EFP17 v Minister for Immigration

[2018] FCCA 3907

FEDERAL CIRCUIT COURT OF AUSTRALIA

EFP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3907

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority’s decision was legally unreasonable – decision not affected with unreasonableness – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473CA

Cases cited:

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Applicant: EFP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2933 of 2017

Judgment of: Judge Smith

Hearing date: 4 December 2018

Date of Last Submission: 4 December 2018

Delivered at: Sydney

Delivered on: 4 December 2018

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Counsel for the First Respondent: Ms N Laing

Solicitors for the Respondents: DLA Piper

ORDERS

1. The applicant is granted leave to rely on and file forthwith in the Registry an amended application in the form handed up to the Court.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2933 of 2017

EFP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 23 August 2017.  The Authority affirmed a decision of a delegate of the Minister made on 13 April 2017 to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Iraq who arrived in Australia as an unauthorised maritime arrival on 3 April 2013 and lodged a protection visa application on 7 June 2016.  The claims made in support of his application are set out in summary in the Authority’s reasons at [5], which I will adopt for the purposes of this decision: 

   ·The applicant was born in Najaf, Iraq, in 1981.

   ·In 1991, he was involved in a protest in Najaf, Iraq, against the Iraqi government. The government at that time (Saddam Hussein’s government) took pictures of him and his brother when they were protesting. For this reason, his family left Iraq and moved to Iran for their protection. He knew that if he stayed in Iraq, he would be targeted and killed by the government.

   ·In 2004, he and his family returned to Iraq for about a week to 10 days. Upon arriving Iraq, they discovered that their home was taken over by the Jaish al-Mahdi (JAM) and they could not retrieve it as JAM used it as a station for their works.

   ·His father asked the JAM to return his house, but they refused and harmed his father. They returned to Iran soon after this incident.

   ·He is not able to return to Iran as he is not a national of Iran and he has no rights in Iran. Also, in 2001, he was detained for one day because he participated in a demonstration in Iran against the Iranian government. The demonstration concerned the sinking of a refugee boat which was headed to Australia and filled with Iraqi refugees. Such an event justifies the fact that Iraqi people are discriminated against in Iran and are not afforded the same rights as Persian people. For these reasons, he could no longer stay in Iran.

   ·On 12 February 2013, he left for Australia.

   ·Generally, the family home is passed down to the males of each family. Because JAM had taken over their property, it is difficult for him to return to Iraq as he has no home or life there. He moved to Iran when he was quite young and went through most of his schooling in Iran. As such, although he faced discrimination in both Iran and Iraq, he knew he will be unable to forge a life in Iraq because he is unfamiliar with Iraq now.

   ·In Iraq, there is widespread discrimination and a lack of services available to him. Also, he is often discriminated against in Iraq and questioned by those who he came into contact with because he has a ‘Persian’ appearance. This makes it difficult for him to integrate with people in Iraq.

   ·He is unable to live a safe life due to ongoing instability in Iraq and the threat of terrorism. He cannot relocate to another area because he is a Shia Muslim and there are a lot of Sunni areas in Iraq. Also, the current threat from Daesh is real and that due to his Shia name, he fears being targeted and killed.

   Of particular note is the claim concerning harm that might arise from the organisation known as Jaish al-Mahdi (JAM) in respect of the family property in Iraq. 

1. In his statement supporting his claims, the applicant made the following statements:

   10.Additionally, whist my family and I were living in Iran, we decided to return to Iraq after the fall of the Saddam regime. The reason for doing so was to see if it was safe to return. Upon arriving to Iraq, my family and I discovered that our home was taken over by the militia and we could not retrieve it as the militia used it as a station for their works.

   11.My father asked the militia men to give him the family property back. In response he was brutally bashed before my eyes and had to be hospitalised for a few days. After this incident, I knew it was not safe for me or my family to live in Iraq and we soon returned to Iran.

   ...

   23.I fear being discriminated against and being targeted by the people of Iraq (due to my appearance) and also by the Militia as they have taken our family home and have already attacked my father.

   24.As stated above, due to the fact that I look Persian in appearance, I have been discriminated against in Iraq and have not been readily accepted in society.

