DWX16 v Minister for Immigration
[2020] FCCA 486
•6 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DWX16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 486 |
| Catchwords: MIGRATION – Application for judicial review – Immigration Assessment Authority – Safe Haven Enterprise Visa – No misunderstanding of complementary protection criterion – no claim of generalised violence squarely raised – no requirement to consider section 36(2B)(c). |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa), 36(2B)(c), 476(1) |
| Cases cited: Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139 |
| Applicant: | DWX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2760 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 11 November 2019 |
| Date of Last Submission: | 11 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bayly |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the Respondent: | Ms Lucas |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application filed 16 December 2016 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7467.
The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2760 of 2016
| DWX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Application dated 16 December 2016, the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 11 November 2016. The Authority’s decision affirmed a decision of a delegate (‘Delegate’) of the First Respondent (‘Minister’) refusing to grant a Safe Haven Enterprise (subclass 790) visa (‘SHEV visa’).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Act’) and was heard on 11 November 2019.
For the reasons which follow I have concluded that the Application should be dismissed.
Background
The Applicant is a male citizen of Iraq. He arrived in Australia on 29 October 2012.[1]
[1] CB 63.
On 5 November 2012, the Applicant completed his intake interview.
On 18 May 2015, the Applicant received a letter from the Department of Immigration and Border Protection (‘the Department’) inviting him to apply for a Temporary Protection (subclass 785) (‘TPV’) visa within 28 days of having been taken to have received the letter.
On 1 June 2015, the Applicant appointed a registered migration agent to represent him.
On 6 July 2015, the Applicant received another letter from the Department, stating that the laws had changed and that the Applicant was invited to apply for either a TPV or a SHEV visa.
On 3 August 2015, the Applicant applied for the SHEV visa. Attached to this application, amongst other things, was a statutory declaration made by the Applicant, dated 3 August 2015.
On 6 August 2015, the Applicant received notification from the Department acknowledging the valid application for the SHEV visa.[2]
[2] CB 131.
On 6 October 2015, the Department invited the Applicant to attend an interview on 19 October 2015.[3]
[3] CB 141.
On 16 October 2015, the Department rescheduled this interview to 29 October 2015.[4] Subsequent to this, the Applicant provided photographs and a bundle of identity cards (of the Applicant and his family) to the Delegate.
[4] CB 144.
On 3 August 2016, the Delegate refused to grant the SHEV visa.[5]
[5] CB 176.
On 5 August 2016, the matter was referred to the Authority.[6]
[6] CB 211.
On 14 September 2016, the Applicant appointed a registered migration agent.[7]
[7] CB 223.
On 14 and 15 September 2016, the Applicant’s migration agents requested a 14-day stay in order to provide them an opportunity to make further submissions.[8] The migration agents also requested access to the documents lodged by their client or recordings of interviews.
[8] CB 229 and 233.
On 15 September 2016, the Authority responds to the request to extend time, noting that the 21 day period to file further submissions had expired (on 26 August 2016), but that no decision would be made before 22 September 2016 and further submissions may be considered if supplied before then.[9] The Authority released the requested documents on 15 September 2016.[10]
[9] CB 234.
[10] CB 236.
On 21 September 2016, the Applicant’s migration agents sent further submissions referencing an Al Jazeera news report of an incident on 29 August 2016, [11] and enclosing further photographs and a statutory declaration.[12]
[11] CB 271 and app’s subs at [8]
[12] CB 239 – 272.
On 14 November 2016, the Authority contacted the Applicant’s migration agents attaching the Authority’s decision of 11 November 2016 to affirm the Delegate’s decision not to grant the SHEV visa.
On 16 December 2016, the Applicant sought review in this Court of the Authority’s decision.
Applicant’s claims to fear persecution
The Applicant summarised the claims made in his 3 August 2015 statutory declaration as:
5.1 He was born in 1984 in Karbala province, Iraq. At the time he made his statutory declaration, he was aged 30 years, was a citizen of Iraq and was of the Shia Muslim faith.
5.2 In 2002, he commenced police service in the Iraqi Ministry of Police and received basic training in the use of light weapons.
5.3 In 2004, following the United States-led invasion of Iraq and the fall of the Saddam Hussein regime, Iraqi police officers in Karbala province began working with the occupying American forces. At first, the Iraqi police formed an ‘emergency police response’ unit that responded to accidents and fights in the streets. However, beginning in 2006, Iraqi police officers began performing counterterrorism operations in conjunction with the American forces.
