DVJ19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 755

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

DVJ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 755

File number:	MLG 3416 of 2019
Judgment of:	JUDGE RILEY
Date of judgment:	23 August 2023
Catchwords:	MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – whether the Authority improperly failed to consider the evidence of a photograph – whether the Authority failed to consider the personal dimension of a vow for revenge – whether the Authority’s decision was legally unreasonable.
Legislation:	Migration Act 1958 s.65
Division:	Division 2 General Federal Law
Number of paragraphs:	33
Date of hearing:	10 July 2023
Place:	Melbourne
Counsel for the Applicant:	Angel Aleksov
Solicitor for the Applicant:	Playfair Legal
Counsel for the First Respondent:	Daye Gang
Counsel for the Second Respondent:	No appearance
Solicitor for the First and Second Respondents:	Australian Government Solicitor

ORDERS

MLG 3416 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DVJ19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	23 AUGUST 2023

THE COURT ORDERS THAT:

1.The application filed on 8 October 2019 and amended at the hearing on 10 July 2023 be dismissed.

2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8,371.30.

Note:   The form of the order is subject to the entry in the court’s records.

Note:This copy of the court’s reasons for judgment may be subject to review 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 RILEY:

INTRODUCTION

1. This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa under s.65 of the Migration Act 1958 (“the Act”).

   BACKGROUND

2. In his written submissions filed on 21 June 2023, the Minister provided the following background to this matter:

   3.The Applicant is a citizen of Iraq who arrived in Australia on 24 June 2013 as an unauthorised maritime arrival.

   4.        On 11 January 2017, the Applicant lodged an application for the visa.

   5.On 15 June 2017, a delegate of the Minister refused the application. This refusal was affirmed by the IAA on 8 August 2017. An application for judicial review of this refusal was dismissed before Judge Smith on 19 December 2018, but on appeal the application was remitted to the IAA on 21 June 2019 before Thawley J.

   6.When the application was remitted to the IAA, the Applicant advanced one new claim arising at some point before July 2018, consisting of a statutory declaration signed 21 August 2019 that the Applicant’s abandoned home in Iraq had been painted with the word “wanted”, and a screenshot of a text message conversation between the Applicant and his brother-in-law, which included photos of the graffiti. The text message conversation was dated to July 2018. This new information was provided in Arabic without a translation into English. The new information was accepted and considered through an exercise of the test in s 473DD of the Migration Act 1958 (Cth) (the Act) at [7] of the IAA decision.

   7.On 5 September 2019, the IAA again affirmed the decision not to grant the Applicant the visa.

   8.On 9 October 2019, the Applicant filed his application in this Court.

3. The Authority accepted that:

   (a)the applicant was an intelligence officer in the Ministry of Defence;

   (b)he was involved in the arrest and imprisonment of a particular militia member, who I will call Mr X;

   (c)in early 2013, the Maliki government released many militia members, including Mr X;

   (d)on 15 March 2013, the applicant received a letter demanding that he leave his job within three days;

   (e)the letter contained a bullet; and

   (f)the applicant left his job, and left Iraq.

4. The Authority, which decided the case in 2019, considered that the applicant would not be at risk of serious or significant harm upon return because the situation in Iraq had changed.

   MATERIAL RELIED UPON

5. At the hearing before this court, the applicant relied upon:

   (a)the application filed on 8 October 2019 and amended at the hearing on 10 July 2023 (“the application”);

   (b)the court book filed on 23 June 2021;

   (c)his written submissions filed on 13 June 2023;

   (d)his affidavit sworn on 13 June 2023; and

   (e)the affidavit affirmed by Hassan Nassir Al Sudani on 13 June 2023.

6. At the hearing before this court, the Minister relied upon:

   (a)the response filed on 25 October 2019;

   (b)the court book filed on 23 June 2021; and

   (c)his written submissions filed on 21 June 2023.

   GROUND 2

7. The second ground of review in the application, which the parties addressed first, is:

   The IAA failed to consider the evidence of the photograph, which did say “wanted” in red in Arabic.

8. Following the delegate’s decision, the applicant provided a supplementary statement to the Authority in which he said:

   1.On 12 July 2018, my brother in law … informed me that he had seen the words “wanted” written in red on the outside of my house in … Iraq.

   …

   4.My brother in law took a photo of the writing and sent it to me via Whatsapp. Please find the photo and screenshot of my conversation with my brother in law attached.

   5.My house has been vacant and locked up since I fled Iraq. My brother in law … told me that he had previously passed the house but never noticed any writing. We do not know exactly when this was written on the wall.

   6.I believe it is the militias who wrote this threat as I do not have any conflict or problems with anyone expect (sic) with the Mehdi army and associated militias.

   7.I do not know why they chose to write this on my house, but I believe it was done to make it clear to me that if I ever return, I will be targeted and killed. This is a militia and they have a variety of ways/techniques in threatening, kidnapping, pursuing and killing.

