EGP17 v Minister for Home Affairs
[2019] FCA 684
•16 May 2019
FEDERAL COURT OF AUSTRALIA
EGP17 v Minister for Home Affairs [2019] FCA 684
Appeal from: EGP17 v Minister for Immigration & Anor [2018] FCCA 3615 File number: NSD 2196 of 2018 Judge: THAWLEY J Date of judgment: 16 May 2019 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia dismissing an amended application for judicial review of a decision of the Immigration Assessment Authority – whether the Immigration Assessment Authority failed to assess the risk of harm when considering whether the applicant faces a “real chance” of persecution – whether the Authority erred in equating a “low risk” with a “remote chance” of harm Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65, 473CB Cases cited: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 Date of hearing: 15 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: A Keevers of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS
NSD 2196 of 2018 BETWEEN: EGP17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
THAWLEY J
DATE OF ORDER:
16 MAY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pays the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THAWLEY J:
INTRODUCTION
The appellant applied for a subclass XD-785 Temporary Protection Visa on 9 April 2016, claiming to fear harm as a result (amongst other things) of an extortion attempt associated with him being perceived to be a wealthy individual. The appellant is a Shia Muslim from Southern Iraq. He owned two diesel generators which were used in a business to generate electricity for sale in the area in which he lived.
A delegate of the Minister for Immigration and Border Protection refused the grant of a visa under s 65 of the Migration Act 1958 (Cth) on 8 March 2017. The Immigration Assessment Authority affirmed the Minister’s decision on 18 August 2017, it not being satisfied that the appellant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act. The appellant applied to the Federal Circuit Court of Australia for judicial review of the Authority’s decision. That application was dismissed on 13 November 2018. The appellant appeals from the orders dismissing that application.
BACKGROUND
The primary judge summarised the relevant background facts in some detail at J[2] and J[3] and the Authority’s reasons for decision at J[5]. It is not necessary to repeat them here. They can be found at EGP17 v Minister for Immigration & Anor [2018] FCCA 3615.
AUTHORITY
In making its decision, the Authority had regard to the material referred to it under s 473CB of the Act, as well as the appellant’s submission, which it considered to the extent that the submission contained legal argument or addressed the delegate’s findings. The appellant’s submission supplied a link to an article contained on the website and referred to an OSAC report for 2016. The applicant’s representative stated in the submission that he had referred to these at the TPV interview. This was not established by the audio recording to which the Authority listened.
The Authority was not satisfied that there were exceptional circumstances to justify considering the article or OSAC report as “new information”. The Authority did not otherwise have regard to the “new information” included in the submission.
The Authority accepted the following claims made by the appellant:
(1)in August 2012 the appellant was approached by unknown armed men at his workplace who demanded money from him and threatened him. The appellant refused to pay. He believed they were from a militia group because they were armed, wore uniforms and drove in a car without a number plate;
(2)on 14 September 2012 his brother, who used to work in the appellant’s business (collecting money), was killed in a drive-by shooting;
(3)the police conducted investigations after the appellant reported these two incidents, but they were unable to establish who killed the appellant’s brother or who tried to extort him;
(4)in November 2012, the appellant was called by an unknown person who said they had killed his brother and threatened to kill the appellant;
(5)in December 2012, the appellant’s father received a similar call threatening the appellant;
(6)from December 2012 until he left Iraq in February 2013, the appellant did not go to work often because he was concerned. His co-worker informed him that people went to the workplace asking about him; and
(7)after he arrived in Australia in March 2013, people went to his family home and asked after him.
Despite these findings, the Authority was not satisfied that the appellant had a well-founded fear of persecution, and found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iraq, there was a real risk that the appellant would suffer significant harm. This conclusion was based on the Authority’s findings that:
(1)the militia had no further interest in extorting money from the appellant after their unsuccessful attempt in August 2012. If they had any further desire to attempt extortion, they would have done so at various times identified by the Authority before the appellant left Iraq in February 2013;
(2)the militia had no further interest in harming members of the appellant’s family. If they did, they would already have done so during the period since the appellant left Iraq (then four and a half years earlier);
(3)the militia had no ongoing interest in the appellant, evidenced by the degree of contact with his family since the appellant left Iraq (one visit); and
(4)the appellant’s business had been sold when he left for Australia and there were problems with the business at that time.
FEDERAL CIRCUIT COURT
The appellant filed an application to the Federal Circuit Court seeking judicial review of the Authority’s decision on 22 September 2017. The application was subsequently amended on 30 August 2018. The appellant ultimately relied upon grounds 2 and 3 of the amended application at the hearing on 13 November 2018.
Ground 2 of the amended application before the Federal Circuit Court was in the following terms:
The IAA at [15]-[20] considered whether the applicant faced a real chance of suffering harm as a result of some incidents in 2012 and 2013 which the IAA accepted occurred. The IAA fell into jurisdictional error in finding that it was “not satisfied that there is a real chance of the applicant suffering harm for reasons relating to the … incidents or that any threats will be carried out. Specifically:
(a)the IAA accepted “country information that indicates that Shi [sic] militant groups operate in … the southern governorates, including Basra” and some “used extortion to raise funds” (at [12]) and “that extortion is prevalent in Iraq” (at [22]). The IAA did not properly consider this country information in making its findings at [15], [16] and [20].
