DZF17 v Minister for Immigration
[2018] FCCA 3619
•19 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZF17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3619 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether untranslated evidence is “new information” – whether Authority failed to consider entirety of evidence – whether Authority unreasonably failed to exercise s.473DC(1) of the Migration Act 1958 (Cth) – whether the Authority misinterpreted “serious harm” and “significant harm” – whether Authority failed to independently address sub-s.36(2)(aa) of the Act – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA, 473CB, 473CC, 473DC, pt.7AA |
| Cases cited: ABJ17 v Minister for Immigration & Border Protection [2018] FCA 950 Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59 Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505 Other materials: |
| Applicant: | DZF17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2768 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 8 November 2018 |
| Date of Last Submission: | 8 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones, Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Ms D Watson, Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2768 of 2017
| DZF17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 8 August 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa, a type of protection visa, on 15 June 2016.
Background
The applicant is a Shia Muslim citizen of Iraq who arrived in Australia at Christmas Island on 23 June 2013 as an unauthorised maritime arrival. On 10 January 2017 the applicant applied for a protection visa.
The substance of the applicant’s claims was that his employment as an intelligence officer caused him to live in constant anxiety that he would be harmed as he believed many people knew of this employment. The specific incidents the applicant relied on were summarised by the delegate:
…
• From 2004, he commenced employment with the Intelligence Office, Department of Justice in Safwan, Basra and then transferred to the Thi Qar[1] office in Nasiriya. In his work as an intelligence officer, the applicant was responsible for collecting intelligence from various sources in relation to militia movements, drug trafficking and terrorist activity. Sometimes the applicant was required to testify in court about the information that he had collected.
• In the beginning of 2013, the applicant was notified by his superiors that the government had agreed to the release of some militia members and one of the released members was a Mahdi Army member by the name of [Mr A] whom the applicant had previously gathered intelligence on that led to his arrest. The applicant was cautioned to be careful as [Mr A] was heard saying that he knew the person who had gathered information on him and that they would be punished accordingly.
• On 15 March 2013, the applicant received a threatening letter from the Mahdi Army placed under his door with a bullet inside demanding that he leave his work.
• After receiving the letter the applicant fled to a desert town with his family. He stayed there for approximately 1 month until his departure from Iraq on 25 April 2013.
• After the applicant’s arrival in Australia he and his wife circulated rumours to say that they were divorced in an attempt to avoid harm on her and his children by the Mahdi Army.
• 6 months after the applicant arrived in Australia, members of the Mahdi Army went to the applicant’s brother’s house with [Mr A]. They questioned the applicant’s whereabouts and threatened his brother. After the applicant’s brother placated them, they left.
(Without alteration, identifiers omitted)
[1] This appears to be a typographical error and should be read as “Dhi Qar”.
The applicant attended an interview with the delegate on 31 May 2017 and on 15 June 2017 the delegate made a decision to refuse to grant the applicant a protection visa. That decision was referred to the Authority for review under pt.7AA of the Migration Act 1958 (Cth).
On 8 August 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
Authority’s decision
The Authority accepted that the applicant was an Iraqi Shia Muslim and that he had worked as an intelligence officer with the Ministry of Defence from 2004 until his departure in 2013. It noted that the delegate had concerns in regard to the applicant’s credibility, namely the variation in the evidence of the applicant from his interview in 2017 and his arrival interview in 2013. The Authority found that the applicant’s interviews had not been managed effectively and was satisfied that any variation in his evidence was due to this and not as a result of the applicant being inconsistent or altering his evidence.
The Authority accepted the applicant’s claim that he had been involved in the gathering of intelligence that led to the arrest and detention in 2008 of Mr A, a man involved with the forming of IEDs[2]. It also accepted that Mr A was released from gaol along with other militia men and that those officers who participated in their capture and arrests were on a list of targets held by the militia. The Authority noted that at the interview with the delegate the applicant was asked if he was on the list; however, the applicant did not answer that question or claim at any point that his name was on such a list. The Authority concluded the applicant was one of many officers involved in the arrests of these militia men but it was not satisfied that the applicant’s name was on any list of targets.
