Eay17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 575

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EAY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 575

File number:

MLG 1944 of 2017

Judgment of:

JUDGE LADHAMS

Date of judgment:

18 July 2022

Catchwords:

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to complete its statutory task – whether Authority failed to engage in an active intellectual consideration of country information before assessing applicant’s risk of harm – Authority decision affected by jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss 5AA, 36, 473BB, 473CA, 473CB, 473DC, 476, 477

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

DIJ16 v Minister for Home Affairs [2019] FCA 1038

DLV17 v Minister for Immigration and Border Protection [2019] FCA 801

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114

Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644; [2022] HCA 15

Division:

Division 2 General Federal Law

Number of paragraphs:

32

Date of hearing:

29 April 2022

Place:

Perth

Counsel for the Applicant:

Mr A McBeth

Solicitor for the Applicant:

Bardo Lawyers

Counsel for the First Respondent:

Mr J Barrington

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Clayton Utz

ORDERS

MLG 1944 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EAY17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	18 JULY 2022

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.A writ of certiorari issue to quash the decision made by the second respondent on 14 August 2017.

3.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).

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

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LADHAMS:

INTRODUCTION

1. The applicant is a citizen of Iraq. He entered Australia at Christmas Island by boat in April 2013 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth) (Migration Act). The applicant applied for a protection visa on 17 August 2016 and a delegate of the Minister made a decision not to grant the applicant a protection visa on 5 April 2017. The delegate’s decision was a ‘fast track reviewable decision’ within the meaning of s 473BB of the Migration Act and the matter was referred to the Immigration Assessment Authority (Authority) in accordance with s 473CA of the Migration Act. The Authority affirmed the delegate’s decision on 14 August 2017.

2. The applicant now seeks judicial review of the Authority decision. The application is brought pursuant to s 476 of the Migration Act.

3. The applicant relies on an amended application which raises a single ground of application. The ground asserts jurisdictional error in relation to the Authority’s findings that the applicant would not face a real chance of serious harm or a real risk of significant harm from sectarian or generalised violence in the applicant’s home area.

4. Due to the limited nature of the issues before the Court, I set out in this judgment the background and decisions of the delegate and Authority only in so far as they are directly relevant to the ground of application.

   RELEVANT CLAIMS FOR PROTECTION AND DECISIONS OF THE DELEGATE AND AUTHORITY

5. Amongst other things, the applicant claimed that he would face harm as a result of his Shia faith due to sectarian violence in his home area of Basra, as well as from generalised violence.

6. In addressing this claim, the delegate said:

   Unlike northern and central Iraq where Sunni Arabs are the majority, the southern regions of Iraq, from Karbala to Basra, are predominantly Shi’a Arab.[1] Country information indicates that Shi’a areas in southern Iraq and Basra have not seen a strong presence of IS militants, since IS seized northern and western Iraq in 2014.[2] With the assistance of Shi’a militias and foreign support, the Iraqi army managed to keep control of the south.[3] At the beginning of 2015 ‘there were no coordinated large scale terror attacks in south Iraq’.[4] Initially, with the exception of the north of Babil province, the southern regions were not directly affected by IS’ campaign for territorial gain.[5]

   This notwithstanding, there have been several isolated incidents of violence in 2015 and 2016 which have reportedly been carried out by IS. For example, IS has claimed responsibility for the following attacks in 2016; a car bomb in April that killed five people in Basra;[6] an explosive laden truck that killed at least 47 people in Hilla in March;[7] and a suicide bombing at a football field south of Baghdad in March that killed 30 people.[8] The US Department of State’s Overseas Security Advisory Council’s report from March 2016 indicated that ‘the number of total attacks in Basrah Consular District (Basrah, Dhi Qar, Maysan, Muthanna) increased slightly over the last year’[9] and ‘although the threat of attacks is constant…the majority of attacks occur in Baghdad, Anbar and other major urban centres’.[10] Moreover, country information indicates that southern governorates of Iraq are under the control of the Iraq Security Forces (ISF).[11]

   According to the February 2015 DFAT Country Report for Iraq, the Shia-dominated provinces in Southern Iraq including Basra within the Nasiriya province experienced fewer violent attacks by Sunni insurgent groups and that Shia living in these provinces would be less likely to become victims of sectarian-based violence.[12] Country information also indicates that although other Sunni insurgent groups have attacked locations in the southern provinces, including public spaces in Iraq’s southern cities, the levels of violence in these regions are not at a level that would indicate the applicant would face a real chance of harm on account of his religion.[13]

   In addition, I note that country information has indicated that IS has stated an intention to march on Shia holy cities in the south,[14]24 however, there is no information before me to indicate that any progress has been made to achieve this objective.

