DQU16 v Minister for Immigration
[2017] FCCA 1818
•3 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DQU16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1818 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for Temporary Protection Visas – the Authority correctly applied s.5J of the Migration Act – the Authority made adverse findings that were open – the Authority did not take into account irrelevant considerations – no jurisdictional error identified – further amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AA(1A), 5J, 5H, 36, 473CB, 473DD, 476 |
| First Applicant: | DQU16 |
| Second Applicant: | DQW16 |
| Third Applicant: | DQV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3375 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 3 August 2017 |
| Date of Last Submission: | 3 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr A Alkafaji Stamford Law |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant file and serve a further amended application on or before Monday 7 August 2017 including the grounds identified in order 2.
Leave to the applicant to rely upon a new paragraph 3(d):
“The IAA decision is disproportionate by giving excessive weight to a matter of very minor importance, being the phone call, and/or by giving little weight to a very important factor, being the video clip.”
and to add a Ground 4:
“The IAA failed to properly apply the complementary protection criteria.”
The further amended application is dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3375 of 2016
| DQU16 |
First Applicant
| DQW16 |
Second Applicant
| DQV16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority) under Part 7AA made on 2 November 2016, a decision of the delegate not to grant the applicants protection visas.
The second and third applicants, the mother and son, did not advance their own claims for protection but were included as members of the family unit. The claims for protection were advanced by the first applicant father and husband.
The first and second applicants entered Australia as unauthorised maritime arrivals on 23 August 2012 and the third applicant was born thereafter in the migration zone and is deemed to be an unauthorised maritime arrival under s.5AA(1A) of the Migration Act. The first applicant claimed to fear harm by reason of persecution at the hands of Iraqi religious group such as the Mahdi Army for engaging in the distribution of alcohol in his hometown.
The first applicant claimed to be a member of a particular social group comprising “liquor or alcohol businessmen” and claimed to fear harm by reason of his imputed political opinion as somebody who sold alcoholic beverages. The first applicant identified various incidents where he alleged he was followed by vehicles and shot at.
The first applicant claimed that the Iraqi authorities could not provide any sufficient protection as they were ineffective against groups such as the Mahdi Army. The first applicant claimed he could not relocate within Iraq given the presence of the Mahdi Army throughout the country and the presence of sectarian violence.
The applicants applied for protection on 31 August 2015. On 9 September 2016, the delegate refused to grant the applicants protection visas and found the applicants failed to meet the criteria under the Migration Act. The delegate found that the applicants were not excluded fast track applicants.
The Authority
By letter dated 15 September 2015, the Authority wrote to the applicant identifying that the matter was referred to the Authority for review. The Authority identified there were limited circumstances in which the Authority could receive new information, and attached a fact sheet and practice direction, giving the applicant an opportunity to provide submissions and new information.
Information before the Authority
The Authority in its decision, identified the background to the application for the protection visas and had regard to the material referred under s.473CB of the Migration Act. The Authority identified and had regard to the submission received on 4 October 2016.
The Authority identified certain online information that was provided with the submission and found that there were not exceptional circumstances to justify considering that information and was not satisfied that s.473DD(b) of the Migration was met. The Authority referred to further information provided in relation to alcohol-sellers being targeted and was not satisfied that there were exceptional circumstances and was not satisfied that the information met s.473DD(b)(i) of the Migration Act. The Authority was not satisfied that the information was credible personal information within s.473DD(b)(ii) of the Migration Act.
The Authority identified having received a CD containing a video clip which was referred to in the post-interview submission and was before the delegate. Accordingly, the Authority identified it had regard to that video clip. The Authority identified the applicant’s claims and correctly set out the relevant law.
Refugee convention criteria assessment
The authority, in its reasons, referred to an UNHCR report, particularly at page 321 of the Court Book. This Court was taken to that part of the UNHCR report which dealt with the singling out for attacks of persons who were engaged in the profession of providing goods and services considered immoral and in that regard, referred to the selling of liquor and that such persons are considered as engaging in “un-Islamic” practices.
The Authority also referred to the YouTube video clips that were provided in relation to alcohol being prohibited by Islam and that Muslim alcohol sellers are targeted and punished by the Mahdi Army in the applicants’ hometown. The authority made reference to the date of publication of some of the videos being unclear and that the source of the videos and their exact location in which they were filmed was not clear. The Authority observed, given the provenance, nature of the contents of the youtube video clips, the Authority gave them little weight.
The Authority referred to the English subtitles and did not accept that a particular video on 11 July 2007 shows the torturing of an alcohol-seller in 2012. The Authority identified problems as to the source of the video being unclear. The Authority was however, prepared to accept that the Mahdi Army prohibits the sale and consumption of alcohol in the applicants’ hometown and that that was consistent with the UNHCR information that alcohol is considered “un-Islamic” or “immoral behaviour” and are forbidden and prohibited in primarily conservative Shia areas in southern Iraq.
