DVE17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 49
Federal Circuit and Family Court of Australia
(DIVISION 2)
DVE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 49
File number: SYG 2677 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 1 February 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to consider the evidence before it and provide reasons why the applicant did not meet the requirements of the definition of ‘refugee’ in s 5H(1) of the Migration Act 1958 (Cth) – whether Authority failed to set out any, or proper, reasons for its decision – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 473EA, 476 Cases cited: BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(2022) 289 FCR 21; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 23 January 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms S Roberts Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 2677 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DVE17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
1 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
Introduction
The application before the Court is an application for judicial review of a decision made by the Immigration Assessment Authority (Authority) on 26 July 2017. The Authority affirmed a decision made by a delegate of the Minister not to grant the applicant a protection visa. The application to this Court is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons explained below, I have found that the applicant has not established jurisdictional error in the Authority decision. It follows that the application to this Court is dismissed.
Background
The applicant is a citizen of Iraq, who arrived in Australia in March 2013.
On 10 May 2016 the applicant applied for a temporary protection visa. He claimed in his protection visa application that he is a peaceful man and that he is a dissenting Shia Muslim who does not want to join armed conflict or any political party. His opinions vary from those held by the majority of Shia Muslims in Karbala. He expressed fear that he will be specifically targeted for harm as a civilian if he is returned to Iraq.
On 13 February 2017 the applicant attended an interview with a delegate of the Minister, at which he had an opportunity to discuss his claims for protection.
On 20 April 2017 the delegate made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
The Authority affirmed the delegate’s decision on 26 July 2017.
Authority decision
The Authority decision is accurately summarised in the Minister’s written submissions, and I respectfully adopt that summary with minor modifications.
The Authority accepted that the applicant is a national of Iraq from Karbala and an Arab Shia Muslim. The Authority noted that there were some minor discrepancies in the applicant's evidence but was satisfied overall that he was a credible witness. To the extent that there were any discrepancies between the applicant’s written claims and the oral evidence he gave at the protection visa interview, the Authority preferred his oral evidence.
The Authority accepted that if the applicant returned to Iraq he would be identifiable as a returning asylum seeker and that he was a civilian who had never trained with or served in the Iraqi security forces, militia or other armed groups.
The Authority referred to country information including a United Nations High Commissioner for Refugees (UNHCR) report about the ‘highly volatile’ security situation in many parts of central and northern Iraq, the UK Home Office (UKHO) assessment in August 2016 that indiscriminate violence was not at a level in the southern governorates, including Karbala, that gave rise to a real risk of harm, and the Department of Foreign Affairs and Trade’s (DFAT) advice that southern Iraq was ‘more secure’ than the rest of the country and Shias in the Shia-dominated provinces of Southern Iraq faced a lower risk of generalised violence than those in Baghdad.
The Authority considered the country information presented by the applicant and relevantly found that the DFAT Smart Traveller Advice from 18 November 2016 was of ‘limited value’ in assessing the applicant’s risk of harm in Karbala, as it was prepared to inform Australians on the particular risks that foreigners in Iraq may face and reflected a ‘blanket assessment’ of the security situation in Iraq. The Authority found that the country information presented by the applicant was otherwise generally consistent with the DFAT, UNHCR and UKHO reports.
The Authority accepted the applicant’s claim that he was psychologically harmed by an explosion at a market in July or August 2012 at which his friend died. The Authority also accepted that Daesh carried out numerous attacks against civilian targets, particularly in Baghdad. However, the Authority did not agree that because attacks against civilians and locations where civilians congregate may potentially occur all over Iraq, and a bomb exploded in a market area the applicant happened to be attending, it equated to the applicant being personally targeted.
As the applicant’s immediate family remained in Karbala, the Authority was satisfied that was his home area and the area to which he would return. On the basis of its assessment of the country information, the Authority found that although there was some violence in Karbala, overall it was at such a low level that the applicant’s chance of being harmed was remote. Accordingly, the Authority was not satisfied the applicant faced a real chance of serious harm as a Shia or as a civilian if he returned to Iraq.
