DOE18 v Minister for Home Affairs

[2018] FCCA 3317

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOE18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3317

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority adopted an erroneously narrow meaning of ‘credible personal circumstances’ – whether the Authority failed to consider the risk posed to the applicant – whether the Authority’s reasons were inconsistent, illogical or irrational – whether the Authority failed to exercise its power under s 473DC of the Act – whether the Authority misunderstood or misapplied the statutory definition of “serious harm” – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 476, 501K

Cases cited:

Plaintiff M174/2016 v Minister (2018) 353 ALR 600

Applicant: DOE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1900 of 2018

Judgment of: Judge Street

Hearing date: 15 November 2018

Date of Last Submission: 15 November 2018

Delivered at: Sydney

Delivered on: 15 November 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 2 November 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,700.00.

DATE OF ORDER: 15 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1900 of 2018

DOE18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 12 June 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a habitual resident of Iran who had been born in Iraq, and was found to be a stateless Faili Kurd and Shia Muslim. The applicant arrived in Australia on 31 October 2012 as an unauthorised maritime arrival. The applicant made the application for a Safe Haven Enterprise visa on 4 November 2015.

3. The applicant claimed to fear harm on the basis of his race and nationality, being a stateless person who was born in Iraq and because of his Faili Kurd ethnicity. The applicant claimed he would be unable to work legally in Iran and if he returned to Iran as an undocumented, unregistered stateless refugee he would be unable to renew his white card. The applicant claimed if he returned to Iraq he feared being seriously harmed or killed by Sunni terrorists, particularly in northern Iraq. The applicant also claimed to fear harm as an asylum seeker who sought protection in a western country.

4. On 23 August 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 28 August 2017, 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 submissions dated 25 September 2017 which were expressly referred to in the Authority’s reasons and, insofar as they engaged with the delegate’s decision, the Authority had regard to the same.

6. The Authority identified that in the applicant’s submissions there was new information extracted from a previous decision of the Authority for which a reference number was provided. The extract reflected reasons in respect of another decision of the Authority. That extract followed a submission concerning the applicant’s ethnicity and a reference to the United Nations High Commissioner for Refugees (“UNHCR”) ‘Handbook on Procedures and Criteria for Determining Refugee Status’.

7. The Authority referred to the reference to a previous Authority decision which had been published on the Authority website. The Authority expressly noted that the decision is dated prior to the delegate’s decision. The Authority also noted no reasons had been provided as to why this new information either could not have been provided before the date of the delegate’s decision or why it should be considered credible personal information when the decision is de-identified. The Authority noted there is no information before the Authority to indicate the applicant in the previous Authority decision is in any way related to the applicant in this matter. The Authority found that the applicant has not satisfied the Authority in respect of the requirements of s 473DD(b) of the Act.

8. The Authority noted that the applicant is represented and had already been provided with ample opportunity to provide information on all the matters in question, and had been made aware by the delegate that he would have regard to any information which was provided to him before the decision was made.

9. The Authority also referred to there being included a copy of the applicant’s brother’s protection visa granted on 28 June 2016, and the Authority identified that it was not satisfied that the requirements of s 473DD of the Act were met in respect to this new information. The Authority in its reasons in respect of the new information took into account both limbs of s 473DD of the Act.

10. The Authority identified having regard to the information given by the Secretary under s 473CB of the Act and identified the background to the visa application. The Authority summarised the applicant’s claims. The Authority accepted that the applicant was born in Iraq and his country of former habitual residence is Iran and that he is of Kurdish ethnicity.

11. The Authority referred to the applicant stating, both in his arrival and protection interviews and his written statement of claims, that he was forced to work illegally in order to support his family and pay for his daughter’s unspecified health costs. The Authority referred to DFAT reports concerning Faili Kurds registered as refugees having no automatic right to work, and that registered refugees can apply for work permits but these are restricted particular occupations. The Authority noted that DFAT country information supported that many Faili Kurds have informal access to employment which is normally tolerated by the authorities. The Authority noted that many are employed in low-paid manual labour at pay and conditions significantly worse than for Iranians doing the same work.

12. The Authority found the applicant’s evidence about his life in Iran had been consistent and that his description is reasonably consistent with country information from a number of sources about the registration of Iraqi Kurdish refugees and the discrimination they face. The Authority found, in the absence of any conflicting country information, that the Authority accepted the applicant was a registered Iraqi Kurdish refugee prior to his departure from Iran in December 2012.

13. The Authority noted that there had not been questions asked of the applicant about the members of his family and steps taken to claim Iraqi citizenship, and that no questions had been asked about how the applicant obtained his Iraqi passport. The Authority found, taking into account country information, that reclaiming Iraqi citizenship is possible for the majority of Faili Kurds.

