DUX16 v Minister for Immigration
[2017] FCCA 2161
•19 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUX16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2161 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq for religious and political reasons – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority’s process was unfair, or whether its findings were unreasonable or made without evidence, or whether it failed to consider claims, or made an arbitrary finding, or misunderstood the applicant’s claims or failed to engage in an active intellectual process in considering the claims considered – whether the Authority misapplied country information considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473CB, 473DA, 473DC, 473GA, 473GB |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 AMA16 v Minister for Immigration & Ors [2017] FCCA 303 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 SZBEL v Minister for Immigration [2006] HCA 63 |
| Applicant: | DUX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3515 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Shiba Legal |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 13 June 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3515 of 2016
| DUX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 December 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 30 August 2017.
The applicant is a 43 year old Sunni Muslim and an Iraqi national. He departed Iraq and arrived in Australia by boat in October 2012 as an unlawful maritime arrival. On 9 July 2015, the applicant was invited to apply for a Temporary Protection Visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV). On 8 December 2015 the applicant lodged an application for a TPV. In support of the application, the Minister’s Department was provided with a statutory declaration of the applicant dated 23 November 2015, and copies of identity documents. On 12 September 2016 the applicant attended an interview with the delegate.
The applicant is from the south of Iraq and moved in 2015 with his family to the city of Najaf, which is Shia-dominated. He claimed that in Najaf he experienced discrimination and intimidation by reason of his “Sunni” background. The head of “some local council branch” forced him to give half of his income. Shia members of the Popular Mobilisation Unit (PMU)[1] threatened him when their family members were killed. Shias harassed him whenever there was an incident or an explosion in his province, and he stopped operating his business after it was vandalised. In 2012, there were explosions in Najaf, and he was beaten even though he has nothing to do with politics.
[1] A state-sponsored militia formed in response to the conflict with the Islamic State
The applicant claims that he cannot practise his religion in Shiite areas, the government is ineffective in providing protection, and his Shia dominated tribe disowned him and his family because they are Sunnis. He will be targeted because he “always used to talk about [his] rights as a human being”. The Sunni areas are now controlled by Islamic State of Iraq (ISI), so he cannot relocate. The situation got worse in 2015/2016, as his house was monitored and the militia/PMU shot the roof of his house to scare his family. His family have now been driven out of Najaf and he has no family there anymore.
On 27 September 2016, the delegate refused the TPV. The delegate accepted that the applicant is a Sunni Muslim whose tribe has rejected him, that he experienced discrimination and taunts in his day to day life in Najaf and that he no longer has family in Najaf. Although country information stated that ISI mainly targets Shias, the delegate accepted that the applicant had a subjective fear of ISI even as a Sunni. The delegate did not accept that the applicant was well known as a Sunni or that he was targeted by the Shia militia, as there was insufficient information to establish why he would be of any interest to them.
As there were no reports of incidents of violence in 2016 when the family were allegedly “driven out” of Najaf, the delegate accepted that the family had moved, but not because they were driven out or targeted. The applicant did not have a political profile or that of an activist. The applicant did not face serious harm as a result of being a Sunni, a Sunni from southern Iraq, or as a Sunni in Najaf. The delegate found that he could return to Najaf or move to Baghdad, which is not under ISI control. However, relocation would not be necessary as he could safely access Najaf. Although the applicant could experience hardship on return, he would not be specifically targeted for denial of access to services, including employment opportunities, in Iraq. Considered cumulatively, the applicant did not face a real chance of persecution on return to Najaf. In considering complementary protection, the delegate found for the same reasons that the applicant would not face significant harm for any reason if he returns to Iraq. The matter was then referred directly to the Authority.
On 24 October 2016, the Authority received submissions from the applicant’s representative, which asserted that there was country information evidencing violence in Najaf in 2012 and otherwise made submissions about factual findings of the delegate.