The Authority accepted that the applicant did not believe in violence. Whilst it noted that country information from March 2016 indicated the Iraqi Defence Minister was working on a draft conscription law, it also noted that the delegate was unable to find any other country information to indicate further progress on this law had been made. Accordingly, the Authority found the reintroduction of conscription in Iraq and any potential conflict this may have with the applicant’s beliefs were speculative and it did not accept that the applicant was at risk of harm on this basis.
The Authority also found there was nothing to suggest that not volunteering or otherwise refusing to join a Shia militia imputed a person with anti-government, anti-Shia militia or other political views. As the applicant was not involved with any militia or armed tribal groups when he was in Iraq, and given his non-violent beliefs, the Authority accepted that he would not become involved in such groups if he returned to Iraq. As the country information did not suggest there was a risk of forced recruitment or being imputed with any political opinion because he would not become actively involved with the Shia militias, the Authority was not satisfied that the applicant faced a real risk of harm if returned to Iraq due to his non-violent beliefs, not becoming involved with any Shia militias for any imputed political opinion and/or from Shia militias in general.
The Authority accepted the applicant would be returning to Iraq as a failed asylum seeker who had lived in Australia for more than four years. Relying on DFAT’s advice that it was well-accepted by Iraqis that people may seek asylum overseas and then return home when conditions improved, the Authority found the chance of harm to the applicant from militia or criminal groups as a failed asylum seeker was remote.
Whilst it accepted that unemployment was high in Iraq, the Authority found the applicant had approximately eight years’ of work experience in his father’s shop and as a taxi driver, his travelling and living in Australia showed a level of independence and resourcefulness, and there was nothing to suggest that the applicant’s mother, who works as a teacher and supported his two brothers, could not also provide him with some level of support if he returned to Karbala. Accordingly, the Authority was satisfied that the applicant would not suffer any significant economic hardship that would threaten his capacity to subsist or that otherwise constituted significant or serious harm.
The Authority was not satisfied the applicant faced a real chance of persecution if he returned to Iraq and concluded he did not meet the criterion in s 36(2)(a) of the Migration Act.
Although it accepted the applicant would face some economic hardship if he returned to Iraq, the Authority was not satisfied that such hardship would amount to significant harm as defined in s 36(2A) of the Migration Act. The Authority referred to its previous findings that the applicant would not face a real chance of harm if he returned to Karbala due to the generalised violence, having lived and made a claim for asylum in the West, his Shia faith, being a civilian, his non-violent beliefs, an imputed political opinion, not becoming involved in any fighting or for any combination of these reasons. As ‘real chance’ and ‘real risk’ involve the same standard, the Authority was also satisfied that there was no real risk of significant harm upon return to Iraq. Having considered the applicant’s circumstances individually and cumulatively, the Authority was not satisfied he faced a real risk of significant harm.
Proceedings before this Court
The applicant’s judicial review application to this Court was filed on 25 August 2017, within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
The application contains two grounds, reproduced without alteration:
Ground 1: Jurisdictional Error - The Immigration Assessment Authority’s decision is affected by jurisdictional error in that the IAA failed to consider the evidence before the IAA and provide reasons as to why the IAA was not satisfied that the applicant does not meet the requirements of the definition of refugee in s.5H(1). Consequently, the IAA failed to complete its obligation to review the decision of the delegate, failed constructively to exercise its obligation to review and so fell into jurisdictional error.
In the alternative, to conclude that the applicant does not meet the requirements of the definition of refugee in s.5H(l) was, in all the circumstances, otherwise unreasonable (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).
Particulars
1.1.At paragraph 18-35 of its decision dated 26 July 2017, the IAA recited the evidence that was already before it and then stated that the applicant does not meet the requirements of the definition of refugee section 5H (1).
