DYY17 v Minister for Immigration

[2019] FCCA 1174

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYY17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1174

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant disbelieved in part and other fears found not to be well-founded – whether the decision was irrational or illogical considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Applicant WAEE v Minister for Immigration [2003] FCAFC 184

BZD17 v Minister for Immigration [2018] FCAFC 94

DAO16 v Minister for Immigration (2018) 258 FCR 175

Minister for Immigration v Stretton [2016] FCAFC 11

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v SZVFW [2018] HCA 30

SZVAP v Minister for Immigration (2015) 233 FCR 451

WAGO of 2002 v Minister for Immigration (2002) 194 ALR 676

Applicant: DYY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2761 of 2017

Judgment of: Judge Driver

Hearing date: 6 May 2019

Delivered at: Sydney

Delivered on: 5 June 2019

REPRESENTATION

Counsel for the Applicant: Mr T Bagley, pro bono publico

Solicitors for the Applicant: Wotton + Kearney Solicitors

Solicitors for the Respondents: Ms S Given of HWL Ebsworth

ORDERS

1. The further amended application the subject of Order 1 made on 6 May 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2761 of 2017

DYY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 16 August 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) to refuse the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a male citizen of Iraq, born in 1987 at Karbala, who arrived in Australia at Christmas Island as an unauthorised maritime arrival on 12 March 2013.[1]  By an application received by the (then) Department of Immigration and Border Protection (Minister’s Department) on 16 May 2016 and dated 13 May 2016, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV). He enclosed a statutory declaration in which he made some claims relevant to his SHEV application.[2]  The applicant's primary claim concerned his brother's role in a unit of the Iraqi Federal Police (IFP) that targeted terrorists. According to the applicant, his brother was a key player in an IFP operation that sought to arrest a cleric named Mahmoud al-Hasani al-Sarkhi. During that operation, supporters of al-Sarkhi clashed with IFP operatives and the situation escalated to the point that 45 people were killed. The applicant said that a neighbour of the applicant was killed in the conflict and that the relatives of the deceased blamed the applicant’s brother for the killing. Subsequently, militias targeted the applicant and his family in revenge attacks, which forced the applicant's family to escape to an area of desert between Ramadi and Karbala named Ain Altamur. The applicant's family were forced to live a nomadic lifestyle in order to avoid being killed by the militias.

   [1] Court Book (CB) 28

   [2] CB 45

4. The applicant attended an interview with the delegate on 22 February 2017.[3]  The delegate's decision records that at the interview, the applicant stated that his brother and two IFP colleagues were tasked with arresting al-Sarkhi. It was put to the applicant that this version of events was inconsistent with independent country information.[4]

   [3] CB 68

   [4] CB 85

5. Following the interview, on 5 March 2017 the applicant's representative provided a post-interview submission in which he sought to explain how the applicant's version of events was consistent with the independent country information concerning al-Sarkhi's attempted arrest.[5]

   [5] CB 177

6. On 7 March 2017, the applicant was notified of the delegate's decision to refuse his SHEV application.[6]  The delegate did not find the applicant’s account of the actions against al-Sarkhi, in light of the country information, to be credible and did not accept that the applicant’s brother was involved in the attempted arrest of al-Sarkhi.[7]

   [6] CB 79

   [7] CB 85-86

Proceedings before the Authority

1. The delegate's decision was referred for review by the Authority on 10 March 2017.[8] 

   [8] CB 200

2. On 8 April 2017, the applicant's representative submitted documents to the Authority in support of the applicant's case on review.[9] The documents engaged in argument about the delegate's decision and reiterated the post-interview submission.

