DRB17 v Minister for Immigration

[2018] FCCA 1604

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRB17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1604

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority’s decision irrational, illogical or unreasonable.

Legislation:

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

Applicant: DRB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 781 of 2017

Judgment of: Judge Jarrett

Hearing date: 16 February 2018

Date of Last Submission: 16 February 2018

Delivered at: Brisbane

Delivered on: 19 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 15 August, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 781 of 2017

DRB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iraq.  He arrived in Australia by boat on 25 April, 2013.  For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival.  On 4 August, 2016 the applicant applied for a Safe Haven Enterprise (subclass 790) visa.  On 31 May, 2017 a delegate of the first respondent the visa application.

2. Because the delegate’s decision was a fast track decision it was referred to the second respondent in accordance with s.473CA of the Act.

3. On 3 August, 2017 the second respondent affirmed the delegate’s decision not to grant the applicant a safe haven enterprise visa.

4. By these proceedings the applicant seeks that the second respondent’s decision be quashed and his visa application remitted to the second respondent to be determined according to law.  The applicant was not legally represented before me.  He presented his own case with the assistance of an interpreter. 

5. His application seeks a procedural order to the effect that he might file an “updated application” but no further application has been filed on his behalf.

6. His ground of review is in the following terms:

   1.  The Immigration Assessment Authority and the delegate of the first respondent for Immigration and Border Protection erred in law in making his decision

7. Given the general and unparticularised nature of the applicant’s claim, it is impossible to discern his true complaint with the second respondent’s decision.  That is sufficient to dismiss his application without further consideration.  I dismiss his application on that basis.

8. However, in the event that is seen not to be an appropriate course, I will proceed to examine the second respondent’s decision on my own account with the assistance of the written submissions filed by the first respondent.

9. The applicant is a Shia Muslim who claimed to fear harm at the hands of the Mahdi Army on account of his employment with foreign security companies. The applicant claimed that he and members of his family were harassed and threatened on account of that employment. The applicant also claimed that state protection was unavailable and he could not relocate elsewhere in Iraq. The second respondent acknowledged that the applicant had developed an alcohol dependency and would return to Iraq as a failed asylum seeker.

10. The second respondent accurately, in my view, summarised the applicant’s claims as follows:

    · He was born in Baghdad and lived there in Kadhimiya, a Shia area, all his life before travelling to Australia.

    · He is Shia, his wife is Sunni. He has two daughters and three sons. His wife and two of his sons are currently living in Turkey, where they have registered with UNHCR. One of his daughters lives with her own family in another part of Turkey. His other son lives in Baghdad, as do his mother and some of his siblings.

    · In Australia, he lives with his daughter, who has married an Australian citizen.  His brother was granted a protection visa in Australia approximately 13 to 14 years ago and now lives here with his family. One of his other brothers was found to be a refugee in New Zealand.

    · His mother and father were born in the south of Iraq. He thinks his mother was born in Najaf province and his father was born in Nasiriya in Dhi Qar province. He has relatives in Nasiriya but he has not visited them for a long time. He used to visit Najaf frequently to visit a well-known Shia mosque and to visit his father’s grave. He is part of a large tribe that has a presence in many locations in Iraq, including Nasiriya and Najaf.

    · He worked for a number of international companies providing security services from approximately 2005 or 2006 to early 2012. He worked mainly as a driver and was involved in providing security convoys for clients.

    · Members of the Mahdi Army harassed and threatened him because of this work. He was subject to constant surveillance by the Mahdi Army when he was not at work. They periodically confronted and threatened him in the street when he was alone. They threatened that they would kill him if he did not stop working for foreign security companies. Sometimes, when he was with other people, they would harass him by saying that they knew where he worked and they didn’t like it.

    · Members of his tribe in Baghdad were willing to provide some protection to him in some situations, or to take vengeance on his behalf, but they could not protect him from the Mahdi Army.

    · He knew the Mahdi Army had killed many people. He felt his life was at risk and decided to leave Iraq in 2012. His family members, including his brothers, his wife and his children were also threatened by the Mahdi Army because of his work, including following his departure from Iraq. These threats forced his wife and children to flee to Turkey in around 2015, and his brother to flee to New Zealand in early 2012.

    · He fears he would be killed by the Mahdi Army if he returned to Iraq because the Mahdi Army know he worked for foreign security companies in the past and will target him forever for this reason.

    · The police could not help him as half their members are members or supporters of the Mahdi Army. The Mahdi Army are now part of the Al Hashd Al Shaabi, or Popular Mobilization Force, who are aligned with the government and include government ministers among their number.

    · The Iraqi Government can’t protect him as they can’t protect themselves.

    · He cannot move to another area of Iraq as he does not know anyone anywhere else in Iraq. Also, the Mahdi Army are everywhere and Iraq is a very dangerous place. Although he said in his entry interview that he could live in Erbil or Suleimaniyah in the north of Iraq, it would no longer be safe for him to live there as the Mahdi Army is active in those areas now.