However, the IAA failed to engage in the mental process of analysing the evidence or providing an assessment of why the evidence satisfies or does not satisfy the definition of refugee in section 5H (1).
1.2.At paragraph 19, the IAA referred to the UN High Commissioner for Refugees (UNHCR) report in November 2016 which, inter alia, reported:
“that the security situation in many parts of central and northern Iraq continues to be highly volatile and Daesh reportedly claims responsibility for numerous and regular attacks against military and civilian targets in Baghdad and other areas under government control. Some attacks appear deliberately aimed at civilians, including in mosques, markets, restaurants, playgrounds, and often in Shia-majority neighbourhoods or towns. The UNHCR considers the impact of the ongoing conflict and other acts of violence on civilians is severe and extensive”.
1.3.At paragraph 20, the IAA referred to an assessment made by the UK Home Office on 12 August 2016 which stated that:
“in the southern governorates, including Karbala, indiscriminate violence is not at such a level that substantial grounds exist for believing a person, solely by being present there for any length of time, faced a real risk of harm”.
1.4. At paragraph 20, the IAA further stated from the same report by the UKHO:
“Although Daesh announced in 2014 that it would carry its offensive as far as Karbala and Najaf there were no large scale armed confrontations between Daesh and Iraqi troops in Karbala province and security measures were enhanced in Karbala with Iraq troops reinforced by volunteers”.
1.5.At paragraph 20, the IAA stated from another report by the UKHO dated 18 August 2016 that:
“The UKHO states, subject to their ethnicity and religious sect, in general it may be reasonable for a person to relocate to one of the southern governorates. That report also notes that a UK Upper Tribunal decision concluded that there was not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates suffering serious harm en route”.
1.6.The IAA failed to engage in the mental process of analysing the above various reports and provide an assessment of how the IAA considered those reports in making its decision to affirm the decision of the delegate.
1.7.The IAA failed to analyse and provide reasons as to how the UK Upper Tribunal decision referred to in the aforesaid UKHO report dated 18 August 2016 was relevant in the applicant’s circumstances, particularly how the IAA concluded that the applicant was an ordinary civilian as apparently defined in the said UK Upper Tribunal decision.
1.8. At paragraph 22, the IAA stated that:
“DFAT travel advice is prepared to inform Australians on the risks associated with travel to Iraq for Australians, including the Australian government’s limited ability to provide consular support if required and the particular risks that foreigners in Iraq may face” ... “The DFAT travel advice for Iraq reflects a blanket assessment of the security situation in Iraq. In view of the particular purpose for which the DFAT advice was prepared, and its blanket assessment of the security situation in Iraq, it is of limited value in the assessment of the chance of harm to the applicant in Karbala”.
The IAA failed to analyse and provide reasons as to how the DFAT travel advise for Australians would differ to the travel advise for non-Australians such as the applicant. The IAA failed to explain what it referred to as the “blanket assessment of the security situation in Iraq” and to analyse and provide reasons as to why the said DFAT travel advise is of limited value in the assessment of the chance of harm to the applicant in Karbala.
1.9.At paragraph 22, the IAA accepted that the applicant was psychologically harmed by the explosion at the market in July or August 2012 in which [the applicant’s friend] died and that Daesh carries out numerous attacks against civilian targets. However inexplicably, the IAA stated, inter alia, it did not agree that because a bomb exploded in a market area the applicant happened to be attending, that it equates to the applicant being personally targeted.
1.10. At paragraph 35, the IAA concluded that:
“Overall, I am not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future if he returned to Iraq, for having lived and made claims for asylum in the West, as a Shia, as a civilian, because of his political views, for any imputed political opinion, from generalised violence or any combination of these. The applicant does not have a well-founded fear of persecution within the meaning of s.5J.”
However, the IAA did not list the matters it considered relevant that had influence in its findings.
Ground 2: Jurisdictional Error - The IAA failed to comply with its statutory duty under s473EA of the Migration Act 1958 in that the IAA failed to set out any, or any proper reasons for its decision.
