DUU16 v Minister for Immigration

[2019] FCCA 3362

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUU16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3362

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) visa – visa application refused by a delegate of the Minister – decision of the delegate affirmed by the Immigration Assessment Authority – judicial review sought of the decision of the Authority – no jurisdictional error established – application dismissed with costs.

Legislation:

Migration Act 1958, ss. 36(2), 65, 473CC, Part 7AA

Cases cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62
DUZ17 v Minister for Home Affairs [2019] FCA 1593
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
PlaintiffM174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Applicant: DUU16

First Respondent:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Second Respondent	IMMIGRATION ASSESSMENT AUTHORITY
File number	MLG 2690 of 2016

Judgment of: Judge Blake

Hearing date: 8 October 2019

Date of Last Submission: 8 October 2019

Delivered at: Melbourne

Delivered on: 21 November 2019

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Vrachnas Lawyers

Advocate for the Respondents: Ms Stone

Solicitors for the Respondents: DLA Piper

ORDERS

1. The Application filed on 12 December 2016 and amended on 18 September 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $6,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2690 of 2016

DUU16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 7 November 2016. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (‘visa’).

2. For the reasons that follow, I have decided to dismiss the application.

Background

1. The Applicant is an Iraqi national. He arrived in Australia on

   
   

   29 October 2012 as an unauthorised maritime arrival, and attended an arrival interview on 9 November 2012.

2. The Applicant applied for the visa on 7 September 2015. He provided, among other things, a statement of claims and a statutory declaration in support of the application. These documents set out the Applicant’s claims for protection. 

3. The Applicant participated in a Protection Visa interview with a delegate of the Minister (‘delegate’) on 7 December 2015.

4. On 4 August 2016, the delegate refused to grant the visa.

5. The matter was referred to the Authority on 5 August 2016. The Authority affirmed the decision of the delegate on 7 November 2016.

6. The Applicant made an application to this Court for judicial review of the Authority’s decision on 12 December 2016. The Applicant filed an affidavit in support of the application, annexing the decision of the Authority.

7. On 18 September 2019, the Applicant filed an amended initiating application (‘Application’) and written submissions on 19 September 2019. The Minister filed written submissions on 23 September 2019.

The Application for Review

Grounds of Review

1. The Application contains a single ground of review.  It is as follows:

   ‘The Second Respondent (“the Authority”) fell into jurisdictional error in that it was unreasonable.

   Particulars

   (a) The Authority was unreasonable to "find it implausible that the applicant would be unable to obtain documentary evidence" of his claims to have been threatened by two criminals who were members of a political group and a Shia militia.

   (Authority's Decision and Reasons, [13])

   (b) The Authority was unreasonable to:

   "... expect that brother H would have himself provided the applicant with information on whether, or not, these men were suspected of having links to the Sadrist movement, and the applicant would have had this information before he departed Iraq."

   (Authority's Decision and Reasons, [13])

   (c) The Authority was unreasonable by reason of the matters set out in particulars (a) and (b) to this Ground to conclude that it was "not satisfied that the applicant was threatened... prior to his departing Iraq."

   (Authority's Decision and Reasons, (13])’

Applicable Principles

1. Both parties accept that the Authority falls into jurisdictional error if it makes findings which are illogical in the sense of being unsupported by any probative evidence: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. It is also accepted that the Authority will fall into error if it acts unreasonably, whether so unreasonably that no reasonable decision-maker could so have acted, or without an evident intelligible justification: the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Minister for Immigration and Citizenship v Li [2013] HCA 18.

2. Further to the above, in the context of Part 7AA of the Migration Act 1958 (‘Act’), Justices Gageler, Keane and Nettle at [21] of the decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 stated:

   ‘There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration & Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.

3. In the present statutory context, section 36 of the Act permits the grant of protection visas to applicants who claim to need Australia’s protection as refugees under the 1951 Refugee Convention, or under Australia’s complementary protection provisions. A protection visa is required to be granted to a person if there is a ‘real chance’ that the Applicant may suffer significant harm: Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62.

