EGN17 v Minister for Immigration

[2018] FCCA 599

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGN17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 599

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a protection visa – whether the Authority’s findings were inconsistent with the country information that the Authority had regard to – no jurisdictional error identified – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DE, 476

Applicant: EGN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2951 of 2017

Judgment of: Judge Street

Hearing date: 13 March 2018

Date of Last Submission: 13 March 2018

Delivered at: Sydney

Delivered on: 13 March 2018

REPRESENTATION

Counsel for the Applicant: Mr A Moutasallem

Solicitors for the Applicant: T & T Lawyers

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitor

ORDERS

1. The further amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2951 of 2017

EGN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 7 September 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 24 June 2013. On 2 December 2016, the applicant lodged an application for a Safe Haven Enterprise visa.

3. On 27 February 2017, the applicant attended an interview before the delegate. On 28 March 2017 the delegate refused to grant the applicant a protection visa. The delegate accepted that the applicant’s father worked as an interpreter for the American forces in Iraq, that the applicant had worked for a security company that provided services to foreign oil companies, that the applicant received two threatening letters asking him to leave his security role, and that when the applicant returned to carpentry he was extorted by the militia to raise funds. The delegate did not accept that the applicant was of any interest to the militia once he had left his security role, nor did the Authority accept that he had been shot at in his car, or that the militia approached the applicant’s brother after the applicant left Iraq.

The Authority’s decision

1. On 31 March 2017, the Authority wrote to the applicant identifying that the application for the protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. Submissions were provided to the Authority dated 14 May 2017 and those submissions were expressly referred to in the Authority’s reasons.

2. The Authority in its reasons dated 7 September 2017 identified the background to the visa application and that the applicant was a Shia Arab. The Authority identified having regard to the material referred under s 473CB of the Act and referred to the applicant’s submissions and was satisfied they were not new information and had regard to the same. The Authority also took into account more recent country information in a Department of Foreign Affairs (DFAT) Country Information Report of Iraq published on 26 June 2017 pursuant to s 473DE(3)(a) of the Act.

3. The Authority summarised the applicant’s claims relevantly as follows:

   •    He was born and spent most of his life in Basra in the south of Iraq.

   •    His father worked as an interpreter for the American forces in Iraq and in 2005 his father was threatened by the militias, causing him to give up his job as an interpreter.

   •    In 2010 the applicant gave up his occupation as a self-employed carpenter and joined a security company, AI Zaitoon, which provided security to foreign companies working in Iraq's southern oil fields.

   •    In early 2011 and March 2011 the applicant received two threat letters. After the second threat the applicant departed for Syria for 10 days.

   •    As political demonstrations were commencing in Syria the applicant decided to return to Iraq and resume his job with AI Zaitoon. He continued to work for AI Zaitoon until the end of 2011, when he was shot at in his car. The applicant then left AI Zaitoon and returned to his carpentry work.

   •    Around March 2012 a group of Asaib Ahl AI-Haq (AAH) members came to the applicant's carpentry workshop and tried to intimidate him; one of them told the applicant he would kill the applicant but was waiting for the order from his commander.

   •    A few weeks after that, and many times subsequently, AAH members came to the applicant's shop and took items from the shop.

   •    In the first week of April 2013, AAH members came to the applicant's shop again and informed the applicant they would return to pick up a handmade bed which the applicant was making. The applicant objected, and the group advised him that they would consider his fate. The applicant finished the item, delivered it, and departed Iraq.

   •    Subsequent to the applicant's departure from Iraq, militia members told the applicant's brother that if they found the applicant they would kill him.

   •    His university degree could not secure him employment as he was not loyal to any of the militias.

   •    His brother who has fled to Finland is a former police officer and the applicant could be harmed for this reason.

   •    Effective protection is not available in Basra because of the vacuum of power. Relocation is not an option as the applicant's brother had been informed by the militias that anywhere the applicant went in Iraq he would be targeted.

Assessment of Refugee Convention criteria

1. The Authority identified the relevant law and accepted that the applicant completed a Bachelor of Administration Management and Economy at the University of Al Basrah. The Authority accepted as plausible that the applicant may not have been able to obtain employment in Iraq consistent with his tertiary qualification because of nepotism and discrimination. The Authority referred to the DFAT Country Information Report in that regard and found the applicant had been consistently employed in Iraq from his graduation from university in 2007 until his departure in 2013, either as a self-employed carpenter or as a supervisor of security guards.

2. The Authority accepted as plausible that now or in the foreseeable future, the applicant may face difficulty in securing employment in Iraq commensurate with his university qualification. However, the Authority was not satisfied that such difficulties will threaten the applicant’s capacity to subsist or otherwise rise to the level of or result in serious harm.

