact made by the person who made the decision; and

    (ii)  refers to the evidence on which those findings were based; and

    (iii)  gives the reasons for the decision;

    (b)  material provided by the referred applicant to the person making the decision before the decision was made;

    (c)  any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

    (d)  the following details:

    (i)  the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

    (ii)  the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iii)  the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iv)  if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

    (v)  if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

    (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

13. Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.

14. The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:

    “Exhaustive statement of natural justice hearing rule

    (1)  This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

    (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

15. Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.

16. Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:

    “Getting new information

    (1)  Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

    (a)  were not before the Minister when the Minister made the decision under section 65; and

    (b)  the Authority considers may be relevant.

    (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3)  Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a)  in writing; or

    (b)  at an interview, whether conducted in person, by telephone or in any other way.”

    Section 473DD of the Act provides as follows:

    “Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his SHEV application in which he stated:

   a)He is a Shia Muslim of Arab Ethnicity;

   b)He was a police officer for the Iraqi Ministry of Health as part of a special protection directorate.

   c)In December 2009, while working at the General Rifai Hospital in Rifai city, three men entered with an injured man. The men were searched and a weapon was located along with the man’s identification. The doctor ordered the injured man to be transferred to another hospital. The three men refused to sign a release document to take responsibility for the injured man. The men became violent. The applicant called for back up and the men left.

   d)The injured man was Hassan Al Obadi. He was wanted for murder and terrorism offences, and later received a sentence totalling 80 years in prison.

   e)In early 2010, the applicant started receiving threats from people associated with Al Obadi. A taxi driver who worked outside General Rifai Hospital advised the applicant that men were looking for him.

   f)The applicant took leave from work and then stopped working, and did not return to Rifai city. He lived with his Aunt in Al Gharraf where he started receiving threatening phone calls.

   g)His uncle was approached and told that he must hand the applicant over, or the applicant would be killed and so would members of his family.

   h)His uncle tried to organise a meeting with the Al Obadi tribe, but was unsuccessful.

   i)The applicant’s half-brother was shot in the head while driving the applicant’s car, but survived.

   j)The applicant obtained a passport with the help of police, who escorted him from his Aunt’s home in Diwayah to Al Nasiriyah.

   k)In 2011 he travelled to Syria and Lebanon. While he was there he was advised to go to Turkey and seek asylum in Europe or Australia.

   l)He travelled to Indonesia from Turkey.

   m)He fears that Hassan Al Obadi and his associates will kill him and does not believe the Iraqi government can protect him.

   n)There is no safe place in Iraq and he fears harm in Southern Iraq and other areas where insurgents are active. Other parts of Iraq are dominated by Sunni Muslims and he fears persecution as a Shia Muslim and for imputed political opinion of being a police officer.

The Delegate’s decision

1. On 26 April 2016 the applicant attended a protection visa interview at the Wickham Point Detention Centre and expanded on his claims as follows:

   a)He had two stars on his uniform and carried a pistol provided by the Americans as an honourary gift. His badge, which he has since lost, was made of ivory so it could not be falsified.

   b)Before the elections in 2010 there was a battle in Al-Rifai Governorate between the police force and the Al Mahdi army. The hospital was caught in the cross fire, and injured civilians came to the hospital. He was working at the time, and this was when the man he later learned was Hassan Al Obadi was bought to the hospital with a bullet wound.

   c)The Police Director came to the hospital was shown the identification of the men and realised they were linked to the Al Mahdi Army. The paramedics would not transfer the injured man because they were concerned they would be killed by the Al Mahdi Army.

   d)The applicant was escorted home from the hospital by three police officers after the fighting ended.

   e)Three or four months after the applicant began receiving threats, his uncle organised a meeting with Hassan Al Obadi’s tribe, with the Al Mousawi clan acting as mediators. The Al Mousawi refused to interfere and the Sheikh of the Al Obadi tribe claimed that Hassan Al Obadi and his associates were no longer considered part of the tribe. The conditions of mediation include each tribe bringing their own chief and guarantor. The Al Obadi tribe told the mediator they would not involve the Chief or name a guarantor.