    · He lived in Baghdad all his life and only knows city life. He feels he would die in a rural area.

    · He could not find a job if he returned to Iraq. Unemployment is high and the Mahdi Army would make it impossible for him to find a job.

    · He has developed an alcohol dependency in Australia due to the sadness he feels about his separation from his family.

11. The second respondent accepted that the applicant was employed by several foreign companies to provide security services from approximately 2005 or 2006 to December, 2011.  The second respondent identified deficiencies in the applicant’s evidence in relation to his claim to fear harm at the hands of the Mahdi Army and found it was “highly likely” that the applicant “exaggerated his evidence to strengthen his claims for protection”.  The second respondent did not accept the applicant or his family was “of any adverse interest” to the Mahdi Army or any other armed group on account of his employment.  The second respondent did not accept the applicant would face harm on account of his past employment.

12. The second respondent accepted that the applicant drinks alcohol each evening in Australia.  But, having regard to country information, the second respondent found he would not face harm for that reason.  The second respondent also did not accept the applicant would face harm as a failed asylum seeker or on account of his wife’s Sunni faith.

13. The second respondent considered the applicant’s risk level by reason of his religion.  It said (footnotes omitted):

    25.    The applicant is a Shia Muslim who lived in Baghdad from his birth until his departure from Iraq in 2012. DFAT reports that there has been a sharp increase in sectarian violence in Iraq since 2003. Shia communities are reported to be subject to both indiscriminate and targeted violence at the hands of armed Sunni insurgent group Daesh. Violence against Shias is reportedly largely aimed at destabilising the government and increasing tensions between Sunnis and Shias, rather than aimed at specific individuals. While individual high-profile Shias may be targeted in attacks, DFAT reports that the Iraqi Government provides extensive security for such individuals, thereby decreasing the risk they face. There was information before the delegate to suggest that Iraqis with particular profiles, including doctors, journalists, academics, judges, lawyers, NGO workers or activists, members of government security forces, detainees or members of ethnic minorities, may be individually targeted by armed Sunni groups. I note that the applicant does not hold any of these profiles.

    …

    29.    Having regard to the recent and authoritative nature of DFAT’s 2017 assessment, and to the specific consideration given by DFAT to the risks faced by Shias in Baghdad, I am satisfied that there is a real chance that the applicant would face serious harm in the form of possible loss of life or serious injury as a result of sectarian attacks perpetrated by armed Sunni groups if he returned to Baghdad.

14. The second respondent moved to consider the question of relocation:

    30.    Pursuant to s.5J(1)(c), in order for the applicant to be found to have a well-founded fear of persecution, the real chance of harm must relate to all areas of Iraq. DFAT reports that Shias are most vulnerable to attacks in Baghdad and areas under the control of armed Sunni insurgent group Daesh, while Shias in Shia-dominated areas of Iraq, such as the south, face a lower risk of violence.

15. After considering various items of country information, the second respondent said:

    35.    I accept that the applicant has tribal connections and relatives in Nasiriya and Najaf. The applicant did not claim that he, or any of his family members, had been involved in any conflict with other tribes or within his own tribe. He did not advance any evidence that members of his tribe had been involved in any inter-tribal conflict. I do not accept that if the applicant returned to the south of Iraq, he would face any chance of harm due to his membership of his tribe, or as a result of intra-Shia violence. In considering the chance of harm to applicant as a result of violent crime in the south of Iraq, I note that he has not claimed to have a profile as a wealthy person or a member of a wealthy family. There is no independent evidence before me to suggest that people returning to Iraq after living in western countries are targeted in violent crimes. While I accept that incidents of criminal violence occur in the south of Iraq, particularly in Basra, I do not accept that criminal activity in the south is at such a level that it would represent a real chance of harm to the applicant.

    36.    DFAT assessed in 2017 that overall, internal relocation to southern Iraq could be a reasonable and practical option for Shia Iraqis.20 Having regard to the information before me, I am not satisfied that the real chance of harm to the applicant as a result of sectarian attacks perpetrated by armed Sunni groups relates to the southern provinces of Basra, Karbala, Wasit, Qadisiyah, Maisan, Dhi Qar, Muthanna and Najaf. I am therefore not satisfied that the real chance of serious harm to the applicant on this basis relates to all parts of Iraq. Further, I am not satisfied that there is a real chance of harm to the applicant as a result of the security situation, including the incidence of crime, in the southern provinces of Iraq.

16. The second respondent rejected the applicant’s claims and found he did not meet the requirements of the definition of refugee in subsection 5H(1) of the Act.

17. For the same reasons, the second respondent found that the applicant would not face a real risk of significant harm in southern Iraq.  Further, having regard to country information, the applicant’s personal circumstances, and his particular objections to relocation, the second respondent found that it was reasonable for the applicant to relocate to southern Iraq.  Accordingly, the second respondent found that the applicant did not satisfy the complementary protection criterion.