Particulars
2.1. The applicant repeats the particulars to Ground 1.
The only documents filed by the applicant for the purposes of the hearing were his application and an affidavit sworn by the applicant’s former lawyer on 24 August 2017, which annexes a copy of the Authority decision.
The application was prepared by the applicant’s former lawyer. The applicant confirmed at the hearing that he was aware of the content of his application. In any event, in the course of his submissions, I summarised the content of the applicant’s application to ensure that he was aware of it. The applicant indicated at the hearing that he would like to know the reasons why the Authority found against him and at my request Ms Roberts, acting for the Minister, summarised the Authority’s decision in detail before the applicant made oral submissions. I thank Ms Roberts for doing this.
Aside from the affidavit sworn by the applicant’s former lawyer, the only evidence before the Court is the court book.
Consideration
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 where the Full Court said at [17]:
…an application for judicial review is one in which the judicial branch of government reviews by reference to legality or lawfulness the decision or decisions of the Executive branch of government... The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
For the applicant to be entitled to relief, he must establish that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at [82]]:
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
Ground 1
By ground 1, the applicant alleges that the Authority failed to consider the evidence before it and provide reasons as to why he did not meet the requirements of the definition of ‘refugee’ in s 5H(1) of the Migration Act. Alternatively, the applicant alleges that the Authority’s finding that he did not meet the requirements of the definition of ‘refugee’ in s 5H(1) was legally unreasonable.
While the applicant asserts that the Authority failed to consider the evidence before it, he has not identified any evidence that he claims the Authority was required to, but failed to, consider. Rather, the approach taken in the particulars appears to be to identify the evidence that the Authority did consider and then assert that the Authority has not explained why, in the light of the matters considered, it did not accept that the applicant met the requirements of the definition of ‘refugee’ in s 5H(1).
I address each of the particulars referred to in ground 1.
In particular 1.1, the applicant refers to [18]-[35] of the Authority’s decision and suggests that the Authority recited the evidence that was already before it and stated that the applicant does not meet the requirements of the definition of ‘refugee’, but failed to engage in the mental process of analysing the evidence or providing its assessment of why the evidence satisfies or does not satisfy the definition of ‘refugee’.
The Authority decision has been summarised above, and [18]-[35] comprise the Authority’s consideration of whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act. More specifically:
(a)[18]-[24] of the Authority reasons appear under the heading ‘Harm as a civilian, as a Shia, and as a result of and the security situation in Iraq’ and in these paragraphs the Authority considered various country information reports (which are referred to in greater detail in the context of other particulars to ground 1) and compared the security situation in Iraq as a whole, with the ‘significantly lower’ risk of generalised violence for Shia civilians in the southern governorates, including Karbala;
(b)[25]-[28] of the Authority reasons appear under the heading, ‘Unwillingness to join a Shia militia, conscription, political views or imputed political opinion’ and in these paragraphs the Authority considered whether the applicant would face harm from Shia militia groups if he returned to Iraq, taking into account his personal circumstances as well as country information reports addressing, amongst other things, the possibility of conscription being re-introduced, the practices of Daesh and Shia militias and the absence of any information to suggest that Shia militias engage in forced recruitment or that not volunteering for a militia will lead to a person being imputed with any anti-government, anti-Shia militia or other political opinion; and
(c)[29]-[35] of the Authority reasons appear under the heading ‘Unsuccessful asylum seeker and returnee from the West’ and in these paragraphs the Authority considered matters such as the attitudes towards Iraqis who have sought asylum overseas, whether the applicant is likely to have difficulties re-assimilating into the community, whether the applicant would be targeted for extortion or on suspicion of being a spy and whether the applicant would suffer significant economic hardship that would threaten his capacity to subsist with reference to country information and the applicant’s personal circumstances.
In my view, the Authority comprehensibly considered the evidence that was before it and explained in its reasons why it was not satisfied that the applicant met the refugee criterion.
