DRS16 v Minister for Immigration
[2018] FCCA 3092
•31 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRS16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3092 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority erred in its application of s.473DC of the Migration Act 1958 (Cth) – whether the Immigration Assessment Authority erred in its application of s.473DD of the Migration Act 1958 (Cth) – whether the Immigration Assessment Authority erred in applying the relocation test – whether the Immigration Assessment Authority failed to consider whether it was reasonable for the applicant to relocate elsewhere in Iraq – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 31, 36, 65, 473BA, 473BC, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 474, 476 Treaties: Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A. Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967) |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 | ||
| Applicant: | DRS16 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSSESSMENT AUTHORITY |
| File Number: | SYG 3417 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 30 August 2018 |
| Date of Last Submission: | 30 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Paul Bodisco |
| Solicitors for the Applicant: | Shelley Legal |
| Counsel for the Respondents: | Mr Hamish Bevan |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3417 of 2016
| DRS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 9 November 2016 (“the Authority”), dismissing a review by the Authority of a decision of a delegate of the first respondent (“the Delegate”) made on 23 September 2016 refusing the applicant a Temporary Protection (Class XD) (Subclass 785) visa (“TPV”).
The applicant is a citizen of Iraq and of Shia Muslim faith and Arab ethnicity who fears harm from the people who killed his brother, Al Qaeda and Islamic State, because he worked in the army and with American marines. The applicant also fears harm from the Jaysh Al-Mahdi (“JAM”) in Iraq. The applicant further fears that he would fined and jailed by the Iraqi government on return to Iraq for leaving the army without being discharged.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a TPV, a summary of the decision of the Delegate, and a summary of the Authority’s review and decision.
Background
The applicant arrived in Australia on 9 October 2012 as an irregular maritime arrival, having departed illegally from Indonesia.
On 7 October 2015, the applicant lodged an application for a TPV with the Department of Immigration and Border Protection (“the Department”).
On 23 September 2016, the Delegate refused the applicant’s application for a TPV.
On 29 September 2016, the Delegate’s decision refusing the applicant a TPV was referred to the Authority.
On 9 November 2016, the Authority handed down its decision affirming the decision of the Delegate not to grant a TPV.
On 5 December 2016, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a TPV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:
“Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“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.”
Section 473DD of the Act provides as follows:
“Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”
The applicant’s application for a TPV
The applicant provided a statement in support of his TPV application in which he stated:
a)He is a Shia Arab who was born In Abu Skheir, Najaf, Iraq in 1988. He and his family moved to Al Saadiya, Diyala, Iraq in 1993 where he lived until March 2012.
b)In 2005, he and [Brother A] joined the Iraqi defence force as soldiers. The applicant worked in the defence force until May 2012. The applicant served in the emergency unit of the first brigade which was a special task force. His unit undertook counterterrorism activities and the applicant “served the Iraqi army in the most ferocious battles against Al Qaeda and any other terrorist group”. The operations were in partnership with American marines.
c)In July 2010, the applicant's father was approached at the family home by a group of men who threatened him due to the applicant’s and [Brother A’s] military service, saying that they were traitors for working with the Iraqi army. The applicant's father was told that his sons should resign and that if they didn't they would be killed. The applicant was not home at the time and his father told him not to return.
d)The applicant and his family believe that these men were from the Al Qaeda group because the area that they used to live in was in great danger of constant attacks by Al Qaeda groups against those whom they perceived as collaborators with the American army. Also, being a Shia in a majority Sunni area also meant the applicant and his family were subjected to a greater risk of being killed.
e)On 15 May 2011, [Brother B] was killed because of the applicant and [Brother A’s] military service.
f)In another instance, the applicant was at home with [Brother C] when men dressed in civilian clothes wearing black balaclavas said they were there to kill him. The applicant escaped and hid at a neighbour's house before returning to the army base in Diyala. The applicant only visited his family at night in secret thereafter.
g)After that attack, the applicant stayed at the army base in Diyala for a period of approximately two months. The applicant moved to his aunt’s home in Basra and then to his family’s home in Najaf for a total of three months.
h)In July 2012, the applicant departed Iraq.
i)In May 2012, the applicant left the army without being formally discharged. The applicant could not wait to be formally discharged because it was a long process and he feared he would be killed.
j)The applicant fears he will be killed by the people who killed his brother, who he believes are Al Qaeda. Al Qaeda would seek to kill the applicant if he returned to Diyala because of his service in the army and his work with American soldiers during his service.
k)The applicant also fears he will be killed by JAM as he worked as a soldier and fought against Sunnis and terrorism. The applicant further fears that he will be fined and jailed by the government for leaving the army without being discharged.
l)The applicant claims that the authorities in Iraq cannot protect him.