3. The Authority referred to the applicant’s claim concerning his brother who the applicant alleged was a former police officer. The Authority was prepared to accept that the applicant’s brother may now be in Finland, but did not accept that this brother was a police officer who fled because he was threatened by the Badr forces. The Authority referred to what occurred at the Safe Haven Enterprise visa interview and that there was no mention of his brother having been forced to flee Iraq because of his role as a police officer. The Authority referred to the applicant being represented at the interview by his current migration agent, and found it difficult to accept that the applicant supported by the migration agent, would omit to mention that the applicant’s police officer brother was threatened by a militia and fled Iraq, in circumstances allegedly similar to the applicant’s own. The Authority made reference to the applicant’s evidence that his mother and four adult sibling members have continued to live in or around Basra and that the applicant did not claim these family members have suffered difficulties as a result of the actions of the alleged police officer brother.

4. The Authority referred to employment and that the applicant’s father worked as an interpreter for the American forces in Iraq in 2005. The Authority referred to alleged letters sent to the applicant, and noted that the applicant did not claim his father faced any further threats from the militia after he left his job as an interpreter for the American forces. The Authority also noted that the applicant did not claim to have feared or suffered harm in the eight year period between 2005 and his departure from Iraq in 2013 as a result of his father’s former role. The Authority was satisfied the chance is remote that now or in the foreseeable future the applicant would suffer serious harm as a result of his father’s employment as an interpreter with the Americans.

5. The Authority made express reference to the DFAT Country Information Report in relation to individuals who worked with the international community and in particular the US government facing recriminations since 2003. The Authority also made reference to that country information which it had previously noted, in the context of individuals who had worked with the international community, and in particular with the US Government having faced recrimination since 2003. The Authority referred to DFAT assessing in that report that the risk of societal discrimination against individuals associated with the international community is high and the risk of societal violence is moderate.

6. The Authority accepted that after a short period in Syria, the applicant resumed working for Al Zaitoon and that in late 2011 shots were fired at his car by unknown persons. The Authority found the applicant’s claim that it was the militia who fired at the applicant to be speculative. The Authority accepted that after the shooting the applicant ceased working for Al Zaitoon and as a result of financial necessity resumed working as a carpenter.

7. The Authority made reference to country information from the Middle Eastern Strategic Studies, that Asaib Ahl Al-Haw (AHH) is the successor of the Mahdi Army established by the faction which rejected the disbanding of the Mahdi Army in 2008 and that this body favours more radical methods and undertakes violent activities and has influence in nine provinces where Shias live and is the most powerful group in Basra. The Authority found it is among the most prominent groups in the new popular mobilisation forces.

8. The Authority did not accept that between March 2012 and the applicant’s departure from Iraq more than a year later in April 2013, the applicant was threatened and visited multiple times at his carpentry workshop by members of the AAH who were aware that he had previously worked for Al Zaitoon and who appropriated items the applicant had crafted. The Authority in that regard referred to the fact that the applicant made no mention of these events in his entry interview conducted only three months after his arrival in Australia.  The Authority also took into account that in the same interview the applicant was asked about armed groups active in his local area and that the applicant referred to the Mehdi Army, Badr Forces and many others but did not name the AAH.

9. It was in these circumstances that the Authority did not accept that the applicant’s capacity to subsist is threatened. The Authority did not accept that the AAH relayed a threat against the applicant to the applicant’s brother after the applicant departed Iraq. The Authority found the applicant had sought to embellish his profile with these more recent claims involving the AAH to explain the significant gap between the anonymous threats he received as a result of his work for a company supporting foreigners and his leaving of Iraq. The Authority was satisfied there is not a real chance now or in the reasonably foreseeable future that the applicant will suffer serious harm from the AAH.

10. The Authority referred to having accepted that the applicant received two unsigned letters in early 2011 and that in late 2011 he was shot at by unknown persons. The Authority noted that it had not accepted that the applicant was of any interest to militias, including the AAH, in the fifteen months he continued working as a carpenter in Basra. The Authority made reference to the fact that more than five years have elapsed since the applicant worked for Al Zaitoon and that the applicant has not claimed he will seek reemployment with Al Zaitoon or another company associated with foreigners if he returns to Iraq.

11. The Authority found there was nothing to suggest that the applicant has any employment or offer of employment in that position or a similar position. The Authority found it is speculative that the applicant may be able to obtain similar employment in the future. The Authority did not accept that now or in the reasonably foreseeable future the applicant will be regarded as associated with the international community given his previous limited period of employment with a company providing security for foreign companies.

12. The Authority referred to country information not suggesting that individuals who had previously worked with the international community continued to suffer discrimination or violence years after they had ceased being employed in such roles. It was in those circumstances, the Authority found that it was satisfied that the chance is remote that now or in the foreseeable future the applicant will suffer serious harm in Basra as a result of his former employment with Al Zaitoon.