On 2 December 2016, the Authority affirmed the delegate’s decision. The Authority had regard to the 24 October 2016 submission, finding that it was not “new information” for the purposes of s.473DC(1) of the Migration Act 1958 (Migration Act).[2]
[2] At [4]
The Authority found that the applicant was deliberately vague in his evidence about harassment as a Sunni, but accepted that he was verbally abused, that food was thrown at him, that his shop was vandalised on at least one occasion, and that his wife and other family members were insulted and abused from time to time. It also accepted that he was required to pay extra rent for his shop, that a neighbour refused to admit his son to school, that he had to pay half his wages to keep his position, and that he had received treatment for psychological health issues associated with his experiences as a Sunni in Najaf.[3] The Authority concluded that the applicant may suffer occasional discriminatory treatment and some psychological issues if he returns to Najaf, but that this would not amount to serious harm.[4]
[3] At [14]-[15]
[4] At [33]-[45]
The Authority did not accept that the PMU, their associates or members of any Shia militia group, the neighbours or any other group attacked or beat the applicant, threatened to kill the applicant or his family, or destroyed his home or that of his family. It found that the applicant, his wife and other family members left Najaf to escape discrimination which they had experienced as Sunnis living in a Shia dominated province.[5] The Authority did not accept that the applicant would be unable to practise his religion in Najaf, as there was no evidence that Sunni Muslims are prevented from practising their religion in that area.[6] The applicant would not be seen as a political or religious activist and would not be of any adverse interest to anyone for this reason.[7]
[5] At [28]
[6] At [29]
[7] At [30]
Although the Authority accepted that the applicant might be harmed on the basis of his Sunni faith in Najaf, it found that the chance of this occurring is remote and less than a real chance.[8] The applicant would not be perceived as a collaborator with the Iraqi government and did not face a real chance of harm from armed Sunni groups.[9]
[8] At [54]
[9] At [58]
After consideration of the country information, the Authority found that the applicant, as an unsuccessful asylum seeker who has been living in Australia for approximately four years, did not face harm for that reason.[10]
[10] At [59]-[63]
Considering the applicant’s claims individually and cumulatively, the Authority found that the applicant did not have a well-founded fear of persecution.[11]
[11] At [63]
For essentially the same reasons, the Authority also found that the applicant did not attract Australia’s complementary protection obligations. It considered the security situation in Najaf and, although accepting that incidences of violence occur, it found that there was not, on the basis of country information, a real risk that he would suffer significant harm as a result of such generalised violence.[12]
[12] At [71]-[78]
Having found that the applicant did not satisfy the requirements of ss.36(2)(a) or (aa) of the Migration Act, the Authority affirmed the decision under review.
The present proceedings
These proceedings began with a show cause application filed on 12 December 2016. The applicant now relies upon an amended application filed on 13 June 2017. The amended application contains nine grounds:
1. The Second Respondent made jurisdictional error at [27] by having regard to an entry interview and what was not said by the Applicant in circumstances where this was procedurally unfair and unreliable in that:
(a) The entry interview was not raised by the delegate either at hearing or in the decision
(b) The Second Respondent itself accepted that in the entry interview, the Applicant had only a “limited opportunity” to explain his reasons for leaving Iraq.
2. The Second Respondent made jurisdictional error at [28] by making a finding which was irrational or unreasonable in the finding that because the Applicant and his family left the area of Najaf members of Shia militia groups had not attacked or threatened to kill the Applicant or his family or destroyed his home or that of his family
3. The Second Respondent made a finding at [30] without evidence that in Iraq, only persons who “addressed crowds, published brochures or were active in politics” would be targeted by militia for speaking about human rights
4. The Second Respondent made jurisdictional error at [38] by dismissing from consideration claims (which it accepted) that the Applicant had been forced to give up a stall and lost his position in a factory (“the termination events”) by reasons only that “he occupied those roles for a total of around six years” before the termination events occurred.
5. The Second Respondent made an arbitrary finding or assumption at [39] by finding or assuming that because the Applicant paid to travel to Australia, he had sufficient funds to pay for his family.
6. The Second Respondent made jurisdictional error at [43] by treating limited information about the Applicant's psychological condition as enabling a finding to be made about the chance that the Applicant would in the future if returned to Iraq face the chance of serious harm.
7. The Second Respondent made jurisdictional error at [54] by concluding that there was not a real chance of persecution in circumstances where:
(a) A DFAT assessment in 2015 found that there was a “high risk” of violence faced by Sunnis in Shia dominated provinces from Shia armed opposition groups
(b) The Second Respondent accepted that it was possible that the Applicant would be harmed on the basis of his Sunni faith in Najaf but arbitrarily assessed the chance of this as “remote”
8.
a) The Second Respondent made jurisdictional error at [58] by fundamentally misunderstanding or misconstruing the perception by Daesh as to what constituted “collaborating with the government” (Sunnis who were moderate)
b) The Second Respondent made jurisdictional error by treating the absence of a claim that the Applicant had been (or had been perceived to be) a collaborator with the Government precluded a real chance of serious harm from Daesh.
