DWF16 v Minister for Immigration

[2017] FCCA 2044

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWF16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2044

Catchwords:
MIGRATION – Application for protection visa – applicant former member of police force – adverse findings made by the Authority – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD, 476

Cases cited:

DBE16 v Ministerfor Immigration and Border Protection [2017] FCA 942

Applicant: DWF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS AUTHORITY

File Number: SYG 3556 of 2016

Judgment of: Judge Street

Hearing date: 28 August 2017

Date of Last Submission: 28 August 2017

Delivered at: Sydney

Delivered on: 28 August 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3556 of 2016

DWF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (the “Act”) in respect of a decision of the Immigration Assessment Authority (the “Authority”) made under Part 7AA of the Act on 16 November 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia on 13 October 2013 as an unauthorised maritime arrival.

3. The applicant claimed to fear harm from members of the Supreme Islamic Council of Iraq, and due to his Shia religion, and as a failed asylum seeker, and from Shia military groups, and due to his arrest, from the members of the Supreme Islamic Council of Iraq involved in criminal activities, or due to his desertion from the Iraqi Police. 

4. The applicant applied for protection on 13 August 2015. On 9 August 2016, the delegate found the applicant failed to meet the criteria under the Act for the grant of a protection visa.

Review by Authority

1. On 12 August 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review under Part 7AA. The Authority identified there were limited circumstances in which the Authority could receive new information. The Authority’s letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and to put submissions. Submissions were made on behalf of the applicant, and the Authority’s reasons expressly refer to those submissions made on 31 August 2016, and identify that the Authority was satisfied that the country information included in the material could not have been provided to the Minister prior to the decision, and there were exceptional circumstances to justify considering the reports as well as the submissions provided to the Authority.

2. The Authority also made reference to taking into account country information in relation to penalties faced by police officers who were absent from their duties without authorisation. The Authority was satisfied that there were exceptional circumstances to justify considering that new information. That new information is of a kind falling within s 473DE(3)(a) of the Act, and does not require the Authority to take the steps identified under s 473DE(1) of the Act.

3. The Authority in its reasons identified the background to the visa application and the information before the Authority. The Authority made reference to the applicant’s claims, including his work as a police officer, and the incidents alleged by the applicant after June 2012, in which the applicant was involved in arresting people trying to smuggle drugs and tablets from Basra to Nasiriyah. The applicant alleged that he received threats and on 17 July 2012 returning home from work with his brother, his car was intercepted and shots were fired, and his brother was seriously injured and subsequently died.

4. The applicant alleged that he filed a report about the attack, but did not return to work, and that he received unpaid leave, and then departed Iraq in September 2012, via the Basra Airport, on a genuine passport.  The applicant alleges, since his departure, on 16 March 2014 he was dismissed from the police force, and sentenced to six months imprisonment in absentia due to his unauthorised absence from the police force. 

5. The Authority identified the relevant law. The Authority accepted that the applicant is a low ranking member of a drug prohibition unit with the Dhi Qar provincial police force for approximately six years. The Authority accepted that the applicant was involved in an operation which involved the arrest of three people for drug smuggling.  The Authority accepted as plausible that those who arrested the applicant were affiliated to one of the armed Shia military groups, which country information indicates were present in southern Iraq, including two particular provinces, and were reportedly engaged in criminal activities.  The Authority accepted that the applicant’s car was attacked by an armed Shia group, or persons linked to armed Shi’a militia.

6. The Authority found there was no evidence to support the applicant’s claim that the militant arm of the Supreme Islamic Council of Iraq was involved, and made reference to country information indicating that the Supreme Islamic Council of Iraq split from its militant arm, the Badr Brigade, which rebranded itself a social welfare group and changed its name to Badr Organisation of Reconstruction and Development. The Authority found both groups were represented in the government. The Authority accepted that the applicant was targeted by Shia militia, or persons linked to the armed Shia militias, in 2012. The Authority did not however, accept that the applicant would be targeted on return by Shia militias.

7. The Authority noted that since the applicant’s departure, country information indicates that there has been a resurgence of Shia militias, including the Badr Corps, in response to increasing sectarianism and calls to defend Shia religious sites, particularly from the 2014 Islamic State offensive. The Authority made reference to country information and accepted that Shia military groups are now engaged in fighting Daesh and that they are still involved in criminal activities or, are linked to persons engaged in criminal activities in southern Iraq in particular in Basra.