   I have considered whether the applicant would be harmed by IS or other insurgent groups on the basis of his Shi’a religion in southern Iraq. The available information indicates that IS’ presence in Southern Iraq is minimal, and does not pose a real or substantial threat to the Shia population in the reasonably foreseeable future. With regards to the applicant’s individual circumstances, he is a Shia, living in a majority Shia part of Iraq that is under the control of a Shia led government.[15]25 Overall, I find the chance that the applicant would face harm in his home province in Southern Iraq on account his religion is remote. I therefore find the applicant does not hold a well-founded of persecution for being a Shia now or in the reasonably foreseeable future.

   [1] CIS29830 ‘Struggle for Iraq: In maps’ 3 July 2014, BBC, 3 July Accessed 15 July 2014; CIS14074 Central Intelligence Agency 2003, Distribution of Ethnoreligious Groups and Major Tribes.

   [2] CX6A26A6E732: Salaheddin, S, ‘Iraq: Crime Soars in Basra as army leaves to fight Isis’, Associated Press, 10 January 2016

   [3] CISEC96CF13695: Office of the Commissioner General for Refugees and Stateless Persons (CGVS/CGRA), Iraq: Security Situation in South Iraq, 29 May 2015, p.5.

   [4] CISEC96CF13695: Office of the Commissioner General for Refugees and Stateless Persons (CGVS/CGRA), Iraq: Security Situation in South Iraq, 29 May 2015, p.7.

   [5] CISEC96CF13695: Office of the Commissioner General for Refugees and Stateless Persons (CGVS/CGRA), Iraq: Security Situation in South Iraq, 29 May 2015, p.6.

   [6] CX6A26A6E12714: ABC News (Australia)’Iraq bombings: At least 25 people killed, 60 injured in string of Islamic State suicide blasts’ ABC News (Australia), 4 April 2016.

   [7] CX6A26A6E12716: ABC News (Australia ‘Islamic State truck bomb kills at least 47 in ‘largest bombing to date’ in Iraq’s Hilla province’, ABC News (Australia), 7 March 2016.

   [8] CX6A26A6E12718 : ABC News (Australia), ‘Iraq suicide attack 30 killed at football match south of Baghdad’ 2016, ABC News (Australia), 26 March 2016 .

   [9] CIS38A80121415: US Department of State Overseas Security Advisory Council 2016, Iraq 2016 Crime & Safety Report: Basrah, 10 March 2016.

   [10] CIS38A80121415: US Department of State Overseas Security Advisory Council 2016, Iraq 2016 Crime & Safety Report: Basrah, 10 March 2016.

   [11] CIS38A8012145: Institute for the Study of War, ISIS Sanctuary, January 29, 2016.

   [12] CISEC96CF1160: Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Report Iraq’, 13 February 2015.

   [13] CX6A26A6E13200: IHS Jane's Intelligence Weekly, ‘Spate of IED attacks in Basra highlights security deterioration amid Iraqi government inability to disarm tribes and gangs’,23 August 2016 ; CISEC96CF1160: Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Report Iraq’,13 February 2015; CISEC96CF1245: Jane's Sentinel “Jane's Sentinel Security Assessment Iraq January 2015 – Security”, 26 January 2015, p.3.

   [14] CISEC96CF1245: Jane's Sentinel “Jane's Sentinel Security Assessment Iraq January 2015 – Security”, 26 January 2015.

   [15] 0G8F59D8D50: UK Home Office, ‘Country Information and Guidance - Iraq Internal relocation (including documentation and feasibility of return)’, 17 November 2015.

7. After the matter was referred to the Authority, the applicant, via his representative, provided a submission to the Authority commenting on the delegate’s decision. That submission included the following paragraphs:

   In view of the DFAT material before the delegate, it is clear that there was a surge in attacks against Shia Muslims in cities like Basra in 2015 and 2016. Also, report published in March 2016, by the US department of state’s overseas security advisory council indicates that there was surge in attacks and threats of these attacks are constant in Basra.

   The delegate acknowledged that there has been incidents of violence in 2015 and 2016 carried by IS and resulted in multiple deaths but still failed to take account of these incident while reaching the decision to refuse the visa.