[2] Improvised explosive devices.
The Authority did not consider it plausible that Mr A was overheard saying that he knew who had gathered information that led to his arrest and he would punish this person and, in the absence of credible information to support a specific threat being made against the applicant, did not accept that Mr A had been notified of the intelligence officer who compiled any report in his arrest or conviction. The Authority also rejected the claim that Mr A and other militia had visited the applicant’s brother and stated they could kill the applicant for working against them.
The Authority accepted that the applicant had received a threatening letter but found that the threat had had the desired effect of removing the applicant from his job and so did not indicate a real threat of future harm and concluded that he was of no further interest to the Mehdi Army.
The Authority also considered that the changes in ideology and goals of the Mehdi Army since 2014 and the lapse of 4 years since the applicant’s resignation supported the conclusion that the applicant would not be a target of harm on account of his previous employment.
The Authority also found that the applicant did not face a real chance of serious harm on the basis of his religion as a Shia Muslim, due to sectarian conflict, as a result of generalised violence or for having sought asylum in Australia.
It concluded the applicant did not meet the definition of a refugee in s.5H(1). Noting the standard of “real risk” applicable to the complementary protection criterion was the same as that of “real chance” in the refugee criterion, the Authority was also not satisfied the applicant met sub-s.36(2)(aa) of the Act for the same reasons and affirmed the decision not to grant the applicant a protection visa.
Consideration
Ground 1 – Authority’s Practice Direction
The judicial review application contained four grounds of review. At the hearing, while formally submitting the decision was wrong, the applicant rightly conceded that as this Court was bound by the decision of the Full Court of the Federal Court in DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 ground 1 was untenable. In those circumstances, it is necessary only to explain that ground 1 is rejected in light of the decision in DGZ16.
Ground 2 – the untranslated evidence
This ground arises from the fact that, on listening to the sound recording of the applicant’s interview with the delegate, the Authority formed the view that there were parts of his evidence that were untranslated. The Authority relevantly stated:
6. …In considering the specific event or events that led to the applicant’s departure from Iraq, the delegate noted some concerns regarding his credibility. This was due to a variation in evidence given at the PV interview in 2017, to that given in the arrival interviews in 2013. In relation to this, I note that the total time of these interviews was nearly six hours. From the audio of the interviews it is clear that the applicant’s evidence has not been managed effectively. He was asked on numerous occasions to respond a few sentences at a time so that his evidence could be accurately translated but did not do so and continued to talk over the top of the interpreters. When prompted to answer the question that he had been asked, the applicant frequently responded “I am coming to that” before continuing to talk for some additional time.
7. I am satisfied that any variation in evidence between that recorded (in English) at his 2013 interviews and the 2017 interview was due to this and not to any alteration in the applicant’s oral evidence. I further considered whether the applicant was being deliberately obfuscatory in his lengthy and digressive responses to the questions asked, however concluded that such responses were due to verbosity rather than any attempt to avoid answering the questions put. On the basis of this I accept that as an intelligence officer his duties included developing and maintaining informants, collecting information in relation to militia movements, sectarian killings, drug trafficking and terrorist attacks; that on occasion he assisted police and security forces by witnessing arrests and testifying secretly. I also accept that in 2010 he was additionally assigned to Tallil air base to collect information relating to pilfering of fuel and materials from the base.
