Dru18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 57
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DRU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 57
File number(s): MLG 2076 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 1 February 2024 Catchwords: MIGRATION – application for safe haven enterprise visa – review of decision of delegate of the Minister – whether delegate erred in finding that applicant satisfied the definition of “excluded fast track review applicant” – proper construction of s 5(1)(a)(iii) of the Migration Act 1958 (Cth) – whether delegate erred by failing to consider a claim squarely raised by the applicant concerning living conditions in Iraq – delegate’s decision affected by jurisdictional error – application allowed with costs Legislation: Migration Act 1958 (Cth) ss 5(1)(a)(iii), 5H, 36, 65, 476 Cases cited: Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601
Re Application by the Chief Commissioner of Police (Victoria) [2005] HCA 18; (2005) 214 ALR 422
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submissions: 27 November 2023 Date of hearing: 27 November 2023 Place: Melbourne Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Playfair Legal Pty Ltd Counsel for the Respondent: Ms K McInnes Solicitor for the Respondent: Clayton Utz ORDERS
MLG 2076 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DRU18
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTRAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
1 FEBRAURY 2024
THE COURT ORDERS THAT:
1.The name of the respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.Pursuant to s 477A(2) of the Migration Act 1958 (Cth) (“the Act”), the time to file an originating application for judicial review of the decision of the respondent made on 9 June 2018, be extended until 17 July 2018.
3.A writ of certiorari issue quashing the decision made by the respondent on 9 June 2018 pursuant to s 65 of the Act to refuse the applicant a protection visa.
4.A writ of mandamus issue directed to the respondent requiring the applicant’s application for a protection visa made on 14 September 2016 to be redetermined according to law.
5.The first respondent pay the applicant’s costs as agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date of hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
On 17 July 2018, the applicant filed an application in this Court seeking an extension of time to make an application seeking judicial review of two decisions made by a delegate of the first respondent (the Minister). The period of delay in filing the application was three days and the Minister provided his consent to the grant of an extension of time. The Minister opposed the substantive application on the basis that it lacked merit.
The first decision that the applicant seeks to challenge is a decision made by the delegate under s 65 of the Migration Act 1958 (Cth) (the Act) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (the visa) (the visa decision).
The second decision that the applicant seeks to challenge is a decision made by the delegate under s 5(1)(a)(iii) of the Act that the applicant falls within the definition of “excluded fast track review applicant” because he had made a claim for protection in a country other than Australia that was refused by that country (the EFTRA decision).
Both the visa decision and the EFTRA decision were made on 9 June 2018.
The applicant invites the Court to first review the visa decision and only if he is unsuccessful in his challenge to this decision to then review the EFTRA decision.
The Minister instead invites the Court to deal with the EFTRA decision first and if that decision is free from error, to only then review the visa decision.
As these reasons disclose, I have found it necessary to review both decisions.
BACKGROUND
The applicant is a citizen of Iraq who arrived in Australia by boat on 13 April 2013 (CB 1; 185).
On 14 September 2016, the applicant applied for the visa (CB 52-110).
On 26 September 2017, the Department of Home Affairs (the Department) invited the applicant to comment, pursuant to s 57 of the Act, on information that the delegate considered would be the reason, or a part of the reason, for deciding that the applicant was an excluded fast track review applicant. The information was identified as that in 2009 the applicant had made an application for refugee status in the United States of America and the application had later been denied (CB 157-161).
On 10 October 2017, the applicant’s representative responded to the Department’s invitation to comment by providing documents described as an additional statement of claims dated 9 October 2017, notice of ineligibility for resettlement dated 30 May 2011, confirmation of visa application completed on 12 December 2012 and UNHCR refugee status dated 22 October 2010 (CB 162-172).
In his statement, the applicant explained that he had not applied for a United States visa in 2009 but was instead mandated a refugee by the UNHCR on 22 October 2010 and referred to the United States for resettlement with the assistance of the International Catholic Migration Commission (ICMC). Although the applicant and his family had initially been approved for resettlement, the applicant’s visa was later refused after he attended for an interview with the ICMC and acknowledged that his wife and family had returned to Iraq. The applicant’s statement contained a denial of having applied for a visa to the United States in 2013. Instead, the applicant stated that a visa application had been made on the applicant’s father’s behalf by the applicant’s brother.