   f)The Al Mousawi clan determined that the applicant was only doing his job and no punishment should come to him. The clans determined that there was no feud. The Al Mahdi Army and Hassan Al Obadi and his people ignored this directive.

   g)The applicant requested leave from work but after exceeding the time given he was sacked.

   h)The last time he worked as a police officer was in 2010.

   i)He was never threatened directly. If he had been seen, he would have been killed. People continue to ask about him in the Gharraf area.

   j)He fears being held for high treason as the Iraqi authorities would not believe he came to Australia as a refugee and would consider him a traitor. Any army or police officer who is out of Iraq and comes back would be executed for crimes related to national security.

   k)He fears that he will be killed by Hassan Al Obadi and his associates. He also fears the Al Mahdi Army.

   l)He is unable to relocate to other areas due to other areas being mainly Sunni Muslim areas, and due to his imputed political opinion because he formerly worked as a police officer.

   m)If the code of the law changed or if the Al Mahdi Army is no longer an effective force, he would consider returning.

2. A post-interview written submission provided by the applicant’s migration agent provided the following additional information:

   a)The power and influence of the Al Mahdi Army, including its leader Moqtada Al Sadr, has appeared to increase since the latest Department of Foreign Affairs and Trade (“DFAT”) report was issued. The influence former Shia militants wield in Iraqi politics and government results in the likelihood that the Iraqi government would not be willing or able to provide effective protection.

   b)There is a risk due to the applicant’s association with Western forces because he was issued with arms provided by Americans, and Americans were alerted to patients coming into the hospital who may have been stabbed or shot.

   c)The Department’s data breach in February 2014 of personal information of people held in immigration detention facilities has increased the applicant’s profile and shows that he has engaged with the Australian Government. The perceived association with US forces, time spent in Australia, the dissemination of his information due to the data breach and the association of his persecutors with government entities increases his risk of persecution if returned to Iraq.

   d)There is a real chance that the applicant would be persecuted in Iraq for his imputed political opinion and a real risk he could be arbitrarily deprived of his life or face other forms of significant harm and that the Iraqi authorities are unable or unwilling to protect him from such harm.

1. On 25 July 2016, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Authority’s review and decision

1. On 25 July 2016, the Delegate’s decision refusing the applicant a protection visa was referred to the Authority.

2. On 23 August 2016 the applicant provided a submission in support of his review application and copies of untranslated documents and photos relating to his brother to support his claims that his brother had a bullet removed from his head.

3. In his submission to the Authority, the applicant claimed that he only received the documents and photos relating to the removal of the bullet after the Delegate’s decision and he was not able to provide translations due to being in immigration detention. The Authority accepted that the Delegate was aware that the applicant’s brother was shot in 2010 and at interview on 26 April 2016 the applicant had advised the bullet could not be removed. The Authority therefore considered that the documents and photos constituted new information which substantiated previously known information which was before the Delegate, and was satisfied that s.473DD(b)(i) of the Act was met and that there were exceptional circumstances to justify consideration of the information.

4. The applicant’s submission to the Authority also clarified the applicant’s claim of desertion from his post. The Authority accepted that this did not constitute new information and stated that it considered that information.

5. The applicant’s submission to the Authority raised a new claim which was not provided to the Delegate, namely, that his service weapon was not returned to the police when he left Iraq. Although his family had paid a fine there were still outstanding charges against him relating to the missing gun. The applicant claimed to fear imprisonment on return if convicted of this offence and to fear harm in prison from members of the Al Mahdi Army and others with a grudge against police officers or former police officers. The applicant claimed that he could not provide this information to the Delegate before the decision as he was only advised of the outstanding charges subsequent to the decision. The Authority was satisfied that s.473DD(b)(i) of the Act was met and that there were exceptional circumstances to justify consideration of this information.