   [9] CB 213

3. On 16 August 2017, the Authority affirmed the delegate's decision and notified the applicant of its decision.[10]

   [10] CB 230, 233

4. The Authority noted at [4] that it had received a submission from the applicant's representative on 10 April 2017 and found that the submission did not include new information for the purpose of s.473DC of the Migration Act 1958 (Cth) (Migration Act). It obtained new information of its own volition, being a Department of Foreign Affairs and Trade (DFAT) Country Report for Iraq dated 26 June 2017. That report updated the report relied on by the delegate, being a version dated 13 February 2015.[11] 

   [11] at [5]

5. The Authority accepted that the applicant's brother was a police officer and that he was involved in the investigation of criminals and extremists.[12] However, the Authority noted that "certain aspects of the applicant's evidence regarding al-Sarkhi's attempted arrest and the resulting armed conflict are at odds with the description of events provided in independent sources".[13] Those discrepancies identified by the Authority included:[14]

   a)the number of police officers involved.  The applicant gave evidence that his brother and two IFP colleagues initiated the attempted arrest whereas the  country information suggested the attempted arrest was a significant police operation;

   b)the manner in which the arrest was attempted.  The applicant said that his brother and two IFP colleagues were initially sent to arrest al-Sarkhi whereas the independent country information suggested that police imposed a security cordon around al-Sarkhi's home and blockaded his office; and

   c)the likelihood of the IFP attempting a peaceful arrest involving three police officers.  The country information indicated that al-Sarkhi had a known profile as an opponent of the government with his own armed militia.

   [12] at [11]

   [13] at [12]

   [14] see [13]-[14]

6. On this basis, the Authority could not be satisfied that the applicant’s brother:[15]

   a)was one of three police officers sent to arrest al-Sarkhi;

   b)was involved in the initial clashes between al-Sarkhi's gunmen and the police;

   c)killed a neighbour who was a supporter of al-Sarkhi; or

   d)or his family, including the applicant, had been targeted by al-Sarkhi’s militia or their neighbour’s family in a tribal dispute as a result of this incident. 

   [15] see [14]

7. The Authority also did not accept that that the applicant’s brother would have been individually identified by al-Sarkhi’s militia or supporters.[16] Accordingly, it was not satisfied that al-Sarkhi’s supporters targeted the applicant’s brother or his family, including the applicant, as a result of the clashes between al-Sarkhi supporters and the Iraqi Security Forces (ISF), or that they would do so in the future.[17]  The Authority was not satisfied that the applicant faced a real chance of harm from al-Sarkhi’s supporters or his militia, from the relatives and tribe of his neighbour, or from Shia militias if he returned to Karbala now or in the reasonably foreseeable future.[18] The Authority was further not satisfied that the applicant had a real chance of harm from his brother’s role as a police officer if he returned to Iraq now or in the reasonably foreseeable future.[19]

   [16] at [15]

   [17] at [15]

   [18] at [18]

   [19] at [18]

8. The Authority considered the complementary protection criterion, and summarised its factual findings. It observed that it had found the applicant did not face a real chance of harm and as “real chance” and “real risk” involve the same standard, the Authority found for the same reasons that the applicant's claims did not give rise to a real risk of harm for the purpose of s.36(2)(aa) of the Migration Act.[20]

   [20] at [28] and [29]

The current proceedings

1. These proceedings began with a show cause application filed on 5 September 2017.  An amended application was filed on 3 April 2019.  At the trial, the applicant sought leave to rely upon a further amended application annexed to his written submissions prepared by counsel.  I granted that leave, subject to a costs penalty in respect of costs thrown away.  The single ground in the application as further amended is:

   The decision of the IAA was irrational or illogical.

   Particulars

   The IAA made four unwarranted assumptions

   (a)The assumption that the Applicant's brother would not have been identifiable because of the large number of police officers involved: Decision at [15].

   (b) The consequential:

   failure to consider whether the neighbour may have been killed in respect of those aspects of the fighting which the Authority did accept the Applicant's brother was involved in;

   lack of logical connection between the finding that the Applicant's brother was not one of the officer's immediately responsible for arresting al-Sarkhi and the finding that he did not kill the neighbour; and

   failure to properly understand the Applicant's claim as expressed in his statutory declaration as part of his SHEV application and hence a failure to address potential risks arising from what the brother was perceived to have done by virtue of his (accepted) involvement in the conflict.

