DOU17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 976
Federal Circuit and Family Court of Australia
(DIVISION 2)
DOU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 976
File number(s): SYG 2514 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 22 November 2022 Catchwords: MIGRATION – whether Authority overlooked document which was mistakenly thought to form part of review material – whether findings regarding where applicant was resident were open – alleged failure to consider a claim – alleged misapprehension that applicant would voluntarily return to his country of origin Legislation: Migration Act1958 (Cth) ss 5H, 5J, 5L, 46A, 473DC, 473DD, 473FB Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
BZC17 v Minister for Immigration and Border Protection (2018) 264 FCR 667
CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967
DPI17 v Minister for Home Affairs (2019) 269 FCR 134
DQU16 v Minister for Home Affairs (2021) 388 ALR 363
EEM17 v Minister for Immigration and Border Protection (2018) 265 FCR 527
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
SZNOE v Minister for Immigration and Citizenship [2012] FCA 96
XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 1 June 2022 Place: Sydney Counsel for the Applicant: Ms K Chan Solicitor for the Applicant Erskine Rodan and Associates Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents Minter Ellision ORDERS
SYG 2514 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DOU17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
22 November 2022
THE COURT ORDERS THAT:
1.The application filed on 8 August 2017, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 11 July 2017 affirming a decision of a delegate of the first respondent (delegate) not to grant him a Safe Haven Enterprise Visa (SHEV) (Court Book (CB) 160).
Background
The applicant is a citizen of Iraq who arrived in Australia on 26 November 2012 and is an unauthorised maritime arrival (CB 110). The Minister exercised his discretion under s 46A(2) of the Migration Act1958 (Cth) (Act) to allow the applicant to make a valid application for a specified visa, which he subsequently did on 17 June 2016 (CB 21).
The applicant claims to be a Shia Muslim who fears harm at the hands of the Asa'ib Ahl Al-Haq militia group (AAH) by reason of his work (CB 54-56). The applicant said he worked in a shop, which he named, that was located in his home area. The shop, and the business which operated from it, belonged to a friend of the applicant’s father whom he also named (shopkeeper). The business hired musical equipment (such as music decks and other audio visual (a.v.) items) for weddings and parties. The business sometimes set up the a.v. equipment, decorated cars for weddings, produced photographs and videos onto discs, and provided refreshments such as cakes, soft drinks and alcohol (CB 162 at [8] (bullet point 1)).
The applicant claimed that in late September 2012, a man came to the shop and spoke to the shopkeeper about the business carrying on activities which were considered “haram” (meaning un-Islamic and immoral). The man was said to have threatened the applicant and the shopkeeper if the business continued to operate. The applicant said that a few weeks later three masked men entered the shop and again told the shopkeeper that he was risking his life, and the lives of his family members and of the applicant, by refusing to close the business (CB 162 at [8] (bullet points 2 and 3)).
On 10 October 2012 the applicant’s brother found a threatening letter in the yard of the family home pertaining to the applicant’s work at the shop (threat letter). During the night on 15 October 2012 the applicant’s family discovered that their house was on fire. They stayed with relatives after the fire, and were visited by the shopkeeper who informed them that the shop, as well as a truck which contained a.v. equipment were also affected by a fire (CB 162 to 163 at [8] (bullet points 4 and 5)). The applicant and his family relocated to Basra and arrangements were made for the applicant to leave Iraq.
Following the lodgement of the applicant’s SHEV application he attended an interview on 27 February 2019, with a delegate of the first respondent at which the applicant expanded upon his initial claims. The applicant was accompanied at the interview by his (then) representative.
At the delegate’s interview the applicant explained that the shopkeeper was the person who had both sourced and supplied alcohol as part of the business, and that the applicant had nothing to do with that aspect of the business. The applicant said he did not even know if the shopkeeper was Muslim (CB 163 at [9]). The applicant also explained that his family remained in Basra in a rented house and that he later heard that his father had sold the family’s house in his home area. He claimed that in 2013 he was told by his brother that the shopkeeper had been murdered but was unaware as to when, or where, that had occurred. The applicant claimed that his family had then stayed in Basra for about 2 years before moving to a rural area, which was half way between Basra and his home area. The family did not receive any threats or contact from the AAH during that time. The applicant’s father later had a stroke and his family had been living off the proceeds of sale from the family’s home (CB 163 at [9] (bullet points 1 and 2)).