13. The Authority referred to the current security situation in Basra and was not satisfied that the risk of harm to the applicant on this basis was more than remote, and having considered the country information, was satisfied that the level of harm is such that the chance of harm does not rise to a real chance.

14. The Authority found that the applicant failed to meet the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the further amended application are as follows:

   1. That the Immigration Assessment Authority (“IAA”) acted without and in excess of its jurisdiction in the manner in which it dealt with the applicant’s claim that upon returning to Iraq in 2011 he was shot at by the militia.

   Particulars

   a) The IAA at [36] accepted the shots were fired at the applicant’s car;

   b) the IAA at [36] said that the claim that it was the militia who fired was speculative;

   c) At [39] the IAA assessed his claims by reference to being shot at by “unknown persons” as opposed to the militia;

   d) In doing so, the IAA has failed to consider an integer of the applicant’s claim;

   e) In failing to accept the applicant’s claim of being shot at by “the militia” the IAA failed to take into account the possibility of the occurrence of that event.

   2. That the Immigration Assessment Authority (“IAA”) acted without an in excess of its jurisdiction at [38] when it did not accept that the applicant was threatened and visited multiple times at his carpentry workshop by members of the Asaib Ahl Al-Haq (AAH) between March 2012 and April 2013.

   Particulars

   a) The reasoning for not accepting the claim set out in [38] were the findings by the IAA that the applicant had made no mention of the these events in the entry interview and had only referred to the “Mehdi Army, Badr Forces and many others” but did not name the AAH.

   b) The IAA did not accept the claims made by the applicant because of a perceived inconsistency in the accounts given in the entry interview and a later account.

   c) The above findings at [38] are inconsistent with [37] of the reasons where the IAA observed that the AAH was a successor to the Mehdi Army, established by the faction which rejected the disbanding of the Mahdi Army in 2008.

   d) The claim made by the applicant relates to threats post the disbanding of the Mahdi Army in 2008.

   e) The above findings at [38] are contradictory to the observations made at [37].

   f) In the circumstances the IAA made an erroneous finding or reached a mistaken conclusion about a critical fact.

   g) The reasoning as set out in [38] for not accepting the applicant’s claim is therefore unreasonable and illogical.

   4. That the Immigration Assessment Authority (“IAA”) acted without and in excess of its jurisdiction at [39] when it found that it was satisfied that the applicant’s chance of suffering serious harm in Basra was remote now or in the foreseeable future.

   Particulars

   a)The IAA at [39] did not accept that now or in the foreseeable future the applicant will be regarded as associated with the international community given his pervious limited period of employment with a company providing security for foreign companies.

   b) The IAA at [39] relied on country information which did not suggest individuals who had previously worked with the international community continued to suffer discrimination or violence years after they have ceased being employed in such roles which is inconsistent and contradictory with the country information cited at [35] of the IAA’s reasons. The findings of the IAA at [39] are inconsistent with the country information the IAA had regard to.

   c) In that sense the decision of the IAA was unreasonable and illogical.

   d) The IAA failed to have regard to the country information that stated that:

   i. Many of those at risk of being targeted (for example, those most closely involved with the US military) have moved abroad; and

   ii. In country contacts from the international community told DFAT that their local employees do not openly discuss their employment or association with the international community within their local communities.

   e) The findings of the IAA at [39] were not open to it based on the country information.

Ground 1

1. In relation to ground 1, Mr Moutasallem of counsel submitted that the Authority’s findings could be characterised in a manner in which the Authority had taken three different approaches. Mr Moutasallem said that the first approach was where the Authority had accepted what the applicant had said. Mr Moutasallem submitted that the second approach and specifically in relation to ground 1, was where the Authority had found the applicant’s claim of being shot at by a militia as being speculative. Mr Moutasallem submitted that the third approach was where the Authority had made findings that it did not accept claims by the applicant such as in relation to the applicant’s ability to subsist, and whether there is a real risk or real chance now or in the foreseeable future the applicant would suffer serious harm in Basra due to the applicant’s former employment with Al Zaitoon.

2. Mr Moutasallem submitted that the reference to speculative by the Authority in its finding in paragraph 36 meant that the Authority on a fair reading, entertained a real doubt in respect of the applicant’s claim that he was shot at by a militia. Mr Moutsallem contended that in those circumstances, the Authority had erred by failing to apply the “what if I am wrong” test. A fair reading of the Authority’s reasons as a whole does not reflect the Authority having any real doubt in respect of the finding made that the applicant’s contention that he was shot at by militia was speculative.