14. The Authority expressly referred to being satisfied that it is possible that the applicant could or already has regained his Iraqi citizenship. The Authority found, given the applicant’s former habitual country of residence is Iran, that Iran is the receiving country. The Authority also referred to taking into account the applicant’s claimed fears of being deported to Iraq should he be returned to Iran now or in the reasonably foreseeable future. The Authority accepted that the applicant would be an unregistered, undocumented, stateless person if he is returned to Iran.

15. The Authority referred to UNHCR country information and that unregistered refugees in Iran had no right to work, and took into account DFAT country information that it is unlikely that a stateless Faili Kurd could apply for a work permit. The Authority however, took into account country information that in practise many Faili Kurds in Iran, both registered and unregistered, have informal access to employment, albeit low-paid, low-skilled jobs, and the Authority found this is normally tolerated by the authorities.

16. The Authority referred to the applicant’s claims as to how he worked on an illegal basis in low-paid jobs in construction and at a gym prior to his departure. The Authority referred to the applicant’s claimed fear of being arrested and detained, and that there was a period where he was out of work for a year and was reliant on his family for support at that time.

17. The Authority accepted the applicant may be discriminated against in employment for reasons relating to his status as a refugee, whether he is registered or unregistered. The Authority also took into account the limited range of employment opportunities on the basis that the applicant has virtually no high school education or vocational training of any kind, and that level of employment is low and access to employment is affected by nepotism and community links. However, the Authority found, based on the applicant’s own evidence about his employment history together with country information, that the Authority was not satisfied the applicant will be denied the capacity to earn a livelihood of any kind or that he will suffer such severe economic hardship that threatens his capacity to subsist for reasons related to his Kurdish ethnicity or his status of undocumented, unregistered refugee.

18. The Authority was satisfied the applicant would have access to food and water, accommodation, and family support if he were to be returned to Iran now or in the reasonably foreseeable future.

19. The Authority accepted that it is possible the applicant could be arrested and detained if found to be working illegally. The Authority, referring to the applicant’s own evidence that he had worked for a period of 20 years or so illegally prior to his departure from Iran without being arrested or detained and together with country information. was satisfied that there is only an extremely remote chance the applicant will be arrested and detained indefinitely and suffer serious harm if, as an unregistered or undocumented refugee, he is employed informally in Iran.

20. The Authority referred to the applicant’s claimed fear of harm that he if he is arrest he would be deported to Iraq. The Authority was satisfied the applicant would be able to claim Iraqi citizenship in Iraq if he chooses to do so. The Authority was satisfied that there is no real chance that the applicant would be deported to northern Iraq, and the Authority found it is likely that if the applicant were deported it would be to Baghdad or Wasit province in the southern governorate of Iraq where the applicant’s family came from and that this was a region considered to be relatively safe with a significant Faili Kurd population. It was in these circumstances the Authority was satisfied there is no real chance the applicant will be seriously harmed by Sunni terrorists or militias or Iraqi authorities for reasons of his Kurdish ethnicity, Shia religion, long-term residence in Iran, or any other reason if he were to be deported to Iraq by Iranian authorities.

21. Having considered the claims both individually and cumulatively, the Authority was satisfied there is no real chance the applicant will suffer serious harm, having regard to the extensive examples of serious harm provided in s 5J(5) of the Act, for reasons of his membership of a particular social group, that he is an unregistered, stateless, Faili Kurd, if he were to be returned to Iran now or in the reasonably foreseeable future.

22. The Authority referred to the applicant being returned to Iran on a temporary travel document. The Authority was satisfied that any questioning the applicant may be subject to does not amount to serious harm having regard to the extensive examples provided in s 5J(5) of the Act. The Authority was not satisfied the applicant faces a real chance of serious harm on return to Iran on the basis of being a failed asylum seeker who sought asylum in a Western country.

23. The Authority turned to a cumulative consideration of the applicant’s claims, and accepted that the discrimination that the applicant will experience in accessing service and employment will be exacerbated as an unregistered refugee. The Authority was satisfied that the applicant will have accommodation, access to food and water, and support from his family if he is returned. The Authority accepted the applicant will not have work rights or be able to apply for a work permit. The Authority however, was satisfied that it is possible for the applicant to informally work and that there is only a remote chance that he would be arrested and detained or deported to Iraq.

24. The Authority found even if the applicant were deported to Iraq, the Authority was not satisfied there is a real chance that he will suffer serious harm from Sunni terrorists or militia or from Iraq authorities for reasons of being a stateless Faili Kurd in Iraq or that he will be accused of being a spy. The Authority was satisfied that it was possible for the applicant to obtain Iraqi citizenship if he returned to Iraq, given he and his parents were born in Iraq and that the current Iraqi policy of enabling reacquisition of Iraqi citizen for Faili Kurds who had fled to Iran.