   …

9. The attachment to that statement was in two pages and is reproduced at CB260 and CB261. The first page was as follows:

10. The second page was as follows:

11. The Authority accepted the statement and photographs as new information. The Authority said at paragraph 31 of its reasons for decision:

    The applicant claimed that his home in Iraq was painted with threatening messages. He contends it is not clear when these messages were written but it appeared to be recent as his brother-in-law had not previously noticed the writing, which appears to place it in or about 2018. However, even taking into account the otherwise credible nature of his claims and evidence, I am not persuaded as to this particular claim. Screenshots of a text message conversation said to be between the applicant and his brother-in-law which included photographs of the claimed threats were provided to support the claim. These images do not support the applicant’s contention that the words ‘wanted’ were written in red on the outside brick wall of his house. Rather the images themselves show only a series of red crosses painted on the door and walls, though there may be some Arabic written in black paint. English translations were not provided for the screenshots and I cannot be satisfied as to either the content of the conversation between the applicant and his brother-in-law, or that the writing depicted in the photographs contains any threat against the applicant, indicates that he is wanted, or that it was done by Shia militias including the Mahdi Army. For these reasons, the screenshots have limited probative value and I cannot place any weight on them.

12. The applicant provided to this court an affidavit affirmed by Hassan Nassir Al Sudani on 13 June 2023. That affidavit was not available to the Authority. Mr Al Sudani said that he was a NAATI accredited interpreter. He said that he had viewed CB260 and CB261. He said that, in the photograph at the bottom of CB260 and the top of CB261, the word “wanted” was “clearly written in red to the right hand side of the door in Arabic script. He said that he had circled the word in the photograph he exhibited to his affidavit. That photograph was as follows:

13. It appears that the photograph at the bottom of CB260 is the top part of the photograph at the top of CB261. The photograph exhibited to Mr Al Sudani’s affidavit shows the two parts of that photograph joined together. However, Mr Al Sudani’s photograph also shows more of the building, including all of the front wall, and part of the footpath. The bottom of the Arabic writing circled by Mr Al Sudani is cut off in the photograph at CB261, which was before the Authority. The photograph at the bottom of CB260 and the top of CB261 is one photograph that has been cut in two.

14. The Minister did not object to the applicant relying on Mr Al Sudani’s affidavit.

15. Paragraph 31 of the Authority’s reasons for decision show that it clearly saw the photograph at the top of CB260. The Authority noted that it appeared that there was Arabic written above the door in black paint but that the words, if any, were not translated, and, in any event, the applicant claimed that the significant word was in red paint. The Authority also noted there were crosses, or rather, Xs, on the door and walls. This could all be seen in the photograph at the top of CB260. That photograph contained only a tiny and apparently meaningless part of the Arabic word for “wanted”, which is at the right of the door. It is unclear why the applicant provided the photograph at the top of CB260 to the Authority. It did not afford photographic evidence that someone had painted, in red, the word “wanted” on his house.

16. The Authority noted that there was more than one photograph, but does not appear to have had regard to the photograph at the bottom of CB260 and the top of CB261. The applicant said that the Authority fell into jurisdictional error by not having regard to that important evidence. The applicant said that the evidence was important because it showed that the situation had not changed in Iraq, contrary to the Authority’s conclusion.

17. The Minister said that the Authority had provided additional reasons for rejecting this aspect of the applicant’s claims in paragraph 32 of its reasons for decision. That paragraph is as follows:

    Moreover, I note that prior to this claimed graffiti which appears to have occurred sometime in 2018, the last threat against the applicant was made to his brother in October 2013. I consider implausible that the Mahdi Army would wait almost five years to place graffiti on his home if he had remained of interest to them throughout the period as the applicant claimed. I also consider implausible they would graffiti his home given his evidence it had been locked up and no-one had been living it (sic) since his 2013 departure from the country. Given these matters and having regard to the above independent information regarding the current targets of Shia militia and the PMF, I am not satisfied that the word wanted or any other threats was painted on the applicant's house by members of the Mahdi Army or any other Shia militia as he has claimed. I accept that the applicant's wife and children may have moved to a different area in Dhi Qar but I am not satisfied this was due to threats being painted on the applicant's home.

18. Essentially, in paragraph 32 of its reasons for decision, the Authority was saying, even if the Arabic word for “wanted” was painted on the applicant’s house, it was not painted by a militia, as the applicant claimed. Consequently, the Authority did not need to specifically consider the photograph at the bottom of CB260 and the top of CB261. 

19. In any event, the Authority’s Practice Direction for Applicants, Representatives and Authorised Recipients dated February 2017 said at paragraph 27:

    All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.

20. The equivalent practice direction dated 1 May 2020 added:

    Documents not in English which are not accompanied by a translation may not be accepted.

21. While that sentence was not included in the applicable practice direction, it was implicit. In my view, as the writing in the photographs was not translated for the Authority by a NAATI accredited translator, the Authority was not bound to consider it. It was immaterial that the applicant gave his own translation of the writing in the photographs.  The translator needed to be independent.