3. The Court does not accept that the reasons should be read as reflecting 3 different approaches. The use of the word speculative does not in itself convey that the Authority in its finding was entertaining a real doubt. The Authority’s reasons in paragraph 39 make reference to the same finding and do not reflect on a fair reading, any language or doubt in these circumstances. On a fair reading of the reasons as a whole, the Authority’s adverse finding raised by ground 1 does not reflect entertaining a real doubt. There was no requirement for the Authority to apply the “what if I am wrong” test. Accordingly, no jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, Mr Moutasallem of counsel took the Court to the Authority’s reasons in paragraph 37, where the Authority had accepted that the AAH was a successor of the Mahdi Amry. Mr Moutasallem submitted that in those circumstances, the reasoning of the Authority in support of the finding that the applicant was not threatened and visited multiple times in his carpentry shop by members of the AAH was illogical or unreasonable, and reflected an inconsistency between the findings at paragraph 37 and 38 of the Authority’s reasons.

2. The Authority identified two reasons in support of the adverse finding made in paragraph 38 rejecting the applicant’s claim in relation to the AAH members visiting the applicant. The first reason was that the applicant made no mention of these events in the entry interview conducted only three months after his arrival, and the second was that whilst the applicant referred to the Mahdi Army, the Badr forces and many others, he did not name the AAH.

3. There is no inconsistency in the findings made in relation to paragraph 37 and 38 of the Authority’s reasons. The reasoning of the Authority was open to the Authority and cannot be said to be illogical or unreasonable. The two reasons given by the Authority including the applicant’s failure to mention the AAH were a rational and logical basis supporting the Authority’s adverse finding. No jurisdictional error is made out by ground 2.

Ground 4

1. In relation to ground 4, Mr Moutasallem of counsel took the Court to paragraph 39 of the Authority’s reason and in particular the penultimate sentence which is as follows:

   “I am satisfied that the chance is remote that now or in the foreseeable future the applicant will suffer serious harm in Basra as a result of his former employment with Al Zaitoon.”

2. Mr Moutasallem took the Court to the DFAT country information that had been expressly identified by the Authority in its reasons in paragraph 31 and 35, referred to in footnotes, namely the DFAT Country Information Report for Iraq 2017, published 26 June 2017. Mr Moutasallem took the Court to the passage in the DFAT report which relevantly was headed “Association with the International Community” which is as follows:

   3.56

   Individuals who have worked with the international community (and, in particular, with the US Government) have faced recriminations since 2003. Many of those at risk of being targeted (for example, those most closely involved with the US military) have moved abroad. In country contacts from the international community told DFAT that their local employees do not openly discuss their employment or association with the international community within their local communities. Overall, DFAT assesses that the risk of societal discrimination against individuals associated with the international community is high and the risk of societal violence is moderate.

3. Mr Moutasallem submitted that the penultimate sentence in paragraph 39 of the Authority’s reasons was not supported by the country information referred to and that the silence in that report as to whether individuals who previously worked with the international community continue to suffer discrimination or violence years after they have ceased being employed in any such roles meant that no such finding was open to the Authority. Mr Moutasallem referred to the acceptance by the Authority that the applicant was an individual who worked with the international community as a result of his employment with Al Zaitoon and that the Authority accepted that the applicant had suffered recriminations as a result of his employment with Al Zaitoon.

4. Mr Moutasallem submitted that the finding by the Authority that the applicant’s chance of suffering serious harm in Basra is remote now or in the foreseeable future was illogical or unreasonable, by reason of the country information referred to by the Authority not supporting the finding in the penultimate sentence. It is apparent from the Authority’s reasons and in particular paragraphs 31 and 35 and the footnotes referred to, as well as the content of the Authority’s reasons as summarised above, that the Authority expressly took into account the content of the country information in paragraph 3.56 of the DFAT Country Information Report of Iraq 2017, 26 June 2017. It is also apparent that the Authority took into account that more than five years that had elapsed since the applicant worked for Al Zaitoon and that it was not claimed he would seek similar employment.

5. The Authority took into account its finding that the applicant was not of any interest to the militias, including the AAH, in the fifteen months he continued working as a carpenter in Basra. In those circumstances, it was open to the Authority to make the finding identified in the penultimate sentence of paragraph 39. It was a matter for the Authority to decide what weight to give the country information. It was open to the Authority to make findings in light of the other findings concerning the applicant and the absence of interest to militias, including the AAH, and the period during which he had worked as a carpenter. It was open to the Authority to make the finding identified in the penultimate sentence in paragraph 39 of its reasons.

6. Paragraph 3.56 of the of the DFAT Country Information Report Iraq of 2017, 26 June was clearly taken into account by the Authority and was not determinative of the issue of whether the applicant’s chance of suffering serious harm in Basra was now or in the reasonably foreseeable future. The Authority provided rational and logical reasons in support of the adverse finding in respect of the applicant’s claim. No jurisdictional error is made out by ground 4.

7. As the further amended application fails to make out any jurisdictional error, the further amended application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 May 2018