2. The only evidence I have before me is the court book lodged on 6 March 2018. 

3. Both the applicant and the Minister filed helpful pre-hearing written submissions and made oral submissions through their representatives at the trial. 

4. Counsel for the applicant appeared on a pro bono basis.  The Court is grateful for the willingness of counsel to appear on this basis. 

Consideration

Applicant’s contentions

1. The critical part of the Authority’s reasons is relatively brief and is set out in full below:[21]

   The applicant claims to fear harm due to his brother’s involvement in a police action in July 2014 against Shia cleric Mahmoud al‑Hasani al-Sarkhi. Consistent with the applicant’s claims, independent information supports that al-Sarkhi has his own armed militia and that in early July 2014 his attempted arrest sparked significant clashes between his followers and Iraqi Security Forces (ISF) lasting for several days, spreading into several provinces and that many people were killed. However, certain aspects of the applicant’s evidence regarding al-Sarkhi’s arrest and the resulting armed conflict are at odds with the description of events provided in independent sources.

   The applicant claimed that his brother and two other policemen were sent to arrest al-Sarkhi, his bodyguards shot at them and the dispute escalated into armed conflict between al-Sarkhi’s supporters and police. However, in contrast, independent information suggests that the attempted arrest of al-Sarkhi was a significant police operation involving more than three police officers, and provides a different account of how the armed conflict transpired.  Information states that the police imposed a security cordon around al-Sarkhi’s home in an attempt to arrest him and blockaded his office.  The armed conflict began when police were ordered to remove concrete blocks that had been installed around al-Sarkhi’s office, open up the side streets, and confiscate any weapons found in the office. Witnesses reported that the cleric’s gunmen mobilised as police ignored them and continued to remove the concrete blocks. However, the gunmen opened fire, killing two officers and the police responded, wounding one of al-Sarkhi’s gunmen. An hour after the shooting, al-Sarkhi’s supporters tried to spread in Kabala to strike at the ISF, armed forces were sent in from Najaf, al-Sarkhi’s home was destroyed in an explosion and some reports state that al-Sarkhi fled the city.

   The discrepancies between the applicant’s evidence and the independent information were raised at the DIBP interview. I have taken into account the applicant’s evidence that he was referring only to the initial attempt to arrest and interview al-Sarkhi and that only three police officers, including his brother, were originally sent in an effort to avoid armed confrontation.  However, these explanations are not supported by the independent information cited above.  Moreover, in circumstances where al-Sarkhi had a known profile as an opponent of the government with his own armed militia, I do not consider it plausible that only three police officers would be sent to arrest him. On the totality of the evidence before me I am not satisfied that: the applicant’s brother was one of three police officers sent in to arrest al-Sarkhi; he was involved in the initial clashes between al-Sarkhi’s gunmen and the police; he killed a neighbour who was a supporter of al-Sarkhi; or that he or his family, including the applicant, have been targeted by al-Sarkhi’s militia or their neighbour’s family in a tribal dispute as a result of this incident. I am not satisfied that the applicant’s family were shot at by militias or that his family fled the family home and moved to the desert.

   I have accepted that the applicant’s brother was a member of the police force and noting information supports that the ensuing conflict between al-Sarkhi’s supporters and the ISF was widespread, I am prepared to accept as plausible that his brother may have been involved in the conflict at some stage. Information is that the conflict involved a large number of ISF and in these circumstances, I am not satisfied that the applicant’s brother would have been individually identified by al-Sarkhi’s militia or supporters. I am not satisfied al-Sarkhi’s supporters targeted the applicant’s brother or his family, including the applicant, as a result of the clashes between al-Sarkhi supporters and the ISF, or that they would do so in the future.