On 28 May 2018, the Department again invited the applicant to comment on unfavourable information that was described in essentially the same terms as that identified in the previous letter sent pursuant to s 57 of the Act save that the date of application for refugee status in the United States was said to be “on or about” December 2010 (CB 173-177).
On 30 May 2018, the applicant’s representative provided a response to the Department that repeated the matters set out in the applicant’s statement (CB 178-179).
On 9 June 2018, the delegate made a decision to refuse to grant the applicant the visa (CB 185-204).
THE DECISION OF THE DELEGATE
Assessment of protection claims
After recording findings about the applicant’s identity, the delegate considered the applicant’s protection claims. These were described in the following terms (CB 187):
·The applicant is a Sunni and has lived in Baghdad his entire life.
·The applicant is married to a Shia and therefore in a mixed sect religion.
·The applicant owned and operated a lighting company called Rose Lighting.
·In August 2010 militia members from Al Qaeda came to his shop and accused the applicant of aiding the American forces.
·The applicant claims he was unaware of why the accusation was being made but suspects someone he supplied equipment to was then supplying items to the Americans.
·Immediately after the threat, the applicant closed his shop.
·A week later, a bomb exploded in front of the applicant’s house shattering his windows. Nobody was harmed.
·After the explosion the applicant resolved to leave Iraq and did so in September 2010 moving to Turkey with other family members.
·The applicant claims to have accepted as a refugee by UNHCR whilst in Turkey.
·The applicant’s mother and brother applied for protection in the USA and were accepted. They then moved to the USA. The applicant’s wife and children returned to Iraq. The applicant left for Australia in 2013.
The delegate accepted that the applicant was a Sunni Muslim from Baghdad and that he was in a mixed Sunni-Shia marriage. The delegate accepted that the applicant owned a shop selling lighting equipment. The delegate also accepted that the applicant had presented to the UNHCR and had been recognised as a refugee based on his verbal testimony (CB 187-188).
The delegate accepted that the applicant had been approached by men in August 2010 on the basis that they believed he was supplying lighting equipment to someone who then supplied it to Americans and that the applicant had closed his shop as a result of this event. The delegate also found it plausible that a bomb might have exploded near the applicant’s house but did not accept that the applicant’s house was targeted by the bombing (CB 189-190).
The delegate found, based on country information, that the applicant would not face a real chance of serious harm as a Sunni from Baghdad. In doing so, the delegate rejected a submission made on the applicant’s behalf that he would be persecuted by the Iraqi Security Forces, Shia militias and Islamic State (CB 193).
The delegate found that the applicant would not face a real chance of serious harm for the reason of his ownership of a lighting shop and accusations that he had indirectly supplied equipment to American forces/interests. The delegate found that those men who had threatened him had no ongoing interest in the applicant. Likewise, because the applicant’s house had not been the target of the bomb attack, the delegate found that he would not suffer relevant harm related to that event (CB 194).
The delegate found, based on country information, that the applicant would not face a real chance of serious harm by reason of his mixed marriage (CB 195).
The delegate considered whether the applicant would face a real chance of serious harm due to being a failed asylum seeker and returnee from a Western country but found, based on country information, that the prospect of this occurring was remote (CB 196).
The delegate undertook what it described as a “cumulative assessment” and found that the applicant would not face a real chance of persecution on that analysis. The assessment was said to be based on the applicant’s personal characteristics and circumstances including his Sunni religion, his home area in Baghdad, his encounter with masked men who accused him of indirectly supplying US interests in Iraq and being a failed asylum seeker from a Western country. The delegate was not satisfied that the applicant met s 36(2)(a) or s 5H(1) of the Act (CB 196).
The delegate found, on an application of the same country information referred to in the context of its refugee assessment, that the applicant did not satisfy s 36(2)(aa) of the Act (CB 196).