Particulars 1.2 to 1.6 should be considered together. Particulars 1.2 to 1.5 are simply extracts from the Authority’s reasons at [19] and [20] where the Authority has summarised country information in reports prepared by the UNHCR and UKHO. The relevant complaint in relation to these particulars then appear at particular 1.6 where the applicant asserts that the Authority failed to engage in the mental process of analysing the reports referred to and provide an assessment of how the Authority considered those reports.
The Authority at [19] and [20] compared and contrasted the situation in various parts of Iraq. At [19] the Authority addressed the ‘highly volatile’ security situation in Iraq, particularly in many parts of central and northern Iraq, with the source of its information being a UNHCR report. At [20] the Authority considered a UKHO report commenting on the security situation in Iraq and in particular the southern governorates. I acknowledge that at [19] and [20] the Authority is primarily summarising the country information reports to which it had regard. However, when the Authority reasons are read as a whole, it is clear that the Authority considered that the evidence in relation to the more stable security situation in the south of Iraq more accurately reflected the level of harm that the applicant would face, as opposed to the information about the security situation in other parts of Iraq. This can be seen most clearly at [24] where the IAA said:
… Country information indicates that the risk of generalised violence for Shia civilians is significantly lower in the southern governorates and ordinary civilians face little risk travelling from Baghdad airport to the southern governorates. I consider that although there is some violence in Karbala, overall it is at such a low level that the chance of the applicant being harmed is remote. I am not satisfied that there is a real chance that the applicant would face serious harm on the basis of his Shia faith or as a civilian if he returned to Iraq, now or in the reasonably foreseeable future.
This shows the ‘mental process’ adopted by the Authority and the manner in which it relied on the reports.
Particular 1.7 refers to UKHO information, which I infer to be the information identified at particular 1.5, namely, that a particular report notes that there was not a real risk of an ‘ordinarily civilian’ travelling from Baghdad airport to the southern governorates suffering significant harm en route. At particular 1.7 the applicant asserts that the Authority did not explain why this information was relevant and why he is considered to be an ‘ordinary civilian’.
The reason the information is relevant can be seen at [24] of the Authority reason, which is extracted above. It is clear from this paragraph that the Authority considered the risk of harm that the applicant would face not only in his home area of Karbala, but in the process of travelling to Karbala from Baghdad airport. While the Authority might have been clearer in relation to the manner in which it communicated to the applicant in its reasons why the UKHO information was relevant, the reasoning at [20] and [24] is sufficient and does not disclose any jurisdictional error.
While the Authority did not expressly explain why the applicant is an ‘ordinarily civilian’, it is notable that the applicant never claimed to be anything else. The applicant’s claims were premised on his lack of interest in joining any militia or any political parties. There is nothing in the applicant’s claims to suggest he was involved in the military or police, that he was a politician or government official, or that he had some form of public profile, or any other reason why the applicant would not appropriately be described as an ordinary civilian.
Particular 1.8 refers to the Authority’s explanation as to why it considered the DFAT travel advice provided by the applicant to be only of limited value. The applicant asserts that the Authority has not explained how DFAT advice for Australians would differ to travel advice for non-Australians, or what it meant by referring to the ‘blanket assessment of the security situation in Iraq’. The Authority explained at [22] that the DFAT travel advice is prepared for the purpose of informing Australians of the risks to Australians of travel to Iraq, including the limited ability to provide consular assistance. Given the Authority’s finding that the applicant is a national of Iraq, and therefore he is not an Australian citizen travelling to Iraq, Authority’s reasons at [22] are sufficient to explain why the DFAT travel advice was of limited significance in assessing the risks that the applicant would face in Iraq. While the Authority has not explained what it meant by a ‘blanket assessment of the security situation in Iraq’ it is reasonably apparent that the Authority was referring to a general assessment of the security situation in Iraq as a whole, without the level of detail provided in the country information reports about those persons who are most at risk or the areas within Iraq which are most dangerous.