   The information provided by the applicant in his protection visa application and in his interview manifestly show that the applicant’s fear of persecution and harm on the basis of his religion are well founded. The overall security situation in Iraq is worsening and personal circumstances of the applicant qualifies him for the protection within the meaning of section 36 (2) (a) of the Act.

8. The Authority indicated in its reasons that it had regard to the submission.

9. The Authority addressed the applicant’s claims relating to sectarian and generalised violence at [15]-[16] of its reasons, where it said:

   15.I have not accepted the applicant’s central claim that he has been threatened by the Mehdi Army and fears harm from this group. I accept that the applicant is a Shia Muslim. He has not claimed a fear of harm on this basis alone although the delegate considered whether this, and the Security situation in southern Iraq more generally, would give rise to protection obligations. On the evidence before me, the applicant originates from a Shia dominated region of Iraq. Country information[16] indicates that Sunni armed groups have attacked locations in southern provinces, but overall the level of violence is much lower than elsewhere in Iraq. While the referred material indicates that violence does occur in cities such as Basra, it also indicates that Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence[17]. I am not satisfied on the referred material that there is a real chance that the applicant will suffer serious harm in Basra as a result of Sectarian conflict. Considering whether the applicant faces harm from Shia militias or Shia armed groups due simply to being a Shia, I am not satisfied on the referred material that this occurs. I conclude that the applicant would not face a real chance of serious harm on this basis, if he returned to Basra now or in the reasonably foreseeable future.

   16.In relation to whether there is a real chance that the applicant would suffer serious harm from generalised violence, the DFAT Country Report notes that the security situation in Iraq generally deteriorated significantly in 2013 and 2014 and violent crime increased[18]. In these years, coordinated bombings and shootings took place on a daily basis[19]. DFAT advises that Daesh and associated Sunni extremist groups are currently in control of large parts of northern, western and central Iraq[20], however government forces retain control of southern Iraq, including Basra province.[21] No direct confrontations between Daesh militants and Iraqi forces have been reported in the southern provinces, where security incidents take the form of sporadic terror attacks with a limited number of civilian casualties.[22] Although violent crime, including kidnappings and killings, does occur in Basra, on the basis of the referred information I conclude that it is not at a level that would give rise to a real chance that the applicant would face serious harm, should he return.

   [16] Department of Foreign Affairs and Trade (DFAT), “DFAT Country Report, Iraq”, 13 February 2015, CISEC96CF1150; 2.35

   [17] Ibid; 3.47

   [18] DFAT, “DFAT Country Report, Iraq”, 13 February 2015, CISEC96CF1160; 2.30

   [19] Ibid; 2.34

   [20] Ibid; 2.27

   [21] Ibid; 2.28

   [22] Office of the Commissioner General for Refugees and Stateless Persons, COI Focus: Iraq — Security Situation in South Iraq, 29 May 2015, p. 5

10. After assessing all of the applicant’s claims, the Authority was not satisfied that the applicant met the criteria for a protection visa in ss 36(2)(a) or 36(2)(aa) of the Migration Act and affirmed the delegate’s decision.

    PROCEEDINGS BEFORE THIS COURT

11. The applicant commenced proceedings in this Court by way of an application filed on

    
    

    8 September 2017. This is within 35 days of the Authority decision as required by s 477(1) of the Migration Act. The applicant filed an amended application on 11 April 2022.

12. The amended application raises the following ground of review:

    1.The decision of the IAA was affected by jurisdictional error in that the IAA failed to complete its statutory task according to law in its consideration of the real chance of serious harm or real risk of significant harm arising from sectarian or generalised violence in the applicant’s home area.

    Particulars

    (a)The IAA failed to give proper consideration to the applicant’s submissions.

    (b)The IAA failed to consider the review material, specifically the newer country information cited and analysed in the delegate’s decision record.

    (c)       The IAA failed to consider the most up-to-date country information       available.

    (d)       The IAA failed to conduct its assessment of the risk of harm into the      reasonably foreseeable future.