4. Finally, what is reasonable is to be understood within the statutory context. As observed by Beach J in DUZ17 v Minister for Home Affairs [2019] FCA 1593 at [41], ‘the context is not just Div 3 of Pt 7AA but also the broader statutory context of Pt 7AA and even more broadly the context of and the seriousness of the issues dealt with under, inter-alia, ss 36 and 65’.

The Reasoning of the Authority and the Applicant’s claims

1. There are three particulars to the single ground of review asserting that the decision of the Authority was unreasonable. I deal with each particular in turn.

2. The Applicant takes issue with a conclusion set out in paragraph [13] of the decision of the Authority. It is convenient to set out in full both paragraph [13], and the preceding paragraph, which discuss the matters giving rise to the conclusion that is complained about:

   ‘12. At the November 2012 entry interview the applicant stated that he had departed Iraq because he was threatened as a result of Brother H’s work. Asked who threatened him he identified Mr K and Mr G and that he had made complaints to the police about both men, that both had appeared in court but that both had been released on bail. He said he did not know exactly who these men were. In his SHEV statement the applicant submitted that he thinks Mr K may have been a member of the Mahdi Army but he is not sure, and that the Mahdi Army take petrol and kidnap people and this was the reason Brother H had arrested Mr K. The applicant appeared to indicate that he suspected Mr K of Mahdi Army involvement because of the type of crimes he was involved in, and for which Brother H had arrested him. However, at the SHEV interview the applicant said that he knew of Mr K’s Mahdi Army connections because “some people” had told him that Brother H had detained people from the Sadr faction. Asked if he was in Iraq when he learned this, the applicant said that he learned it here in Australia or in Iraq but through a friend. Asked which friend, the applicant replied: a friend. It was put to the applicant that at his November 2012 entry interview he had said that he did not know who these men were associated with. The applicant reiterated he had heard these things. Asked if he had officially reported this matter to the police he said that he had. The delegate asked why he had not provided evidence of this in the form of a police report. The applicant said that he had mentioned that he made a complaint of this kind but that Mr K and Mr G paid money and were released on bail. It was put to the applicant that if he had lodged a police report he would have some documentary evidence of this. He said that he had none. It was put to the applicant that he had said in his SHEV declaration that he was able to obtain police reports in relation to his wife’s death, and that given this it seemed contradictory that he was unable to provide evidence about the complaints he had made regarding Mr K and Mr G. The applicant replied that he was telling the truth and that he had not expected that he would need to provide documents of this kind. 

   13. I have doubts about the credibility of the applicant’s claims given the lack of any documentary evidence to substantiate the claim that he reported the threats of Mr K and Mr G to the police.  Given that he claims that these complaints led to the arrest of these men and their appearance  in court, and given that he claims his brother is a high ranking official with police connections, I  find it implausible that the applicant would be unable to obtain documentary evidence of these  events if they had, in fact, taken place. Moreover, if the applicant’s brother had himself arrested these men, and other men in their respective groups, I would expect that Brother H would have himself provided the applicant with information on whether, or not, these men were suspected of having links to the Sadrist movement, and that the applicant would have had this information before he departed Iraq. The applicant’s account of when, and how, he learned that Mr K was linked to the Sadrist movement – whether by inference from the crimes for which his brother had arrested them; or by way of being told of such links by a friend, or some people, either in Iraq or after arriving in Australia – was not convincing. I am not satisfied that the applicant was threatened by Mr K and Mr G prior to his departing Iraq.’

3. The Applicant makes a number of complaints about the conclusion set out in paragraph [13]. Paragraph 38 of the Applicant’s submissions outline the matters said to give rise to the conclusion that the Authority acted unreasonably, which are as follows:

   ‘(i) The Authority was relying on assumption and not evidence;

   (ii) The Authority’s reasoning was circular, so far as it depended on the absence of “documentary evidence”…

   (iii) The Authority was unreasonable in assuming that the situation would be the same about a complaint to police concerning threats by dangerous criminals with political connections, and the police procedure relating to a suicide;

   (iv) The Authority was unreasonable in assuming that the police would give the Applicant “documentary evidence” of a complaint that he made, as opposed to a situation where his evidence was that he and his wife had given statements to the police;

   (v) The Authority… was unreasonable in treating the Applicant as being able to produce documentary evidence when he was unrepresented.’