The Delegate’s decision
On 16 March 2016, the applicant attended an interview with the Delegate.
The Delegate summarised the applicant’s claims for protection, including those raised after the TPV application was lodged.
The Delegate accepted that that applicant was a Shia Arab who resided in Al Saadiya, Diyala for the majority of his life.
The Delegate accepted that the applicant served with the Iraqi army from 2005 until 2012.
However, the Delegate did not accept that the applicant served in any emergency unit or special task force in the Iraqi army.
The Delegate accepted that in July 2010 a group of men, most likely associated with Al Qaeda, approached the applicant’s father and threatened to kill the applicant and his [Brother A] if they did not leave the army.
The Delegate accepted that in early 2011 a group of armed men, most likely associated with Al Qaeda, came to the applicant’s house intending to harm him, but that he escaped before they could find him.
The Delegate accepted that in May 2011, the applicant’s [Brother B] was killed for sectarian reasons in Al Saadiya.
The Delegate noted that the applicant feared he would be killed by either Sunni or Shia armed groups in Iraq due to his former service with the Iraqi security forces. The Delegate noted that the applicant also feared that he would be fined or jailed because he left the Iraqi security forces without being discharged and that he also implicitly fears harm due to his Shia religion.
In relation to military desertion, the Delegate referred to country information which it found provided no evidence of the Iraqi government prosecuting former Iraqi security forces for desertion. The Delegate did not accept that there was a real chance the applicant would be fined or jailed due to his desertion from the Iraqi security forces.
The Delegate had regard to country information, including the Global Terrorism database, in finding that there was not a real chance that the applicant faced a real chance of serious harm at the hands of Islamic State and Al Qaeda if he were to relocate to Basra or Najaf.
The Delegate had regard to country information when considering that while the applicant served at a time when the Iraqi security forces were engaged in fighting JAM, the applicant himself was not involved in that conflict, and therefore was not of interest to the Shia militias in southern Iraq.
The Delegate also considered whether the applicant would be able to safely travel to Najaf if he returned to Iraq. The Delegate noted that country information indicated that areas that the applicant would need to pass through to return to Najaf from Basra had low levels of insecurity and violence and further that those areas would be under the control of the Iraqi security forces. The Delegate therefore found that the applicant could safely and lawfully access Najaf from Basra.
The Delegate found that the applicant would not face a real chance of serious harm because of his service with the Iraqi security forces, his Shia religion or because he left the Iraqi security forces without being formally discharged.
The Delegate found that there was no evidence before it to consider that the applicant would suffer serious harm for any reason if he were to relocate to Najaf.
The Delegate was not satisfied that the applicant was a refugee as defined by s.5H(1) of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia had protection obligations as outlined in s.36(2)(a) of the Act.
The Delegate noted that as the applicant was not a refugee as defined in s.5H(1) of the Act an assessment in relation to s.5H(2) of the Act was not made.
The Delegate then considered if the applicant met the complementary protection criterion in s.36(2)(aa) of the Act and found that he did not.
The Delegate found that the applicant could live and work in southern Iraq and would not face a real risk of significant harm if he were to do so.
On 23 September 2016, the Delegate refused the applicant’s application for a TPV on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
The Authority’s review and decision
On 29 September 2016, the Delegate’s decision refusing the applicant a TPV was referred to the Authority.
The Authority noted that it had had regard to the material referred to it under s.473CB of the Act.
The Authority further noted that on 20 October 2016, it received a submission from the applicant’s representative. The submission contained information and a newspaper article which predated the Delegate’s decision. The Authority noted that no reasons had been provided to explain why that information could not have been provided to the Delegate or why it was credible personal information. Accordingly, the Authority was not satisfied that s.473DD(b) of the Act was met.
The Authority found that the applicant would not face a real chance of harm by reason of imputed support for the military now or in the reasonably foreseeable future.
The Authority was not persuaded that the applicant deserted from the army due to any fear of harm. Rather, the Authority found that the applicant left because he was no longer interested in or committed to being a soldier.