…
11. The applicant further stated at his PV interview that six months after his arrival in Australia the militia, including [Mr A], went in black cars to his older brother’s house. They told the applicant’s brother that the applicant was working with “the hated occupying forces against us” and that they could kill him (the brother) too. The applicant’s brother agreed that the militia were good people and that the applicant had abandoned his wife and children. As a result the militia did not kill his brother. The applicant stated that he had not mentioned this at his arrival interview because he was not able to give his full story at that time. I note that he could not in any event have mentioned it at the arrival interview of July 2013 as it had not then occurred. He has not explained why he did not include this event in his statutory declaration of December 2016. There is no explanation as to how his brother knew that [Mr A] was among the visitors. It is not clear why the militia went to his brother’s house, however the applicant’s oral evidence is extensive and I conclude it is not fully translated. I am not satisfied on the basis of the evidence before me that this event occurred.
(Emphasis added, identifiers omitted)
The applicant makes three separate complaints in respect of this issue. First, the Authority erred in concluding that it was not satisfied on the basis of the evidence before it that the claim of the applicant’s brother being visited had occurred as it did not take into account the untranslated evidence of the applicant provided at the interview with the delegate. This complaint focuses on [11] of the Authority’s reasons.
Secondly, the applicant argues that the Authority unreasonably failed to exercise the power under s.473DC(1) to obtain a translation of the untranslated part of the interview.
Thirdly, the jurisdiction of the Authority had not been enlivened under sub-s.473CB(1)(b) of the Act as there had been a failure to provide to the Authority the material provided by the referred applicant to the delegate before the decision was made. This argument can be dealt with very briefly. First, it is based on the “unlikely assumption” that the delegate understood Arabic (the language in which the applicant spoke at the interview). That premise has not been established and so the argument fails for that reason alone. Secondly, and in any event, the applicant asserts, without any real explanation, that the Authority’s jurisdiction only arises once the Secretary has complied with the obligation in s.473CB to give to the Authority all the material provided by the applicant to the person making the decision. That is not so. The Authority’s jurisdiction, and duty, to review the delegate’s decision arises upon the referral to it of a “fast track reviewable decision” under s.473CA: s.473CC(1).
The first argument must also be rejected. There are two reasons for that. First, the applicant did not establish that there was in fact any part of the applicant’s evidence before the delegate that was untranslated. The Authority listened to the recording of the interview and drew inferences from what it heard, and possibly, what it did not hear. However, that recording was not before the Court and there was no transcript (of either the Arabic or English spoken at the interview). The Authority’s opinion, while perfectly valid for the purposes of its review, is not admissible to establish the fact in issue. If I am wrong about that, and the Authority was some form of “ad hoc expert”[3] (which I doubt), there is insufficient support for the opinion for it to have any probative value[4]. Further, and just as importantly, while it may be accepted that the Authority is under a duty to consider the material referred to it, a failure to consider any particular aspect of that material will only amount to jurisdictional error if it is established that that material had sufficient cogency and relevance to the Authority’s reasons: see, for example, Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99. It is the applicant’s onus to establish that the Authority’s decision was affected by jurisdictional error. While it is not often that cases turn on the failure to satisfy an onus of proof, the applicant’s failure to establish these critical matters means that this argument must be rejected.
[3] See for example, Smith v R (2001) 206 CLR 650.
[4] cf. Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59; Volcafe Ltd v Compania Sud Americana De Vapores SA [2018] UKSC 61.
The third argument is also rejected. First, while the Authority has the power to obtain “new information” under s.473DC, a translation of what was before the delegate is not “new information”: ABJ17 v Minister for Immigration & Border Protection [2018] FCA 950 at [23]. Secondly, given that there was no complaint by the applicant (or his representative) as to the quality or extent of the interpretation at the interview, there was no attempt by the applicant in his written submissions to explain what, if anything, had not been translated, and the fact that it has not been established that any untranslated evidence went to a material part of the applicant’s claims, it is readily understandable why the Authority did not seek to obtain a translation (or interpretation) of the entirety of the applicant’s evidence before the delegate. In other words, this is not one of those rare cases where the Authority, acting within the scope of its jurisdiction was required to exercise its discretionary power to obtain information.