6. The Authority noted that there were inconsistencies between country information and the applicant’s responses with respect to his descriptions of his work uniform, training and insignias, and found that despite the applicant’s claim to be a police officer, he was employed as a security officer for the protection of health facilities. The Authority accepted that these inconsistencies were attributable to the fact that individual ministries were responsible for their own Facility Protection Service (“FPS”) units until 2007 when the Ministry of Interior assumed control and began to consolidate the FPS.

7. The Authority had serious concerns in respect of the veracity of the applicant’s claims, including the details of his account of the incident at the hospital in December 2009 and the subsequent threats against him. The Authority found that while the applicant’s account of the incident at the hospital at the protection visa interview and in his visa application were essentially consistent, his account of the context of the incident were markedly different. The Authority noted in particular the initial account of the incident was presented as an admission on a regular night at the hospital. However at the protection visa interview the applicant claimed a battle was taking place between the Al Mahdi Army and the police and many people were being admitted to hospital.

8. The Authority noted country information that indicates that the Al Mahdi army was no longer operational in 2009-2010 when the applicant claimed the battle occurred. The Authority accepted that the Promised Day Brigade, which was affiliated with the Al Mahdi Army, was active during this timeframe, but noted that it had a specific mandate to target only the coalition forces that remained in Iraq until 2011.

9. The Authority further found that there were no reports to indicate that a battle or any security incident took place in or near Al Rifai in 2009 or 2010 between any Shia militia and the Iraqi police or the coalition forces.

10. After consideration of country information and the applicant’s claims at the protection visa interview, the Authority was not satisfied that a battle took place as claimed between the Al Mahdi Army and the Iraqi police, or that the claimed incident occurred, or that the applicant was threatened.

11. As the Authority did not accept that the claimed battle with the Al Mahdi Army took place, or that the militia group was operational at the time, the Authority also did not accept that a high level Al Mahdi leader was admitted to hospital with gunshot wounds from a battle being waged near the hospital, and was subsequently arrested, resulting in the applicant and the doctor being blamed by the Al Mahdi.

12. The Authority further expressed concerns about the veracity of the applicant’s claims that he and his family were targeted at all. The Authority noted that the applicant had demonstrated knowledge of the tribal dispute resolution process, and that country information indicated that tribal culture has an increasing influence in dispute resolution, particularly in the poorer southern and western regions of Iraq.

13. However, the Authority was not satisfied that the applicant or his tribe or family were threatened by the Al Mahdi or any other militia. The Authority found that the applicant gave inconsistent evidence at interview about the threats, added new claims which had not previously been raised and provided a timeline of events that was inconsistent with his visa application.

14. The Authority accepted that the applicant’s brother may have been shot. However, the Authority found it implausible that the applicant’s family continue to receive enquiries about the applicant’s whereabouts, 6 years after the claimed event.

15. In respect of the applicant’s claims to fear harm due to association with Western Forces, the Authority accepted that the applicant was employed in the FPS by the Ministry of Health and Ministry of Interior from 2006 until he took leave from 2010 until November 2011 and was subsequently dismissed for failing to return to work. The Authority also accepted that, as a security officer, the applicant may have had a liaison role with the coalition forces.

16. However, the Authority found that the evidence did not establish that the applicant’s employment had come to the adverse attention of local militias, that he was targeted during his employment due to his association with coalition forces, or that he had a profile that was likely to bring him to the attention of militia groups. The Authority noted that if the applicant’s employment had come to attention of the militias, they had considerable opportunity to make contact and take action, but did not do so.

17. The Authority further considered it highly unlikely that the applicant would be targeted on return to Iraq given the lack of previous interest by militias in the applicant due to his employment; the fact that he is no longer employed by the FPS and the lengthy period of time since his employment ceased.

18. The Authority was not satisfied that there was a real chance of the applicant facing serious harm on return to Al Gharraf or any other area of southern Iraq due to his perceived collaboration with the Americans through his employment with the FPS.