The Authority was prepared to accept that the first applicant’s cousins were found drinking and were beaten and whipped and that the first applicant had a friend who works in the field who was injured by the Mahdi Army. The Authority was also prepared to accept the post-interview submission that in Iraq, prohibition on alcohol makes alcohol selling a viable business from a monetary perspective and that Kurds are known to smuggle liquors between Iraq and Iran, and selling alcohol is a risky but common business in Iraq.
The Authority made reference to the first applicant’s claims that he was informed in the beginning of 2012 that members of the Mahdi Army were planning to kill him. The first applicant also made reference to someone following him towards the beginning of 2012.
The Authority identified the difference between the written statement and the TPV interview. The Authority found that there was no mention of the first applicant being fired at during the first car chase incident or that the police also heard of the fire in the first applicant’s statement. The Authority observed that the incidents of the car chase and being fired at were significant incidents.
The Authority noted the written statements, made a year after the first applicant’s journey to Australia, and found that the omission or the problems in his evidence was not due to any effect from the boat journey.
The Authority made adverse credibility findings in regard to the applicant’s claims concerning being shot at and the car chase. The authority also made reference to the first applicant’s claims about going into hiding and the first applicant departing Iraq from Basra Airport, and that the timing and location of the marriage appeared at odds with the first applicant’s claim that he was hiding in Baghdad.
The Authority also made reference to an alleged threatening telephone call, and made observations about the lack of ability to provide details, and the Authority made adverse credibility findings in relation to that telephone call.
The Authority did not accept the first applicant was followed by the Mahdi Army, militia, chased by a car or motorbike, shot at or that he made complaints to the police, that he was in hiding in Baghdad or fled Iraq due to a fear arising from those incidents. The Authority did not accept the first applicant received threatening calls, that he is of interest to the Mahdi Army, the Suyuf al-Haq, militias, the authorities or anyone for reasons relating to selling alcohol.
The Authority was not satisfied that the first applicant is or was of interest to anyone for selling alcohol in Iraq. The Authority did not accept that after he arrived in Australia, the Mahdi Army, the militias or anyone has approached his family home to search for alcohol, inquired about him, or threatened his family to tell them his whereabouts. The Authority found the first applicant and his family do not face a real chance of harm on these bases now or in the reasonably foreseeable future.
The Authority referred to an incident the first applicant alleged occurred in which some of his friends were bashed and hit because whiskey was found. The Authority found that evidence does not appear to be contained in the bio-data interview or entry interview records, or the audio recording for the entry interview. The Authority was not satisfied on the evidence that anyone searched and found alcohol from the first applicant or his friends, or that they were hit or bashed as alleged in 2010. The Authority was not satisfied the first applicant faced a real chance of harm on these bases now or in the reasonably foreseeable future.
The Authority made reference to the first applicant’s fear relating to his cousins’ previous alcohol consumption and of his friend’s alcohol sale. The Authority found the first applicant will not face a real chance of harm on these bases now or in the reasonably foreseeable future.
The Authority made reference to the submissions that the sale of alcohol is forbidden by Islamic law. The Authority was not satisfied on the information before the Authority that the first applicant will face a real chance of harm because he sold alcohol in the past, that he was targeted or of interest to any militant groups, the police or authorities, for reasons relating to the selling of alcohol, including being perceived as “un-Islamic” or engaged in “immoral behaviour” or any claimed membership of particular social groups such as alcohol sellers in Iraq, or that he is currently of interest to anyone for these reasons. The Authority was not satisfied the first applicant has a well-founded fear of persecution on these bases.
The Authority made reference to the first applicant’s evidence where he stated that he has decided to quit selling alcohol. The Authority made reference to the courses that the first applicant had completed, and in considering whether it was reasonable for the first applicant to modify his behaviour for the purposes of s.5J(3) of the Migration Act. The Authority, having regard to all the circumstances, considered that if the first applicant were returned to Iraq, he will be concerned about his own safety and the safety of his wife and child, and would not engage in selling alcohol given the risks associated with the selling of liquor.
The Authority was of the view that the first applicant, with his skills, education and knowledge, would enable him to find alternative employment opportunities. The Authority further found that requiring the first applicant to modify behaviour by stop selling alcohol is not one that would conflict with a characteristic that is fundamental to his identify or conscience, or conceal an innate or immutable characteristic or his religious beliefs, or otherwise fall within s.5J(3)(c) of the Migration Act. The Authority found, applying s.5J(3) of the Migration Act, the first applicant does not have a well-found fear of persecution on the basis that he will resume the selling of alcohol.
The Authority made reference to the first applicant being a Shia Muslim from his home town which is controlled and dominated by Shia. The Authority was satisfied on the information that the first applicant faces no real chance of harm for reasons relating to his brother’s work as an interpreter or his disappearance.
The Authority was not satisfied on the evidence, that the first applicant faced a real chance of being harmed or targeted by Shia militant groups for any other reasons, or that the Mahdi Army may place explosives in his home for any reasons, now or in the reasonably foreseeable future.
The Authority made reference to the first applicant’s concern that the police and security organisation impact on his day to day life in Iraq. The Authority was not satisfied on the evidence that such pressure or incidents, or both, reach the level of serious harm. The Authority found the first applicant does not face a real chance of serious harm on this basis now or in the reasonably foreseeable future.