8. The Authority did not accept that the Shia militias, or their associates, would seek out the applicant on return to seek revenge or to force the applicant to rescind his testimony. The Authority observed that prior to the incident in 2012, the applicant had not come to the adverse attention of any militias or criminal groups despite his extended employment as a police officer for a period of over six years. The Authority noted that the applicant remained in Iraq for two months after his brother was killed, and did not experience any harm or receive any further threats.

9. The Authority noted at the interview the applicant stated that no further enquiries had been made about him since his departure from Iraq, claiming that those who attacked him were aware of his brother’s death and his departure from Iraq. The Authority was of the view that if the applicant was of ongoing interest, he would have been targeted or contacted in the two months following his brother’s death, or enquiries would have been made about him since 2012.

10. The Authority also found that there had been a significant change in the applicant’s circumstances, in that he is no longer employed by the Iraqi police and has not worked since 2012. The Authority found there is a remote chance the applicant will be targeted on return to Iraq, given the lack of previous interest by militias in the applicant due to his employment, the fact that he is no longer employed by the Iraqi police, and would therefore not be in a position to influence the outcome of the case, and the lengthy period of time since his employment ceased.

11. The Authority was not satisfied the applicant faces a real chance of serious harm on return to his home area, or any other area of southern Iraq, from Shia militias due to his refusal to rescind his testimony or through his employment as a police officer. The Authority made reference to the applicant’s claims in relation to his dismissal from the police force on 16 March 2014. The Authority was not satisfied there was a real chance the applicant will face prosecution amounting to persecution due to his desertion from the police force, or that the essential and significant reason for prosecution would be one of the reasons identified in s 5J(1)(a) of the Act.

12. The Authority identified that the applicant was a Shia Muslim who lived in a Shia dominated province in southern Iraq. The Authority did not accept that there is a real chance of the applicant facing persecution in his home area by reason of being a Shia Muslim. The Authority found the applicant failed to meet the requirements of the definition of refugee in s 5H(1)of the Act and failed to meet the criteria under s 36(2)(a) of the Act.

13. The Authority found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq there is a real risk that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act, and affirmed the decision under review.

Application to this Court

1. On 27 April 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant that this is a final hearing to determine whether the Authority’s decision is affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair the application would be dismissed with costs. 

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Applicant’s Submissions

1. From the bar table, the applicant sought to take issue with the adverse findings by the Authority. The applicant submitted that the death of his brother had not been taken into account nor had there been taken into account the split and the Supreme Islamic Council of Iraq. The applicant maintained that there were still criminals in the organisation and submitted that the Authority had not asked the relevant question in relation to the applicant’s fears. 

2. The applicant made reference to the concerns that he had expressed and why he was scared and that because of the nature of his job he would be at risk as an officer and that he would suffer harm. The applicant maintained that he was an enemy of his country. The applicant submitted that the reason why he had not been harmed in the last two months following his brother’s death was because he was in hiding and that the Authority had failed to take into account that he was hiding at a relative’s place. The applicant maintained that he would be at risk if he went back and that he could not return because he would be killed.

3. I accept the first respondent’s submissions that in substance, the applicant’s disagreement with the adverse findings by the Authority are an invitation to this Court to engage in an impermissible merits review.  This Court does not have power to review the merits of the matter.  This Court does not have power to determine the matter on compassionate grounds. This Court is confined to considering whether the Authority’s decision is the subject of jurisdictional error. 

4. It is apparent on the face of the Authority’s decision, that the Authority took into account the applicant’s claims in relation to his brother being killed, as well as taking into account the applicant’s claims concerning the Supreme Islamic Council of Iraq and the split in that organisation. The Authority also took into account the applicant’s claims by reason of having been a police officer. The applicant’s submissions invite this Court to engage in impermissible merits review and do not identify any jurisdictional error. 