The applicant also claimed to fear harm as a failed asylum seeker who would be perceived to be a traitor and a spy and would be required to join the militias (CB 163 at [9] (bullet point 3)).
On 21 March 2017, the delegate refused to grant the applicant a SHEV (CB 110). The delegate's decision, being a fast track reviewable decision, was referred by to the Authority for review (CB 126).
On 6 April 2017 the applicant’s (then) solicitor sent a written submission to the Authority (CB 149 to 154). After setting out details of the applicant’s claims, the submission said the following (errors in original):
The delegate referred to some country information which talks about how the militias considers music shops as un-Islamic, In the same time the delegate suggested that the AAH group is fighting ISIS , I understand that the delegate was indicating to an idea that the AAH group has nothing to do with targeting music or alcohol shops (CB 151).
Immediately following that paragraph is an extract from what is said to be a report from “the Official Iraqi TV”(CB 151 to 152), directly following which the submission says:
Also another report talks about the following:
Basra has seen a recent increase in attacks. There were three shootings and 18 IEDs during the week almost all of which occurred in Basra city. First 12 music shops were bombed, then the secretary general of Hezbollah Iraq was assassinated, followed by the bombing of a Dawa official and then the Election Commission offices were shot at. The growing violence led some Iranian backed Hashd groups to call for them to take over security in the province, which got some push back from the head of the Basra council. While there is plenty of speculation on why music stores were bombed, the other incidents were obviously politically motivated.2
The footnote marked as “2” in that extracted passage corresponds with the following footnoted information:
>
On 11 July 2017, the Authority affirmed the decision under review (CB 160).
Authority’s decision
While the Authority accepted the applicant's account of events, it rejected his protection claims on the basis that they did not give rise to a real chance of serious harm or a real risk of significant harm, and made the following key findings.
Relevant to ground 1 before the Court is the following paragraph which is necessary to extract in full, together with its corresponding footnotes:
[The applicant’s representative] further discusses recent violence in Basra, as set out in the blogspot Musings on Iraq4. This was also referred to by the delegate and is not new information. He additionally refers to a recent story on the bombing of a musical equipment shop in Basra from 5 February 2017 and the escalation of attacks by Daesh/ISIS outside of Mosul5. This information predates both the PV interview and the delegate’s decision and the applicant is stated to have provided it to his then representative. As the applicant has not been a resident of Basra or the area around Mosul I am not satisfied that the Iraqi News article is relevant to his case or that there are exceptional circumstances which justify considering it.
The entry for footnote 4 of the extract referred to above is:
>
The entry for footnote 5 of the extract referred to above is:
>
Thereafter, the Authority:
(a)while accepting that the applicant worked in the shop renting musical equipment and that the business provided refreshments for parties including alcohol, was not satisfied that the applicant was involved in the provision of alcohol (CB 163 at [10]);
(b)accepted that the applicant received warnings and threats from the AAH and that his family home and the shop were burnt (CB 163 to 164 at [10] to [11]);
(c)accepted that the shopkeeper was dead, and that further details about his death were not known to the applicant (CB 163 at [10]);
(d)by reference to the threat letter, which demanded that the applicant was required to leave his home area or be killed, found that the applicant had complied with the AAH’s demands (CB 163 at [11]);
(e)despite the applicant’s claims that the AAH would continue to seek him out if he were to return to Iraq, found that based on the applicant’s own evidence his family had been living in Basra for 2 years following his departure and did not receive adverse attention from the AAH or militia, there was no other evidence that he or the family had been of interest to the AAH after they left his home area (CB 163 to 164 at [11]);
(f)accepted that while he may seek employment in retail, the applicant would not return to renting musical equipment or selling alcohol which it described as being “common ground” that he had not done so in any event (CB 164 at [12]); and
(g)noted that the applicant affected by the Department’s data breach and that it may become known on his return that he sought asylum in Australia but there was no evidence that the applicant’s information had been accessed by Iraqi authorities or any others in Iraq and that details of his protection claims were not made available (CB 164 at [13]).