19. With respect to the applicant’s claim that he fears harm because he failed to surrender his service weapon when he ceased work for the FPS, the Authority accepted that the applicant was allocated a service weapon for his employment as a security officer and that he took leave in 2010 which continued until November 2011 when he was dismissed for not returning to work. While the Authority found it plausible that the applicant may have retained his weapon while on extended medical leave, it found it implausible that the applicant would not have surrendered his weapon upon termination of his employment. The Authority further found it implausible that the applicant would have entrusted the return of his weapon to a smuggler whom he did not know, rather than to his own family.

20. Moreover, the Authority was not satisfied that there was a real chance of the applicant being prosecuted due to the non-return of his weapon.

21. The Authority found that apart from the applicant’s speculative assertions, there was no credible evidence before it to suggest Shia militias or their government associates would implicate the applicant with a pro-western political opinion due to his residence in Australia.

22. The Authority accepted that the applicant’s personal bio data was published by the Department and may have identified him as a person who is in immigration detention and arrived illegally in Australia. However, the Authority noted that even if the Iraqi authorities did become aware of the applicant’s presence in Australia and his status as an asylum seeker, there was no credible evidence before it to indicate that this would impute the applicant with an adverse political opinion and increase the likelihood of prosecution on return, even when considered with his previous employment as a security officer.

23. The Authority found that there was no evidence before it to indicate the applicant would be perceived as a traitor or that he would be treated differentially on return because of his time in Australia. The Authority found that the applicant did not have a profile which was likely to bring him to the attention of the Iraqi authorities or militias on return to Iraq.

24. The Authority also noted that there is considerable evidence to indicate that many Iraqis who sought asylum overseas have now returned to southern Iraq where they reunite with families, set up businesses, and take up or resume positions in the government or public sector. The Authority further noted that the Iraqi Government now provides a range of incentives to encourage Iraqis who have not been able to gain asylum overseas to return to Iraq voluntarily.

25. The Authority found that the applicant is a Shia Muslim who lived in a Shia dominated province in southern Iraq. The Authority accepted DFAT information that Shias, as the majority community in Iraq, face little to no official discrimination in government controlled areas and that although Shia communities are subject to both general and targeted violence by Sunni-linked insurgent groups and terrorists. The Authority found that violence against Shias is more prevalent in Baghdad than the rest of Iraq. The Authority found that southern Iraq has remained significantly more secure than central Iraq in recent years and that Shias in Shia-dominated provinces are at low risk of generalised or sectarian violence.

26. The Authority accepted that there have been sporadic attacks of Shia pilgrims, as well as targeted attacks, but found that the applicant did not have a profile which was likely to make him a target of insurgents. The Authority further found that although there are occasional bombings in the south, the applicant resides in a Shia province controlled by the government where the number of attacks has been very low. Accordingly, the Authority did not accept that there was a real chance of the applicant facing persecution in Al Gharraf Dhi Qar province as a Shia Muslim.

27. Having considered the applicant’s claims, the Authority found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Iraq, that the applicant did not have a well-founded fear of persecution in Iraq and for this reason the applicant was not a person to whom Australia owed protection obligations.

28. The Authority also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Authority found that the applicant did not face a real chance of harm on return to Iraq as a Shia Muslim, for any perceived pro-western political opinion arising from his employment, the release of his personal information, his residence in Australia or from Shia militias including the Al Mahdi army due to the arrest of an Al Mahdi leader.

29. Accordingly, the Authority found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Iraq, there is a real risk that the applicant would suffer significant harm.

30. Having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Authority affirmed the decision under review.

The proceeding before this Court

1. On 16 March 2017, the applicant attended a directions hearing before a Registrar of this Court.

2. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.

3. The applicant was unrepresented before this Court, although had the assistance of an Arabic interpreter. 

4. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Authority, and that it is not for this Court to reconsider his claims and make different findings or reach different conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Authority was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Authority, unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake.

5. The applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court in support of his application.

6. The applicant confirmed that he relied on the ground contained in an Application filed on 9 November 2016 as follows:

   “The IAA decision is affected by legal error.”

7. Plainly, the ground by itself makes a bare, unparticularised assertion that does not disclose any error capable of review by this court.