   25.I also fear harm from the militia as they have taken over our land in Iraq and have threatened our family when we attempted to retrieve the land. Due to the fact that I no longer have a home in Iraq, it is extremely difficult for me to forge a life for myself there (both economically and socially), particularly because I came to Iran when I was quite young.

   ...

   27.Also, when my family left Iraq in 1991, they only took the most important documents with them which did not include titles to our land in Iraq. As such, it is very difficult for me to try to seek the protection of the authorities without proper evidence, especially if I am faced with threats from the militia.

2. In the delegate’s decision, the delegate explained that the applicant had given further oral evidence about that claim[1]:

   In 2004, the applicant and his family returned to Iran for approximately seven to 10 days, during which he visited relatives and places of worship.  He has approximately five uncles and five aunts who remain living in Al Najaf. His father twice attempted to reclaim their house from the Al Mahdi Army militia who were using it as their office.  On the second attempt, his father was shot twice requiring hospitalisation in Iraq for two days, and further treatment in Iran.

   [1] Exhibit A, page 150.

3. The delegate made a decision on 13 April 2017. Amongst other things, the delegate accepted that the applicant’s father had attempted to reclaim the house from unknown members of the Al Mahdi Army militia but was shot and required hospitalisation and that the applicant and his family were required to return to Iraq two days later. The matter was then referred to the Authority under s.473CA of the Migration Act 1958 (Cth).

4. The Authority made its decision on the review on 23 August 2017.  The Authority’s reasons for decision are broadly summarised at [8] to [11] of the first respondent’s submissions, which I adopt.  However, given the importance of the findings in respect of the claim concerning the applicant’s family house in Iraq, it is important to set out [18] through to [20], of the Authority’s reasons: 

   18.It has now been some 13 years since the applicant’s father tried to reclaim the house in 2004. The applicant has not done anything about his father’s property being forcibly taken. He has not travelled to Najaf after 2004, or attempted to regain the house, or made any inquiries or sought to take any other actions against the squatters. This is despite his evidence that his Iranian documents allowed him to travel to Iraq once a year. In my view, even if the applicant did not wish to confront JAM directly, there is nothing to prevent him from taking other actions, such as making inquiries with the Iraqi authorities about the situation. There is also nothing to indicate that the applicant’s older brother or his other family members attempted take any other actions. I consider that if the applicant had any genuine desire to do anything about his father’s house, he would have at least attempted to do so. In addition, this was his father’s house and his father passed away in 2009. According to the applicant, his family did not take the title documents of this house with them when they left Iraq in 1991 and they have no proper proof of ownership. I consider that in these circumstances, the applicant would have at least tried to make inquiries about obtaining some form of proof of ownership before his father’s death, if he wished to regain the property or take any other actions against JAM.

   19.Having considered the applicant’s particular circumstances, all the information before me and for the reasons given above, I am not persuaded that the applicant would in fact do anything about his father’s house upon return. I find that upon return, the applicant would not, as a matter of fact, try to reclaim the house or otherwise seek to do anything about the house being taken by JAM not due to fear of harm, but because he lacks a genuine desire to do so.

   20.The applicant stated at the SHEV interview that between the above incident and when his family left Iraq in 2004, nothing else happened to him or his family in Iraq. The applicant has not experienced past harm from JAM. This, to me, indicates that JAM had no intention to carry out any threats or to harm the applicant or his family unless they seek to regain the property. I have not accepted above that the applicant will proactively seek to reclaim his father’s house or take any other actions regarding his father’s house if he returns to Iraq. There is no other evidence to indicate that the applicant is of current interest to JAM for any reasons. As such, I am not satisfied that the applicant will face a real chance of harm for reasons relating to the 2004 incident or his father’s house being taken, now or in the reasonably foreseeable future.

5. The applicant raises one ground in his amended application and that is that the decision of the Authority was legally unreasonable. 

6. The argument is based upon the Authority’s finding that JAM had no intention to carry out any threats or to harm the applicant or his family unless they seek to regain the property.  This was said not to have been based upon any probative evidence given that in the sentence preceding the conclusion of [20], the only reason given for that finding was that nothing else happened to the applicant or his family in Iraq after the incident and that the applicant and his family had, in fact, left Iraq two days after the applicant’s father was hospitalised. 