The Authority noted country information indicating that Iraq's cultural scene was “flourishing” (CB 165 at [17]). Further, while the Authority accepted the applicant's claims about his experiences at the hands of the AAH, it found he was not “of any further interest” to them. Further, while politically active, the AAH was not part of the Government such that the applicant had a well-founded fear of harm at the hands of the authorities. Accordingly, the Authority did not accept the applicant would face harm on account of his previous activities working in the shop (CB 165 to 166 at [18]).
In terms of future employment, the Authority found that the applicant would not return to renting musical equipment due to his fear of harm. However, the Authority found that the applicant could take reasonable steps to modify his behaviour to avoid a real chance of persecution under s 5J(3) of the Act.
Accordingly, the Authority concluded the applicant did not have a well-founded fear of persecution for this reason (CB 166 at [19]).
The Authority noted that the applicant did not claim to fear harm as a Shia. Nevertheless, in light of the country information, it found that the applicant would not face harm as a result of sectarian conflict or as a Shia (CB 166 at [20]). The Authority also found that the applicant would not face harm on account of generalised violence (CB 166 to 167 at [21]), being expected to join the militias (CB 167 at [22]), or as a failed asylum seeker who would be perceived to be a traitor and a spy (as a result of the data breach or otherwise) (CB 167 at [23]).
For these reasons, the Authority rejected the applicant's claims and found he did not meet the requirements of the definition of refugee in s 5H(1) of the Act (CB 167 at [24]). For the same reasons, it was also found that the applicant did not satisfy the complementary protection criterion (CB 168 at [27]). In this context, the Authority also specifically found that the applicant's inability to work by renting musical equipment, would not amount to significant harm (CB 168 at [28]).
Application to for review
By an application to show cause dated 8 August 2017 the applicant seeks judicial review of the Authority’s decision. The applicant was legally represented from the inception of the proceedings.
On 8 November 2017 orders were made by a Registrar of the Court in chambers which provided, inter alia, for any amended application to be filed on or by 28 December 2017. Presumably, given that the applicant’s then solicitors had drafted the originating application they did not consider it necessary to amend at that juncture. On 27 January 2022, a Notice of Address for Service was filed for the applicant which had the effect of changing his legal representation to new solicitors. The matter remained in the central migration docket until when, on 4 May 2022, it was brought into my docket and I made orders that day for its preparation for hearing. As part of those orders I granted leave to the applicant to file any amended application on or by 9 May 2022.
On 9 May 2022, an amended application was filed which wholly abandoned the originating application and raised 6 grounds of review with particulars. On 18 May 2022, the applicant’s written submissions were filed appending a proposed further amended application which abandoned grounds 2 and 3, and amended others. The applicant said that the proposed further amended application sought to narrow the issues before the Court. The first respondent met the grounds raised by the proposed further amended application by his written submissions, and did not oppose leave being granted. Accordingly at the commencement of the hearing before me, I granted leave to the applicant to file and rely upon it. The further amended application was filed on 2 June 2022 in accordance with the grant of leave.
The grounds which therefore arise for consideration (but with original numbering retained) are as follows:
1. The IAA misapplied s 473DC of the Migration Act 1958 (Cth) or failed to take into account a relevant consideration when determining whether to consider information pursuant to that section.
Particulars
a. In support of the applicant’s claim, the applicant’s representative put forward country information relating to violence in Basra.
b. In considering whether to consider that Country information, the IAA wrongly assessed it as not being new information.
c. The IAA’s finding at [6] that “the applicant has not been a resident of Basra” does not mean the new information was not relevant as the IAA made a contradictory finding, when considering the applicant’s claims for protection, that the applicant did reside in Basra, or alternatively did not reject this claim: at [8], [9], [11].
d. It follows that the IAA constructively failed to exercise the power in s 473DC.
…
4. The IAA misapplied the test in s 5J(3) of the Act.
Particulars
a. The IAA failed to make findings concerning the particular social group to which the applicant could belong and as such, it could not assess, as required by s 5J(3), whether the steps it considered he could take to modify his behaviour may avoid a real chance of persecution for that reason.