Excluded fast track review applicant assessment
The delegate next considered whether the applicant was an excluded fast track review applicant. The delegate recorded the detail of the s 57 invitations issued by the Department and the responses provided by the applicant’s representative to these invitations (CB 198-199). The delegate concluded:
I have considered the information available to me from the US authorities as well as the applicant’s submission. The applicant, whilst disputing the details, admits to having applied for a protection visa to the United States but submits it was as a result of a referral by the UNHCR or the ICMC in Turkey. This may or may not be true, however, I find that even if the application to the US was a result of a third party referral, the applicant still made an application for protection in a country other than Australia and that application was refused. The applicant has engaged with the US authorities in attending interviews and having biometrics taken; the applicant appears to have made a claim for protection to the USA and this claim has been refused.
…
It is my opinion that the applicant meets s 5(1)(a)(iii) of the definition of an excluded fast track review applicant as he has made a claim for protection in a country other than Australia, that is the USA, that was refused by that country.
Based on the above, I am satisfied that [the applicant] meets the definition of excluded fast track review applicant in s 5(1) of the Act, for the reason/s indicated above.
Approach to the judicial review
As noted earlier, the parties invite the Court to take different approaches to the order in which it determines the review application.
The applicant submits that the Court should first review the visa decision on the basis that if the applicant is found not to be an excluded fast track review applicant (contrary to the finding made by the delegate) this Court would lack jurisdiction to quash the visa decision; in truth, the visa decision would be a “primary decision” in respect of which this Court has no jurisdiction: ss 476(2)(a) and 476(4)(c). The applicant submits that such an approach is permissible because if he was to succeed in his challenge to the visa decision, the Court would apply the “presumption of regularity” to the EFTRA finding and not decide the issue of whether it was affected by error.
The Minister submits that where a question arises about this Court’s jurisdiction then the orthodox and prudent approach would be to determine that question as a preliminary issue.
I accept the Minister’s submission. It is the first rule of every court, where a real question is raised as to its jurisdiction and powers (or as to the exercise thereof), that the court must satisfy itself that the jurisdiction exists and that the powers may be exercised: Re Application by the Chief Commissioner of Police (Victoria) [2005] HCA 18; 214 ALR 422 (per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) at [68]. Accordingly, I will first consider whether there is merit in the applicant’s ground of review directed at the EFTRA decision.
The applicant’s challenge to the EFTRA decision
In his application, the applicant originally identified three grounds directed at the EFTRA decision. However, by the time of final hearing he pressed only ground two which read: “the delegate misunderstood the expression ‘in a country’, in that it means that the applicant had to be physically present within the territory or jurisdiction of ‘that country’ which refused the claim, rather than an application that was refused by another country”.
The applicant submitted that in making the EFTRA decision, the only facts relied upon by the delegate were the applicant’s admissions that he sought protection whilst physically present in Türkiye, to either the ICMC or the UNHCR, which request was referred to and then refused by the United States. In doing so, the delegate purported to rely on the definition of “excluded fast track review applicant” set out in s 5(1)(a)(iii) of the Act.
However, according to the applicant, that provision requires that there be symmetry between the country where the claim for protection is made (“in a country”) and the country that refuses the claim (“refused by that country”). In this case, the claim for protection was made in Türkiye and refused by the United States.
The applicant’s construction of s 5(1)(a)(iii) was said to involve a literal reading of the plain language employed in the provision and to be consonant with the Convention Relating to the Status of Refugees, which gives effect to the concept that people don’t make claims for protection “to a country” or “in respect of a country” but rather they make claims to prevent their removal to the frontiers of a country. The concept, according to the applicant, can only work when a person is physically present in the country.
The Minister’s submissions on the EFTRA decision
The Minister submitted that in order to consider and determine the construction question posed by the applicant’s ground two it was necessary to look more broadly at the excluded fast track review applicant provision and the purpose to which it was directed.