   The applicant expressly claimed to fear harm from al-Sarkhi’s militias. However, at interview he appeared to indicate he also feared harm from Shia militias more broadly. He did not claim that he or his family have been harmed in the past by any other Shia militias. Shia militias remain active in Iraq with groups including the Badr Brigades, the Madhi Army, Asa’ib Ahl-al-Haq and Kata’ib Hizbullah, uniting under the banner of the Popular Mobilisation Units (PMU) and currently fighting alongside the ISF against ISIL and the Sunni insurgency. Country information before the delegate states that al-Sarkhi does not enjoy popularity inside Iraq, rather he is in conflict with Muqtada al-Sadr, head of the Madhi Army, and has openly opposed calls by Shia clergy for young men to join the security forces in their fight against ISIL and other armed Sunni groups. In these circumstances, I am not satisfied that the Shia militias will harm the applicant due to his brother’s role as a police officer or for any involvement he had in the broader clash between the ISF and al-Sarkhi’s supporters. I am not satisfied on the information before me that the applicant would otherwise be of any adverse interest to Shia militias.

   (footnotes omitted)

   [21] from [12]-[16]

2. Accordingly, the Authority did not accept that the applicant had a “well‑founded fear of persecution” because he did not have a real chance of harm from al-Sarkhi’s supporters or his militia if he returned to Iraq.[22]

   [22] decision at [14]-[15] and [18]

Authorities

1. A finding that a decision is unreasonable can be made out where there is “no evident and intelligible justification for the decision”.[23] In determining whether a decision is made within the boundaries allowed by a statute, its terms, scope and purpose is relevant. In order to evaluate the quality of the decision, the Court must determine whether the decision: [24]

   has the character of being unreasonable, in sufficiently lacking rational foundation or an evident and intelligible justification or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.

   [23] Minister for Immigration v SZVFW [2018] HCA 30 at [82]

   [24] Minister for Immigration v Stretton [2016] FCAFC 11 at [11]

2. A decision meets this criteria if there is no logical connection between the evidence and the inferences or conclusions drawn resulting in a finding without logical, rational or probative basis. ^[25]  Illogical or irrational findings and intermediate reasoning may also establish jurisdictional error.[26]  An unwarranted assumption may lead to a failure to duly consider the question raised by the material put before it.[27]

   [25] DAO16 v Minister for Immigration (2018) 258 FCR 175 at [30] and [45]; Minister for Immigration v SZMDS (2010) 240 CLR 611 at [135]

   [26] SZMDS at [132]

   [27] SZVAP v Minister for Immigration (2015) 233 FCR 451 at [22]

3. In DAO16 the Full Federal Court held that the Administrative Appeal Tribunal’s decision not to grant a protection visa on the basis that the applicant’s claim to be homosexual was false demonstrated illogicality and lacked an intelligent foundation.  This was due to:

   a)the Tribunal’s dismissal of the evidence of the appellant’s 16 witnesses without any logical, rational or probative basis;

   b)the finding that the Tribunal took into account irrelevant considerations including illogical assumptions and opinions about, among other things, homosexual relationships and the appellant’s relationship with his family; and

   c)the Tribunal’s failure to provide adequate reasons for the dismissal. The Full Federal Court found that the Tribunal had made unwarranted assumptions such as believing that the appellant would have engaged in sexual relationships with a large number of men if he was truly homosexual.

4. Similarly, in BZD17 v Minister for Immigration,[28] the Full Federal Court noted that the Tribunal’s decision to reject a protection visa on the grounds that the applicant was not homosexual was legally unreasonable as it made findings which lacked any logical or probative basis.  The Full Federal Court held that: [29]

   the finding that the information regarding the assault could have been passed on anonymously to activists outside Cameroon for them to post was not supported by any evidence; indeed the only evidence suggested the contrary. That unwarranted assumption, in turn, was relied upon by the Tribunal as material in forming its view as to the credibility of the appellant.

   [28] [2018] FCAFC 94

   [29] [58]

5. In reaching the conclusion that this finding was irrational, the Full Federal Court adopted the reasons of Flick J in SZVAP at [22] that:[30]

   unwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it.