Having found that the applicant was not a conscientious objector, the Authority was not satisfied that the applicant would be required to alter or conceal his beliefs, or otherwise fall within s.5J(3)(c) of the Act.
The Authority accepted that the applicant’s father was threatened in Diyala by Al Qaeda or by a Sunni armed group in 2011 because the applicant and his brother worked as soldiers and because they were Shias.
The Authority accepted, on the basis of a copy of the applicant’s [Brother B’s] death certificate, dated 15 May 2011, that the cause of death in Diyala in May 2011 was cardiac arrest as a result of being shot in the chest cavity. However, the Authority considered it speculative to make findings as to the identity of the killers or the reasons why he was killed.
The Authority questioned the applicant about inconsistencies in his claims in relation to an incident the applicant claimed had taken place in 2012 in his written claims and 2010 at interview.
The Authority accepted that Al Qaeda militants came to applicant’s family home sometime before his brother’s death in May 2011.
The Authority set out country information in respect of the risks to current and former members of the Iraqi security forces in northern and central Iraq, particularly Shias, since 2013. The Authority noted that a Department of Foreign Affairs and Trade (“DFAT”) report indicated that Shia communities were subject to general and targeted violence by Sunni-linked insurgent groups and extremists. The report also identified that Shia who were members of government security services appeared to have been specifically targeted by Daesh. The Authority also noted that Diyala, a traditional Sunni stronghold, remained one of the most violent areas in Iraq.
The Authority accepted that the applicant could face a real chance of harm from Sunni insurgent groups in Diyala for reasons of his past work as a solider and his Shia religion. However, the Authority noted, that pursuant to s.5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the receiving country.
The Authority was not satisfied, on the information before it, that former Iraqi soldiers or Shias faced a real chance of harm from Al Qaeda or other Sunni armed groups throughout Iraq. The Authority considered Sunni insurgent groups, including Al Qaeda, and Daesh only had very limited presence or capacity to carry out attacks against Shias in southern Iraq.
The Authority was not satisfied on the evidence before it that there was a real chance that Al Qaeda or Daesh or other Sunni armed groups would pursue, locate, target or harm the applicant in Najaf.
The Authority noted country information regarding risks of violence in Daesh controlled areas. Country information indicated that insurgent activity was highest in the northern, western and central areas of Iraq. However, the country information also indicated that the violence and casualty rates was much lower in southern Iraq, including Najaf. The country information indicated that Shias in Shia-dominated provinces of southern Iraq were at low risk of generalised violence. Based on that country information, the Authority was not satisfied that the applicant would face a real chance of harm in southern Iraq.
The Authority noted that at the applicant’s TPV interview, the applicant also claimed to fear harm from JAM or other Shia militant groups in the south of Iraq because he had worked with American marines as a soldier.
The Authority accepted that the applicant worked in a special unit of the Iraqi army; that he was involved in fighting terrorism and Sunni insurgents; that he received training in Diyala in 2005 for about 6 months and then served in Fallujah, Al-Anbar for about year, followed by Abu Graib for two years; and that he subsequently served in Diyala for about four years from 2008 to mid-2012. The Authority also accepted that the applicant worked with Americans while serving as a soldier.
The Authority accepted the applicant’s evidence given at the TPV interview that he had not been involved in the most ferocious battles against the Al Qaeda and other terrorist groups.
The Authority found that JAM and other Shia militant groups had a very limited presence, if any, in Sunni strongholds such as Diyala, central or northern Iraq and that the applicant did not have a high profile with either.
The Authority noted that country information indicted JAM was disbanded in 2013 and reformed as the Peace Brigade in 2014. Country information further indicated that the Peace Brigade and other Shia militant groups in the south were working alongside the Iraqi security forces, the Iraqi government, and were indirectly allied with US forces in the fight against Al Qaeda and ISIS.
In light of that country information, the Authority did not accept that, given the applicant’s low profile, he would have come to the attention of JAM or any Shia militant groups.
The Authority did not accept that the applicant is or was of any interest to JAM or other Shia militant groups, or that he faced a real chance of harm from JAM or Shia armed groups for reasons relating to his Shia religion, his past work as a solider, any actual or imputed political opinion or for any other reasons.
The Authority found that the applicant could access Iraq safely via the Basra international airport upon return, and he could then safely access Najaf from Basra by road, given that the southern areas had remained significantly stable and more secure.
