DNG18 v Minister for Home Affairs

[2019] FCCA 1030

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNG18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1030

Catchwords:
MIGRATION – Applications for temporary protection visas – IAA satisfied that primary reason for travel to Australia was to seek medical treatment for child – IAA not satisfied that applicants met refugee criteria or complementary protection criteria – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 473CB.

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

First Applicant: DNG18

Second Applicant: DNH18

Third Applicant: DNI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 678 of 2018

Judgment of: Judge Egan

Hearing date: 8 April 2019

Date of Last Submission: 8 April 2019

Delivered at: Brisbane

Delivered on: 16 April 2019

REPRESENTATION

Counsel for the Applicant: Mr. S. Keim SC
Mr. N. Boyd

Solicitors for the Applicant: Chand Lawyers

Counsel for the Respondents: Mr. J. Byrnes

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The amended application filed on 22 January 2019 be dismissed.

2. The first applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 678 of 2018

DNG18

First Applicant

DNH18

Second Applicant

DNI18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are Sunni Muslim citizens of Iraq who arrived in Australia on 11 November 2012 by boat. The applicants comprise a mother (the first applicant), her 14 year old daughter (the second applicant) and her 17 year old son (the third applicant). The applicants lodged applications for Temporary Protection Visas (Subclass 786) on 2 August 2017 as a family unit.

2. On 11 May 2018 a delegate of the minister refused to grant the applicants Temporary Protection Visas.

3. On 16 May 2018 the applicants applied to the Immigration Assessment Authority (‘the Authority’) for a review of the delegate’s decision. On 22 June 2018, the Authority affirmed the delegate’s decision not to grant the applicants Temporary Protection Visas.

4. An application seeking judicial review of the Authority’s decision was filed on 6 July 2018. A further amended application was filed on 22 January 2019.

5. At [3] of the Authority reasons, the Authority recorded that it had had regard to material given to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).

6. The applicants’ claims for protection were recorded at [11] of the Authority reasons as follows:

   ·“They are Arab Sunnis from Baghdad, Iraq.

   ·The applicant son has serious medical conditions.

   ·The applicant’s husband (applicant children’s father) died in 2004 in a bomb blast while working as a policeman.

   ·W is a member of the “Moujahadin” (which is claimed to be now known as Islamic State). W has threatened to kill the applicant. He has approached her with a weapon in the past. W threatened to kidnap the applicant son and to train him to fight for ISIS and to kidnap the applicant daughter and marry her off.

   ·A week before the applicants left, W told the applicant he would send someone to kidnap both children in a week.

   ·Since the applicants have been in Australia W has threatened to kidnap the applicant children and to kill the applicant.

   ·The applicants will be failed asylum seekers from Australia.”

7. The applicants’ grounds for relief were set out in the amended application as follows:

   “1. That the decision was affected by jurisdictional error.

   (a) First Jurisdictional Error

   (i) The Authority’s jurisdiction to make the decision was conditioned on it determining whether it was satisfied the Applicant would suffer serious harm within the meaning of s.5J(5) of the Immigration Act 1958 (“the Act”)

   (ii) By section 5J(5), serious harm includes:

   (a) a threat to the person’s life or liberty;

   (b) significant physical harassment of the person;

   (c) significant physical ill-treatment of the person;

   (d) significant economic hardship that threatens the person’s capacity to subsist;

   (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (iii) The Authority illogically and irrationally found that the Applicant would not suffer "serious harm" if returned to Iraq.

   Particulars of irrationality and illogicality in factual findings

   1. The following factual findings were made illogically and irrationally;

   a. The Authority found that the main reason for coming to Australia was to seek medical treatment for her son, rather than fear of W.

   b. The Authority found that W would not have made threats to kidnap the Applicant's son in 2004, 2010 and 2012 as he had not followed through with the threats.

   c. The Authority found that it was implausible that W would tell the Applicant when the kidnapping would occur.

   d. The Authority found that it was unclear why W had not threatened to kidnap his own sister's children.

   e. The Authority’s finding relevance in W being ostracised from his family.

   f. The Authority did not find the Applicant's daughter to be at risk of being married off by W if they were to return to Iraq.

   g. The Authority found the Applicant's claims that W was a member of an anti-government resistance group, a branch of Islamic State and the Moujahadin to be inconsistent.

