DML16 v Minister for Immigration

[2019] FCCA 1967

FEDERAL CIRCUIT COURT OF AUSTRALIA

DML16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1967

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection (XD 785) visa – whether the Authority failed to consider an integer of the applicant’s claims or submissions – whether the adverse findings by the Authority were illogical or irrational – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 476

Applicant: DML16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3205 of 2016

Judgment of: Judge Street

Hearing date: 17 July 2019

Date of Last Submission: 17 July 2019

Delivered at: Sydney

Delivered on: 17 July 2019

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law Firm

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the first respondent is changed to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs" and the Court dispenses with the need for the filing of any further document in that regard.

2. Grant leave to the applicant to rely upon the amended application filed 2 July 2019.

3. The amended application is dismissed.

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

DATE OF ORDER: 17 July 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3205 of 2016

DML16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 13 October 2016 affirming a decision of the delegate not to grant the applicant a Temporary Protection (XD 785) visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 9 September 2012. The applicant was found to be a Shia Muslim.

3. The applicant claimed to fear harm as a result of his father and brother having been shot and killed on 5 May 2012 by unknown men while on their way to the supermarket. The applicant also claimed to fear harm by reason of threats made to his father in relation to their land. The applicant claimed he feared harm from the men who killed his brother and father and claimed that they will find him and kill him so that he could not avenge the death of his father and brother. The applicant fears that he would be the subject of extortion by the men who threatened to confiscate his father’s land and that he fears harm by reason of being a member of a particular group, being wealthy Shia landowners and immediate male family members of those who have been killed by Iraqi government officials, as well as fearing harm from armed Sunni groups, or that he will be subjected to significant harm on return to Iraq.

4. On 25 August 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

5. On 26 August 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions dated 17 September 2016 that were expressly referred to in the Authority’s reasons.

6. The Authority in its reasons identified the background of the visa application had regard to the information referred by the Secretary under s 473CB of the Act. The Authority identified new information in relation to the death certificates for the brother and the father, and found there were exceptional circumstances to justify receiving into evidence the death certificates and their translations.

7. The Authority summarised the applicant’s claims. The Authority noted that the applicant had not provided any documentary evidence to support his claim that his family owns a piece of land in the centre of a particular location. The Authority also noted that the applicant remains in contact with his mother, who has assisted him to obtain copies of other documents, including his brother’s and father’s death certificates. The Authority also identified it was surprising that the applicant did not mention the land dispute in the entry and arrival interviews, given the contention that that was the central reason for his departure from Iraq. The Authority expressly noted that, in the entry and arrival interviews, the applicant had claimed that his father and brother were killed by an unknown militia group rather than a group connected with the land dispute, as claimed in his later protection visa applications.

8. The Authority was willing to accept that the applicant’s family owned some land in a particular location. The Authority referred to the absence of reference by the applicant to the property dispute or related threats in his entry and arrival interview conducted in December and September 2012 respectively.

9. The Authority referred to the applicant’s assertion of an incident in 2006, where the Islamic Supreme Council confiscated land from another family. Given the lack of supporting evidence for this claim, the Authority placed limited weight on that evidence.

10. The Authority referred to a 2009 report regarding an arrest of a union official, which referred to a claimed incident in 2006 of land confiscation by the Islamic Supreme Council, but found there was no evidence of Shia militia or the Iraqi government confiscating or otherwise forcibly acquiring land from Shia Muslims.

11. The Authority referred to the applicant’s claim at the time of the entry interview in respect of the death of his father and brother in 2012 by an unknown militia group. The Authority expressly referred to the applicant being asked about armed, religious or political groups acting in the area in which the applicant lived, and the applicant indicated that he did not know the name of any such groups. The Authority noted that, when the applicant was asked about his reasons for leaving Iraq and travelling to Australia and his fears if he returned to Iraq, in his arrival and entry interviews, he did not mention the property dispute.

12. The Authority referred to a subsequent invalid permanent protection visa application where the applicant mentioned the property dispute and indicated that his father and brother were killed on the way to the supermarket by unknown men who he believed to be associated with the men who had previously threatened his father about ownership of the land. The Authority referred to the applicant’s temporary protection visa application of December 2015, in which the applicant clarified that Colonel Ali Barit, one of the group of government officials who was seeking to take over the land, was a member of the Islamic Supreme Council. The Authority referred to the applicant explaining that, while there was no evidence linking the deaths of his brother and father to the land ownership dispute, he believes they are connected because his father and brother had no other enemies.

13. The Authority referred to the applicant’s claim that over a period of approximately three and a half years, from 2008 to 2011, his father was threatened on four occasions. The Authority found the infrequency of the threats, their relatively non-violent nature and the fact that there was no escalation in frequency or seriousness prior to the fatal attacks on the applicant’s father and brother led the Authority to doubt the applicant’s assertion that the father and brother’s deaths were linked to the dispute over the land ownership, particularly in the absence of any supporting evidence of such a link. The Authority noted, apart from the applicant’s claims, there is no evidence of the Iraqi Government, the Islamic Supreme Council or Shia militia groups killing Shia Iraqis for their land.