Ground 1(a)

1. Particular (a) of the Applicant’s ground of review takes issue with the conclusion that the Authority found it ‘implausible that the applicant would be unable to obtain documentary evidence’ of his claims to have been threatened by two criminals who were members of a political group and a Shia Militia.

2. The issue of the Applicant’s ability to obtain reports or documentary evidence from the Iraqi police was raised in the statutory declaration provided by the Applicant in support of his claim for protection (Court Book page 109).  There, the Applicant set out his account of the death of his wife. At paragraph 29 of the statutory declaration, the Applicant deposed as follows:

   ‘I then went to the Police.  I paid them some money to get copies of the reports. I did this so that I would have evidence of what Noora and I had said in our statements. The police reports are in Iraq at the family house. I can get copies of the reports if necessary’.

3. Also in the statutory declaration, the Applicant indicated that he had reported the threats made against him, by ‘K’ and ‘G’, to the Police: see paragraph 46 of the statutory declaration, reproduced at page 111 of the Court Book.

4. The Applicant was interviewed in respect of his application for the visa.  Relevantly, the delegate’s account of the interview is set out in the decision of the delegate, reproduced at page 210 of the Court Book. A review of this extract discloses that:

   ‘The applicant was asked if he had officially reported these threats to the Iraqi police and he replied yes. The applicant was asked why he had not supplied evidence of a police report in relation to this matter with his PV application. The applicant asked how he would obtain a report and that he had already stated that he had complained about [K] but he had obtained his release by paying money.

   It was put to the applicant that if he had lodged a police report it would seem reasonable to expect some sort of documentary proof to evidence this. The applicant replied reports were not issued. It was put to the applicant that his response contradicted paragraph 29 of his PV application; in relation to a different incident where he claimed he was able to obtain police reports if necessary. The applicant avoided addressing this internal inconsistency and stated that he was being asked about threats made against him and that the other question related to when he was detained by the Iraqi police (in relation to the death of his wife).’

5. This account of the interview, as documented above, discloses, in my view, three things. First, the Applicant’s first answer as to why he had not attached a copy of the police report he made in respect of G and K was not to answer the question, but to ask the interviewer ‘how he would obtain a report’. Second, the Applicant was then pressed that it would seem reasonable to expect some documentary evidence of the report that he had made about G and K. The answer the Applicant gave to this question was that ‘reports were not issued’.  Third, when it was explicitly put to the Applicant that his response that he could not obtain reports was contradictory to the statement he made at paragraph 29 of his statutory declaration, he stated that ‘he was being asked about threats made against him and that the other question related to when he was detained by the Iraqi police.’

6. It is this background that the Authority refers to in its decision at paragraph [12]. It informs the summary given by the Authority at paragraph [12] and it informs the conclusions reached by the Authority at paragraph [13], in particular that ‘[the Authority has] doubts about the credibility of the applicant’s claims given the lack of any documentary evidence to substantiate the claim…’ and ‘[the Authority finds] it implausible that the applicant would be unable to obtain documentary evidence of those events if they had, in fact, taken place’.

7. When the above matters are taken into account, I do not accept the proposition advanced by Counsel for the Applicant that the Authority acted on assumption, or that its findings were unreasonable. The analysis above discloses, in my view, that the Authority had regard to the following.  First, it was not just the failure by the Applicant to produce the documents that led the Authority to question the Applicant’s claim.  It was the Applicant’s inconsistent answers to the questions relating to why he could not produce the police report, which I have referred to above. Second, it was open to the Authority to take the view that the Applicant had been able to obtain police reports in relation to a separate matter. The Applicant had said so himself. Third, there is nothing illogical about the Authority taking the view that because the Applicant had been able to obtain police reports in respect of a different matter, that he would be able to obtain reports in relation to a matter which he reported to police and which ultimately resulted in persons being arrested and subsequently being released on bail. Ultimately, the statement by the Authority that it was ‘implausible that the Applicant would be unable to obtain documentary evidence’ was open to it when all of the above is considered. The fact that another person looking at this material may form a different conclusion does not of itself mean that the conclusions reached by the Authority are unreasonable.