5. The IAA failed to consider a claim that arose on the materials, being that the applicant faced a real chance of persecution by reason of the fact that his refusal to comply with the demands of the Asa’ib Ahl Al-Haq would impute him with “un-Islamic”, “immoral” or “haram” views and opinions.
6. The IAA failed to consider the applicant’s claim that he would not voluntarily return to Iraq.
Particulars
a. The IAA appeared to deal with the applicant’s claims on the basis that he would be a voluntary returnee in circumstances when he had made so such claim.
At hearing, Counsel for the respective parties addressed ground 5 before addressing ground 4 on the basis that ground 4 was said by Counsel for the applicant to be more appropriately characterised as an extension of ground 5.
The Court Book was received as Exhibit “1R”. For the applicant, the Affidavit of Gabrielle Campbell affirmed 18 May 2022 (Campbell Affidavit) was read, without objection. The Campbell Affidavit annexes a transcript of the applicant's SHEV interview which Ms Campbell prepared and also annexes following materials:
(a)Annexure “GC-1” is the article referred to referred to in paragraph [6] of the Authority’s decision (see [15] and [16] above) from a website known as “Musings on Iraq” entitled Violence In Iraq Feb 8-14 2017, dated 17 February 2017 (web article); and
(b)Annexure “GC-3” is the country information referred to at footnote 17 to paragraph [23] of the Authority’s decision being (DFAT Report).
Ground 1
The applicant’s first ground contends that the Authority misapplied s 473DC of the Act.
This is said to have occurred at [6] of the Authority’s reasons (CB 161 to 162) the relevant background to which is set out at [10] to [12] and [15] above. In essence, the applicant’s solicitor made a submission to the Authority. In so doing, after summarising the applicant’s claims, the solicitor said that (emphasis added): “The delegate referred to some country information which talks about how the militias considers music shops as un-Islamic…”, following which he extracted two reports.
The Authority made reference to this information as having been:
…also referred to by the delegate and is not new information…
The origin of the Authority’s mistake is apparent. The written submission was highly ambiguous when stating that the delegate referred to “some country” information between setting out two pieces of country information and failing to highlight that only the first of these was before the delegate, and that the second of them was not. A plain reading of the submission, without any verification, understandably led the Authority to believe that the country information described was part of the review material, and not new information. However, the fact that the applicant’s written submissions likely induced the mistake, does not (in the present context) inform whether the Authority committed jurisdictional error.
It is not in dispute between the parties that the web article was not referred to by the delegate.
The applicant says that by reason of that fact, the web article satisfies the first limb of the definition of “new information” in s 473DC(1) of the Act and that the Authority was obliged to consider whether it may be relevant pursuant to the second limb of s 473DC(1), before deciding whether web article, was or was not, “new information”.
The applicant alleges that the Authority wrongly assessed country information as not being new information, when it in fact was. As a result the applicant says that this resulted in a material breach of s 473DC of the Act, which provides:
473DC 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.
It is also not in dispute that having mistakenly thought that that the web article was considered by the delegate, and therefore part of the review material such that it was not new information, the Authority did not undertake the assessment process which was required under s 473DD of the Act.
The applicant says that the Authority’s failure to apply s 473DC constitutes a failure to exercise jurisdiction that was material because the content of the web article was such that its consideration could have resulted in a different decision being made. This was said to be because it supported the applicant’s claim that he would be noticed and attacked upon his return to Iraq, irrespective of his location (CB 48 to 50).
The applicant contends that if the Authority had correctly applied s 473DC(1), it would be open to the Court to safely infer there was at least a realistic possibility that the Authority could have found information about the bombing of music stores may be relevant to its review, which would have obliged it to apply the criteria in s 473DD of the Act.
The first respondent says that the absence of the Authority’s reference to the web article does not mean that it was not considered. Rather, that the Authority's finding that the web article was not new information means that it thought the web article formed part of the review material. I agree.
