DPJ17 v Minister for Immigration

[2020] FCCA 2103

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPJ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2103

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise visa – whether the Authority made an unreasonable or illogical finding of fact – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 476

Applicant: DPJ17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2533 of 2017

Judgment of: Judge Manousaridis

Hearing date: 9 June 2020

Date of Last Submission: 9 June 2020

Delivered at: Sydney

Delivered on: 4 August 2020

REPRESENTATION

Counsel for the Applicant: Mr O Jones, by video

Solicitors for the Applicant: Stamford Law Firm

Counsel for the First Respondent: Ms K Hooper, by video

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2533 of 2017

DPJ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The question that arises in this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Authority), in affirming the decision of a delegate of the first respondent not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV), made and relied on a legally unreasonable finding of fact and, for that reason, made a jurisdictional error.

2. To be in a position to determine this question, it will be necessary to set out the applicant’s claims for protection, and the reasons for which the Authority affirmed the delegate’s decision.

Claims for protection

1. The applicant is a citizen of Iraq and was born in Basra province. The applicant claimed as follows:[1]

   [1] CB110-114

   a)The applicant’s uncle, Mr A, sold alcohol that he obtained from contacts in Baghdad. Mr A decanted the alcohol into plastic soft drink bottles and stored them in a room his house.

   b)The applicant worked for Mr A. He delivered the alcohol contained in the soft drink bottles by bicycle after school and during school holidays.

   c)The applicant was not a committed Muslim. He drank socially, and believes in the freedom of people to drink and have fun. The applicant’s parents, however, knew there was a huge risk with selling alcohol. Mr A convinced the applicant’s parents that he was taking precautions to protect the applicant from danger.

   d)Militia groups who subscribed to a very strict version of Islam regularly patrol the applicant’s area. They did not allow people to drink or sell alcohol because the militia groups believe that the consumption of alcohol is against Islam. Anybody who sold alcohol is at risk of being killed.

   e)Mr A received regular threats from the militias in relation to his work. The threats were made by SMS messages to Mr A’s phone, and also by “letter-slips” dropped at Mr A’s door step which were often accompanied with a bullet. As a precaution the applicant and his family moved to another area, while Mr A ran away to hide also in another area. A few months later the applicant found a letter threatening to kill him and his family if the applicant and his family did not leave their home, and demanding that the applicant hand over Mr A to the militia. The applicant reported the threats to the police and the courts, “but they were useless”.

   f)In 2012 Mr A was kidnapped by an unknown militia group. The applicant’s father called the applicant to warn him that it was not safe for the applicant to remain in the area, and that he should stay with one of his father’s friends in another area. The applicant went to his father’s friend’s house that night.

   g)Ten days after Mr A’s abduction, his body was found. The applicant was sure the militia group that had kidnapped Mr A had killed him.

   h)During the ten days Mr A was missing, and in the weeks that followed, the applicant’s father received threatening SMS messages from unknown persons demanding to know the applicant’s whereabouts. The applicant and his father believed these threats came from the militia group that had abducted and killed Mr A. On his father’s advice, the applicant left Iraq.

   i)After the applicant departed Iraq, his father continued to receive threats in relation to the applicant’s whereabouts. The applicant’s family relocated to a remote area, where they remain today.

   j)The applicant fears that if he returns to Iraq, he will be abducted and killed like Mr A; and he believes this will occur because he had sold and distributed alcohol in his local community; and also because of his familial and working relationship with Mr A who was known by the militia groups to sell alcohol.

Authority’s reasons

1. The Authority accepted the applicant worked for Mr A making deliveries of alcohol to Mr A’s customers;[2] and found the applicant’s family was aware of Mr A’s longstanding business, and the applicant’s role in it.[3] The Authority did not accept the applicant had been targeted for his links to Mr A or his role in Mr A’s business;[4] or that the applicant’s brother had been shot (as the applicant claimed before the delegate).[5] The Authority found the applicant left the family home in 2011 and from that point he was no longer involved in Mr A’s alcohol supply business.[6] The Authority did not accept the submission made on the applicant’s behalf that, because of his lack of education and other skills, the applicant would have no options other than selling alcohol if he were to return to Iraq; and the Authority found the applicant had skills and experience to find other jobs, and that he will not sell alcohol on return to Iraq.[7] The Authority also accepted the applicant is not a committed Muslim, and that he drinks socially.[8]

   [2] CB212, [11]

   [3] CB213, [11]

   [4] CB213, [15]

   [5] CB213, [15]

   [6] CB213, [15]

   [7] CB214, [16]

   [8] CB214, [17]

2. Having made these findings, the Authority considered whether the applicant was a “refugee” within the meaning of s.5H of the Act. The Authority was not satisfied the applicant has a well-founded fear of harm from militia groups based on the applicant’s having delivered alcohol as part of Mr A’s business. The Authority relied on its not having accepted the applicant’s claim that he had been targeted by militia groups; and also on country information that did not suggest that persons who had previously sold alcohol are targeted for harm after they have stopped selling alcohol.[9]

   [9] CB215, [20]

3. Particularly relevant to the question I must decide in these reasons is the Authority’s consideration of the applicant’s claim that he fears serious harm due to drinking alcohol. The Authority considered that claim as follows:[10]

   Considering community attitudes towards the consumption of alcohol, country information from 2012 notes that in the major cities of Baghdad, Basra, Kirkuk and Mosul, alcohol shops and bars were severely restricted by the conservative political and social atmosphere, and have been the subject of attacks by militia groups. In October 2016 legislation was passed that banned the import, production or selling of alcoholic beverages. In terms of the risk of harm to people that consume, as opposed to sell, alcohol, the country information does not indicate that they are targeted by militia groups or individuals, despite their actions contravening Islamic rules. I am not satisfied that there is a real chance of serious harm to a person who consumes alcohol.