The Authority found that a real chance of persecution did not relate to all areas of Iraq and concluded that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and therefore did not meet s36(2)(a) of the Act.
Having found that the applicant would not work as a soldier upon return, the Authority found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq that there was a real risk that the would suffer significant harm on that basis.
However, the Authority found that there was not a real risk that the applicant would suffer significant harm in Iraq because it would be reasonable for him to relocate to Najaf, where there would not be a real risk that he would suffer significant harm.
The Authority found that there was no real risk that the applicant would be caught up in generalised violence in the south, and that he would not face a real risk of any other significant harm if he were to relocate to Najaf.
Having considered the applicant’s particular circumstances, including his education level, skills, experiences and training from his work; and having regard to the security and general situation, his family ties and his particular circumstances, the Authority was satisfied that it was reasonable for the applicant to relocate to Najaf where there would not be a real risk that he would suffer significant harm.
The Authority therefore found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm.
Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Authority affirmed the decision under review.
The proceeding before this Court
The applicant was represented before this Court by Mr Paul Bodisco, of counsel.
By consent, the applicant was granted leave to rely on the grounds of an Amended Application filed in Court this morning in the following terms:
“GROUND ONE:
The IAA has erred by acting on an invalidly issued certificate issued pursuant to section 4 73GB of the Migration Act 1958 (Cth) and/or denied the Applicant procedural fairness by failing to inform the Applicant of the Certificate's existence before making a decision.
GROUND TWO:
The IAA has made a decision that is so illogical that no reasonable person would have made it.
Particulars
a. On 20 October 2016, the Applicant's Migration Agent forwarded to the IAA submissions to address concerns raised by the delegate.
b. The submissions included material drawn from the musingsoniraq.blogspot.com.au regarding the security issues in Applicant's home area and an article by David Witty regarding the combat duties of the Applicant's brigade.
c. In dealing with submissions advanced by the Applicant, the Assessor determined that a submission, forwarded to the IAA by the Applicant's Migration Agent following the delegate's findings, was not “new information” because it “addresses the delegate's concerns” and chose to have regard to it.
d. However, the Assessor regarded material drawn from the blog site and the article as “new information”, despite it also clearly having been led to address the delegate's concerns.
e. There is no discernible reason as to why the Assessor dealt with the material, all drawn from the same document and led for the same purpose, in different ways.
GROUND THREE:
The IAA has failed to apply the correct test pursuant to section 473DD of the Migration Act 1958 (Cth).
Particulars
In determining that the new information - namely the article by David Witty and information drawn from the blog site referred to at paragraph 5 of the decision - would not be admitted, the Assessor expressly only had regard to section 473DD(b) of the Act and failed to have regard to whether the material could be regarded as “credible personal information” under section 473DD(b)(ii).
The IAA has therefore failed to apply the reasoning of His Honour White J in BVZ16 v Minister for Home Affairs at [6], narrowly and impermissibly construing section 473DD of the Act.
GROUND FOUR:
The IAA has failed to apply then relocation test to the Applicant's claim and/or to complete the task of jurisdiction embarked upon.
Particulars
Despite making a finding that the Applicant would “face a real chance of significant or serious harm from Sunni insurgent groups in Diyala”, the Assessor failed to make a finding as to the reasonableness of the Applicant relocating elsewhere in Iraq.”
Ground 1
The applicant withdrew reliance on Ground 1.
Ground 2 and Ground 3
Grounds 2 and 3 concern the manner in which the Authority dealt with its obligations under ss.473DC and 473DD of the Act.
The “information” the subject of consideration was contained in a submission received on 20 October 2016 from the applicant’s representative.
On 20 October 2016, the applicant’s representative sent a submission to the Authority in which it identified the following information:
“ (“the David Witty Paper”)
(“the BlogSpot Information”)”
The submission then stated that the David Witty Paper made clear that the applicant’s brigade and unit were specialised in fighting terrorism, whereas the Delegate found that the applicant’s unit was not an emergency unit. The BlogSpot Information was also referred to in the submission for the same purpose.
Otherwise, the submission identified findings of the Delegate.
In respect of that submission and the information contained in it, the Authority stated as follows:
“4. On 20 October 2016, the IAA received submission from the applicant’s representative (the IAA submission). The submission addresses the delegate's concerns. I do not consider this aspect of the submission to be 'new information' and I have had regard to these arguments.