   (citation omitted)

   [30] citing WAGO of 2002 v Minister for Immigration (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)

Analysis

1. The applicant contends that the Authority made four unwarranted assumptions that led to the decision being irrational or illogical.

1. First, the Authority accepted that “his brother may have been involved at the conflict at some stage” but did not accept that he would have been individually identified by al-Sarkhi’s militia or supporters because the conflict “involved a large number of ISF.”[31]

   [31] decision at [15]

2. The applicant contends that the assumption that the applicant’s brother would not have been identifiable because of the large number of police officers involved had no apparent evidentiary basis in the material before the Authority.  There is said to have been no evidence on which to base a finding about whether police officers involved would have been identifiable on sight.

3. The assumption also is said to lack a logical foundation. On the premise that the conflict involved a number of police officers and al-Sarkhi’s militia, it is reasonable to infer that al-Sarkhi’s militia had a number of members. Accordingly, there were a number of members of al-Sarkhi’s militia who could have identified the applicant’s brother, whether he was accompanied by two other officers or 50 officers.

4. Further, the applicant submits that the accusation that his brother killed a neighbour suggests that his brother was known to al-Sarkhi’s followers and that knowledge was known to the community.

5. There are said to be parallels between this assumption and the impugned assumption in BZD17.

6. There is said to be no connection between the evidence and the conclusion drawn. Accordingly, the conclusion lacked a logical, rational or probative basis.[32]

   [32] DAO16 at [30] and [45]

7. The applicant contends that the finding that his brother would have been individually identified by al-Sarkhi’s militia resulted in three further unwarranted assumptions.

8. First, as the Authority accepted that the applicant’s brother was a member of the police force and may have been involved in the conflict with al-Sarkhi at some point,[33] it was therefore plausible that the neighbour was killed in those aspects of the fighting in which the brother was involved. The Authority’s decision is said to have been affected by an unwarranted assumption that the brother could not have killed the neighbour.  This assumption is said to have led to an irrational chain of reasoning which affected the assessment of whether the applicant had a genuine basis to fear persecution.

   [33] decision at [15]

9. Secondly, the Authority assumed that because the applicant’s brother was not one of the officers responsible for arresting al-Sarkhi he could not have killed the neighbour.[34]  Again, while the brother might not have been “sent in” to arrest al-Sarkhi as part of a small contingent of officers, his involvement in the conflict “at some stage”[35] is said to mean that it is plausible that the brother could have killed the neighbour during the conflict. There is said to have been no logical connection between the finding that the brother was not one of the officers responsible for attempting to al-Sarkhi and the conclusion that he could not have killed the neighbour.

   [34] decision at [14]

   [35] decision at [15]

10. Thirdly, the Authority concluded that the applicant’s family had not been targeted by militias due to the death of the neighbour.[36]  The applicant contends that this conclusion was due to a failure to properly understand his claim as expressed in his statutory declaration that the neighbour’s “family accused my brother of killing their son.”[37]  The Authority failed to address the risk of harm arising from what the brother was perceived to have done by virtue of his accepted involvement in the conflict with al-Sarkhi. Due to that perception, the applicant’s family were in danger of being targeted, regardless of whether or not the brother had actually killed the neighbour. There is, therefore, said to have been a plausible possibility that the applicant faced a “well-founded fear of persecution” due to the belief of the militias that the applicant’s brother had killed the neighbour.