25. It was in those circumstances that the Authority was satisfied that there is not a real chance the applicant would suffer serious harm for reasons of his membership of a particular social group, that is, registered or unregistered Faili Kurds.

26. The Authority was satisfied there is no real chance the applicant will suffer serious harm, having regard to the extensive examples of serious harm in s 5J(5) of the Act, if he is returned to Iran now or in the reasonably foreseeable future.

27. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicant failed to meet the criterion in s 36(2)(a) of the Act.

28. The Authority was satisfied that there is not a real risk that the applicant will suffer significant harm based on the cumulative effect of his circumstances and profile if he is returned to Iran now or in the reasonably foreseeable future.

29. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to his receiving country, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criterion under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

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

   1. On 25 September 2017 the applicant's agent provided a submission to the IAA which included extracts from the reasons for decision of a previous IAA decision. The IAA found at [5] that "the applicant has not satisfied me that s 473DD(b) is met with regard to the new information". The IAA misconstrued s 473DD(b) in a manner which constituted jurisdictional error.

   2. The applicant claimed that, if required to return to Iran, he could not lawfully work in Iran and, if he worked, he may be arrested and detained by the authorities. The IAA found that "there is only an extremely remote chance the applicant will be arrested and detained indefinitely and suffer serious harm" in Iran. The IAA failed to consider the risk and consequences of the applicant being arrested and detained for a defined period of time. This was a jurisdictional error.

   3. The applicant feared that, if required to return to Iran, he may be arrested and deported to Iraq where he would fear various claimed harms. The IAA rejected this claim at [51]. The IAA fell into jurisdictional error in rejecting the claim.

   4. The applicant claimed that, if required to return to Iran, the difficulties and discrimination he would face in relation to employment amounted to ‘serious harm’ as defined in s 5J of the Migration Act 1958 (Cth). The IAA rejected this claim at [47]. The IAA misconstrued the definition of ‘serious harm’ in rejecting this claim in a manner which constituted jurisdictional error.

Ground 1

1. In relation to ground 1, Mr Zipser of counsel on behalf of the applicant took the Court to the Authority’s reasons in paragraph 5 and also to the decision the subject of those reasons referred to in the submissions advanced on behalf of the applicant to the Authority. Mr Zipser submitted that the Authority had misconstrued s 473DD(b)(ii) of the Act. Mr Zipser submitted that the person the subject of the decision in the other Authority decision identified in the applicant’s submissions was an identified individual or was a reasonably identifiable individual. Mr Zipser, in that regard, drew the Court’s attention to the reasoning of the majority in Plaintiff M174/2016 v Minister (2018) 353 ALR 600 at [33] to [34].

2. Mr Zipser submitted that the information was information of a kind that may have affected the consideration of the referred applicant’s claims because it was information concerning a person being unregistered and unable to apply for a work permit. The provisions of the Act includes 501K(2) which is as follows:

   (2) The Administrative Appeals Tribunal must not publish (in electronic form or otherwise), in relation to the review, any information which may identify:

   (a) the person; or

(b) any relative or other dependant of the person.

Note: Section 5G may be relevant for determining relationships for the purposes of this subsection.

1. Whilst the decision of the Authority may be on a website it is not a decision that identifies an individual. Section 501K of the Act prevents such an identification. The Authority was correct in identifying that the decision is de-identified. The Authority’s reasons are not to be read with a keen eye for error.

2. On a fair reading, the Authority did not adopt an erroneously narrow meaning of “credible personal circumstances” as if that had to concern the applicant. Further, on a fair reading of the Authority’s reasons, the Authority found that the individual the subject of the decision of the other Authority was not a person who could be reasonably identified by, for example, a relationship to the applicant. The Authority’s reasons, on a fair reading, do not reflect any misconstruction as alleged in ground 1 by the applicant. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, Mr Zipser took the Court to the Authority’s reasons in relation to the applicant working illegally and, in particular, to part of the reasons where the Authority referred to being satisfied that there is only an extremely remote chance the applicant will be arrested and detained indefinitely and suffer serious harm if, as an unregistered or undocumented refugee, he is employed informally in Iran. Mr Zipser contended that the Authority failed to consider the risk and consequences to the applicant being arrested and detained for a defined period of time and submitted that the Authority had only referred to the risk of harm of the applicant being detained indefinitely.

2. The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons in paragraph 60 reflect no temporal limitation in respect of the finding that there is only a remote risk that the applicant would be arrested and detained or deported to Iraq. On a fair reading, the Authority’s reasons should not be read as confined to indefinite detention in the consideration of whether the applicant faced a real or a remote risk in respect of arrest and detention.