5.4 In 2007 or 2008, he began performing counterterrorism work. To do this work, he received special training and used special equipment (including vehicles and protective clothing). The Applicant’s work involved conducting raids at premises in Karbala (and elsewhere in Iraq) and apprehending suspected terrorists so that they could be interrogated by the American forces.
5.5 In 2012, he began receiving threatening text messages stating that he would be killed if he did not leave the Iraqi police force. In September of that year, his family’s home and car were burnt to the ground. After this incident, the Applicant began making arrangements to leave Iraq.
5.6 He feared that if he returned to his home in Karbala province, there was a real risk that he would become a victim of a terrorist attack. In this regard, the Applicant claimed that two Shiite religious sites near his home were likely to be the target of terrorist attacks by ‘IS’.
5.7 In addition, he feared that if he returned to Karbala, he would be personally targeted by ‘ISIS, or IS’ because of his previous involvement in the Iraqi police force
Authority’s decision
The Authority accepted that the Applicant was an Arab, Shia Muslim of Iraqi citizenship.[13] The Authority accepted that the Applicant was a member of the Iraqi police service and that as a police officer, the Applicant may have assisted in occasional raids with coalition forces.[14] This is in contrast to the Applicant’s claim to be a member of a Special Weapons and Training (‘SWAT’) team, with the Authority finding the Applicant’s accounts of ‘his role, training received and participation in raids was vague and unconvincing’.[15]
[13] Authority’s decision record, filed 11 November 2016, [8].
[14] Ibid [15].
[15] Authority’s decision record, filed 11 November 2016, [15].
The Authority did not accept that the Applicant received threatening text messages, or that his house or car were burnt by terrorists as a result of his police employment as he claimed.[16] The Authority did not accept this on the basis that there was no report from the police, criminal investigation team or fire brigade in relation to his burnt house or car.[17] The Authority noted that the evidence of a burnt car and house did not have any features that identified it as the Applicant’s car or house.[18]
[16] Authority’s decision record, filed 11 November 2016, [22].
[17] Authority’s decision record, filed 11 November 2016, [18].
[18] Authority’s decision record, filed 11 November 2016, [22].
The Authority further noted that the Applicant was not clear on who the terrorists were. During his interview, the Authority reports that the Applicant was vague, stating ‘the country is full of them [terrorists]’ and later stated he fears harm from Jaish Al Mahdi who are otherwise known as Daesh.[19]
[19] Authority’s decision record, filed 11 November 2016, [21].
The Authority noted that Department of Foreign Affairs and Trade (‘DFAT’) country information says that Jaish Al Mahdi fight alongside the Iraqi government against Daesh, rather than with Daesh.[20] The Authority, then, did not accept that the Applicant’s brothers had been questioned about the Applicant’s whereabouts since the Applicant departed Iraq.[21]
[20] Authority’s decision record, filed 11 November 2016, [21].
[21] Authority’s decision record, filed 11 November 2016, [22].
At [26] to [32] of the Authority’s decision record, the Authority summarises the state of affairs in Iraq. This includes information relating to the security situation in Karbala and surrounding provinces and factors that increase ones risk of being subject to terrorist risk.
At [33] of the Authority’s decision record the Authority noted that the Applicant will be returning to Karbala as a Shia Muslim and former police officer who was involved with coalition forces. The Authority also found that there is ‘less than a remote chance someone with the Applicant’s profile will be harmed by any terrorist organisation’. The Authority said that Daesh’s attacks in Karbala were targeting Shia religious sites and, occasionally, security sites, but that ‘there is no evidence that Daesh or any other militant group are actively targeting police officers with the Applicant’s profile’.
At [34] of the Authority’s decision, the Authority did not accept that the Applicant would be seen as a spy by virtue of having worked with American soldiers and having lived overseas. The Authority did not consider that the Applicant’s absence from Iraq for a period of four years would result in him facing a real chance of harm, noting ‘considerable evidence showing a number of Iraqis returning home, […] to set up businesses or take up or resume positions in the government or public sector’.[22]
[22] Authority’s decision record, filed 11 November 2016, [34].
Regarding this, the Authority stated that:
36. I am not satisfied the Applicant will be perceived to be a spy and I am not satisfied the Applicant has a profile which would attract the attention of any militia groups upon return to Iraq on this basis, now or in the reasonably foreseeable future. I am not satisfied there is a real chance the Applicant would be harmed on the basis of returning to Iraq as a failed asylum seeker from a western country, now or in the reasonably foreseeable future. Nor am I satisfied that when considered in combination with his religion and his former police role with links to the US forces that he will face a real chance of serious harm on return.