9. The Second Respondent made jurisdictional error by failing to consider whether considered cumulatively the risks which the Applicant faced might be considered significant and relies upon the decision in DDK16 v Minister for Immigration [2017] FCCA 353 at [103]
Ground 6 was not pressed in its own right but was relied upon in order to support Ground 9.
In addition to the book of relevant documents filed on 19 January 2017, I have before me as evidence the affidavit of Samir Shiba made on 12 June 2017, to which is annexed a transcript of the interview conducted by the delegate on 12 September 2016.
Both the applicant and the Minister filed written submissions and also made oral submissions at the trial of this matter on 6 September 2017.
Consideration
Ground 1 – was the Authority’s use of the applicant’s entry interview procedurally unfair or unreliable?
In this ground, the applicant takes issue with the Authority’s reasons at [27] where it stated:
In his entry interview, the applicant said he left Iraq because of the pressure of being Sunni in a Shia-dominated society. He referred to his experience as an employee of the council, problems with shops/stalls being damaged, and his experience with his neighbour who was a kindergarten teacher. I acknowledge that the entry interview provided a limited opportunity for the applicant to explain his reasons for leaving Iraq. Nevertheless, the applicant replied in some detail and did not claim to have received any threats or to have been beaten, attacked, or otherwise harmed by members of the PMU, their associates, the Jaysh al-Mahdi, his neighbours, any other Shia militia group, or any other group or person. The applicant's response in his entry interview suggests that he left Iraq to escape the range of discrimination he experienced. I note that when asked why he chose to travel to Australia in his entry interview, he said for liberty and to escape racism.
The applicant seeks to draw support from the decision of the High Court in SZBEL v Minister for Immigration[13] and contends that the Authority’s use of the entry interview was procedurally unfair and introduced a new issue not previously known to the applicant.
[13] [2006] HCA 63
Consistently with earlier decisions of this Court,[14] I find that SZBEL has no application to decisions of the Authority. Further, I agree with the Minister that the ground fails as formulated at the outset because s.473DA(1) of the Migration Act provides that Division 3 together with s.473GA and s.473GB is an exhaustive statement of the natural justice hearing rule.[15] It also fails because the Authority was entitled to refer to the entry interview, as it was in the material given to it under s.473CB, and, contrary to the applicant’s assertion, was not constrained by the material specifically mentioned by the delegate[16]. Contrary to the applicant’s submissions, the Authority did not need to give feedback to this effect.[17] Finally, there is no basis for the suggestion in the applicant’s submissions that the Authority overlooked the response to question 7 in the entry interview,[18] which does not refer to the applicant being harmed by militia groups. Accordingly, this ground fails.
[14] see for example AMA16 v Minister for Immigration & Ors [2017] FCCA 303 at [21]
[15] see DBE16 v Minister for Immigration [2017] FCA 942 (Barker J) at [62]
[16] NB the entry interview was referred to by the delegate at page 2 of the decision record: CB 113.8
[17] see again DBE16 at [64]-[65]
[18] at CB 12
Ground 2 – did the Authority make a finding which was irrational or unreasonable?
The applicant takes issue with the Authority’s reasoning at [28] where it stated:
I do not accept that that the PMU or their associates, members of the Jaysh al-Mahdi, members of any other Shia militia group, the applicant's neighbours, or any other group or person attacked or beat the applicant, threatened to kill the applicant or his family, or destroyed his home or that of his family. DFAT reports that in recent years there has been a large scale movement of Sunni Iraqis from the Shia-dominated south to Sunni-dominated areas of Iraq, largely seeking to escape societal discrimination.[19] I find that the applicant, his wife and other family members left Najaf to escape the discrimination they experienced as Sunnis living in a Shia-dominated province.
[19] DFAT, “DFAT Country Report Iraq”, 13 February 2015, CISEC96CF1160.
The applicant contends that persecution involves discrimination and that discrimination can itself amount to persecution. I agree. It is apparent, however, that the Authority’s conclusion at [28] was based on its preceding reasons at [16]-[27] rejecting the applicant’s claim to have been harmed in the past by militia groups. Having made these findings, the Authority at [28] is obviously referring to discrimination as not amounting to serious harm, as it does at [33]-[45]. “Extreme” illogicality in the Authority’s reasons at [28] as required within the principles in CQG15 v Minister for Immigration[20] at [59]-[61] has not been demonstrated. This ground fails.