Minister’s contentions

[36] decision at [14]

[37] CB 46

Initial assumption – particular (a) to Ground 1

1. The applicant contends that it was legally unreasonable for the Authority to not accept that the applicant's brother was identified by al-Sarkhi's militia and/or supporters in the course of the attempted arrest (which the Authority accepted the applicant's brother may have been involved in at some stage).[38]  He submits that the unreasonableness lies in the Authority's assumption that the applicant's brother would not have been identifiable by al-Sarkhi's militia and/or supporters because “the conflict involved a large number of ISF”.[39]

   [38] see [11]-[12] of the applicant's submissions

   [39] see [15] of the Authority's reasons

2. The applicant's contention that the Authority assumed the applicant's brother would not be identifiable due to the large numbers of ISF personnel involved in the conflict is said not to be an accurate statement of the Authority's reasoning process. The Authority did not make a blanket assumption to that effect. It made a finding of fact, based on the wealth of country information before it[40] that the applicant's brother “would not have been individually identified by al-Sarkhi's militia or supporters (Minister’s emphasis retained)”.[41]

   [40] see [12]-[18] and the footnotes to same

   [41] at [15]

3. The difference in wording between the Authority's actual finding and how that finding is characterised by the applicant (i.e. as an "assumption") is significant. The Authority made a finding that is referable to the particular circumstances confronting it. It did not[42] make an "unexpressed and unwarranted assumption not based on any evidence".

   [42] cf DAO16 at [45]

4. The Minister submits that the Authority made that finding via inferential reasoning from the material before it. One (perhaps the most significant) reason for the Authority's finding in this regard was that "there were a large number of ISF".[43]  However, the Authority's reasons should not be read as adopting an assumption that, on that factor alone, the applicant's brother would not have been identifiable. The surrounding paragraphs[44] recount country information concerning the attempted arrest.  Paragraph [12] records that:

   [al-Sarkhi's] attempted arrest sparked significant clashes between his followers and Iraqi Security Forces (ISF) lasting several days, spreading into several provinces and…many people were killed.

   [43] see [15]

   [44] [12]-[18]

5. The Minister submits that the conclusions stated by the Authority at [14]-[15] should be read[45] as incorporating its previous observations about the scale and nature of the conflict resulting from the attempted arrest. The Authority reasoned that given the scale of the conflict and the applicant's brother’s unremarkable role in it,[46] he would not have been identified by al-Sarkhi's militia or supporters. That reasoning is said not to be legally unreasonable in the sense that it is a possible conclusion[47] to be drawn from the evidence before the Authority as to the nature of the attempted arrest and the applicant's brother's role in the ensuing conflict.

   [45] consistently with the principle in Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [30]-[31]

   [46] see [15]

   [47] see SZMDS at [131]

6. The applicant submits that there was no evidence before the Authority on which it could base its finding about the identification of the applicant's brother and that this is indicative of legal unreasonableness.[48] In that regard, he relies on the Full Federal Court's decision in BZD17.  This contention is said to be incorrect and the purported reliance on BZD17 is said to be misplaced. As is noted above, there was evidence on which the Authority could draw inferences regarding the ease (or difficulty) with which the applicant's brother could be identified by al-Sarkhi's militia or supporters in the course the attempted arrest. In BZD17, the Full Federal Court held that a finding of the Tribunal was legally unreasonable because there was no evidence to support it and the only evidence in relation to the issue was to the contrary of the Tribunal's conclusion.[49]  That is not the case here.

   [48] [12] of the applicant's submissions

   [49] see BZD17 at [58], as cited by the applicant's submissions at [9]

7. The Minister further submits that if, as the applicant submits, the three "consequential assumptions" stem from the initial assumption identified by particular (a) to Ground 1,[50] they are merely manifestations of the Authority considering the initial assumption. As such, the applicant's failure to make out jurisdictional error in respect of particular (a) to Ground 1 is fatal to the matters in particular (b) amounting to jurisdictional error.

   [50] see [17] of the applicant's submission and particular (b) to Ground 1

8. The Minister has nonetheless considered particulars (b)(i)-(iii) independently of particular (a).

Consequential assumption - particular (b)(i) to Ground 1

1. By this particular, the applicant contends that the Authority adopted an unwarranted assumption that the applicant's brother could not have killed the applicant's neighbour. The Minister submits that this is not a relevant matter; it was never contended that the applicant's brother killed the neighbour.  Rather, it was said that the applicant's brother was blamed for the death of the neighbour by the deceased's family. That was the relevant factual matter the Authority was required to determine (and which it did determine).