1. The applicant did not claim that he would be at risk of detention for a particular period. The use of the word “indefinitely” does not mean the Authority was addressing a specific claim that the applicant would be detained permanently. I accept the first respondent’s submission that on a fair reading the Authority found that there is only a remote chance of the applicant being detained an indefinite or a particular or defined period of time. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Zipser submitted that the Authority’s reasons in paragraph 51 were inconsistent with the Authority’s earlier reasons in paragraph 34, where the Authority identified that reclaiming Iraqi citizenship is possible. The Authority’s reasons are not to be read with a keen eye for error. The opening sentence in paragraph 51 is a finding that the applicant would be able to claim Iraqi citizenship in Iraq if he chooses to do so.

2. I do not accept the submission that the Authority, in those circumstances, had to consider the possibility of what if the applicant did not claim Iraqi citizenship. I do not accept that the Authority’s reasons in that regard were inconsistent, illogical or irrational. Further, I do not regard the finding made in the last sentence of paragraph 60 as detracting from the finding in the first sentence of paragraph 51. No jurisdictional error as alleged in ground 3 is made out.

3. Further, in relation to ground 3, Mr Zipser also sought to advance in his submissions that there was a failure by the Authority to consider to exercise its power under s 473DC of the Act to interview the applicant or invite the applicant to provide further information in respect of the finding made by the Authority that the applicant would not be deported to northern Iraq.

4. Ordinarily, parties are confined to the grounds identified in the application or the amended application. It is not appropriate for submissions to go beyond those grounds without an appropriate amendment being sought. However, in the circumstances of the present case, Mr Johnson of counsel for the first respondent was content to have the argument dealt with, and it is fair to say that Mr Zipser presented the argument succinctly and clearly both in his written submissions and in his oral address.

5. Mr Zipser took the Court to the delegate’s decision in respect of which the delegate made a different finding to that of the Authority and found that there was not a real chance the applicant would be forcibly returned from Iran to Iraq. Mr Zipser also referred to the applicant’s original claims in his Safe Haven Enterprise visa application. It is apparent that the applicant’s submissions made to the Authority expressly addressed the topic of the applicant being returned to Iraq or Iran and in respect of the applicant’s claims concerning Iraq and being afraid of terrorists and militia that operate in northern Iraq and target Shias and stateless Kurds.

6. The Authority’s letter following the delegate’s decision gave the applicant an opportunity to put on new information and submissions and the applicant did so. In those circumstances, the absence of express consideration by the Authority of whether to exercise the power under s 473DC of the Act cannot be said to lack an evident and intelligible justification.

7. No jurisdictional error arises by reason of the Authority not exercising its power under s 473DC of the Act to invite the applicant to comment on the finding by the Authority that the applicant would be returned to Baghdad or Wasit province. The Authority’s absence of express consideration and absence of invitation under s 473DC of the Act is not legally unreasonable. No jurisdictional error arises in response to that part of the applicant’s submissions that were advanced underground 3 concerning s 473DC of the Act.

Ground 4

1. In relation to ground 4, Mr Zipser took the Court to the Authority’s reasons and, in particular, the period of almost a year where the applicant relied for subsistence upon his family. Mr Zipser submitted that the Authority had misconstrued the meaning of s 5J(5)(f) of the Act which relevantly is as follows:

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

2. The Authority’s reasons expressly refer to s 5J of the Act and annex to the reasons the relevant legislation including that provision. It is apparent that the Authority’s reasons took into account the applicant’s ability to obtain support from his family. That was a finding that was open to the Authority on the evidence before the Authority given the applicant’s support that he had received as identified in the Authority’s reasons from his family earlier. Section 5J(5)(f) of the Act refers to a “denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.”

3. I do not accept there is any misconstruction of the meaning of “serious harm” by the Authority as alleged by the applicant. Ground 4 is, in substance, an invitation to this Court to engage in impermissible merits review. I accept the first respondent’s submission that the words of s 5J(5)(f) of the Act are intended to convey that a person who is unable to earn an income will not suffer serious harm as defined if the person is able to avoid the situation where he or she is unable to subsist. If a person who is unable to earn an income is able to rely upon family support to subsist, then the denial of the person’s capacity to earn a livelihood will not threaten the person’s capacity to subsist.

4. Further, the Authority did not find that the applicant would be unable to earn a livelihood. To the contrary, the Authority found that whilst the applicant would have limited employment opportunities, the Authority was not satisfied the applicant would be denied the capacity to earn a livelihood. The Authority did not misunderstand or misapply the statutory definition of “serious harm”. No jurisdictional error as alleged in ground 4 is made out.

Conclusion

1. Accordingly, the amended application is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 December 2018