Eeo17 v Minister for Immigration

[2018] FCCA 2524

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2524

Catchwords:
MIGRATION – Application for SHEV – no jurisdictional error demonstrated – where Tribunal had appropriately determined that exceptional circumstances did not exist to warrant consideration of new information proffered – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2), 473D, 473DD, 476

Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

PlaintiffM174/2016 v Minister for Immigration and Border Protection (2018)

353 ALR 600

Applicant: EEO17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 930 of 2017

Judgment of: Judge Egan

Hearing date: 3 September 2018

Date of Last Submission: 3 September 2018

Delivered at: Brisbane

Delivered on: 3 September 2018

REPRESENTATION

Applicant: Self-represented

Solicitors for the First Respondent:	MinterEllison
Second Respondent	Submitting appearance

ORDERS

1. That the Application for review filed on 19 September 2017 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the amount of seven thousand dollars ($7,000.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 930 of 2017

EEO17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iraq.  He arrived in Australia on 25 April 2013 as an unauthorised maritime arrival.  He lodged an application for a safe haven enterprise visa (SHEV) on 4 November 2016. 

2. The applicant filed an application in this court on 18 September 2017 pursuant to section 476 of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of a decision of the Immigration Assessment Authority (“IAA”) handed down on 14 September 2017. That decision of the IAA affirmed a decision of the delegate to the Minister to not grant the applicant a SHEV.

3. On 9 October 2017 and 21 December 2017 the court made procedural orders which allowed the applicant to file and serve any amended application and any further evidence by 5 February 2018.  It also ordered that he file written submissions by 6 August 2018.

4. No amended application or any further evidence was filed.  Written submissions also have not been filed on behalf of the applicant.  The applicant appears today self-represented with the assistance of an interpreter who it has been established is able to properly interpret what has been said in proceedings.

5. The application for review has only one ground as follows:

   The Immigration Assessment Authority and the delegate of the Minister for Immigration and Border Protection erred in law in making his decision.

6. This court is required to have regard to the decision of the IAA in order to assess whether any jurisdictional error occurred in respect of the proceedings before it.  The applicant claims that he fears that he will suffer serious harm if he was returned to Iraq because a group of unknown men had kidnapped him in late 2012 or early 2013 in circumstances where, after it was alleged that they satisfied themselves that they had kidnapped the wrong person, the kidnappers discussed whether the applicant ought to be killed because he had seen them and could identify them.  The kidnappers allegedly released the applicant but threatened his life if he remained in the district. 

7. The applicant was recorded as claiming that he went to Baghdad to work as a taxi driver when his house was raided by the same men who allegedly caused injury to the applicant’s daughter at the same time.  It was recorded by the IAA that the applicant claimed to fear harm if he was to return to his hometown of Najaf because of the prior threats that he would be killed (see pages 79 – 82 of the Court Book). 

8. As to the issue of new information, the IAA rejected, as being argument rather than new information, submissions concerning the assertion that Militias of Sadruddin, Quebanchi had kidnapped the applicant.  The IAA noted that previously the applicant had stated that the identity of his kidnappers had been unknown to him.  Accordingly, the IAA determined that exceptional circumstances had not existed to justify considering the new information proffered.

9. It did, though, accept that medical reports relating to the applicant and his daughter, which pre-dated the handing down of the delegate’s decision, were documents which comprised credible personal information and which could affect consideration of the applicant’s claims.  The IAA was satisfied that exceptional circumstances did warrant consideration of those reports, and it must be taken that it did undertake such consideration.  It otherwise properly directed its consideration to proffered information in the context of new information concerning the applicant’s union card, the residence of the applicant’s wife, and other media articles concerning additional country information, but the IAA did not consider that exceptional circumstances existed so as to warrant such information being considered in the context of new information (see reasons at [5]-[7] inclusive on page 216 of the Court Book).

10. As to the question of whether there was a real chance that any threats against the applicant would be realised or manifested into actions causing serious harm, or that the applicant would be subject to threats of harm or actual harm in the future, the IAA, whilst accepting that the applicant had been kidnapped in late 2012 or early 2013, was not prepared to accept that there was a real chance that any threats against the applicant would be realised or manifested into actions causing serious harm, or that the applicant would be subject to threats or harm in the future.

11. The IAA was not satisfied that the applicant faced harm from Shia militias or armed groups simply on the basis of his Shia faith. The IAA was further not satisfied that the applicant would suffer harm by virtue of his being a failed asylum seeker who had returned to Iraq (see reasons at [11], [16], [17] and [18]). The IAA directed its attention to whether the applicant satisfied the requirements of the definition of refugee in section 5H(1) of the Act, and found that he did not. It also found that he did not satisfy the criterion in section 36(2)(a) of the Act (reasons at [19]).

12. The IAA also found that the applicant did not meet the complementary protection requirements in paragraph 36(2)(aa) of the Act. The IAA found that there was not a real risk that the applicant would suffer significant harm if he returned to Iraq (reasons at [23]). As to the consideration of new information, the IAA did consider such new information pursuant to its obligation to do so under section 473D of the Act. The minister was not required to separately deal with its consideration of the limbs under section 473DD when considering new information (see PlaintiffM174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600).

13. There is nothing to suggest that the IAA adopted an inappropriately narrow understanding of the phrase “exceptional circumstances” to determine whether it ought to consider the new information or not.  When looked at in the context of the factual matrix in the present case, there was nothing to suggest that the new information was of such a character that it ought to have been considered (see AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at 14).

14. In all of the circumstances, no jurisdictional error has been demonstrated on the part of the IAA in the conduct of its proceedings. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 25 September 2018