5. The IAA submission also refers to information from musingsoniraq.blogspot.com.au and an article written by David Witty. This information pre-dates the delegate's decision and purports to support the danger associated with living in Diyala and that the applicant's army unit was specialised in fighting terrorism. No reasons have been provided to explain why this Information could not have been provided to the delegate or why it is credible personal information. The applicant has not satisfied me that s.473DD(b) is met.”
The Delegate had accepted that:
“• The applicant is a Shia Arab who resided in Al Saadiya, Diyala for the majority of his life;
• The applicant served with the Iraqi army from 2005 until 2012, but that he did not serve within any emergency unit or special task force in the Iraqi army;
• In July 2010 a group of men, most likely associated with AQI, approached the applicant's father, threatening to kill the applicant and his brother Ahmed if they did not leave the army;
• In early 2011 a group of armed men most likely associated with AQI, came to the applicant's house intending to harm him but that he escaped before they could find him; and
• In May 2011 the applicant's brother Ali was killed for sectarian reasons in Al Saadiya.”
However, the Delegate did not accept that the applicant “served the Iraqi army in the most ferocious battles against Al Qaeda and any other terrorist group”. The Authority noted the applicant’s evidence given at his interview that he was only involved in one fire fight while manning a checkpoint in Abu Ghraib and that while in the army his counter terrorism activities involved him in being part of raids on suspected terrorists and arresting people.
The Authority noted that the applicant said that he only came under fire on one occasion and that no one was ever killed in military actions in which he took part.
The Delegate found that, based on the applicant’s evidence, the activities he undertook while working for the Iraqi army were of a relatively low level and did not accept that the applicant served in any emergency unit or special task force in the Iraqi army.
Following the Delegate’s decision, the applicant was given acknowledgment of referral of the Delegate’s decision to the Authority in a letter dated 29 September 2016. Inter alia, that letter stated that the Authority could only consider new information in limited circumstances which were explained in the attached Fact Sheet and Practice Direction.
Relevantly, the Practice Direction made clear that the applicant may provide a written submission on why the applicant disagrees with the decision of the Department and any claim or matter that was presented to the Department that was overlooked. The submission was to be concise and should identify and address the issues the applicant wants considered in the review. The Practice Direction explained that new information could only be considered in very limited circumstances as set out in s.473DD of the Act; and, that the Authority must be satisfied that there are exceptional circumstances to justify considering the new information provided.
The Practice Direction stated that if the applicant wished to give new information, the applicant must also provide an explanation as to why the information could not have been given to the Department before the Delegate’s decision was made; and, that the information must be credible personal information which was not previously known and may have affected consideration of the applicant’s claims had it been known.
The Practice Direction stated that the applicant’s explanation must accompany any new information given to the Authority.
Counsel for the applicant contended that it was irrational for the Authority to distinguish between the submission and the information in the David Witty Paper and the BlogSpot Information.
In Minister for Immigration and Border Protection and CLV16 [2018] FCAFC 80 (“CLV16”) the Full Court of the Federal Court of Australia (Flick, Griffiths and Perry JJ) made clear that a submission which only addresses the information already made available for consideration by the Authority and which contains no additional facts or information is neither a “document” nor “information” for the purposes of the definition of “new information” as set out in s.473DC of the Act (at [50]). The Court in CLV16 found that the term “information” did not include a submission.
Section 473DC and s.473DD place a constraint on the Authority’s ability to get or consider further information. The Court in CLV16 concluded that a submission provided in response to the Practice Direction was a submission that could be made and would be considered.
In considering whether it should have regard to “new information”, the Authority must be satisfied that there are exceptional circumstances to justify considering the new information and be satisfied that the new information was not and could not have been provided to the Minister before the Delegate’s decision; is credible personal information which was not previously known; and, had it been known may have affected the consideration of the applicant’s claims (see s.43DD of the Act).
Section 473DC enables the Authority to obtain information that was not before the Minister when the Delegate made its decision and which the Authority considers may be relevant.
Counsel for the applicant contended that the Authority did not properly consider all aspects of s.473DD(b) of the Act in that the Authority did not provide reasons as to why the information was not credible personal information; whether it was not previously known; and, if it had been known, whether it may have affected the consideration of the applicant’s claims.
As is clear from the passages from the Authority’s decision quoted above, the Authority was of the view that the information in the David Witty Paper and the BlogSpot Information pre-dated the Delegate’s decision. It also noted that the information purported to support the danger associated with living in Diyala and that the applicant’s army unit was specialised in fighting terrorism.