The Authority concluded at [37] of its decision that the Applicant does not meet the definition of refugee in section 5H(1) of the Act and therefore, does not meet the criterion in section 36(2)(a).
With respect to complementary protection, the Authority concluded at [44], on similar grounds (from [40] to [43] of the decision), that:
There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm. The Applicant does not meet s.36(2)(aa).
Grounds of review
By an Amended Application dated 17 October 2019[23], the Applicant raised one ground:
3. The Authority applied the wrong legal test and/or
failed to take into account a relevant considerationtook into account an irrelevant consideration in assessing the Applicant’s claims under the ‘complementary protection’ criterion.Particulars
a. In assessing the Applicant’s claims under s 36(2)(aa) of the Act, the Authority limited its consideration to the applicant’s attributes relevant to his claims under s 36(2)(a) (i.e. the Applicant’s status as ‘a former low ranking police officer who has previously worked alongside the Coalition forces’ at [40]; a ‘Shia Muslim’ at [41] and a ‘failed asylum seeker from a Western country’ at [42]);
b. This approach evinces
anmisunderstanding and or misapplication by the Authority of the terms of s 36(2)(aa), which requires no particular basis or ‘reason’ for the harm feared;c.
Further, or in the alternative, tThe Authority failed to consider whether the Applicant faced a real risk of significant harm on account of the generalised violence prevailing in Karbala, and detailed at length by the Authority at paras [27]-[33] (per SZSSM v MIBP [2013] FCCA 1489);d. In purporting to decide whether the Applicant satisfied the complementary protection criterion, the Authority took into account its conclusion that there was no real risk that the applicant would suffer significant harm on any of three bases identified by the Authority, which was irrelevant to the question whether the Applicant satisfied by the complementary criterion.
[23] ECF
Applicant’s submissions
The Applicant submits that his SHEV visa application contained two separate and distinct claims. First, a refugee claim based on his former membership in the Iraqi police force.[24] Second, a complementary protection claim whereby a necessary and foreseeable consequence of returning to Iraq is a real risk that he will suffer significant harm.
[24] [22] apps subs
At [4] of his submissions the Applicant claimed that:
4. In purporting to address the complementary protection claim, the Authority fell into jurisdictional error by fundamentally misunderstanding the complementary protection criterion. In this regard the Authority wrongly asked itself whether, in the event that he was required to return to Iraq, there was a real risk that the applicant would suffer significant harm on the basis of his membership of a specific group. The Authority thus conflated the statutory concept of ‘a real risk [of] significant harm’ with that of ‘a well-founded fear of persecution’ and applied an erroneous legal test to the complementary protection claim.
The Applicant submits at [4] that, alternatively, the Authority’s jurisdictional error may be characterised as:
[…] involving the taking into an account of an irrelevant consideration, being the Authority’s conclusion that there was no real risk that the applicant would suffer significant harm because of his membership of a specific group.
At [21] the Applicant says that the Authority conflated the complementary protection and refugee criteria by considering whether the Applicant would be likely to suffer significant harm ‘for a specific reason’, and in doing so committed a jurisdictional error of taking into account an irrelevant or, as the Applicant put it, a ‘forbidden consideration’ (citing Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139 at [20]).
The Applicant says that the Authority did not consider a claim that the Applicant suffered a real risk of ‘generalised violence’ in Iraq under the rubric of complementary protection.[25] Rather, the Authority addressed the complementary protection claim by reference to a ‘wholly erroneous understanding of the complementary protection criterion.’[26] The Applicant submits that considering whether ‘any person would have any specific motivation for harming the applicant was wholly extraneous to this question’.[27]
[25] Resp’s subs at [18] and [22] – [23] apps subs
[26] [23] apps subs
[27] AS [23].
Further, at [23] the Applicant claims:
Instead, the Authority asked itself whether the applicant would be at risk of significant harm on any of three ‘bases’, being his former occupation in the Iraqi police force, his Shia ethnicity, or his status as a failed asylum seeker from a western country. This question was central to the refugee claim, but was manifestly the wrong question for the Authority to ask itself in deciding whether there was a real risk that the applicant would suffer significant harm if he was required to return to Iraq.
The Applicant says that the Authority failed to consider whether section 36(2B)(c) of the Act applied in respect of the complementary protection claim. In doing so, the Applicant relied on SZSXE v Minister for Immigration and Border Protection (2014) 145 ALD 79 to support his proposition that the two elements of section 36(2B)(c) of the Act are cumulative, and that both must be found to exist if the provision is to apply. At [18] he states that ‘the fact that a risk of harm is not faced by an applicant personally does not mean that it is deemed to be faced by the population of the receiving country generally.’