8. I asked the applicant what was the mistake that the Authority had made. The applicant identified three issues:

   (i)He claimed that the Authority had failed to consider that he would be imprisoned if returned to Iraq because he had been a police officer and deserted his work.

   (ii)He disagreed with the Authority’s failure to find that the fighting between the Al Mahdi army and the police in December 2009 led to the admission to hospital of the terrorist which resulted in threats against the applicant.

   (iii)The interview with the Delegate was conducted with an interpreter who was on the end of a telephone. The Delegate would not let the applicant tell his story, and said he just had to answer her questions.

(i) The Authority failed to consider that the applicant would be imprisoned if returned to Iraq because he had been a police officer and deserted his work

1. The applicant said that he would be imprisoned in Iraq because of his contraventions of the relevant 2008 Internal Security Forces Penal Law (“Penal Law”). Namely, being absent from work; and failing to return his service weapon.

2. The relevant Articles were as follows:

   “Crime of Absence

   Article 5

   Those who are absent from their department or duty location, or if their vacation exceeds fifteen days, shall be jailed for a period not exceeding six months. If the absence is repeated a jail sentence not exceeding one year shall be imposed.

   Article 6

   Whoever is absent for more than ten days during disturbances or states of emergency shall be jailed for at least one year.

   …

   Article 35

   First: Anyone who misappropriates, steals, sells, buys, gambles with, pawns, hides, illegitimately possesses, or illegally disposes of material or equipments belonging to the service shall be imprisoned for a period not exceeding seven years. The punishment is increased to life imprisonment prison if such acts are committed during disturbances or states of emergency.

   Second: The perpetrator in Article 35 First section above must pay for the material or equipment based on the market price at the time he committed the crime. The money goes to the concerned party who in turn spends it according to the law. The convicted person must provide a bond to ensure payment.”

   (Emphasis added)

3. The text of those Articles was provided to the Authority by the applicant.

4. In further explanation of his absence from work, the applicant stated:

   “I wish to clarify that from the time I left my post in 2010, until November 2011, I was on leave from the authorities and I was submitting medical certificates.”

5. The applicant originally claimed that he had requested leave from work but exceeded the time that he was allowed and ultimately was sacked. Thereafter he did not return to Al Gharraf or Rifai.

6. The Authority accepted that the applicant took leave from 2010 until November 2011 and subsequently was dismissed after he failed to return to work.

7. Further, the Authority accepted that the provision of Articles 5 and 6 of the Penal Law, relating to desertion, was new information which it considered.

8. The Authority’s finding that the applicant took leave from 2010 until November 2011 and was subsequently dismissed after he failed to return to work, was made in the context of the Authority’s awareness of Articles 5 and 6 of the Penal Law and was entirely consistent with the applicant’s claimed evidence as referred to above. That finding by the Authority subsumes any particular finding that neither Article 5 nor Article 6 of the Penal Law were relevant to the applicant’s claims on the evidence and material before the Authority. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 the Full Court of the Federal Court (French, Sackville and Hely JJ) stated as follows:

   “[46] It is plainly not necessary for the Tribunal refer to every piece of evidence and every contention made by an applicant in its written reasons. …there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf MIMIA v Yusef (2001) 206 CLR 323; 62 ALD 225; 180 ALR at [87] to [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a Court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. …Its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

   (Emphasis added)

1. In relation to the applicant’s claim to fear imprisonment on return because of his prior employment as a police officer, the Authority rejected his claim to be a police officer and found that he was a security officer employed by the FPS and accepted that he had been allocated a service weapon for his employment as a security officer.

2. The Authority accepted that the applicant may have retained his weapon while on medical leave but did not accept that he would not have surrendered his weapon upon termination of his employment. The Authority further found it implausible that the applicant would have entrusted his weapon to a smuggler whom he did not know rather than to his own family to return to the police.

3. Again, that finding subsumes a rejection by the Authority that the applicant had contravened Article 35 of the Penal Law.

4. The Authority concluded that there was not a real chance of the applicant being prosecuted due to the non-return of his weapon.