14. The Authority accepted that the father and brother were killed in May of 2012. The Authority found the applicant’s claims had evolved over time, firstly to include a link between the deaths of the applicant’s father and brother and a property dispute with the government in his invalid protection visa application and, secondly, to include a link between the property dispute and the Islamic Supreme Council and militias in his temporary protection visa application. The Authority found this suggested a deliberate effort to strengthen his claims for protection.

15. Having considered the evidence before it, the Authority took into account the evolution of the applicant’s evidence over time and did not accept that the applicant’s father and brother were threatened or killed by members of the Iraqi government or people working for them, the Islamic Supreme Council or any Shia militia groups because of a dispute over land ownership as claimed.

16. The Authority found the applicant’s father and brother were not threatened or killed by members of the Iraqi Government or those working for them, the Islamic Supreme Council or any Shia militia group. The Authority found there was no evidence to suggest the Islamic Supreme Council or any Shia militia group have otherwise threatened or harmed the applicant or his family. The Authority did not accept that the Islamic Supreme Council or any Shia militia group has any interest in the land or the applicant.

17. The Authority referred to the applicant having moved to another province because they were afraid the men who had killed his father and brother might come after him if they stayed in his home region. The Authority referred to the applicant expressing a fear of Sunni insurgents because of the number of Sunnis in the particular province and his belief that the Sunni insurgents are active in that area.

18. The Authority noted the applicant has not made a claim that he or his family are of any particular interest to armed Sunni groups and there is no evidence to suggest that the applicant or his family are of any particular interest to armed Sunni groups, other than as Shia civilians.

19. The Authority accepted that there had been occasional sectarian attacks by armed Sunni groups on Shia civilians in the south of Iraq, but the Authority referred to having found that the applicant is not the subject of any ongoing interest in his home region on the part of the Iraqi government or those working for them, the Islamic Supreme Council or any other Shia militia group. It was in these circumstances that the Authority did not accept the applicant would be obliged to stay in the province to which he moved with his mother and sister on his return to Iraq and found that the applicant will return to his home region in the Dhi Qar province.

20. The Authority was not satisfied, on the evidence before it, that wealthy Shia landowners are targeted by any parties for reasons of their Shia religion, wealth, and land ownership. The Authority was not satisfied there is a real chance the applicant would be harmed for reasons of his membership of the particular social group of wealthy Shia landowners in Iraq.

21. The Authority did not accept the applicant is a member of a particular social group, ‘immediate male family members of those who have been killed by the Iraqi government officials’. The Authority was not satisfied that the harm feared by the applicant is for one of the reasons set out in s 5J(1)(a) of the Act.

22. The Authority was not satisfied there is a real chance the applicant would be harmed by Iraqi government officials, members of the Islamic Supreme Council, or members of any Shia militia group as a result of a dispute over land ownership.

23. The Authority referred to armed Sunni groups and general violence. The Authority noted it did not accept that Sunni insurgents have any particular interest in the applicant or his family, other than as Shia civilians. The Authority found the applicant does not hold any relevant profile.

24. The Authority referred to country information and that the applicant had spent most of his life in his home region and would be returning to the home region. The Authority was satisfied that the applicant will be able to do so via Basra international airport, his point of departure from Iraq and that there is no evidence of any security incidents relating to the Basra airport.

25. The Authority referred to country information in relation to the southern provinces of Iraq having remained more secure in respect of generalised violence. The Authority found that, whilst it cannot rule out that the applicant may be harmed on the basis of his Shia faith or as a result of secretarian or other violence in Dhi Qar, the chance is remote and less than a real chance of persecution required to meet s 5J(1)(b) of the Act. It was in those circumstances the Authority found the applicant did not have a well-founded fear of persecution on these grounds.

26. The Authority referred to the applicant being an unsuccessful asylum seeker who had been living in Australia, being a western country, for approximately four years. The Authority was not satisfied that there is a real chance the applicant would be harmed on the basis that he is a failed asylum seeker who has lived in Australia.

27. The Authority referred to having considered the applicant as a wealthy Shia land owner returning to his home region as a failed asylum seeker who has lived in Australia, and was not satisfied that any combination of the applicant’s circumstances would combine to expose the applicant to a real chance of harm.

28. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria in s 36(2)(a) of the Act.

29. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Iraq from Australia, that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   1. One reason the applicant claimed to fear harm if required to return to Iraq was because the applicant's father and brother were killed by a militia group and the applicant feared that the same group would find him and kill him. The Immigration Assessment Authority ("the IAA") did not deal with and dispose of this integer of the applicant's claims, which is a jurisdictional error: see NABE v Minister (2004) 144 FCR 1.