[20] [2016] FCAFC 146
Ground 3 – did the Authority make a finding without evidence?
The applicant takes issue with the Authority’s reasons at [30] where it stated:
Targeting due to talking about rights
The applicant's statement of claims in his TPV application includes the claim that he fears he will be targeted because he ‘always used to talk about his rights as a human being’. This claim was explored in the TPV interview and the applicant clarified that he spoke to colleagues in his work places and other people about the injustices he had experienced and sectarianism. He did not claim to have any history of political or religious activism. For example, he did not claim to have addressed crowds, published brochures, to have been active in politics, or to have had any desire to be politically active which he supressed. The applicant's evidence suggests that he spoke to people about his personal experiences in the course of his daily life. I do not accept that he is seen as a human rights, Sunni or political activist or that he would be of any adverse interest to members of the PMU, their associates, members of the Jaysh al-Mahdi, members of any other Shia militia groups, or any other group or person on this basis.
The applicant complains that there is no basis for drawing a distinction between people who proclaim human rights in the course of their daily lives and those who do so by addressing public gatherings or by publishing material.
I agree with the Minister, however, that the Authority was simply evaluating the material put before it for the purposes of the review. The applicant’s challenge crosses the line into impermissible merits review.[21]
Ground 4 – did the Authority err by dismissing from consideration certain claims of the applicant which it had accepted?
[21] see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 271-272
The applicant takes issue with the Authority’s reasons at [38] where it stated:
The applicant has not claimed to have experienced official discrimination, for example in the form of a denial of access to basic services. I have accepted that the applicant has experienced discrimination in the course of his employment, including being paid less than Shia employees in his work for Najaf council, losing a position in the water bottling factory because of his Sunni faith, being required to pay additional rent for the lease of his stall or shop, and experiencing damage to his stall or shop and its merchandise. These events have had implications for his capacity to earn an income. However in spite of these events, the applicant claims to have worked for the Najaf council for approximately two years, and to have left this role a month before his departure from Iraq due to factors that were not directly related to his employment. The applicant has also been able to find other employment in the past, including operating the stall or shop for approximately four years and working in the water bottling factory for around two years. While discrimination on the basis of his religion led to him giving up the stall and losing his position in the factory, he nevertheless occupied these roles for a total of around six years.
I agree with the Minister that the applicant’s submissions in support of this ground argue with the Authority’s reasoning at [38]. However, when read with [40]-[41], it is apparent that the Authority at [38] is simply explaining why it is not satisfied that the applicant will suffer serious harm in the future, as opposed to discrimination. This is essentially a matter of fact and degree for the Authority.[22] The applicant’s disagreement with the Authority’s assessment is another appeal for merits review. This ground fails.
[22] Minister for Immigration v WZAPN (2015) 254 CLR 610 at [51]
Ground 5 – did the Authority make an arbitrary finding or assumption?
In this ground, the applicant takes issue with the Authority’s reasoning at [39] where it stated:
I have referred to some inconsistencies in the applicant's evidence regarding his employment history. In his entry interview, the applicant claimed he was unemployed for a period of approximately eight years before leaving Iraq and supported himself throughout this period on earnings from the cleaning job he held with the Najaf council from approximately 2001 to 2003. In his TPV application the applicant claimed he was employed by the council up until one month before his departure. Depending on the version of events accepted, it appears the applicant may have had some capacity to save money from his cleaning work, despite the significant deduction imposed by his supervisor. I note that the applicant paid a substantial amount for his travel to Australia. This evidence suggests that the applicant had access to sufficient funds to allow him to support his family as well as to pay for his travel.
The applicant contends that there was an absence of evidence to support the Authority’s finding. I disagree.
The fact that the applicant had sufficient funds to support his family was an available inference from his own claims, which did not suggest otherwise. It was not based simply on his travel to Australia, as seems to be suggested by the applicant. But in any case, this is no more than a suggestion of a wrong finding of fact by the Authority, which is not of itself an error of law.[23] This ground fails.
[23] Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137]
Ground 6
This ground was only pressed in support of Ground 9.
Ground 7 – did the Authority err in applying the real chance test for persecution?
In relation to this ground, the applicant contends as follows.
At [53] and [54],[24] the Authority referred to a 2015 DFAT Report which found that there was a high risk of violence faced by Sunnis in Shia-dominated provinces from Shia armed opposition groups.