5. Those findings were open to the Authority on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative basis or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

(ii) Disagreement with the Authority’s failure to find that the fighting between the Al Mahdi army and the police in December 2009 led to the admission to hospital of the terrorist which resulted in threats against the applicant

1. As stated above, in the summary of the Authority’s decision record, the Authority comprehensively rejected the applicant’s claims that a battle took place between the Al Mahdi Army and the Iraqi police in 2009; the admission of a high level Al Mahdi leader to hospital with gunshot wounds; and, the arrest of that leader.

2. In making those findings the Authority had regard to country information that it identified with particularity. The Authority found that there were no reports to indicate that a battle or any security incident took place in or near Rifai in 2009 or 2010 between any Shia Militia and the Iraqi police or the coalition forces. The Authority found that given the number of casualties which the applicant claimed was admitted to the hospital during the claimed battle and the extensive reporting of security incidents across Iraq on a daily basis, the Authority found it implausible that such an event would not have been reported.

3. The Authority comprehensively rejected the applicant’s claims about the alleged battle, and found that there was not any basis on which members of the former Al Mahdi army would hold the applicant, his family or his tribe responsible for the imprisonment of one of their leaders.

4. As stated above, the Authority also comprehensively rejected the applicant’s claims to have been targeted due to his association with coalition forces or that he had a profile likely to bring him to the attention of militia groups, despite working at the same hospital for over four years. The Authority found that if the applicant’s employment had come to the attention of militias, there had been considerable opportunity to make contact and take action, but they had not done so. The Authority noted that the applicant is no longer employed by the FPS and has not worked there since 2010.

5. Accordingly, the Authority found it highly unlikely that the applicant would be targeted on return to Iraq given the lack of previous interest by militias in the applicant, the fact he is no longer employed by the FPS, and the lengthy period of time since his employment ceased.

6. The Authority concluded that there was not a real chance of the applicant facing serious harm on return to Al Gharraf or any other area of southern Iraq due to his perceived collaboration with the coalition forces through his employment with the FPS.

7. Again, the Authority’s findings were open to it for the reasons it gave.

(iii) The interview with the Delegate was conducted with an interpreter who was on the end of a telephone. The Delegate would not let the applicant tell his story, and said he just had to answer her questions.

1. In relation to the applicant’s complaint that he was not allowed to speak freely at the interview, there is no evidence before the Court to support that assertion. The applicant was directed on 16 March 2017 to file and serve all evidence upon which he intended to rely, including any hearing transcript. I note that at the directions hearing the applicant was provided with the contact details of legal services providers and interpreting and translating services in documents headed in his own language.

2. The applicant had the assistance of a migration agent. The applicant and his migration agent made further claims beyond those in the applicant’s protection visa application and also provided additional written submissions post interview with the Delegate. The post interview submission provided by the Refugee Advice and Casework Service makes clear that oral submissions were made during the interview. Further, it does not refer to any complaint about the interview of the nature made by the applicant before this Court, or, indeed, any complaint about the conduct of the interview or the Delegate’s interactions with the applicant.

3. The applicant did not seek an adjournment to provide a transcript of the interview, nor was one offered to him. On the material before this Court, the applicant has had every opportunity to place before the Court all evidence upon which he relies. Nothing in the oral submissions made by the applicant to the court about his complaints that the Delegate did not allow him to tell his story but wished only for him to answer her questions, demonstrates any jurisdictional error on the part of the Authority. In the circumstances, the applicant’s complaints about the interactions he had with the Delegate during interview do not demonstrate jurisdictional error on the part of the Authority.

Data Breach

1. Following the conclusion of counsel for the first respondent’s submissions, the applicant raised a further claim of a fear of harm because of the data breach.

2. The Authority’s decision record makes clear that it considered the effect of the data breach. It noted that the data did not include any contact information or information in respect of protection claims. The Authority considered and rejected the applicant’s assertion that he would be perceived as a traitor who had given information to a foreign country and is working for the Australian government or that he would be treated differentially on return because of his residence in Australia. The Authority found that he did not have a profile likely to bring him to the attention of the Iraqi authorities or militias on return. The Authority was not satisfied that the release of his personal information increased the chance of him being harmed upon return or that there was a real chance he would face serious harm on return as a result.