   [10] CB215, [21]

4. The Authority was also not satisfied that the applicant had a well-founded fear of persecution because he is a Shia Muslim,[11] or because he has sought asylum in Australia.[12] Based on these findings the Authority was not satisfied the applicant is a “refugee”;[13] and also concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country there is a real risk the applicant will suffer significant harm.[14]

   [11] CB215-216, [22]

   [12] CB216, [23]

   [13] CB216, [24]

   [14] CB217, [29]

Ground of application

1. The applicant relies on the following ground contained in the amended application:

   The Authority made a jurisdictional error by making a legally unreasonable finding of fact.

   Particulars

   a.The Authority found at para 17 of its decision that the Applicant is not a committed Muslim and drinks alcohol socially.

   b.The Authority found at para 21 of its decision that alcohol shops and bars had been the subject of attacks by militia groups.

   c.The Authority found at para 21 of its decision that legislation had been enacted banning the import, production or selling of alcoholic beverages.

   d.The Authority unreasonably found at para 21 of its decision that there was not a real chance of serious or significant harm to a person who consumes alcohol.

   e.The Tribunal failed to consider whether the Applicant could reasonably modify his conduct in drinking alcohol for the purposes of s 5J(3) of the Act or, by implication, s 36(2)(aa) of the Act.

2. In his counsel’s written submissions, the applicant submits that, given the Authority accepted that alcohol shops or bars had been the subject of attacks by militias; that legislation had been passed banning the importation, production, and sale of alcohol; and there is no separate targeting by the militias of persons who consume alcohol, the Authority’s conclusion that it was not satisfied there was relevant harm to a person who consumes alcohol “is a non-sequitur”.[15] That is because, although it may be the case that persons who consume alcohol are not separately targeted by the militias, that does not mean those persons may not face relevant harm as a result of attacks on alcohol shops or bars. The applicant submits that it may be assumed that he would not try to produce his own alcohol, but that he would obtain alcohol from shops or bars. That would entail the applicant being present at those shops or bars and, therefore, subject to the risk of harm from militias who attack shops or bars that sell alcohol.[16] The applicant further submits that if he refrained from attending alcohol shops or bars, he might engage in the production of alcohol in his home; but if he did so, he could face pecuniary or custodial penalties under legislation banning the importation, production, and sale of alcohol.

   [15] Submissions for the Applicant, [8]

   [16] Submissions for the Applicant, [8]

3. In his counsel’s written submissions, the Minister submits that the Authority’s findings did not require the applicant to modify his behaviour; and the Authority was not required to consider whether the applicant could reasonably modify his behaviour. The Authority assessed the risk of harm to the applicant on the basis of a finding that he would continue to consume alcohol if he were to return to Iraq. Further, the applicant did not claim he would become involved in the production of alcohol in his home.

4. The ground and submissions on which the applicant relies are based on two implicit assumptions. The first is that, on the material before it, the only way a person in Iraq could consume alcohol was by that person either acquiring alcohol from alcohol shops or bars, or by producing alcohol at home. The second, and related, assumption is that there was material before the Authority that was sufficient to raise as a question whether these were the only two means by which a person could acquire alcohol in Iraq. These premises are not correct.

5. The evidence before the Authority was that the applicant participated in a business in which Mr A acquired alcohol in bulk which was decanted into soft drink bottles which, in turn, were delivered to the homes of consumers. The evidence before the Authority, therefore, was that a person could acquire alcohol from persons who conducted a business along the lines of the business Mr A conducted, which means that it is possible that a person could consume alcohol without attending a shop or a bar, and without having to produce it at home. The Authority’s conclusion that it was not satisfied the applicant faced a real risk of harm because he would consume alcohol on his return to Iraq was not irrational or unreasonable; and that is because the Authority’s acceptance that the applicant would consume alcohol on his return to Iraq did not entail the proposition that on his return the applicant will acquire alcohol from a shop or bar, or that he will produce alcohol at home.

6. Further, there was nothing in the material before the Authority that ought reasonably to have led the Authority to believe the applicant claimed that on his return to Iraq he would acquire alcohol from alcohol shops or bars, or that he intended to produce alcohol himself. The applicant did not claim he visited, or on his return to Iraq he will visit, alcohol shops or bars; or that he produced, or on his return he will produce, alcohol. In those circumstances, given there was evidence before the Authority that the applicant worked in a business that distributed alcohol that was neither a shop nor a bar, it is reasonable to infer that the Authority assumed that the applicant will acquire alcohol in a manner similar to which customers of Mr A’s business acquired alcohol.

7. The ground on which the applicant relies, therefore, fails.

Disposition

1. I propose to order that the application be dismissed.

2. At the hearing counsel for the parties agreed that costs should follow the event. Ms Hooper, who appeared for the Minister, informed me that if the Minister were to succeed, he would seek an order that the Minister’s costs be set in the amount of $6,100. I propose, therefore, to order that the applicant pay the Minister’s costs set in that amount.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 4 August 2020