2. The Authority's finding that the applicant's brother was not one of three police officers sent in to arrest al-Sarkhi or involved in the initial clashes and that he would not have been identified as taking part in the broader conflict surrounding al-Sarkhi's arrest are said to be dispositive of the claim that he was blamed for the neighbour's death. If the Authority was not satisfied that the applicant's brother was involved in the arrest or the initial clashes and no-one knew the applicant's brother was involved in the broader conflict, there would be no logical basis for the Authority to infer that the brother was blamed for the death of a neighbour that occurred in that conflict.

3. The Minister submits that no legal unreasonableness is disclosed by particular (b)(i) to Ground 1.

Consequential assumption - particular (b)(ii) to Ground 1

1. By this particular, the applicant contends that the Authority made an unwarranted assumption that "because [the applicant's brother] was not one of the officers responsible for arresting al-Sarkhi he could not have killed the neighbour".  The Minister submits that it is not accurate to phrase this particular in terms of an "assumption". In substance, the applicant says that it was illogical for the Authority to infer that the applicant's brother could not have killed the neighbour on the basis of its finding that the applicant's brother was not one of the officers immediately responsible for attempting to arrest al-Sarkhi.[51]

   [51] see [19] of the applicant's submissions

2. The ground and submissions are said not to be an accurate reflection of the Authority's reasoning process. At [14], the Authority found:

   On the totality of the evidence before me, I am not satisfied that: the applicant's brother was one of three police officers sent in to arrest al-Sarkhi; he was involved in the initial clashes between al-Sarkhi's gunmen and the police; he killed a neighbour who was a supporter of al-Sarkhi; or that he or his family, including the applicant, have been targeted by al-Sarkhi's militia or their neighbour's family in a tribal dispute as a result of this incident.

3. The applicant seems to contend that the finding at [14] that the applicant's brother was not one of three police officers sent in to arrest al-Sarkhi was, in the Authority's view, sufficient for its finding[52] that the applicant's brother did not kill a neighbour who was a supporter of al‑Sarkhi (Neighbour Finding). That is not how the Authority arrived at the Neighbour Finding. The Authority made the Neighbour Finding "on the totality of the evidence" and taking into account credibility concerns arising due to "discrepancies between the applicant's evidence and the independent information". It also considered the applicant's brother's role in the attempted arrest, which was limited to a possible role in the broader conflict.[53] On a fair reading, the Authority's conclusion that the applicant's brother did not kill the neighbour was based on number of relevant matters. Accordingly, no jurisdictional error is said to be raised by particular (b)(ii).

   [52] also at [14]

   [53] see [15]

Consequential assumption - particular (b)(iii) to Ground 1

1. By particular (b)(iii), the applicant contends that the Authority misunderstood the applicant's claim to fear harm due to his neighbour's family accusing his brother of killing their son. The applicant submits that this led the Authority to "[fail] to address the risk of harm arising from what [the applicant’s brother] was perceived to have done by virtue of his accepted involvement in the conflict with al-Sarkhi".[54]

   [54] [20] of the applicant's submissions

2. The Minister submits that the Authority did not misunderstand the applicants' claim as alleged by the applicant.  At [6], the Authority summarised the applicant's claims. It observed, among other things:

   [The applicant's older brother] and several colleagues were sent to arrest al-Sarkhi. However, this resulted in a clash between his supporters and the police in which 45 people were killed. One of those killed was a neighbour of the applicant. The relatives of the deceased blamed the applicant's brother for the killing and have threatened to kill him and the applicant's family.

3. The Authority's reasons are said to demonstrate that it was aware of the applicant's claim to fear harm on the basis of what his brother was accused of/blamed for doing, namely killing his neighbour's son.