To the first point, the Minister noted that s 5(1) of the Act defines “excluded fast track review applicant” to mean:
excluded fast track review applicant means a fast track applicant:
(a) who, in the opinion of the Minister:
(i) is covered by section 91C; or
(ii)has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or
(iii)has made a claim for protection in a country other than Australia that was refused by that country; or
(iv)has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; or
(vi)without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or
…
To the second point, the Minister submitted that the significance of the definition was to exclude certain applicants from the limited de novo merits review performed by the Immigration Assessment Authority under Part 7AA of the Act. In the Explanatory Memorandum to the Bill that introduced Part 7AA – the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) – the rationale for the exclusion for certain applicants was identified as being (Minister’s emphasis):[1]
There will also be fast track applicants who in turn, will be excluded fast track review applicants. After an assessment of their protection claims, excluded fast track applicants will be those who have [been] found to have put forward claims that indicate they have been previously been refused protection, already have protection available elsewhere or have unmeritorious claims and as such, their cases suggest prompt resolution of their status should be a priority. Excluded fast track review applicants will not have access to any form of merits review. Excluding these applicants from merits review will stop unmeritorious claims being considered by the IAA which can lead to delays in departure and an inefficient and costly use of resources. Decisions made in relation to certain excluded fast track applicants who are identified as vulnerable can be referred to the IAA by way of a legislative instrument. All fast track applicants will continue to have access to judicial review.
[1] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 8.
The Minister noted that in relation to subparagraph (a)(iii) of the definition of excluded fast track review applicant the Explanatory Memorandum stated at [718]:
This provision captures those fast track applicants who have had their asylum claims assessed and refused in a third country and have now received a further assessment and refusal under Australia’s protection visa framework. It is the Government’s position that persons who have had the benefit of accessing protection determination procedures both overseas and in Australia should be excluded from further ‘forum shopping’ where they have again had their application refused because merits review will unnecessarily delay the finalisation of their cases.
The Minister submitted that the evident purpose of the definition in (a)(iii) was to limit the merits review rights of applicants who had previously been assessed by another country as not being owed protection. It was said that this purpose was supported by the context of the additional categories of excluded fast track review applicants in sub-paragraphs (a)(ii) and (iv), which referred to claims having been refused by Australian authorities or the UNHCR, respectively. The Minister submitted that sub-paragraphs (a)(ii)-(iv) should be understood to “cover the field” of claims having been previously rejected.
According to the Minister, there was no textual indication from sub-paragraph (a)(iii) and nor did the context or purpose of the excluded fast track review applicant definition, support the applicant’s contention that an applicant was required to be physically present in the country where the claim was both assessed and refused. The Minister submitted that the words “in a country” on their plain meaning, referred to the location of assessment of the protection claims, rather than lodgement of the application for protection. Further support for this construction could be obtained from the statement in the Explanatory Memorandum (refer [37] above) that the definition was intended to capture “fast track applicants who have had their asylum claims assessed and refused in a third country”.
Consideration of the EFTRA decision ground (ground two)
The contemporary approach to statutory interpretation requires reading the text of the relevant provision in its context and having regard to statutory purpose: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604 (per Gordon, Edelman and Steward JJ) at [31].
As far as context is concerned, the modern approach to statutory interpretation “(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which…one may discern the statute was intended to remedy”: Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 381 ALR 601 (per Gageler J) at [66].
Further, and while acknowledging that the assistance to be derived from extrinsic materials, such as explanatory memorandum, is not uniform (Mondelez Australia at [67]), Gageler J (as his Honour then was) observed at [71] that:
Having regard to their provenance and to the circumstances of their creation, explanatory memoranda for Government Bills introduced into the Commonwealth Parliament can ordinarily be relied on by courts to explain the overall legislative design and the intended practical operation of provisions and combination of provisions. Their use of examples of the contemplated operation of provisions can inform in both those respects. They can sometimes even yield insight into the precise grammatical sense in which words appear in the texts of provisions”.
An application of these principles leaves me in no doubt that s 5(1)(a)(iii) should be construed consistently with the Minster’s submissions. This reflects a natural reading of the plain language employed in the provision, its place contextually within the broader definition of “excluded fast track review applicant” and the objects of that definition and the scheme which it promotes, as explained in the explanatory memorandum, relevant parts of which have been extracted above.