   2. In relation to the applicant's claim the subject of ground 1 above, the Minister's delegate found at CB 171 that the applicant's father and brother were killed "as a result of general sectarian violence perpetrated by insurgent groups". The IAA made a finding less favourable to the applicant concerning this issue. In the circumstances of the case, where the Minister's delegate made a finding favourable to the applicant concerning this issue and the IAA was considering making a less favourable finding concerning the matter because of concerns it had, it was legally unreasonable for the IAA not to exercise its power under s 473DC(3) of the Migration Act 1958 (Cth) to invite the applicant to comment on its concerns.

Ground 1

1. Mr Zipser of counsel, on behalf of the applicant, took the Court to the findings of the Authority in relation to the applicant’s claims concerning the father and brother being killed,and specifically identified that the Authority’s findings in paragraphs 27 and 28 in respect of the applicant’s claim referred to ‘any Shia militia group’. Mr Zipser submitted that the applicant’s claim of fear of harm was from a Shia group that had killed his father and brother and may harm him to prevent him seeking revenge. Mr Zipser submitted that the findings in respect of armed Sunni groups and general violence were not dispositive of the applicant’s claim as to a fear of harm from the militia group who killed his father and brother.

2. It is clear from the Authority’s reasons that the Authority correctly identified the applicant’s claims and his fear of harm to prevent him avenging his father and brother’s death. The applicant’s claim was expressly referred to in paragraph 9. The Authority’s reasons refer to the evolution of the applicant’s claims linking the death of his father and brother to the land dispute and linking the land dispute to the applicant’s belief concerning a particular colonel and the Islamic Supreme Council.

3. Mr Zipser referred the Court to the delegate’s findings in relation to the father and brother. In that regard, the delegate had, at paragraph 70, found the applicant’s claim that his family’s land is valuable and high sought after and on this basis was confiscated by a group affiliated with the Islamic Supreme Council to be implausible and irrational. The delegate referred to the claims concerning the death of the applicant’s father and brother by being killed by persons who are associated with members of a group who had threatened his father for his land. The delegate referred to the applicant’s claim that the father and brother were killed by unknown persons and, in particular, the reference to the applicant claiming that his father and brother were killed by an unknown militia group which was made during his arrival interview.

4. The Authority found on the country information before it, and was satisfied, that the applicant’s father and brother were killed as a result of general sectarian violence perpetrated by insurgent groups and not due to being targeted by any groups affiliated with the Iraqi government for reasons relating to the applicant’s family land.

5. It was not necessary for the Authority in its reasons to identify by whom the applicant’s brother and father were killed. The Authority’s reasons were dispositive of the applicant’s claims to fear harm by reason of the death of his father and brother, as a result of the adverse findings in paragraphs 28, 29, and 51. The Authority’s reasons are not to be read with a keen eye for error. The fact that the Authority had expressly referred to the applicant’s claim to fear harm by reason of the militia group preventing the applicant avenging his father and brother’s death was clearly subsumed in the adverse findings summarised above.

6. There was no failure by the Authority to make dispositive findings in respect of any integer of the applicant’s claims concerning the death of his brother and father. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Zipser relied upon the findings by the delegate and contended those findings were favourable. The findings by the delegate rejected the applicant’s claims in relation to the death of the father and brother being by the Supreme Islamic Council and/or being linked to a land dispute. Mr Zipser nonetheless submitted that the finding by the delegate that they were killed as a result of general sectarian violence perpetrated by insurgent groups, was a favourable finding that gave rise to circumstances where it was legally unreasonable for the Authority to fail to expressly consider exercising the powers under s 473DC(3) of the Act. Mr Zipser accepted that no request had been made in the submissions of the Authority to exercise any such power.

2. The Authority is not bound by the findings that were made by the delegate. It was apparent on the face of the delegate’s reasons, as referred to above, that the delegate did not accept the claims as articulated by the applicant in respect of the reason for the father and brother’s death being connected to a land dispute, or being by the Islamic Supreme Council, or in connection with a particular colonel. In these circumstances, the applicant was on notice in respect of the issues concerning the applicant’s claims and was given an opportunity to put on submissions and new information as a result of a letter sent to the applicant by the Authority.

1. The applicant’s representative did provide submissions. The submissions expressly referred to the proposition that, if the delegate accepted the applicant’s father and brother were killed in Iraq, then it should follow that they were killed for a very considerable reason such as land grabbing and to the effect that the applicant will suffer the same destiny. Those submissions identify engaging with the delegate’s reasons.

2. In these circumstances, the absence of any express consideration as to the exercise of the power under s 473DC of the Act by the Authority cannot be said to lack an evident and intelligible justification. Accordingly, no jurisdictional error as alleged in ground 2 is made out.

3. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  6 August 2019