5. In relation to the applicant’s claim that he went into hiding, the applicant maintained that he had said that at the interview. There is no reference to the applicant having gone into hiding in the statutory declaration that he provided to the Authority. There is no basis for finding that the Authority failed to have regard to the material referred to the Authority under the Act.  It was open to the Authority to take into account the period following the attack on the car, in respect of which the applicant was not the subject to a further harm as well as to take into account the absence of any threats thereafter. I accept the first respondent’s submission that there was no reference to the applicant having changed routine after his brother was killed beyond identifying that he didn’t return to the police force.

6. The adverse findings by the Authority in relation to the applicant’s claims were open on the evidence before the Authority and cannot be said to lack an evident and intelligible justification. The applicant’s alleged change of routine not being a matter raised before the delegate is not a matter in respect of which the Authority was required to make an express finding. The Authority’s finding that there was only a remote chance that the applicant would be targeted on return to Iraq by militias or through his employment as a police officer was rational and logical. No jurisdictional error is made out by anything said by the applicant from the bar table.

7. The grounds of the application are as follows:

   I. At point 13 the IAA accepted that militia groups resorted to harm that resulted in death of my brother. This was based on independent country information that " .. politically orientated armed groups .. “have engaged in criminal activities. At point 14 the IAA claims " .. no evidence .. .to indicate that the militant arm of the ISCI was involved" and used information about a split within ISCI to support its findings.

   2. The !AA did not consider or discuss with me that irrespective of a split in !SCI that aimed groups still existed or the impact that the split would have.

   3. The IAA did not assess the possibility or discuss with me that harm may be from other armed groups and not specifically the militant arm of IAA.

   4. At point 15 the IAA that I have not been employed by Iraqi police for a long time and would not be in a " ... position to influence the outcome of the case."  The IAA is not assess or discuss with me if I could be at harm for other reasons even in the event that I could not influence the case.

   5. At point 15 the IAA found that there would be " ... a remote chance ... given lack of previous interest.." referring to a 2 month period after killing of my brother and my departure from Iraq  had previously given evidence that I changed my daily routine and took leave from work during this period of time. The IAA did not question me or consider the impact of my change of routine. 

Ground 1

1. In relation to ground 1, it is apparent that the Authority made reference to the applicant’s claims, including the death of his brother and the militia groups and the split within the Supreme Islamic Council of Iraq. The reference to those findings by the applicant in ground 1 does not identify any jurisdictional error. The adverse findings by the Authority were open on the material before the Authority and cannot be said to be unreasonable, irrational or illogical. Ground 1 fails to make out any jurisdictional error. 

Ground 2

1. In relation to ground 2, it is apparent on the face of the Authority’s reasons, that the Authority did take into account the split, however, the provisions of Part 7AA did not require the Authority to take any steps to discuss the split with the applicant. I accept the first respondent’s submissions that the provisions of Part 7AA do not impose an obligation on the Authority to offer the applicant an interview or invite him to comment prior to making an adverse finding. The natural justice hearing rule has been the subject of confinement as identified by Barker J at [61]–[65] in DBE16 v Ministerfor Immigration and Border Protection [2017] FCA 942.

2. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Authority provided the applicant with an opportunity to provide new information and to put submissions, and had regard to those submissions. Accordingly, the Authority complied with requirements of procedural fairness to the extent not excluded by the provisions under Part 7AA. Accordingly, no jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the Authority took into account the applicant’s claims and made findings dispositive of the applicant’s claims. There is no integer of the applicant’s claims that was not addressed by the Authority. No jurisdictional error is made out by ground 3.

Ground 4

1. Ground 4 identifies a disagreement with the adverse findings by the Authority and wrongly assumes an obligation on the Authority to invite the applicant to comment in relation to the adverse findings. The adverse findings were open and the Authority was not required to invite the applicant to comment on proposed adverse findings. Ground 4 fails to make out any jurisdictional error. 

Ground 5

1. In relation to ground 5, this in substance reflects the submission referred to by the applicant from the bar table. There is no reference to the applicant’s changed daily routine, other than his not returning to work at the police force, which was taken into account by the Authority. There was no obligation on the Authority to question the applicant about his claims. To the extent that the applicant alleges that he was hiding at a relative’s place, this is not referred to in the written material provided to the Authority, and did not arise on the material before the Authority. No jurisdictional error is made out by ground 5.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 October 2017