The applicant’s proposed construction would have the effect of carving out, in a manner inconsistent with the policy response articulated in the explanatory memorandum, a cohort of cases that are relevantly indistinguishable insofar as they involve individuals who have sought protection in a country other than Australia and whose claims had been rejected by that country. The applicant’s proposed construction is not supported by the text of s 5(1)(a)(iii) and would involve reading into the sub-paragraph words that emphasise the centrality of the place of application. It is not insignificant that sub-paragraph (a)(ii) uses explicit language – “while in Australia” – to connect the location of the applicant with the claim process.
In these circumstances I consider that the facts relied upon by the delegate in making the EFTRA decision provided a rational basis for the finding that the applicant satisfied the definition of excluded fast track review applicant contained in s 5(1)(a)(iii). Accordingly, ground two is dismissed and the Court has jurisdiction to determine the challenge to the visa decision because that decision is not a “primary decision” within the meaning of ss 476(2)(a) and 476(4)(c) of the Act.
The applicant’s challenge to the visa decision
The applicant challenged the visa decision by relying on ground four of his application which read: “the delegate failed to consider the claim to complementary protection based on generalised violence as set out at p 6-7 of the submissions made to the delegate”.
The applicant in his written and oral submissions moved away from the emphasis on generalised violence. He submitted instead that he had specifically claimed in these submissions (which were reproduced at CB 149-150) that living conditions in Iraq were such as to present a real risk to him of experiencing degrading treatment. According to the applicant, the delegate had not addressed this claim at all. Instead, the closest that the delegate came to doing so was by way of a generic reference within its complementary protection analysis that “Considering the country information discussed above, I also find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iraq, there is a real risk the applicant will suffer significant harm” (CB 196). The applicant submitted that where the “country information discussed above” did not include the UNHCR report upon which he placed reliance when making his submission about living conditions, it could not be inferred that the delegate was cognisant of it when making the visa decision.
The applicant submitted that in circumstances where his case was based on humanitarian considerations relating to living conditions, the generic phrasing adopted in the delegate’s reasons did not indicate consideration of his claim.
The Minister’s submissions on the visa decision
The Minister’s submissions contained an acknowledgement that the claim to apprehend harm based on living conditions in Iraq squarely arose on the material and that as a result, the delegate had been obliged to consider it.
However, the Minister submitted that the delegate’s admittedly brief complementary protection assessment did demonstrate an awareness of, and engagement with, this claim.
The complementary protection assessment is in the following terms (CB 196):
Complementary protection criteria assessment – s 36(2)(aa) of the Act
In MIAC v SZQRB (2013) 210 FCAFC 33 (20 March 2013), the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. I have considered whether the applicant would face a real chance of persecution on account of his personal circumstances being a Sunni from Baghdad, his encounter with masked men who accused him of indirectly supplying US interests in Iraq, his marriage to a Shia (being in a mixed marriage) and being a failed asylum seeker from a Western country. I have found there is no real chance the applicant would suffer serious harm for these reasons if they return to Iraq.
Considering the country information discussed above, I also find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iraq, there is a real risk the applicant will suffer significant harm.
The Minister submitted that this reasoning disclosed that the delegate appreciated that even when the SZQRB analysis was applied (this being the subject of paragraph one of the complementary protection assessment), there were claims remaining that were put only against the complementary protection criteria and which the delegate was required to consider and deal with, which it did in paragraph two of its reasoning. The country information referred to in that paragraph included the country information cited by the delegate as part of its consideration of whether the applicant would suffer serious harm as a failed asylum seeker and returnee from a Western country. The Minister submitted that this country information dealt with living conditions in Iraq and therefore reference to it supported the inference that the delegate had considered but ultimately rejected, the applicant’s claim concerning living conditions.