   Effect of the illogicality and irrationality

   2. By reason of the illogicality and irrationality in the Authority’s factual findings, the Authority did not consider whether the Applicant would suffer “serious harm” within the meaning of section 5J(5) of the Act. Thereby, a condition for the Authority’s jurisdiction to make the decision did not exist.

   (b) Second jurisdictional error

   (i) The Authority's jurisdiction to make the decision was conditioned on it determining whether it was satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there is a real risk that the Applicant will suffer "significant harm" within the meaning of s.36(2A) of the Immigration Act 1958 (“the Act”).

   (ii) By section 36(2A) “significant harm” means:

   a) the non-citizen will be arbitrarily deprived of his or her life; or

   b) the death penalty will be carried out on the non-citizen; or

   c) the non-citizen will be subjected to torture; or

   d) the non-citizen will be subjected to cruel or inhuman treatment of punishment; or

   e) the non-citizen will be subjected to degrading treatment or punishment.

   (iii) The Authority illogically and irrationally found that the Applicant would not suffer “significant harm” if returned to Iraq.

   Particulars of irrationality and illogicality in factual findings

   1. The following factual findings were made illogically and irrationally;

   a. The Authority found that the main reason for coming to Australia was to seek medical treatment for her son, rather than fear of W.

   b. The Authority found that W would not have made threats to kidnap the Applicant's son in 2004, 2010 and 2012 as he had not followed through with the threats.

   c. The Authority found that it was implausible that W would tell the Applicant when the kidnapping would occur.

   d. The Authority found that it was unclear why W had not threatened to kidnap his own sister's children.

   e. The Authority’s finding relevance in W being ostracised from his family.

   f. The Authority did not find the Applicant's daughter to be at risk of being married off by W if they were to return to Iraq.

   g. The Authority found the Applicant's claims that W was a member of an anti-government resistance group, a branch of Islamic State and the Moujahadin to be inconsistent.”

8. As to the claims made by the applicants, the Authority accepted that the applicants were born in Baghdad before coming to Australia as unauthorised maritime arrivals on 11 November 2012. It also accepted that the first applicant’s husband had been killed by a bomb whilst working as a police officer in 2004. ([12] of Authority reasons).

9. At [13] of the Authority reasons, it was found that the main reason the applicants came to Australia was to seek medical treatment for the first applicant’s son. The first applicant said in the TPV interview that she had two reasons for leaving Iraq. The first reason was that the first applicant’s son was sick and was going from bad to worse in Iraq. The second reason was that her brother in law was said to have threatened to kill her and kidnap her children.

10. At the first applicant’s entry interview, soon after the time of arrival in Australia, Question One of the interview was recorded as follows: [1]

    [1]        CB page 13.

    “1. Why did you leave your country of nationality (country of residence)?

    Because of my son. Because his uncle was working with the Resistance. My son is sick.

    Sick with what? He can't walk properly. He has a defect in his bones and there are parts of his organs missing. I have provided all documentation proving this. He has had operations.

    Why did you have to leave Iraq this year? My husband's brother, worked for the Resistance militia; insisted on taking my son.

    We had a few arguments. My brother was a bit afraid for us, that he might hurt us 'so you'd better leave'. I had informed the police about him but he paid money and was released.

    What is your husband's brother's name? [name omitted].

    I have a good life In Iraq but sometimes one has to take steps to protect their children.

    [Husband's family take the son when the husband has died.]”

11. At CB 129 the following was recorded in respect of any relevant matters wished to be raised by the first applicant at the time of the arrival interview:

    “1. Do you have any cultural/religious considerations the Department should be aware of?

    No I don’t have any.

    2. Do you have any other issues you wish to discuss?

    I only want my son to be treated fast. Since we arrived he hasn’t been treated.