Particular 1.9 refers to [22] of the Authority reasons, but when considered in context, it appears that the applicant intended to refer to [23]. The applicant suggests in the particular that it was inexplicable for the Authority to accept that he was psychologically harmed by the explosion at the market where his friend died while also concluding that the bomb explosion in the market area the applicant happened to be attending does not equate to the applicant being personally targeted. There is nothing inexplicable (or illogical or irrational) in the Authority’s reasoning at [23]. The Authority was required to consider whether the applicant would face a real chance of serious harm if he is returned to Iraq. As part of this process the Authority considered the harm the applicant claimed he faced in the past and, while it accepted he was psychologically harmed as a result of the explosion, the applicant was not personally targeted in the explosion. The findings of the Authority that the applicant was psychologically harmed in the bombing, but that he was not target, are not in any way incompatible.
At the hearing, the applicant submitted that this type of explosion can happen to anyone, at any time. That may well be the case, but that does not mean that there is error in [23] of the Authority’s reasons. In considering whether the applicant meets the criteria for the definition of ‘refugee’ in s 5H(1) of the Migration Act, the Authority was required to assess whether the applicant has a well-founded fear of persecution within the meaning of s 5J. This requires, amongst other things, that the applicant have a well-founded fear of persecution for reason of his race, religion, nationality, membership of a particular social group or political opinion. The Authority’s decision at [23] represents a finding that the applicant did not have a well-founded fear of persecution for any of these reasons, or any other reason.
Finally, at particular 1.10, the applicant refers to the Authority’s conclusion at [35] of its reasons, which was a summary of its findings that the applicant did not have a well-founded fear of persecution for having lived and made claims for asylum in the West, as a Shia, as a civilian, because of his political views, for any imputed political opinion, from generalised violence or any combination of these matters. The applicant submitted that the Authority did not list all the matters it considered relevant and which influenced its findings. I do not accept this submission. With respect, the submission proceeds on a misunderstanding of the Authority’s reasons. The matters that the Authority took into account and which influenced the summary of its conclusion at [35] are all of the matters discussed in [18]-[34] of its reasons.
I now turn to the alternative error alleged in ground 1, namely that the Authority’s finding that the applicant did not meet the definition of ‘refugee’ was unreasonable. I am not satisfied that this part of the applicant’s ground is made out. The applicant quite clearly disagrees with the decision reached by the Authority, however, disagreement with the Authority’s decision, no matter how emphatic, does not of itself constitute jurisdictional error by reason of unreasonableness.
The Authority considered the applicant’s evidence. It also extensively considered country information. The choice of, and weight to be given, to country information, is a matter for the Authority as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
The Authority gave detailed reasons to support its findings in relation to the applicant’s claims. These reasons amount to an intelligible justification for the Authority’s conclusions and show that the Authority’s findings were open to it on the evidence before it. Taking into account the principles set out in relation to legal unreasonableness in fact-finding, summarised in BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24 at [30], I do not consider that the Authority decision, or any aspect of the decision, was legally unreasonable. Further, there is nothing in the Authority’s reasons that would amount to illogicality or irrationality, as those concepts were described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] and [135].
Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Authority failed to comply with its statutory duty in s 473EA of the Migration Act to set out any, or proper, reasons for its decision. In advancing this ground, the applicant relies on the same particulars that are set out in ground 1.
Section 473EA of the Migration Act requires the Authority to provide a written statement of decision, which sets out its decision on the review, sets out its reasons for the decision, and records the day and time the decision was made.
It can clearly be seen, from the above summary of the Authority decision, and the consideration of ground 1, that the Authority has extensively set out its reasons for the decision. The Authority decision also clearly sets out its decision, namely, that the delegate’s decision is affirmed, and it includes the date and time of the decision. The Authority’s reasons are comprehensive, and there is nothing to suggest that they are inadequate in any way.