In the absence of any evidence to the contrary, there is no basis to infer that the web article was not considered by the Authority, particularly as it was seen as having formed part of the general material sent to it by the Secretary. There is nothing before the Court to suggest that this misapprehension resulted in the content of the web article being overlooked, considered unfairly or to the applicant's detriment, such as the Court should not find that the Authority had made a material error: CfEEM17 v Minister for Immigration and Border Protection (2018) 265 FCR 527 (EEM17) at [45] per Barker, Griffiths and Moshinsky JJ and BZC17 v Minister for Immigration and Border Protection (2018) 264 FCR 667 at [56] per Mortimer J.
Even if I am wrong in that regard, in my view the error would not constitute a jurisdictional error because it was not material.
The first respondent relies on s 473FB of the Act, which provides that the Authority is not required to accept new information or documents from a person if they have failed to comply with the Authority’s practice direction. Relevantly, the practice direction which applied at the time of the applicant’s review by the Authority (being the practice direction dated 6 February 2017) provided as follows (emphasis added):
If you provide or refer to new information such as country information reports or media articles, you must provide a copy of that information or extract part(s) of the information on which you rely. You must identify the source of the information. Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.
(CB 136 at [26]).
The applicant’s solicitor did not provide the web article to the Authority in full. As set out at [12] above, the reference to the web article was a hyperlink contained in a footnote. Accordingly, and by reference to s 473FB and the relevant practice note, the first respondent says that there was no occasion for the Authority to exercise its discretion to get new information under s 473DC of the Act. That is said to be moreso because the Authority was not considering a completely new issue in the review, nor significantly departing from a finding of the delegate on a particular matter: CfMinister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82] per Robertson, Murphy and Kerr JJ; and DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at [41] per Griffiths and Steward JJ.
It is not for the Court to consider the content of the web article and decide for itself the relevance of the web article or whether as a result of it a different result ought to have occurred. Rather, in applying the counterfactual, it is relevant to understand how the applicant contends the article could have resulted in a different decision within the context of the applicant’s claims, the Authority’s findings and the manner in which the applicant says the article could have assisted him.
Having regard to the content of the article which was relied upon (see [12] above) in the written submission made for the applicant to the Authority, and against the applicant’s own claims and the Authority’s findings, I am of the view that even if the web article had been considered as new information, it could not have resulted in a different decision being reached. That is because:
(a)contrary to what is asserted for the applicant, the fact that the Authority made findings about the applicant not residing in Basra extinguished the possibility that the article, even if considered, could have resulted in the Authority finding being different. That is particularly so when regard is had to the Authority’s findings relating to other country information about Basra (in respect of which it had not been mistaken as to whether it was new information for the purposes of ss 473DC and 473DD);
(b)on the applicant’s own evidence his family were themselves not resident in Basra, having moved to a rural area closer to the location of their home area;
(c)the extract from the web article which was relied on was not clear as to what constituted a “music shop” nor whether the shop/business in which the applicant worked would be so construed;
(d)the Authority’s findings about the applicant’s likely retail activities on return; and
(e)that contrary to the assertion of the applicant that “if the new information about the bombing of 12 music shops had been considered, the Authority may have formed a different view to that (at CB 165 at [17]) about the purported absence of “direct attacks” on individuals engaging in “un-Islamic” or “Western” activities”, the part of the web article which was specifically extracted in the applicant’s submission to the Authority said that while there was speculation about the motivation for the bombings of music stores “the other incidents” referred to were obviously politically motivated. The effect of this was to make equivocal the motivation for the attacks on music shops.
Accordingly, even accepting for the purposes of the counterfactual that the Authority did not consider the web article, it is not open to infer that the article could have resulted in the Authority reaching a difference decision. As noted above at [41], there is nothing before me to indicate that the article was used in any way to the applicant’s detriment: Cf EEM17 (supra). In my view, the Authority having mistakenly failed to consider the web article through the prism of s 473DC did not give rise to a jurisdictional error.