Ground 3 – misinterpretation of “serious harm” and “significant harm”
The basis of this ground is the finding of the Authority at [10] that the applicant resigned from his employment as an intelligence officer as he received a threatening letter demanding he do so. The applicant argued that having made such a finding, it was necessary for the Authority to consider whether the demand he cease his employment could amount to serious or significant harm. He argues that the choice of certain vocations may imply a particular political, ideological, cultural or religious conviction and the Authority should have considered whether the applicant’s choice of employment as an intelligence officer could qualify as an exception to the requirement that he take reasonable steps to modify his behaviour for one or more of the reasons in s.5J(3): see also SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18.
While not exhaustively defined, s.5J(5) provides instances of what is considered “serious harm” for the purposes of the Act. “Significant harm” on the other hand is exhaustively defined in s.36(2A), and the Authority expressly transcribed that exhaustive list at [23]. Section 5J(3) relevantly provides that a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution, however such modification must not, broadly put, conflict or conceal an innate or immutable characteristic of a person’s identity including religion, race, ideological or physical attributes. Hence, the scope of s.5J(3) is confined to circumstances of Convention[5] based reasons for modifying behaviour.
[5] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).
I accept the Minister’s submission that there was no express claim made by the applicant that his employment carried a distinct political, ideological, cultural or religious conviction beyond the basic need to earn a living. The question is whether it necessarily arose implicitly from the materials before the Authority. I do not consider it did. In the applicant’s statutory declaration dated 3 December 2016 he stated:
3- In 2002-03 I graduated from the Technical Institute of Nasriyah, Dhi Qar province, with a diploma of accounting. I could not find a job after my graduation, therefore i applied for a position within the Iraqi military intelligence agency as as intelligence officer in Safwan police and intelligence centre...
(Without alteration)
I am satisfied on the material provided to the Authority no claim indicating any such Convention based conviction for engaging in his employment arose. Without a claim arising expressly, or being implicit in the materials before it, the Authority was not required to address it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at [58].
Ground 3 is dismissed.
Ground 4 – failure to make a separate assessment of the complementary protection criterion
The Authority’s assessment of the complementary protection criterion in sub-s.36(2)(aa) of the Act is brief. The applicant argues that it is too brief and indicates a failure to undertake any proper assessment of that criterion.
At [22]-[23] of its reasons the Authority states the substance of sub-s.36(2)(aa) and what is considered significant harm as defined in s.36(2A). Its consideration and assessment against that criterion is at [24]:
24. I have concluded above that the applicant does not face a real chance of serious harm on the basis that he was an intelligence officer in the Ministry of Defence, including that he worked with coalition or US Forces, that he may have been involved in the arrest or incarceration of Mehdi Army members, that he is a Shia, from Sectarian or from general violence or as a returning asylum seeker from a Western country. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied that the applicant would face a real risk of significant harm for the purposes of s.36(2)(aa) for these reasons.
(Footnote omitted)
There is no error in the Authority relying on the findings it has made in assessing if the applicant faced a real chance of serious harm in respect of the refugee criterion when considering if there is a real risk of significant harm under the complementary protection criterion if the essential facts and claims relied upon by the applicant were the same: MZYXS v Minister for Immigration & Citizenship [2013] FCA 614 at [31]. As the Authority noted, the “real risk” and “real chance” element of the respective criterion apply the same standard: Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505.
Whether factual findings in respect of one criterion will deal with another criterion depends entirely on the facts of each case: SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125 at [35].
In this case, the applicant relied on the same factual basis in respect of both the refugee criterion in sub-s.36(2)(a) and the complementary protection criterion in sub-s.36(2)(aa) of the Act. In light of that, and the fact that the Authority expressly set out the questions posed in respect of each criterion, there was no error shown by the brevity of its reasons. It was open for it to conclude, as it did, that its factual findings in respect of the former applied to the questions posed by the latter.
Ground 4 is rejected.
Conclusion
I am not satisfied that the Authority’s decision was affected by jurisdictional error. The application must be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 19 December 2018
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