[24] CB 163
The Authority placed weight on a UK Home Office Report made approximately 18 months after the DFAT Report. However, it found that it was possible that the applicant would be harmed on the basis of his Sunni faith in Najaf.
The applicant submits that once the Authority accepts that, on the basis of a DFAT Report, Sunnis in Najaf might be persecuted on the basis of their faith, the placing of the word “remote” on the assessment of that risk become arbitrary and indeed appears contrived.
The DFAT Report refers to a “high risk”. While it was open to the Authority to prefer other contrary or later information, it did not find that the rationale for the DFAT assessment was no longer valid.
The applicant contends that the inference is irresistible that the DFAT Report was used as the basis for the finding that it was possible that the applicant “will be harmed” in Najaf on the basis of his Sunni faith. He contends that, as long as the Authority accepted that the DFAT Report still provided for a valid assessment of risk (even though it preferred another report), that risk cannot be arbitrarily dismissed as “remote”.
The material reasoning of the Authority is at [54]:
I have carefully considered the applicant's individual circumstances, including his minority status in his area of Najaf, and the range of information before me. In assessing the different perspectives offered by the information before me, and in particular by DFAT and the UK Home Office, I have had regard to the fact that the UK Home Office report was published approximately 18 months after the DFAT report and addresses the particular issue of the chance of harm to Sunni Arabs in Iraq as a result of persecution on the basis of their faith. I therefore place weight on that report and while I accept that it may be possible the applicant will be harmed on the basis of his Sunni faith in Najaf, I find the chance that the applicant would be harmed to be remote and less than the real chance of persecution required to meet s.5J(1)(b).
I am satisfied that the Authority explained why it placed weight on the UK Home Office Report in preference to the DFAT Report. In general terms, the interpretation of country information is a factual issue for the Authority.[25] It may well be that a differently constituted Authority might have treated the available country information in a different way, but this is a matter about which reasonable minds can differ.
[25] see NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
The applicant seeks to draw support for this ground from the recent decision of the Full Federal Court in Minister for Immigration v AMA16[26] but I do not see any issue of real or apprehended bias here. Although I accept that the analysis by the Authority is questionable, it is nevertheless sufficient to demonstrate that the Authority engaged in an active intellectual analysis of the material. There was no jurisdictional error in the application of the real chance test.
Ground 8 – did the Authority err in dealing with the issue of collaboration with the Iraqi government?
[26] [2017] FCAFC 136
At [58] the Authority stated:
The applicant does not claim to have been, or to have been perceived to be, a collaborator with the Iraqi Government. As an unskilled worker with a limited education in his forties who will be returning to a Shia-dominated area of Iraq, I am not satisfied that he will be perceived as such. I am not satisfied there is a real chance of harm to the applicant from armed Sunni Groups.
The applicant complains that no basis was put forward by the Authority as to why his profile would give him some immunity or protection. He asserts that the Authority’s reasoning is internally inconsistent when compared with its reasons at [55] where it noted that the applicant claimed to fear Daesh.
I accept the Minister’s submission that, contrary to the applicant’s submissions, the Authority does not state that the applicant will have “immunity” from Daesh but rather finds that there is not a real chance of him being harmed by them or other armed Sunni groups. The applicant’s disagreement with this conclusion is another appeal for merits review and so fails.
Ground 9 – did the Authority fall into error in making a cumulative assessment of the risks facing the applicant?
The ninth ground claims the Authority did not consider the risks to the applicant cumulatively. The Authority states that it considered whether the combined effect in future of the discrimination and psychological difficulties suffered by the applicant could amount to serious harm, and finds it could not.[27] As stated above, this is in general terms a factual matter for the Authority. It states at [63] that it has considered whether “any combination of the applicant’s circumstances would combine to expose [him] to a real chance of serious harm in Najaf province”. There is no basis in this case to suggest that the Authority has not done what it claims to have done. It is not a fair reading of its reasons to suggest that it has not considered the cumulative risk to the applicant.
[27] CB 161 at [44]
The applicant relies upon my recent decision in DDK16 v Minister for Immigration & Anor.[28] I note that that decision is under appeal in the Federal Court. In any event, in my opinion, this case can be distinguished on its facts. I am not persuaded that the Authority’s analysis in this case involved the simple application of a verbal formula rather than an active intellectual process. This ground fails.
[28] [2017] FCCA 353 at [103]
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 19 October 2017
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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