    Has he seen a doctor?

    No. They don’t have time or space; they say ‘we are very busy.’

    What kind of treatment or attention does your son require?

    Every three months in Iraq he had some tests to see whether his internal organs or normal or he needs some medication, otherwise he will become paralysed.

    Does your son’s condition have a term or name?

    It’s not a condition or disease. He has a lack of internal organs. And the bones in his leg are brittle. He had an operation and it’s swollen where the operation was.

    Are there any other issues you wish to discuss?

    No. The important thing is that my son gets treated.

    3. Are there any observations which suggest the client may have suffered torture and/or trauma? If yes, please complete a case note. (This will be explored further at the follow-up meeting with CM).

    No.

    4. Any comments or observations about the client’s demeanour during the interview?

    Intelligent and focussed.

    **Do not ask questions 5 & 6 if interviewing Indonesian crew

    5. Are there any reasons why you are not able to be transferred to a regional processing centre (country)? If yes, what are the reasons?

    My son is the main reason (see details above regarding son’s sickness).”

12. As to the alleged threats from the first applicant’s brother in law (W), the Authority found that it was implausible that though the brother in law had allegedly made threats to kidnap the son as early as 2004, when the son was a very young child, the brother in law had also not followed through with any such kidnapping threat. The brother in law also had not followed through with similar alleged threats made in 2010 and 2012. The brother in law had clearly not kidnapped the son, nor had he followed through with any threats to do so. The Authority was entitled to make the finding at [23] of its reasons that the threats were hollow.

13. The Authority did not accept that the brother in law was a member of the Moujahadin or Islamic State, or that he represented a real risk to the applicants. The Authority was entitled to so find based on the alleged threats not having been acted upon, and in circumstances where the Authorities found that the claims were unsubstantiated.

14. At [15] – [23] of its reasons, the Authority dealt in detail with the claims of the first applicant, highlighting inconsistencies in the claims as made.

15. At [18] and [19] of its reasons, the Authority closely analysed the first applicant’s claims, which claims were in parts implausible, and in other parts inconsistent. Those paragraphs are as follows:

    “18. The applicant also said that she had put in a written complaint against W with the police and that she had mentioned this in her arrival interview (which she had) but that he was released when he paid the police a bribe. When asked what she told them her response was brief, she said she told them he attacked them with a weapon and wanted to take her children from her and then sought to change the subject (asking about where she should send the applicant son’s medical records after the interview). In contrast, in the TPV application it is merely stated that if W had been reported to the police he would have been able to bribe the police for his release but that the applicant did not go to the police because they would not help her and it would have only enraged W placing her at further risk of harm. When the delegate indicated she found it difficult to accept W would kidnap the applicant son to train him to fight I found the applicant’s response unconvincing (namely that he could cook and clean for the Islamic State not just fight) and at odds with the TPV application which states W “wanted to take my son away to train him to be a fighter” and suggests the applicant was adjusting or elaborating on the claims as and when they were challenged by the delegate as improbable.

    19. I also consider if the applicant genuinely feared for her son’s safety when W first made the threat to kidnap him in 2004 or 2010, it is unclear why she waited a number of years before leaving Iraq with the applicant children. It is also unclear why W would threaten to kidnap her son in 2004 or 2010 and seemingly not act on this and then again threaten to kidnap him again years later in 2012. I also consider it highly implausible that a would-be kidnapper would tell the intended victim when he was going to be kidnapped. It is also unclear why W has not threatened to kidnap or has not kidnapped his own sisters’ children. Together, W’s sisters have nine children in total; the eldest male is older than the applicant son was when he left Iraq in 2012. The applicant only provided these details about her sister in laws’ children after being questioned at length by the delegate in the TPV interview, initially appearing reluctant to provide this information she said she did not know their ages because she had cut ties with them. However, later in the TPV interview she said that her sisters in law, also in Baghdad, supported her in relation to W’s threats against her which is somewhat at odds with the claim of having cut ties. Toward the end of the TPV interview it became apparent that the applicant’s family were still friends with her husband’s family and still had some contact and it appeared W was, to some extent, ostracised from his family and that members of her husband’s family, including her husband’s uncle and W’s sisters, supported her.”