Ground 2 is not established.
Matters raised by the applicant at the hearing
Given that the applicant is self-represented and his matter before the Court relates to a protection visa application, I gave him an opportunity at the hearing to explain to the Court what he believed the Authority did wrong. In his oral submissions, the applicant raised three matters that were not addressed in his grounds of application.
The first matter raised by the applicant is that it will not be safe for him to return to Iraq, because there is still a risk, and things are still unsettled in Iraq. I accept the Minister’s submission that this invites the Court to undertake its own assessment of the risk of harm the applicant will face in Iraq, which is beyond the Court’s jurisdiction. Any submissions based on the current security situation in Iraq go to whether or not the applicant meets the criteria for a protection visa if his application were to be assessed today, rather than identifying or asserting any jurisdictional error in the Authority decision. Further, consideration of whether the Authority decision is affected by jurisdictional error must be assessed on the basis of the state of affairs that existed at the time of the Authority’s exercise of its decision-making authority: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]. Therefore, developments in Iraq subsequent to the Authority’s decision are not relevant to the Court’s task on judicial review. No jurisdictional error is established based on the applicant’s submissions relating to the current security situation in Iraq.
The second matter raised by the applicant in his oral submissions is that he has been in Australia for 10 years and he now considers Australia to be like his own country. The applicant submitted that he wants the Court to remember that he has spent 10 years here when reaching its decision. The length of time that the applicant has resided in Australia is not relevant to the resolution of the applicant’s judicial review application. The issue for the Court's determination is whether the Authority exceeded its statutory powers in making its decision and made a jurisdictional error. That the applicant has now been living in Australia for 10 years is not relevant to this issue.
In any event, the Authority did consider that the applicant had been living in Australia for over four years at the time of its decision and the Authority gave reasons why it was not satisfied that the applicant would face harm as an asylum seeker returning from the West and having lived in the West for that period of time. I accept the Minister’s submission that the Authority’s findings on this point were plainly open to it on the evidence before the Authority, particularly the DFAT advice that it referred to at [30] of its reasons that many Iraqi citizens seek asylum overseas and then return when conditions are improved. The length of time that the applicant has spent in Australia does not establish jurisdictional error in the Authority decision.
The third matter raised by the applicant in his oral submissions was that there was an argument between the delegate and his migration agent at his protection visa interview and, as a consequence of that argument, the interview was unfair, and the applicant was not able to complete his case. At [4] of its reasons, the Authority had regard to a submission provided by the applicant which raised this very issue. The Authority said:
It was submitted that at the TPV interview the delegate created an unfair environment for the applicant’s interview because the delegate disrupted the applicant’s representative on a number of occasions. As the applicant was given the opportunity to make oral submissions at the end of the interview and to provide post interview written submissions, and through his representative made such submissions, I am satisfied that the applicant had the opportunity to put forward all his claims.
It is clear from this paragraph that the Authority was aware of the applicant’s complaints about the interview process with the delegate, had regard to his submissions and, considering the relevant facts and circumstances, was satisfied that the applicant had been afforded an opportunity to put forward all his claims.
The applicant has not provided any evidence to the Court to show that he was denied an opportunity to put forward his claims. The applicant made oral submissions at the end of the interview, provided post-interview written submissions through his representative and made a submission to the Authority. If there were claims that the applicant intended to, but did not, raise earlier in his protection visa interview, it can be expected that he would have raised them at one of those three opportunities.
There is no transcript of the interview with the delegate before the Court and, in circumstances where there is no evidence to show that the applicant was denied an opportunity to put forward all his claims, I cannot find that the applicant’s complaints about the interview with the delegate give rise to jurisdictional error in the Authority decision.
The matters raised by the applicant in his oral submissions do not establish jurisdictional error in the Authority decision.
Conclusion.
For the reasons that I have explained, I have found that there is no jurisdictional error in the Authority decision. It therefore follows that the application for judicial review must be dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 February 2023
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