Consideration

1. It is apparent from the material in the Court Book and the second respondent’s reasons that it correctly identified the claims made by the applicant.  It is also apparent that it addressed those claims and made findings in respect of them. 

2. Although the second respondent found that there was a real chance of serious harm to the applicant if he was to return to Baghdad, it properly identified that the applicant could relocate to areas in southern Iraq where that real chance was not present.  The second respondent considered the applicant’s personal circumstances (to the extent that the applicant pointed to any that specifically bore on the question of relocation) when considering the question of relocation. 

3. The second respondent found that the applicant could relocate to southern Iraq where there was no real chance of serious harm to him and so found that he was not a refugee for the purposes of the Act.  That conclusion was plainly open to the second respondent on the facts that it had found.

4. As the first respondent submits, the second respondent also correctly recognised that it was still required to consider the question of whether it was reasonable for the applicant to relocate in the context of his claim to complementary protection.  The second respondent correctly summarised the applicant’s objections to relocation and made dispositive findings in relation to them (footnotes omitted):

   45.    The applicant claimed that he could not move to another area of Iraq because the Mahdi Army are everywhere and Iraq is a very dangerous place. While I accept that the Mahdi Army or other Shia militia groups are present in the south of Iraq, I have found above that there is not a real chance of harm to the applicant at the hands of the Mahdi Army for any reason, including in the south of Iraq. Further, while parts of Iraq may fairly be described as dangerous, I have found that the applicant does not face a real risk of significant harm as a result of the security situation in the south of Iraq. Having regard to all the evidence before me, I am not satisfied that the security situation in the south of Iraq, including in Najaf, Dhi Qar and Qadisiyah, is such that it would be unreasonable for the applicant to move there.

   …

   50.    The applicant claimed in his SHEV application that he could not move to another area in Iraq because he does not know anyone in other areas. However, the applicant claimed in his SHEV interview, and I have accepted, that he has relatives and tribal connections in Najaf and in Nasiriya in Dhi Qar province, although I accept that he may not have visited his relatives for many years. Although his father, who he believes was born in Nasiriya, is no longer alive, his mother, who he claims was born in Najaf, is still alive and living in Baghdad. I note that the applicant indicated during his entry interview that one of his sisters was living in Al Diwaniya in Qadisiyah province, in the south of Iraq. The applicant claimed that he could not live with any of his family in Iraq because his mother is very elderly. While the reasoning behind this statement is somewhat unclear, I do not accept that it would be unreasonable for the applicant to relocate to the south of Iraq because of his mother’s age or health.

   …

   53.    When asked by the delegate why he could not relocate to another area of Iraq, given his family was originally from Nasiriya and Najaf, the applicant said he could not live with sheep and cows in Al Rifai (a town in Dhi Qar province). He said he had lived all of his life in a city and was not accustomed to the lifestyle in such areas. He felt he would die there. I note the applicant has largely lived in outer suburbs of Brisbane since arriving in Australia. I accept that the applicant may find life in the south of Iraq unpleasant, however, I am not satisfied that it would be unreasonable for him to relocate there for this reason.

   54.    In his SHEV interview, the applicant indicated that he would find it hard to secure employment in Iraq. DFAT reported in 2017 that the lack of employment remains a significant issue in southern Iraq, despite the large scale oil industry and associated economic activity.  In- country contacts have suggested to DFAT that there are limited employment opportunities and that people from southern Iraq are internally relocating to other areas of Iraq, such as Baghdad, in search of jobs.

   55.    The applicant has a lengthy history of employment in a range of areas including operating his own tea and coffee stall business, washing and cleaning cars, working as a driver of his own taxi, working as a driver in the security industry, and managing other security guards. His skills and experience appear to equip him for employment in a range of locations and contexts. He has demonstrated a degree of resourcefulness in establishing his own tea and coffee stall and taxi businesses in the past, including driving regularly to Jordan and Syria, and in travelling to Australia. I accept that the applicant may experience a degree of difficulty in securing suitable employment in Qadisiyah, Najaf or Dhi Qar provinces as a result of limited employment opportunities in the south of Iraq, however, I am satisfied that the applicant will in due course be able to find some form of employment in Qadisiyah, Najaf or Dhi Qar provinces, and that his relatives or tribal connections will provide some level of support to him until he does so.

   56.    Having regard to the applicant’s particular circumstances and the information before me regarding the situation in Qadisiyah, Nasiriya and Najaf, including the general security situation and levels of criminal violence there, I am satisfied that it would be reasonable for the applicant to relocate to, and remain in Qadisiyah, Nasiriya or Najaf, where I have found that there is not a real risk that he will suffer significant harm.

Conclusion

1. The application does not demonstrate that the second respondent’s decision is affected by jurisdictional error.  It must be dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  19 June 2018