13. The evidence before the Court comprises the court book and the following affidavits which were read:

    (a)an affidavit of Rayan Hazim, affirmed on 28 April 2022 and filed on behalf of the applicant, which annexes an article of country information titled ‘Jane’s Sentinel, ‘Security Assessment Iraq – January 2015 – Security’’ dated 26 January 2015, and a screenshot from the CISNET database showing a summary of the article of country information titled ‘Jane’s Intelligence Weekly, ‘Spate of IED attacks in Basra highlights security deterioration amid Iraqi government inability to disarm tribes and gangs’’ dated 23 August 2016. Both articles of country information were cited in the delegate’s decision; and

    (b)an affidavit of Andrea Nicola Anastasi, affirmed on 26 April 2022 and filed on behalf of the Minister, which annexes the Department of Foreign Affairs and Trade (DFAT) Report on Iraq dated 13 February 2015 (2015 DFAT Report) and the Overseas Security Advisory Council (OSAC) Iraq 2016 Crime & Safety Report on Basra dated 10 March 2016 (2016 OSAC Report). The country information was cited in the delegate’s decision and the Authority’s decision, respectively.

    CONSIDERATION

14. The particulars to this ground assert four separate ways in which the Authority failed to complete its statutory task in relation to its consideration of whether the applicant would face a real chance of serious harm, or a real risk of significant harm, from generalised or sectarian violence in his home area. The applicant submitted that the each of the four errors alleged in the particulars would, on its own, give rise to jurisdictional error.

15. Ultimately, it is not necessary for me to individually address each of the four particulars. This is because I have found that the Authority did not consider, in an active intellectual manner, the most up-to-date country information before it in assessing the applicant’s risk of harm from general or sectarian violence in his home area. In the circumstances of this particular matter, that amounts to a failure by the Authority to perform its statutory task. The applicant has established that the Authority decision is affected by jurisdictional error.

16. I make the following general observations about the Authority’s reasons, which are relevant to my consideration of the applicant’s ground:

    (a)None of the country information reports before the Authority comprised new information within the meaning of s 473DC(1) of the Migration Act. Rather, the country information referred to by the applicant in his submissions was country information that was before the delegate and therefore comprised part of the materials referred to the Authority in accordance with s 473CB of the Migration Act.

    (b)The Authority expressly indicated in its reasons at [3] that it had regard to the referred material, as well as the applicant’s submission to the Authority.

    (c)The Authority, in its reasons at [15] and [16] extracted above, referred to propositions that were said to be evident from ‘the review material’.

    (d)The Authority at [15] and [16] used footnotes to cite specific country information that it relied on for particular propositions. It can be seen from this that the Authority relied heavily on the 2015 DFAT Report. The only other report expressly cited by the Authority was a report published on 29 May 2015 by the Office of the Commissioner General for Refugees and Stateless Persons, which was cited for the proposition that no direct confrontations between Daesh militants and Iraqi forces had been reported in the southern provinces, where security incidents take the form of sporadic terror attacks with a limited number of civilian casualties.

17. It is not necessary for the Authority to refer in its reasons to every item of country information and the fact that the Authority did not refer in its reasons to any particular item of country information does not necessarily mean that that country information was not considered by the Authority: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]-[47]; Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644; [2022] HCA 15 (Plaintiff S183/2021) at [60]; DLV17 v Minister for Immigration and Border Protection [2019] FCA 801 at [38]. On the other hand, the simple fact that the Authority said that it had regard to the referred materials and those referred materials included particular country information reports, does not necessarily mean that the Authority considered those country information reports in an active, intellectual manner. It may be inferred that particular country information was not considered from other features of the Authority’s decision: see, for example, Plaintiff S183/2021 at [60].

1. In identifying whether the Authority had regard to all the relevant country information in the review materials, I have also taken into account that the Authority’s role includes forming a view as to whether the applicant will face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future, and this usually requires it to take into account up-to-date country information. In support of his submission that the Authority is required to consider up-to-date country information, the applicant relied on the following comments of the Full Court of the Federal Court’s judgment in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 (MZYTS) at [73]-[74]:

   73.Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see [Minister for Aboriginal Affairs v]Peko-Wallsend [(1986)] 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.

   74.That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.

2. The Minister, on the other hand, relied on the following observations of Mortimer J in DIJ16 v Minister for Home Affairs [2019] FCA 1038 (DIJ16) at [37], to support a submission that the Authority did not err by relying heavily on the 2015 DFAT Report:

   The Authority did, as the Minister submitted, refer to sources of country information other than the 2015 DFAT report: see [10] of its reasons. In any event, the 2015 DFAT report was intended to be a comprehensive source for decision-makers and cross-referenced to other sources of information. It is not inappropriate for the Authority to focus on a document such as this, particularly in the absence of any submissions or material from a referred applicant suggesting a source of country information is inaccurate or unreliable, and in the absence of submissions or other material from a referred applicant expressly directing the Authority to other particular parts of different country information. Any allegations of error in the use of country information will be highly fact-dependent, and will require a high degree of specificity to have prospects of success.