7. It is well established that a decision-maker will fall into jurisdictional error if it makes a material finding of fact that is not based upon probative material and I refer to the authorities cited at footnote 1 of the applicant’s submissions.  In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ addressed this issue, relevantly, at [131] and [135]:

   [131]What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions.  The complaint of illogicality or irrationality was said to lie in the process of reasoning.  But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   ...

   [135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal.  Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker.  A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.  None of these applied here.  It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision.  Nor could it be said that there was no probative material which contradicted the first respondent’s claims.  There was.  The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan. 

8. The reasoning of the Authority has to be considered in the context of the claims that were made. 

9. Importantly, the claim was that the applicant’s father was only harmed on the second occasion that he sought to reclaim the family house in Iraq.  There was nowhere in the evidence any claim that there was any other basis for any potential harm to be feared from the militia.  For that reason, it was important in the Authority’s reasoning that it concluded at [19] that the applicant would not do anything about his father’s house upon return.  It concluded that the applicant would not do so as a matter of fact rather than because of any fear of harm but rather because he lacks a genuine desire to do so. 

10. As a background to the critical finding at [20], that finding is of some importance essentially because it removes, in a large part, any possible basis for there being a well-founded fear of persecution from the militia upon return to Iraq in the future.  With that in mind, the Authority’s reasoning at [20] needs to be examined. 

11. The finding in this case which is impugned by the applicant is that JAM had no intention to carry out any threats or to harm the applicant or his family unless they seek to regain the family property.  The immediate basis given in [20] for that factual conclusion is that nothing occurred to the applicant or his family in Iraq between the incident in which his father was harmed and the time that his family left Iraq. 

12. The applicant relies upon the brevity of time and the absence of any evidence of there being an opportunity for such harm to have occurred within the short space of time, namely, two days.  I accept that that goes a long way towards the weight of the fact that no harm was suffered by the applicant or his family after his father was shot in Iraq. However, in context, I do not accept that it establishes that there was no probative basis for the Authority’s conclusion that JAM had no intention to carry out any threats against the applicant or his family unless they seek to regain the property. 

13. First, as I have said, one of the critical bases of the Authority’s reasons was the fact that the father himself was only harmed when he went to reclaim the property for the second time; thus, there was only one basis for the fear of harm in the first place.  Secondly, that the applicant would not seek to reclaim the property upon return to Iraq.  The third basis, although I accept that this basis is not nearly as strong, was that there was nothing further that occurred to the applicant or his family in Iraq in 2014 after the injury to his father. 

14. Although that was a short period of time, I find that the absence of harm within a short period of an attempt to reclaim property was probative of a lack of further interest in the applicant and his family, that is, there was a logical connection between the fact that the militia did not take any further action in respect of the family having just seriously injured the father, who had, in fact, been the one to make the claims and any future possibility or further interest in the militia in harming the applicant or his family.  The logical connection between the evidence before the Authority and its findings does not have to be strong and does not have to be one that another decision-maker would accept as sufficient. 

15. However, as explained most cogently by Crennan and Bell JJ in SZMDS, the test for illogicality or irrationality does not depend upon a conclusion that one decision-maker might not reach the same conclusion as another.  It must be said that no reasonable decision-maker could come to that conclusion on the material that was before the Authority. 

16. The applicant also submitted that what was missing in the Authority’s reasoning was that there remained a potential threat to the applicant because the militia did not know that the applicant did not wish to regain the family home. 

17. That might well be an argument that, if accepted, would convince a decision-maker to come to a different conclusion. However, on the basis of the way in which the applicant actually made his claims, and the evidence in respect of those claims that was before the Authority and which was accepted, it does not change my view that there was a logical connection between that material and evidence and its anterior findings and the conclusion that the militia had no intention to carry out any threats to harm the applicant or his family unless they seek to regain the property.

Conclusion

1. For those reasons, I am not satisfied that the Authority’s decision was affected by unreasonableness in the way claimed in the ground of the amended application and I dismiss the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       15 January 2019