The second limb to ground 1 relates to the Authority’s findings regarding the applicant being resident in Basra. As noted, as part of findings pertaining to country information which the Authority did consider by reference to s 473DD (see [17] above) the Authority found that:
As the applicant has not been a resident of Basra or the area around Mosul I am not satisfied that the Iraqi News article is relevant to his case…
The applicant says that this finding is contrary to evidence that he resided in Basra in October 2012 after his family home was set on fire, making specific reference to paragraph [16] of a Statutory Declaration which made by the applicant in June 2016 and submitted as part of his SHEV application (CB 55). Paragraph [16] of that Statutory Declaration (anonymisation added) commences thusly:
On 18 October 2012, we moved to Al Basra City [STREET]. There, my Father arranged with a friend of his called [NAME] who knew another man that would prepare my papers to depart from Iraq. [NAME] took my passport to give to the man who arranged for my travel.
Paragraph [17] of the Statutory Declaration commences:
On 3 or 4 November 2012, I fled Iraq to Abu Dhabi on transit to Indonesia.
There is nothing erroneous in the Authority’s conclusion that the applicant was not a resident of Basra. The finding in this regard was entirely open on the evidence before it, which included:
(a)by reference to his own Statutory Declaration and the applicant’s written submissions to the Authority (CB 151), the applicant was only in Basra for 14-15 days (see [49] to [50] above) in the urgent circumstances which followed the burning of his family’s house which was in a different part of Iraq; and
(b)the applicant’s family, while later renting a house in Basra and selling the family’s house (an event which appears to have taken place after the applicant’s departure from Iraq (CB 163 at [9] second bullet point)), ultimately did not stay in Basra and eventually moved to a rural location between Basra and their home area (CB 163 at [9] second bullet point), such that his family were also not resident in Basra. Given the applicant claimed no other connection with Basra, nor that he would reside there on return further, this supported the general temporariness of his being there.
For these reasons I accept the first respondent’s submission that it was open to the Authority to conclude that country information pertaining to Basra was therefore not relevant to the applicant,: see CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967 per Logan J at [10].
Ground 5
By ground 5 the applicant contends that the Authority failed to consider a claim which arose on the material, namely that he faced a real chance of persecution by reason of having refused to comply with AAH’s demands he would be imputed with “un-Islamic”, “immoral” or haram “views and opinions”.
Relying on the Full Federal Court’s decision in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503, the applicant says that his claims extended not simply to his work in the shop but that he would be targeted by AAH members because he had defied them. In support of this claim, the applicant relied on [20] of his Statutory Declaration which says (CB 56):
I fled Iraq, fearing for my life as a I was targeted by these people of [AAH] because I didn’t follow there demand to stop working at the shop with [shopkeeper] selling alcohol drinks for parties and renting out CDs, music and instruments which is haram.
Next, the applicant says the nature of the threat that was made, and its terms, are relevant to the question of whether there can be said to have been compliance by the applicant. An English translation of the threat letter (which was before the Authority (CB 163 at [11])) is at CB 57. It is dated 10 October 2012 and will not be set out in full, lest its full text somehow makes the applicant identifiable. After referring to the array of conduct which is said to offend, the letter concludes:
Thus be warned, you must leave the town or else we will murder you and every member of your family. This is the last warning.
The applicant says that, having not complied with the threat letter and having not left his home area, the next event was the burning down of his family’s house. It was submitted for the applicant that on the chronology of events before the Authority, the applicant and his family did not leave his home area in response to the demand he do so, but instead fled from fear following the fire. The applicant says that error alleged is not one of illogicality or unreasonableness, but a failure by the Authority to understand the claim being made.
Next, the applicant points to an exchange with the delegate at the SHEV interview, the transcript of which forms Annexure “GC-2” to the Campbell Affidavit, page T17 of which records the exchange as having occurred (anonymisation added):
Delegate: Alright, so the goal of AAH was to stop you from selling musical instruments. I’ll just say to stop you working in the music shop. It’s clear that the threats were sent to you and [the shopkeeper] because of this, you haven’t been working in this type of work for 4 years, so my question is why would they still be interested in you?
Applicant:Firstly [the shopkeeper] was killed, and whoever they are after their policy is that they have to finish him. That’s how they think. Secondly they saw me personally with [the shopkeeper] twice, they have my full name, [DOU17], and I am threatened by them, I’m targeted by them. If I go back and they get hold of me, what guarantee is there that they will not kill me?
Delegate: The reason I ask it is because they came to the shop, the first time they spoke to [the shopkeeper], and then the second time they came with 3 people. After that you stopped, you did exactly what they wanted you to do.