4. In any event, the Minister submits that the Authority's disposition of the claim concerning the perception of what the applicant's brother had done is bound up in its finding that the applicant's brother was not identified as being involved in the conflict. That is, if no one was aware of his involvement, then there could be no relevant perception/belief of him having killed the neighbour. In this regard, the Authority's disposition of the claim was "subsumed in findings of greater generality" and because a factual premise upon which the contention rests (i.e. that the applicant's brother was known by neighbours to be involved in the conflict) was rejected.[55] Further, the Authority made the dispositive finding at [14] that neither the applicant or his family had been "targeted by al-Sarkhi's militia or their neighbour's family in a tribal dispute as a result of this incident".

   [55] see Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [47]

Resolution

1. The applicant asserts that the Authority's decision was irrational and illogical by reason of the Authority's reliance on "four unwarranted assumptions". Those assumptions are divided by the further amended application and submissions into an initial assumption, outlined in particular (a) to Ground 1, and three "consequential" assumptions, outlined in particulars (b)(i)-(iii) to Ground 1.

2. I prefer the Minister’s submissions on the ground as advanced.  The applicant places significant reliance upon the decisions of the Full Federal Court in DAO16 and BZD17.  The present case is, however, distinctly different on its facts and in its factual context.  First, this case concerns a decision of the Authority on a limited review of the decision of the delegate.  On analysis, the Authority’s decision is substantially a reaffirmation of the decision of the delegate. 

3. Secondly, the only new information received by the Authority was an updated country report.  The Authority notes at [4][56] that while the applicant provided a submission, there was no new information in it.

   [56] CB 234

4. Thirdly, the applicant’s claims depended upon the asserted activities of his brother in the IFP.  The asserted threat to the applicant was said to arise because of his family links to his brother and his brother’s actions in participating in the attempted arrest of the cleric al-Sarkhi.  While the Authority accepted that the applicant’s brother was a member of the IFP and that he may have participated in some way at some time in the conflict over the attempted arrest, the Authority rejected the assertions concerning the applicant’s involvement in that attempted arrest as put by him. 

5. I do not accept the applicant’s key contention that at [15] the Authority limited itself to a finding that the applicant’s brother would not have been individually identified by al-Sarkhi’s militia or supporters because a large number of federal police were involved.  The Authority’s finding was that the applicant’s brother was not involved in the manner asserted, although he may have been involved at some later time in some way.  Given the extreme vagueness of the claim as ultimately accepted by the Authority, it could hardly conclude that the applicant would be identified.

6. Even if the applicant’s brother had been identified, there was no evidence (apart from the alleged shooting at the family home, which was rejected by the Authority) that the applicant’s brother had been harmed or that he had moved away from Najaf.  In the absence of any harm to the applicant’s brother, it is hard to see any basis upon which the Authority could have concluded that the applicant himself faced a risk of serious or significant harm by reason of his connection to his brother.

7. Given my rejection of the alleged primary unwarranted assumption, the consequential alleged unwarranted assumptions fall away.  In any event:

   a)the Authority did not accept that the applicant’s brother had been involved in the fighting between the IFP and al-Sarkhi’s supporters.  It simply accepted that he may have been involved in some way in the conflict which followed the attempted arrest;

   b)there was no logical connection between the very general finding by the Authority and the proposition that the applicant’s brother had either killed some unnamed person who was supposedly a neighbour or that he was held responsible for the death of that person; and

   c)there was no logical basis upon which the Authority could have accepted from the applicant’s SHEV application that the applicant might be at risk of harm because of the very limited activity of the applicant’s brother which the Authority accepted in a very general way, might have occurred.

8. In essence, on the basis of the factual findings of the Authority, there was in my view, nothing remaining that could have supported an acceptance of the applicant’s claims, either under the refugee criterion or complementary protection criterion.  Far from being illogical or irrational, the Authority’s reasoning was, in my view, the natural consequence of its factual findings. 

Conclusion

1. The applicant has failed to demonstrate that the decision of the Authority was affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  5 June 2019