The Authority accepted that the applicant worked in a special unit; was involved in fighting terrorism and fighting Sunni insurgents; received training in Diyala in 2005 for about 6 months; served in Fallujah, Al-Anbar for about a year; served in Abu Ghraib for 2 years; and, then served in Diyala in 4 years between 2008 to mid-2012.
The Authority also accepted that the applicant had worked with Americans while serving as a soldier. However, as stated above, in the applicant’s own evidence, the Authority found that the applicant had not served in the “most ferocious battles against the Al Qaeda group and any other terrorist group”.
In relation to the applicant’s complaint that the Authority did not consider whether the information was credible personal information, the Authority stated that no reasons had been provided by the applicant to explain why the information could not have been provided to the Delegate or why it was credible personal information and therefore did not satisfy s.473DD(b) of the Act.
Counsel for the applicant also contended that the information contained in the BlogSpot Information was personal information about the applicant as it related to Diyala, which was the applicant’s home town.
However, Gageler, Keane and Nettle JJ made clear and plain in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [33] – [34] that in order to be credible personal information, the information must be credible information about an identified individual or an individual who is reasonably identifiable.
Counsel for the applicant referred the Court to CQW17 v Minister for Immigration & Anor [2017] FCCA 2378 at [51] – [52] in support of the contention that the Authority is obliged to consider all relevant circumstances in considering whether exceptional circumstances exist and that the nature and cogency of the material must not be peripheral, too vague or insufficiently cogent to be rationally probative of the Authority’s reasoning.
As the Authority’s reasons make clear, the Authority accepted that the applicant would face a real chance of harm from Sunni insurgent groups in Diyala for reasons of his past work as a soldier and his Shia religion. However, as stated above, based on the applicant’s own evidence, the Authority did not accept that the applicant had fought in the “most ferocious battles”.
In the absence of any submission by the applicant as to why the information in the David Witty Paper and the BlogSpot Information satisfies s.473DD of the Act, and in circumstances where the applicant was specifically directed to the need to address those matters in the Practice Direction, there is nothing apparent on the face of the information to suggest that the information is credible personal information about the applicant. In those circumstances, s.473DD(1)(b)of the Act is not met.
I do not accept the applicant’s contention in this case that those matters should also be considered in a context of considering exceptional circumstances in this case, where no submissions were put to that effect.
The Authority identified and considered in detail UNHCR and DFAT information which it found to be more independent and comprehensive than the applicant’s claims and the representative’s submissions and to which it therefore gave more weight. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The Authority was not satisfied that former Iraqi soldiers or Shias face a real chance of harm from Al Qaeda or other Sunni armed groups throughout Iraq and ultimately was satisfied that the applicant would face only a remote chance of harm in southern Iraq. The Authority concluded as follows:
“74. For the above reasons, I do not accept that the applicant is or was of any Interest to JAM or other Shia militant groups, or that he. faces a real chance of harm from JAM or Shia armed groups for reasons relating to his Shia religion; his past work as a soldier, any actual or imputed political opinion or for any other reasons.
75. In addition, as noted by the delegate, I consider that the applicant can access Iraq safely via the Basra International airport upon return, and he can then safely access Najaf from Basra by road, given that the southern areas have remained significantly stable and more secure.
76. For the reasons set out above, I find that the real chance of persecution does not relate to all areas of Iraq.
Refugee: conclusion
77. The applicant does not meet the requirements of the definition of refugee in s.5H(1). He does not meet s.36(2)(a).”
However, even if there was some error in the manner in which the Authority considered s.473DD(1) of the Act, in light of the Authority’s broad acceptance of the applicant’s claims, there is nothing to suggest that the applicant has experienced any practical injustice or detriment and the applicant does not assert otherwise (see AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 (“AVO15”) at [91] per Barker J; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (“WZARH”) at [57] per Gageler and Gordon JJ).
Accordingly Ground 2 and Ground 3 are not made out.
Ground 4
Counsel for the applicant acknowledged that Ground 4 had evolved into a contention that in considering s.5J(1)(c) of the Act, the Authority had failed to give consideration to any risk of harm to the applicant as identified in that section, other than death.
Section 5J of the Act is as follows:
“(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
(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.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(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.
(6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.”