3. The Authority’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Again, those findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis or unreasonableness.

4. The reasons of the Authority for its adverse findings were both comprehensive and logical. It is clear that the Authority was aware of its obligation to assess the applicant’s evidence and make appropriate findings. The Authority explained its concerns about the applicant’s credibility and why those concerns led to its adverse credibility findings.

5. The applicant’s disagreement with those findings does not demonstrate jurisdictional error on the part of the Authority in circumstances where those findings where open to it for the reasons given. In the circumstances, as stated above, the applicant’s complaints about the data breach do not identify any jurisdictional error on the part of the Tribunal. Those complaints appear more to be a disagreement with the findings and conclusions of the Tribunal, thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

6. Accordingly, none of the complaints made by the applicant in his oral submissions demonstrates any jurisdictional error on the part of the Authority.

Section 473GB Certificate issue

1. Whilst not the subject of any complaint by the applicant, I note that the Authority was notified of information not to be disclosed to the applicant or the applicant’s representative pursuant so s.473GB of the
   Act.

2. In Minister for Immigration v BBS16 [2017] FCAFC 176 (“BBS16”) the Full Court of the Federal Court per Kenny, Tracey and Griffiths JJ stated that there was no duty of the Authority to be involved in determinations as to whether notifications made under s.473GB are valid or not. Part 7AA of the Act makes clear that if the Authority is given a s.473GB certificate and related information, it is a matter for the Authority to consider whether or not it will have regard to any matter contained in that material. The Full Court stated as follows:

   “96. Fourthly, having regard to the statutory regime in Pt 7AA, and s 473GB in particular, if the IAA is given a s 473GB certificate/notification and related information, it is a matter for the IAA to consider whether or not it will have regard to any matter contained in that material. One of the things which the IAA will need to consider in determining whether or not it should exercise that power is whether it considers that the certificate/notification is valid or not. If the IAA determines to have regard to any such material, it then must turn its mind to whether it thinks it appropriate to disclose any matter contained in the material to the referred applicant. In making that decision the IAA must have regard to any advice given to it by the Secretary under s 473GB(2)(b).

   97. The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). For completeness, it might be noted that, if in the exercise of its discretion, the IAA decides to disclose some material to the referred applicant under s 473GB(3)(b), the IAA must give a direction under s 473GD concerning restrictions on the publication of the relevant material or its further disclosure (s 473GB(4)).

   98. As senior counsel for the Minister frankly acknowledged in oral address, this is truly “a remarkable scheme”. That is an accurate characterisation of those parts of the statutory scheme in Pt 7AA which relate to s 473GB certificates and notifications because of the severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be. Moreover, even though the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense, the opportunity for a referred applicant to challenge the exercise or non-exercise of those discretionary powers will in practice be limited because the person normally will have no knowledge or awareness of the existence of the certificate/notification or related information. That will be the case even if the IAA has had regard to such material in conducting its review but has determined, in its discretion, not to disclose the existence of that material or any of its contents.”

3. In the circumstances, I accept the submission of counsel for the first respondent that there is no error in relation to the notification of the Authority by the Delegate under s.473GB of the Act. Given that BBS16 is the subject of a special leave application to the High Court of Australia, I set out in full the first respondent’s submission in relation to this issue:

   “18. For completeness, it should be noted that there is no error in relation to the notification to the IAA by the delegate under section 473GB of the Act at CB 173. In Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176, the Full Court held that, in contrast to Part 5 and Part 7 of the Act, the particular statutory scheme in Part 7AA means that there is no duty on the part of the IAA (or any entitlement on the part of a referred applicant) to be involved in the IAAs determinations with respect to such notifications (see [97] to [98]).”

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant and had regard to all material provided in support, including post hearing submissions. The Authority identified with particularity independent country information to which it had regard.

2. The Authority made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave.

3. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

4. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

5. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

6. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 2 May 2018