Applicant:Yes, but [the shopkeeper] continued to open the shop so that people would return whatever was hired out. The way they think is that if the shop is still in operation it means that you are insistent on doing the work, and they are of the belief system that we should have paid heed to the warning right from the beginning when that man came initially, and we didn’t comply
For the applicant, it was contended that his claim was that leaving his home area was not sufficient to constitute compliance with the demand in the threat letter, and that, having not complied in a timely way with the threat letter (evidenced by the subsequent burning down of his family home) there remained residual retribution which would take place, namely that he and his family members were still the subject of a threat to kill them.
Next the applicant says that this integer of his claims was clearly overlooked when regard is had to [11] of the Authority’s reasons for decision. By that paragraph, the Authority concluded that the AAH had demanded that the applicant leave his home area, which he eventually did, and that because:
…
the applicant and his family did leave [HOME AREA] or (sic) about 18 October 2012, the applicant complied with the demands of the AAH.
At first blush it may seem open to accept that there was a residual aspect to the applicant’s claimed fear of harm and that this was not met by the Authority’s finding at [11] that compliance with the threat letter was achieved simply by having departed after the family house was burnt.
However, that is not the end of the Authority’s findings in this regard. A full, contextual and beneficial reading of the Authority’s reasons for decision (see XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535 per Perry, Banks-Smith and Anderson JJ at [27]), indicates that the Authority also dealt with any residual threat, albeit not in express terms by reference to the threat letter. Nonetheless in my view, the findings were sufficient to substantively meet the applicant’s claims and the integers thereof.
Firstly the Authority acknowledged that, differently than had been extant at the time of the applicant’s departure from Iraq, country information indicated that the arts and cultural scene in Iraq was “flourishing” (CB 165 at [17]).
Secondly, and having accepted the applicant's central claims about the past harm he had experienced at the hands of the AAH, it nonetheless found he was “not of any further interest” to the AAH and that he would not face harm by reason of his past activities working in the shop (CB 166 at [18]). Subsumed within those findings was a consideration that simply having fled from his home area was not a complete answer to his claim to fear harm for past activities which were, or may have been imputed to be, haram. While the Authority accepted the applicant would not return to work of a similar nature to that which he had undertaken at the shop, because of his his subjective fear of harm, I accept the first respondent’s submission that the Authority did not make any positive finding that fear was well-founded (CB 166 at [19]). The Authority also found that the applicant would not be subject to significant harm (CB 168 at [28]).
To the extent that this ground also suggests that there was an additional claim left unconsidered but was said to have “emerged tolerably clearly” from the materials, being that the applicant feared persecution because of his actual or imputed anti-Islamic/pro-Western political opinions and/or by reason of his membership to a particular social group, I do not accept this characterisation.
The first respondent says that a proper reading of the Authority’s reasons for decision reflects that it understood both the nature and substance of the applicant’s claims and made dispositive findings addressing them. In particular, the Authority:
(a)appreciated that the applicant's claim that his activities were perceived to be “haram”, “un-Islamic” or “Western” (CB 165 at [16 to [17]);
(b)expressly found that the applicant would not be “imputed with any un-Islamic opinion or views” due to his activities (CB 166 at [18]); and
(c)was not required to determine whether any claimed particular social groups exist, in circumstances where the substance of the applicant’s claims were rejected, citing SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78] per Greenwood J.
In my view, read fairly and contextually there is no basis to the assertion that the Authority misapprehended the applicant’s claims as expressly made or otherwise arising from the materials. Accordingly, ground 5 is not made out.
Ground 4
As noted ground 4 is said (by the applicant) to be an extension of ground 5.