Ground 1(b)

1. I next turn to deal with particular (b) to ground 1 of the Application. The Applicant advances similar arguments under this ground to those set out in respect of particular (a).

2. A review of the Court Book, and also the decision of the Authority, discloses the following:

   a)The Authority accepted that the Applicant had a brother with police connections (at [13]) and that the brother ‘is a captain with a policing role’ (at [14]);

   b)The Applicant had knowledge that his brother had arrested both G and K. This much is apparent from the finding of the Authority at paragraph [12]. It is also apparent from the statutory declaration that the Applicant filed in support of his protection visa application. Paragraphs 32 – 34 of that declaration, which are set out at Court Book page 110, are as follows:

   ‘32. I left Iraq because I was threatened by two people called [G] and [K]. These people are criminals and members of a political group and a part of a Shia militia.

   33. I am aware that there are Shia militia groups such as the Al Mahdi Army. I think that [K] may have been a member of Al Mahdi army but I am not sure. The Al Mehdi army take petrol and kidnap people and hold them for ransom. This was what my brother [H] arrested [K] for.

   34. [K] and [G] were against my brother because he worked for the Government and had arrested them and other members of their group.’

   c)Not only was the Applicant aware that his brother had arrested both G and K, but he was also aware of threats that had been personally received by his brother. So much is evident from the decision record of the delegate which is contained within the Court Book at page 209. The relevant extract is set out below:

   ‘The applicant was asked again what had changed in 2012 that resulted in him being targeted.  The applicant stated that his brother had been promoted to a higher rank and was arresting and detaining people; additionally stating his brother received threats from Daesh and other unknown people. When asked to provide more detail in relation to these threats the applicant restated they were related to what his brother was doing. The applicant stated that as a result of the threats his brother released people who were detained by him.’

   The above extract demonstrates two things. First, the Applicant was in contact with his brother about the brother’s work. Second, the Applicant was aware, based on those discussions, of the threats received by the brother in his line of work, and his brother’s actions in the face of those threats i.e. ‘[releasing] people who were detained by him’.

   d)The Applicant discussed with his brother the threats to him, and what he should do about them. The brother made all of the arrangements for him to leave Iraq: see paragraphs 37 to 38 of the Applicant’s statutory declaration reproduced at page 110 of the Court Book.

1. When the above matters are considered, the conclusion reached by the Authority at paragraph [13] of its decision that it ‘would expect that Brother H would have himself provided the applicant with information on whether, or not, these men were suspected of having links to the Sadrist movement, and that the applicant would have had this information before he departed Iraq’ was one that was open to it.  It was not unreasonable to reach that conclusion. The Applicant was in close contact with his brother.  He was aware that the threats made against him were made because of his brother’s work.  He was aware of the threats made against his brother because of his brother’s work.  He was aware of actions taken by his brother to prevent or deal with threats that his brother faced.  He had the opportunity to confer with his brother. In the face of these matters, it was not unreasonable for the Authority to reach the conclusion that it did in paragraph [13] of its decision. The extracts above disclose a close degree of communication between the Applicant and his brother about matters relating to his brother’s work. Further, they disclose that the brother and the Applicant had the opportunity to communicate about a range of matters.

Ground 1(c)

1. I turn to deal briefly with particular (c) to the ground of review. This particular takes issue with the conclusion that the Authority was ‘not satisfied that the applicant was threatened… prior to his departing Iraq’.

2. It can be seen from particular (c) that the challenge to the conclusion above is based on matters the subject of particulars (a) and (b) to the ground of review. I have concluded that there was nothing unreasonable about the Authority’s approach to the matters complained about under particular (a) or (b). For this reason, there was nothing unreasonable about the conclusion that the Authority was satisfied that the Applicant was not threatened. For this reason, particular (c) must also fail.

3. For all of the above reasons, I dismiss the Application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 21 November 2019