The Authority was not satisfied that the first applicant will face a real chance of being harmed in his home town by Sunni militant groups now or in the reasonably foreseeable future.
The Authority found there is only a remote chance the first applicant will be caught up in generalised violence, sectarian violence, including any bombing or kidnapping incidents in southern Iraq upon return. The Authority found that the applicants will not face a real chance of harm for reasons of being failed asylum seekers or returnees from Australia.
The Authority was not satisfied on the evidence that the first applicant has a well-founded fear of persecution in his home town for any reason now or in the reasonably foreseeable future. The Authority considered that the applicants can safely access Iraq via the international airport upon their return and could travel to their home area.
The Authority found that the first applicant does not have a well-founded fear of persecution in his home town now or in the reasonably foreseeable future and that the first applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act and did not meet the criteria under s.36(2)(a) of the Migration Act.
Complementary protection criteria assessment
The Authority turned to the issue of complementary protection and correctly identified the relevant law. The Authority correctly identified that s.5J(3) of the Migration Act has no application to the issue of complementary protection. The Authority made reference having found that the first applicant would not continue to sell alcohol upon return, that he would not face a real risk of harm on this basis.
The Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being returned from Australia to the receiving country, there is a real risk the applicants will suffer significant harm. The Authority found the first applicant did not meet the criteria under s.36(2)(aa) of the Migration Act.
The Authority found that the second and third applicants did not satisfy the criteria of being a member of a family unit or a person falling within s.36(2)(a) or s.36(2)(aa) of the Migration Act and affirmed the decision under review.
Before this Court
The grounds in the further amended application are as follows:
1- the Immigration Assessment Authority “IAA” Failed to assess the applicant's claims under section 5 J of the Migration Act :
particulars
a- the IAA did not assess the serious harm that the applicant will be subjected to , through the following sub sections of section 5 of the Migration Act
(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.
2- The IAA failed to consider relevant considerations, the IAA took into account Irrelevant considerations :
Particulars
a – The IAA failed to take into account the DVD provided as part of the Migration agent’s submissions as an evidence of the persecution that alcohol sellers face in Iraq.
b- The IAA did not take into account past experiences of alcohol sellers in Iraq, although past experiences are considered as part of the law applicable in these cases.
c- The IAA did not take into account the lack of the professional experiences that the applicant have in doing any other job in its assessment to whether the applicant can subsist if he goes back to the receiving country or if he is to modify his behaviour , a requirement that exists in section SJ of the Act.
3- The IAA decision is unreasonable :
Particulars
a- The IAA did not take into account the Country information in relation to the treatment of alcohol sellers in Iraq.
b- The IAA did not take into account the serious harm that the applicant will face if he is to go back to his home country as a result of his past experiences in selling alcohol.
c- The IAA did not assess whether the applicant will be liable in front of the law in his home country or whether the law applies in this case is of general application
d- The IAA decision is disproportionate by giving excessive weight to a matter of very minor importance, being the phone call, and /or by giving little weight to a very important factor, being the video clip.
4- The IAA failed to properly apply the commentary protection criteria's.
Consideration
Ground 1
In relation to ground 1, Mr Alkafaji took issue with the application by the Authority of s.5J of the Migration Act. On the face of the Authority’s reasons, the Authority correctly applied s.5J(3) of the Migration Act in relation to determining whether the first applicant met the requirements under the Refugees Convention and correctly excluded from consideration s.5J(3) of the Migration Act in relation to the issue of complementary protection.
Mr Alkafaji’s submissions in relation to ground 1 are in substance, inviting this Court to engage in an impermissible merits review. It is apparent that the Authority correctly understood the first applicant’s claims and made adverse findings that were open to the Authority and were dispositive of the first applicant’s claims. No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, there is no relevant consideration identified that the Authority failed to take into account, or irrelevant consideration identified that the Authority took into account. Rather, Mr Alkafaji’s submissions in essence are an invitation for this Court to engage in an impermissible merits review.
It is apparent that the material referred by Mr Alkafaji was referred to in the Authority’s reasons. There is no proper basis to find that the Authority took into account irrelevant considerations or failed to take into account relevant considerations. No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, Mr Alkafaji took the Court to the UNHCR report, as well as referring to the findings by the Authority in respect to the DFAT report. Mr Alkafaji submitted that it was unreasonable for the Authority to reject the first applicant’s claims.
Ground 3 is in substance an invitation to this Court to engage in an impermissible merits review. The Court notes that the adverse findings made by the Authority were not adverse findings in respect of trivial, insignificant or minor matters. The adverse findings in relation to the applicant’s credibility were open and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 3.
Ground 4
In relation to ground 4, it is apparent that the Authority correctly understood the relevant law in respect of complementary protection. It was open to the Authority to take into account the findings that it had made that were relevant under the Refugees Convention in determining the applicant’s claims for complementary protection.
Relevantly, the Authority correctly excluded from consideration s.5J(3) of the Migration Act. The Authority’s finding that the applicant would not be selling alcohol upon return was open. No jurisdictional error is made out by ground 4.
Conclusion
The further amended application is dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 28 August 2017
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