The Minister’s submissions
At [20] – [21] of its submissions the Minister responds to the Applicant’s claims, saying that:
20. […] there was no claim squarely raised either by the applicant or on the material before the Authority that the applicant would suffer a risk of ‘generalised violence’ in the sense that the applicant would be the subject of indiscriminate or ‘random’ violence. If such a claim did arise, the first respondent accepts this would necessitate the Authority’s consideration under s 36(2)(aa) of the Migration Act 1958 (Cth).
21. Rather, the Al Jazeera report, when read together with other country information relied upon by the Authority (see, in particular CB 285 [32]) discloses that in fact the ‘generalised violence’ by terrorist organisations was targeted at Shia holy sites and destabilising the government and Shia communities.
The First Respondent also submitted that the Authority referred to ‘generalised violence’ in its reasons. At [26]-[28], the First Respondent submits:
26. Given that the Authority’s findings focussed on the applicant’s profile as a Shia and ‘generalised violence’ being linked to the applicant having such a profile, there was no need for the Authority to consider whether the applicant suffered a real risk of significant harm on the basis of indiscriminate violence.
27. Further, no claim of indiscriminate violence arose on the material before the Authority.
28. It follows that there was no requirement for the Authority to consider whether the exception in s 36(2B)(c) of the Act applied.
Consideration
The Applicant’s submissions regarding the Authority’s decision allege an error because, in considering a claim for complementary protection, the findings focused on whether the Applicant faced a real risk of harm because of the matters that he raised as a basis for a refugee claim rather than because of the real risk of significant harm on the basis of indiscriminate violence and matters unrelated to the refugee claim.
The Applicant’s written claims for protection outlined at Court Book 181 included the following matters:
. The future of Iraq is very uncertain. The security situation in Iraq is very unstable and dangers will likely increase in the near future.
. There is a high potential for Islamic State (IS) to attack his home area of Karbala.
. IS is likely to attack Karbala because it is an area of religious Shia significance and is home to prominent Shia shrines which attract religious tourists.
. The neighbouring province of Anbar is now under ISIS control
. As a police officer he will be targeted because he will be viewed as a supporter of the West. The terrorists he conducted raids (while working as a SWAT team member) on our now called IS or ISIS. These people control everything and have informants everywhere.
. Although Jaish Al Mahdi (JAM) has been officially resolved they are still very active and are seeking revenge against their opponents.
As will be noted, a number of the matters claimed by the Applicant as a basis for finding that he was a refugee include claims of generalised violence in Iraq and in Karbala.
In submissions to the Authority, the Applicant referred to the Al Jazeera report under the heading ‘iv. Profile of interest’ and summarised the effect of the article as follows:
On 29 August 2016, five assailants with suicide vests, rifles and grenades opened fire in a town west of Karbala, killing 17 people. The Islamic State of Iraq and the Levant (ISIL) claimed responsibility for the attack.
I accept the submission made by the First Respondent that no claim was squarely raised on the material before the Authority that the Applicant would suffer a risk of ‘generalised violence’. The Al Jazeera article was raised in relation to the Applicant having a profile of interest and being at risk as a result of that, rather than as a result of random or indiscriminate violence.
At [27] of its decision, the Authority referred to ‘general and targeted’ violence by Sunni-linked insurgent groups and extremists. Its reference to general violence was that violence was aimed at ’destabilising the government and communities, rather than being targeted at individuals’. The reference to targeted violence was a reference to ‘Shia who are also members of government security services, detainees or ethnic minorities’ who ‘appear to have been specifically targeted by Daesh’.
At [30] of its decision, the Tribunal found that the Applicant will be returning to Karbala and made reference to DFAT country information which assessed that Karbala is a Shia-dominated province and that such provinces have experienced fewer violent attacks, and that:
‘Shia-dominated provinces of southern Iraq are at a low risk of generalised violence, whereas Shias in Baghdad province face a moderate risk of generalised violence.’
In my view the Authority considered the claims made by the Applicant in relation to complementary protection on the basis of the claim as framed by the Applicant. The Applicant did not make claims that he had a real risk of significant harm on the basis of indiscriminate violence.
In those circumstances there was no requirement of the Authority to consider whether the exception in section 36(2B)(c) of the Act applied.
Conclusion
For the reasons above, I have concluded that the Application must be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 6 March 2020
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