22. I also consider that the Authority was not bound to have regard to the relevant photograph in this case because it was bisected and spread across two pages. It was therefore confusing. It did not meet the basic minimum standard of intelligibility that must be met to generate an obligation on the Authority to consider a particular item of evidence.

23. This ground is not made out.

    GROUND 1

24. The first ground of review in the application as filed was addressed secondly by the parties. It was also amended at the hearing. In its final form, ground 1 is:

    The IAA reasoned in a way that is affected by legal unreasonableness because the reasons at paragraph 30 do not lawfully respond to the claims about Mr [X], or the IAA has failed to consider the applicant’s case in this respect which included an implicit personal dimension to the vow of revenge.

25. The Authority said at paragraph 30 of its reasons for decision:

    Recent information indicates that the current targets of the PMF and Shia militias generally fall with the following categories: current political opponents, (largely other Shia militias); retaliation attacks against members of the Sunni community following major terrorism incidents; activists and journalists critical of the PMF; individuals who deviate from Shia morality norms (LGBT people, sellers of alcohol and Christians); and business owners who are targeted for extortion (EASO Targeting of Individuals 2019). This is also supported by information from the UNHCR (2019) and DFAT (2018). The applicant does not fall within these categories and nor is there anything in his profile to indicate he will do so on return to Iraq. The totality of the information does not support that the Mahdi Army, whose leader is now in Parliament, whose members are working with the ISF, and who are focused on other targets, are interested in harming those who in the past were associated with the investigation, arrest and detention of their members, high-ranking or otherwise and nor does it support that Mr [X] himself would be interested in seeking revenge. Rather, despite the previous threats against the applicant and that he was on a hit list in the past, the evidence indicates to me that he would now, over six years later, no longer be of interest to the Mahdi Army, Mr [X] himself, or other Shia militias (including the PMF) for any reason associated with his previous employment as a military intelligence officer, including his particular involvement in the arrest and detention of Mr [X] and association with the coalition/MNF-I.

26. In his written submissions filed on 13 June 2023, the applicant said in relation to this ground:

    8.The applicant was largely accepted on his narrative, which is plainly that of a refugee.

    9.However, the IAA found that those who were minded to persecute the applicant in the past would not be interested to do so presently.

    10.That reasoning was based on country information that the agents of persecution have moved on and been rehabilitated into civilian life (Reasons [30]).

    11.Whilst that reasoning is not challenged in relation to the Mahdi Army writ large, that reasoning cannot stand in relation to Mr [X] himself.

    12.The applicant was responsible for Mr [X] spending time in prison. Mr [X] had vowed to take his revenge. There was an obvious personal dimension to the vow of revenge, as well as a broader politico-military dimension to it. The fact that the militia to which Mr [X] belonged had laid down arms said nothing about Mr [X]’s personal grievance at having, in fact, spent time in prison because of the applicant.

    13.Either, the IAA’s reasoning in relation to Mr [X] is affected by legal unreasonableness – the stated reasoning just does not rationally answer the soundly based fears about reprisal from Mr [X] – or the IAA has failed to consider the applicant’s actual case in this respect.

27. The evidence regarding Mr X’s vow of revenge was at paragraph 14 of the applicant’s statutory declaration dated 3 December 2016. In that passage, the applicant described his commander telling him about the government releasing some members of the militia and that it had been reported to him that Mr X “was overheard saying that he knew who gathered information against him and he will punish that person accordingly”. The Authority appears to have accepted that evidence.

28. In addition, at paragraph 21 of its reasons for decision, the Authority accepted that members of the Mahdi Army, including Mr X personally, approached the applicant’s brother asking about the applicant’s whereabouts in about October 2013, and that as of that date the applicant was of interest to the Mahdi Army.

29. The Authority also accepted at paragraph 18 of its reasons for decision that Mr X lived in the applicant’s neighbourhood.

30. On the other hand, the Authority considered a great deal of country information that was broadly to the effect that the militias in more recent times had been under government control, and that the applicant did not have the profile of a person who might be targeted. Against that backdrop, and in view of the fact that Mr X had done nothing to fulfil his vow of revenge in the six years since 2013, the Authority expressly concluded in paragraph 30 of its reasons for decision that Mr X, as of 2019, would not be interested in seeking revenge against the applicant.

31. I do not consider that the Authority’s conclusion on this point reaches the very high standard required to make out a case of legal unreasonableness. Nor do I consider that the Authority failed to consider the personal dimension of this claim. The Authority expressly said in paragraph 30 of its reasons for decision that recent country information did not support that Mr X would be interested in seeking revenge. The Authority could not have been more clear about the personal dimension of the claim.

32. This ground is not made out.

    CONCLUSION

33. As neither of the applicant’s grounds has been made out, the application will be dismissed with costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       23 August 2023