Consideration of the visa decision ground (ground four)
The claim at the heart of the applicant’s challenge to the visa decision was articulated in written submissions sent to the Department by the applicant’s registered migration agent on 9 August 2017 as follows (CB 149-150):
6. COMPLEMENTARY PROTECTION
At present, UNHCR estimates that over 10 million people or a third of the population, is currently in need of humanitarian assistance across Iraq [fn]. The 2016-2017 military offensive to retake Mosul has exacerbated the already extremely critical humanitarian situation, with humanitarian actors struggling to prepare for the looming crisis amidst a severe funding shortfall, with an estimated 12 to 13 million people predicted to be in need of humanitarian assistance [fn].
We submit that the security and human rights situation in Iraq is so dire that anyone in society would potentially be affected by it. [The applicant], being a moderate Sunni Muslim married to a Shia woman, and who has previously been targeted as a result of his work because of the suspicion that he was a supplier to western military forces, is also at personal risk of targeted harm over and above the risk of harm faced by the general population [fn].
…
We submit that, given the humanitarian crisis, [the applicant] is at real risk of living in conditions which amount to degrading treatment.
I note that each [fn] reference in the extracted passage was to country information described as the UNHCR Position on Returns to Iraq (14 November 2016) (UNHCR report).
This claim was not referred to explicitly in the delegate’s visa decision record, including in the section (reproduced at [16] above) where the delegate purported to identify the applicant’s protection claims. Further, I am not persuaded by the Minister’s submission that I should otherwise infer from the delegate’s statement of reasons that it had a consciousness of, and gave consideration to, this claim.
I accept that the reference to “the country information discussed above” (refer [51] above) should be understood to comprehend the items of country information identified by the delegate in the section of the visa decision directed at the refugee criteria and that this included country information referred to by the delegate in making an assessment of the applicant’s claim to apprehend harm as a failed asylum seeker and returnee from a Western country.
This country information was described by the delegate in the following terms (CB 195-196):
…DFAT states that it:
has considerable evidence that shows a number of Iraqis return to Iraq, sometimes only months after securing residency in Australia to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis. [fn]
…
There is reportedly little evidence to suggest that Iraqis returning to their original communities face any difficulties. However, returning to a new community can be difficult, particularly with the influence of patronage and nepotism that affect day-today living [fn]. Assistance for returnees has been available from non-government organisations, including cash grants, training, job placement and housing allowance. [fn]. I consider that the applicant would likely return to his former community.
It coalesced in the following finding recorded by the delegate (CB 196):
I have previously found the applicant is not of ongoing interest to individuals connected to the Mahdi Army or any other groups in Iraq. There is no evidence before me to consider that the applicant has a warrant issued for his arrest. Based on country information cited above, I find that the chance of the applicant being harmed on account of being a failed asylum seeker from a western country is remote. I therefore find the applicant does not face a real chance of persecution for being a failed asylum seeker from a western country.
I accept that the delegate was entitled to rely on its finding that there was no real chance of relevant harm for Refugee Convention purposes in assessing whether there was a real risk of significant harm accruing to the applicant for complementary protection purposes, including where the factual basis underlying the applicant’s claims directed at these separate criteria had been rejected. In essence, the first paragraph of the delegate’s complementary protection assessment (refer [51] above) contained an acknowledgement to this effect and an identification of those claims which it considered could transpose to the complementary protection assessment.
However, the claim directed at humanitarian considerations relating to living conditions was of a distinct character and substantiated by reference to country information in the form of the UN report that was not acknowledged by the delegate, including in its consideration of the applicant’s failed asylum seeker claim. While this assessment touched on living conditions for a returnee, it did so through a qualitatively different lens.
I reject the Minister’s submission that paragraph two involved a tacit acknowledgement of and consideration by the delegate of extant complementary protection claims. Paragraph two was merely an application of the findings identified at paragraph one to the complementary protection environment. In these circumstances I am not persuaded that the living conditions claim was considered by the delegate, and I uphold ground four of the application.
ORDERS
Where the applicant has enjoyed success in his challenge to the visa decision, I will make orders that set aside this decision and return the matter to the Minister for reconsideration according to law. There is no reason why costs should not follow this event. There will be a further order that the respondent pay the applicant’s costs in a fixed amount reflecting the Court scale.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 1 February 2024
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