(Emphasis added)
A fair reading of the Authority’s decision record makes clear that the Authority was well aware of the relevance of s.5J of the Act which it paraphrased in its decision record in formulating the meaning of a well-founded fear of persecution.
Counsel for the applicant also submitted that the Authority did not deal with all aspects of serious harm as defined in the Act and that such a claim squarely arose on the information and material before the Authority based on the principles referred to in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263.
I reject the applicant’s submissions in relation to these contentions. The applicant’s claims were specific and clear in that he feared being jailed and fined for leaving the army without being formally discharged; feared being killed by Al Qaeda or other Sunni militant groups as he had worked in the Iraqi army in assisting the Americans; and, also feared harm from JAM as he worked as soldier and fought against Sunnis and terrorism.
In considering complementary protection and whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq there was a real risk of him suffering significant harm, the Authority set out the definition of significant harm in s.36(2A) of the Act. Section 36(2A) of the Act is as follows:
“(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.”
The Authority accepted that the applicant would face a real chance of being killed, injured or harmed by Al Qaeda or Sunni extremist groups if he were returned to Diyala due to his past work as a soldier and for being a Shia, and that this may involve arbitrary deprivation or life or cruel or inhuman treatment or punishment.
However, the Authority found that the applicant would not be at real risk of significant harm elsewhere in Iraq, specifically Najaf, and further found that it would be reasonable for the applicant to relocate to Najaf.
The Authority then considered in detail the matters referred to s.36(2B) of the Act. Section 36(2B) of the Act is as follows:
“(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”
The Authority referred to DFAT material that assessed that, overall, internal relocation to southern Iraq might be a reasonable and practical option for a Shia Iraqi. The Authority considered the applicant’s particular circumstances and was satisfied for the reasons it gave that it would be reasonable for the applicant to relocate to Najaf having regard to the security and general situation, the applicant’s family ties and the applicant’s particular circumstances.
The Authority went on to state that country information indicated that lack of access to essential services, employment opportunities and adequate shelter were obstacles for a person seeking to relocate elsewhere in central or southern Iraq to Najaf. The Authority concluded as follows:
“89. According to the applicant, his family, including his mother and five siblings, have moved to Najaf sometime in 2012, and they are currently living in Najaf. The evidence before me does not indicate that his family has any difficulties in settling in a Shia majority area in Najaf. On the evidence, I am satisfied that it would be reasonable for the applicant to relocate to Najaf in view of the security and general situation, particularly given the applicant's family ties, which will provide him with protection if needed.
90. I have considered the fact that the applicant has only lived in Najaf for about a month before he left Iraq, and that he has lived ln Diyala and army bases for a number of years. However, I consider that the applicant has the availability of family ties and support in Najaf, and that he will have access to basic services and accommodation. As mentioned above, the applicant has four years of experience in the construction field as a carpenter and about seven years of experience as a soldier. Even considering his education level and the economic situation in Iraq, I am of the view that the applicant’s skills, experiences and training from his work experiences would enable him to financially support himself. In addition, DFAT advises that the Iraqi government now provides a range of incentives, including reinstatement at the returnee's previous public sector employment and financial incentives, to encourage Iraqis who have not been able to gain asylum overseas to return to Iraq voluntarily.”
In the circumstances, there is no error in the manner in which the Authority considered the issue of relocation under the new regime identified in the Authority’s reasons.
I have found the arguments of the applicant to be somewhat dense and moving towards considering the Authority’s reasons with an eye keenly focused on error (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 per French, Sackville and Hely JJ).
The Authority’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave. None of the findings is unreasonable or without an intelligible justification (see AVO15 at [91]; WZARH at [57]).
Accordingly, Ground 4 is not made out.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant had regard to all material provided in support. The Authority identified with particularity independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including in the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
As stated above, even if there was an error in the Authority’s application of s.473DD of the Act, no practical injustice resulted to the applicant and to grant the relief sought by the applicant would serve no utility. The David Witty Paper and the BlogSpot Information would not assist the applicant in addressing the Tribunal’s finding that he personally had not engaged in “ferocious battles” as that finding was based on the applicant’s own evidence.
In the circumstances, the new information disclosed in the David Witty Paper and the BlogSpot Information do not take the applicant’s claims any further.
Accordingly, in the exercise of the Court’s discretion, even if the decision of the Authority is affected by jurisdictional error in its consideration of s.473DD of the Act, relief should not be granted to the applicant.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 31 October 2018
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