By this ground the applicant contends the Authority misapplied the test in s 5J(3) of the Act. Sub-section 5J(3) provides:
(3) A person does not have a well founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
The applicant says that because the Authority failed to consider whether he was a member of a particular social group pursuant to s 5L of the Act, it therefore could not assess whether he could take reasonable steps to modify his behaviour to avoid persecution, as required by s 5J(3). That particular social group is said to be comprised of “persons accused of un-Islamic behaviour, or who contravene…Islamic practices or social norms”. The applicant submitted that the alleged error was material because had the Authority identified him as a member of that particular social ground, then by reason of his past conduct, such “un-Islamic” behaviour was unchangeable and immutable. The applicant said that this was of particular relevance given the Authority’s finding that the applicant “would be likely to seek employment in the retail field, if he were to return to Iraq” (CB 166 at [19]) which would mean that there was a realistic possibility that in seeking such employment he would need to disclose his work in the shopkeeper’s business as being part of his employment history/experience.
By reason of the findings made in respect of ground 5, it was unnecessary for the Authority to consider s 5J(3) of the Act and I accept the first respondent’s submission that by not doing so, there is no error because the applicant did not claim to be a member of a particular social group. I also agree that, in any event, the finding by the Authority that working in musical instrument or equipment hire or sales would not conflict with fundamental characteristics of the applicant’s identity was open: see DQU16 v Minister for Home Affairs (2021) 388 ALR 363 per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ at [35].
A fair and contextual reading of the Authority’s reasons for decision in respect of the refugee criterion demonstrates its understanding of the applicant's claim that his activities were perceived to be haram (see CB 165 at [16] to [17]). Further, and in the context of the complementary protection criterion, the Authority correctly identified the statutory question and made dispositive findings at [28] of its reasons for decision (CB 168): see DQU16 (supra) at [36] to [37].
Ground 6
The final ground for review which was pressed contends that the Authority failed to consider the applicant’s claim that he would not voluntarily return to Iraq, and that its consideration of the risk of persecution as a failed asylum seeker which the applicant would face was contingent upon an erroneous assumption that the applicant would be a voluntary returnee. The basis for this said to arise from [23] of the Authority’s decision (CB 167). It is relevant to set out the entire of that paragraph, with emphasis added to the particular sentence upon which the applicant relies in support of this ground.
The delegate has also considered whether the applicant will be targeted by the authorities, should he return to Iraq, as they are aware that he sought asylum in Australia. In relation to this, the 2015 DFAT country report provides that there is no evidence to suggest voluntary returnees from the West are not assimilated back into their communities17. Further to this, the report states that a credible international organisation was aware of over 100 Iraqis who had returned to southern Iraq having failed to receive asylum in Australia and that organisation was not aware of any of these returnees facing significant problems18. The country evidence does not support the claim that returnees are considered to be spies for the West or traitors. I am not satisfied that the applicant faces a real chance of harm on the basis that he has spent time in Australia or that he unsuccessfully sought asylum in Australia, or that his details were briefly available on-line due to the Department’s data-breach.
The footnote marked as “17” in the aforementioned corresponds with the following footnoted information:
17 DFAT, “DFAT Country Report, Iraq”, 13 February 2015, CISEC96CF1160, 5.27
being the DFAT Report referred to at [29(b)] above forming Annexure “GC-3” to the Campbell Affidavit.
A full, contextual and beneficial reading of the Authority’s reasons does not support the error contended for by this ground.
Firstly, neither before the delegate nor the Authority did the applicant make a claim as to whether his return would be willing, or otherwise. The applicant’s claims regarding his failed asylum seeker status on return were expressly made on the basis that he would be perceived as a spy and a traitor (with an additional claim regarding the data breach). Accordingly, there was no limitation by reference to the nature of his claims which means that the Authority having regard to information which pertained to voluntary returnees constituted a misunderstanding of his claims or constituted an irrelevant consideration.
Secondly, given that there was no limitation as referred to above, while it is true that the sentence in question relates to voluntary returnees, that does not constitute a finding that the applicant would necessarily be one such returnee. Rather, the Authority simply set out one particular source of country information relating to returnees. The balance of the paragraph includes other sources which are neutral as to willingness of return or otherwise.
Ground 6 does not give rise to any error. Even if I were wrong in that regard, I agree with the first respondent that the applicant has not discharged his onus in respect of establishing materiality: see MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [39] .
Conclusion
The applicant has failed to establish jurisdictional error by any of the grounds pressed in the further amended application. The decision of the Authority is therefore a privative clause decision and the application, as amended, must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 22 November 2022
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