3. Ultimately, I consider that the Full Court’s comments in MZYTS are more relevant to the resolution of the present matter, taking into account the particular facts of this matter, than the comments in DIJ16.

4. The 2015 DFAT Report was two and a half years old at the date of the Authority decision on 14 August 2017. The only other report expressly referred to in the Authority decision was over two years old at the time of the decision. The following reports published more recently than the 2015 DFAT Report were cited in those parts of the delegate’s decision extracted above and formed part of the review material before the Authority:

   (a)Office of the Commissioner General for Refugees and Stateless Persons, Iraq: Security Situation in South Iraq, 29 May 2015;[23]

   (b)UK Home Office, ‘Country Information and Guidance – Iraq Internal relocation (including documentation and feasibility of return)’, 17 November 2015;

   (c)Salaheddin S, ‘Iraq: Crime Soars in Basra as army leaves to fight Isis’, Associated Press, 10 January 2016;

   (d)Institute for the Study of War, ISIS Sanctuary, 29 January 2016;

   (e)ABC News (Australia), ‘Islamic State truck bomb kills at least 47 in ‘largest bombing to date’ in Iraq’s Hilla province’, ABC News (Australia), 7 March 2016;

   (f)US Department of State Overseas Security Advisory Council 2016, Iraq 2016 Crime & Safety Report: Basrah, 10 March 2016 (OSAC Report);

   (g)ABC News (Australia) ‘Iraq bombings: At least 25 people killed, 60 injured in string of Islamic State suicide blasts’, ABC News (Australia), 4 April 2016; and

   (h)IHS Jane’s Intelligence Weekly, ‘Spate of IED attacks in Basra highlights security deterioration amid Iraqi government inability to disarm tribes and gangs’, 23 August 2016 (Jane’s Intelligence Weekly Report).

   [23] This is the only country information report, aside from the 2015 DFAT Report, cited at [15] or [16] of the Authority’s reasons.

5. The 2015 DFAT Report acknowledged a significant increase in violent crime since the beginning of 2013, but noted that southern Iraq experienced a significantly lower level of generalised violence than Baghdad and Central Iraq, and expressed the view that relocation to southern Iraq might be a reasonable and practical option for Shia Muslims. In its consideration of the situation in southern Iraq, DFAT referred to sources from 2013 and early 2014. Notably, this is at least three and a half years before the Authority decision.

6. The more recent country information reports identified security incidents in southern Iraq that occurred after the 2015 DFAT Report was published.[24] There were two reports in particular that were referred to by the parties in their submissions to the Court.

   [24] Not all of the reports were in evidence before the Court, and accordingly, this statement is based at least in part on the delegate’s assessment of the reports.

7. The 2016 OSAC Report reported that the number of total attacks in Basra ‘increased slightly over the past year’. This report was cited by the applicant in his submission to the Authority. As the Minister submitted to the Court, to the extent that the applicant submitted to the Authority that the 2016 OSAC Report indicated that there was a ‘surge in attacks’ in Basra, the submission did not accurately reflect the 2016 OSAC Report. However, very little turns on this point, because the applicant’s submission to the Authority also relied on the delegate’s references to incidents of violence in 2015 and 2016 and the worsening overall security situation in Iraq as supporting the applicant’s claims for protection.

8. The applicant also referred at the hearing before the Court to the Jane’s Intelligence Weekly Report published in August 2016, which was considered by the delegate and states:

   On 15 August 2016, Iraqi media reported that Iraqi Security Forces had arrested three suspects allegedly behind a series of improvised explosive device (IED) attacks on cafés in Basra, including one that targeted the Daniel café, in al-Wofoud, Basra on 13 August.

   Earlier, on 31 July 2016, an IED sank a restaurant boat on the Shatt al-Arab waterway, near the Basra International Hotel (formerly Sheraton), killing one employee. Given that these latest incidents occurred in the middle of the night, the intention was probably not to inflict mass casualties; it is therefore very unlikely that they were carried out by Islamic State militants or Sunni insurgents.