16. At [20] of its reasons, the Authority acknowledged that children were sometimes recruited as spies, lookouts and suicide bombers by Islamic State.

17. At [21] of its reasons, the Authority noted that there was no specific claim made in the TPV application that the brother in law had threatened to kidnap the first applicant’s daughter in order to marry her off while the applicants were in Iraq. The first applicant flagged that as a mere possibility if the applicants were to be returned to Iraq, presumably because of the advanced age of the daughter.

18. At [23] of its reasons, the Authority found that the first applicant had exaggerated events in an attempt to strengthen her protection claims. The Authority found that it was more plausible that the applicants had gone to Australia to seek medical treatment for the son, rather than because of any threats of violence or kidnapping made by brother in law. For those reasons, the Authority was not satisfied that the applicants met the requirements of the definition of refugee in s. 5H(1) of the Act, or the criteria as set out in s. 36(2)(a) of the Act.

19. At [27] of its reasons, the Authority noted that country information indicated that since the defeat of Islamic State in late 2017, levels of violence in Iraq had greatly decreased, particularly in Baghdad.

20. At [28] of its reasons, the Authority examined the question of threats to Sunni Muslims based upon DFAT’s June 2017 report. It noted that Sunnis faced a higher level of societal discrimination and violence, but that the risk for those in Sunni areas was lower.

21. At [29] of its reasons, the Authority considered the issue of whether the first applicant would face harm on account of her being a widow. In the 2017 US State Department Report on Human Rights there was no mention of widows suffering harm in Iraq. Nor was there any such mention in the June 2017 DFAT report or the UK Home Office August 2016 report.

22. At [31] of its reasons, the Authority noted that based on country information, returnees to Iraq would not be arrested on arrival at Baghdad International Airport unless there was a record that they had committed a criminal offence, or that a warrant had been issued for their arrest. The entry documentation able to be obtained by a returnee would be sufficient to enable such returnees to pass through security checkpoints to their home or temporary accommodation until their documentation was regularised. It was noted that DFAT had limited evidence to suggest that voluntary returnees to Iraq from the west faced difficulties in assimilating back into their communities, although employment did remain an issue.

23. At [32] of its reasons, the Authority found that there was no credible evidence to suggest that the first applicant’s father would either be unable or unwilling to assist the applicants in obtaining identity documentation consisting of an Iraqi nationality certificate or a personal identity card. There was no evidence to suggest that any of the applicants had committed a criminal offence in Iraq, or that there had been an arrest warrant issued against any of them. The Authority found that in such circumstances the applicants would not be arrested upon their return. It was noted that a widow’s pension had continued to be paid into the first applicant’s bank account in Iraq since the applicant had been in Australia, and that she would have access to such funds upon her return to Iraq.

24. At [33] of its reasons, the Authority found that it was not satisfied that any of the difficulties associated with obtaining personal identification documentation, or difficulties in subsequently securing employment, would amount to serious harm.

25. For the reasons as found by the Authority in respect of refugee protection criteria, the Authority also found that the applicants did not meet the criteria for complimentary protection.

26. To the extent that the applicants sought to challenge the validity of the findings of the Authority, such assertions invited the Court to conduct an impermissible merits review.

27. The Authority not only found that the main reason the applicants’ travelled to Australia was to seek medical treatment for the first applicant’s son, it also found that the claims of the applicants of fearing harm if they were returned to Iraq were without reasonable foundation.

1. The Authority carried out a close and detailed examination of the claims advanced before it. It did not fail to address relevant protection criteria considerations. It did not fail to make an obvious enquiry about a critical fact, as was the subject of consideration in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27] where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said as follows:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

2. Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

   “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

3. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

4. The applicants have not demonstrated any jurisdictional error on the part of the Authority.

5. The application for review is without merit and is dismissed.

6. The Court will hear the parties as to costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 12 April 2019