   Although the perpetrators are not confirmed, these incidents are not unusual in Basra, where violent crime and lawlessness has been increasingly felt for the past two years in the form of kidnappings, open gun battles between tribes in northern Basra province, and assassinations and IEDs targeting rival political parties and militias’ offices and homes. This results from violence associated with tribal rivalries, criminal gang turf wars - fuelled increasingly by drug smuggling - and Shia militias engaging in vigilante activities…

   FORECAST

   Neither the central government nor the local government has the political will to crack down on the activities of criminal networks that probably have connections to the Shia militias. In January, Baghdad sent an armoured unit into the province but they withdrew within days as representatives of the Hashd al-Shaabi (the Popular Mobilization Forces, which is comprised of several militias) made it clear that their presence in central Basra was unacceptable. With provincial elections due in 2017, Basra’s local government will also seek to keep the tribes on side, making any attempt to disarm them highly unlikely. The IED that targeted the boat in the Shatt al-Arab waterway raises doubts over the ability of local security forces to prevent an attack on other assets in Iraq’s waterways. However, security at marine and oil assets will be prioritised, unchecked criminality and violent turf wars are likely to stretch security forces in the province and allow space for Islamic State militants to launch attacks targeting Shia civilians for the most part; a suicide bombing in Basra in April 2016 likely reflects the letter’s intent to do so.

9. The applicant submitted that it was plain that the Authority had not considered the more recent reports because it had not referred expressly to them in its reasons and because it had not referred to the deteriorating security situation in 2015 and 2016. The applicant further submitted that even if the Court were to find that the Authority did consider these reports, the Authority did not address the express submission by the applicant that he feared harm because of the deterioration in the security situation in 2015 and 2016. On the other hand, the Minister submitted that the Authority had considered all the country information before it and did not refer expressly to the reports post-dating the 2015 DFAT Report because those reports were not material to its decision. The Minister also points to the Authority’s references to having considered the review material and findings at [15] and [16] made with reference to the referred material.

10. There are a number of features of the Authority decision that have collectively led me to infer that the Authority did not actively and intellectually consider the most up-to-date country information that was referred to in the delegate’s reasons.

11. First, where the Authority has referred to specific country information it has used footnotes to identify that information. The extensive use of footnotes does not conclusively establish that reports not referred to in footnotes were not considered, but it does, in conjunction with other features, support an inference that reports not expressly referred to may not have been actively and intellectually considered by the Authority.

12. Second, there are some references at [15] and [16] of the Authority’s reasons to the ‘referred material’, without any footnote identifying the specific country information report(s) within the referred material that is the basis for the proposition expressed by the Authority. Where the Authority has referred generally to the ‘referred material’,  there is nothing in the surrounding content which demonstrates that the more recent country information has been actively and intellectually considered by the Authority.

13. Third, in circumstances where:

    (a)the country information expressly referred to by the Authority was over two years old;

    (b)the Authority noted that the 2015 DFAT Report referred to a worsening security situation across 2013 and 2014;

    (c)the applicant’s submission to the Authority referred to the delegate’s acknowledgement of incidents of violence in 2015 and 2016 and to the worsening overall security situation in Iraq as part of the reason he was in need of protection; and

    (d)the Authority did not expressly refer to any of the incidents in 2015 or 2016 or to any deteriorating security situation after 2014,

    the failure to expressly refer to the more recent country information supports an inference that the Authority did not consider that more recent information in an active, intellectual manner.

14. For the avoidance of doubt, the fact that the 2015 DFAT Report was two and a half years old at the time of the Authority decision does not mean that it was not a reliable source of country information. It may well have been open to the Authority to consider all the country information and still prefer the 2015 DFAT Report to the more recent country information, or to find that the more recent country information did not lead to a conclusion that the applicant faced a real chance of serious harm or a real risk of significant harm. However, in circumstances where the more recent country information in the referred material addressed security incidents in 2015 and 2016, and the applicant relied on the worsening security situation in his submissions to the Authority, it was incumbent on the Authority to explain why it preferred the 2015 DFAT Report over the more recent information, or why the security incidents referred to in the more recent information did not lead to Australia’s protection obligations being engaged in this matter. The Authority’s failure to do so means that it failed to complete its statutory task.

    CONCLUSION

15. The applicant has established that the Authority decision is affected by jurisdictional error. Writs of certiorari and mandamus will issue to quash the Authority decision and remit the matter to the Authority for reconsideration according to law.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       18 July 2022