(b)The IAA accepted that, following the applicant’s departure from Australia, in March 2013 some people came to the applicant’s home asking for the applicant, the applicant’s father replied that the applicant was in Australia, and the people said they would punish the applicant when they found him: at [14]. The IAA overlooked or failed to have proper regard to this threat, together with the threat in November 2012, in making its findings at [15] and [17].
In rejecting ground 2, the primary judge found that, while it was true “that there [was] no express consideration of the possibility of future harm by reference to the threat made after the applicant had arrived in Australia, namely that the militants would punish him when they found him, that finding was dealt with in the other findings made by the Authority at a higher level of generality”: J[12]. The primary judge also concluded at J[13] that:
… [T]he conclusion of the Authority at [20] was that there was “… only a remote chance that the militia or anyone will carry out their threats or seek to harm the applicant on the basis of the past incidents.” Not only does that finding in itself deal with any anterior issue which might have supported an opposite conclusion, but it is expressly said to have been based upon the “totality of the information” before the Authority. The combination of all those things leads me to find that, contrary to the contention supporting ground 2, particular (b) in the amended application, the Authority considered and properly dealt with the claim which was identified by it in the second-last dot point of [7] in its reasons. For that reason, the second ground must be rejected.
Ground 3 of the amended application before the Federal Circuit Court was that the Authority fell into jurisdictional error by equating a “low risk” with a “remote chance”. The applicant contended that just because there is a “low risk” of something occurring that does not necessarily mean that there is only a “remote risk” of it occurring.
The primary judge referred to the Authority’s consideration of the appellant’s circumstances and the likelihood that he would face further attempted extortion at J[17] and noted that the appellant and his family faced only one single extortion attempt, although there was prevalent lawlessness, extortion and crime at the time. The primary judge identified the Authority’s consideration that the applicant had already sold his business before coming to Australia due to problems with the business, and the fact that the appellant’s family had never been subject to extortion demands and had remained unharmed in a town of southern Iraq as considerations which grounded the Authority’s conclusion that the applicant would not face a “real chance of extortion or harm on the basis of his actual or perceived wealth, generation of constant good income or for other reasons, now or in the reasonably foreseeable future”: J[17].
The primary judge then turned to the Authority’s resolution of the question of generalised violence or sectarian violence and noted that the Authority made three key points in that respect, including that the applicant was not of ongoing interest to the militia or anyone in Iraq for any reason, that there was nothing to suggest that he experienced past harm as a result of generalised or sectarian violence, and finally that the risk of violence in southern Iraq was low: J[18].
The primary judge considered that although the Authority linked its earlier finding about the general security situation in Iraq to its conclusion regarding the level of risk faced by the appellant, “that was not the only basis for that conclusion, there being the other two matters I have mentioned”. The primary judge held that “the Authority did not, as contended by the applicant, proceed solely on the basis that a low risk of harm was not a real risk of harm. The basis of ground 3 has not been made out and as a consequence ground 3 itself must be rejected”: J[20].
THE APPEAL
The grounds of appeal before this Court are set out in a Notice of Appeal filed on 27 November 2018.
Ground 1
Ground 1 is:
The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (“the IAA”), in a finding in paragraphs 16, 17 and 18 of its decision that the applicant is of no adverse interests [sic] to the militias as the militia no longer have an interest in extorting money from the applicant, although the applicant’s contention was that his father told the militias that the applicant was not in Australia, the fact that the applicant was not in Australia is a reason why the militias did not pursue their attempts to extort the applicant, the primary judge erred in dismissing this ground of review.
The relevant paragraphs of the primary judge’s decision are as follows:
[16]The critical passage is in [24] where the Authority first refers to a series of propositions obtained by it from country information before stating at the conclusion that the country information suggested that “… despite an increase in lawlessness and crime in recent years, the level of risks to Shias in the south, including the security situation, violence, attacks, acts of crime, extortion and kidnapping, is low”. Southern Iraq, it concluded, remained secure and safe. The applicant then pointed to the fact that at [29] the Authority concluded that on the basis of the information before it, it considered that there was only a “… remote chance that the applicant will be caught up in generalised violence or sectarian violence in southern Iraq upon return”.
[17]In the paragraphs between [24] and [29], the Authority dealt with the circumstances of the applicant has having been perceived as wealthy but nevertheless, in spite of the lawlessness and prevalence of extortion and crime found that the applicant had faced no extortion, with the exception of one single extortion attempt, despite the fact that he owned and operated a profitable business. It also noted that the applicant had already sold his business since there were problems within the business; his family had never been subject to extortion demands and that the applicant’s parents and siblings had remained unharmed in a town in the south of Iraq. At [28] the Authority reached a conclusion that the applicant would not face a “real chance of extortion or harm on the basis of his actual or perceived wealth, generation of constant good income or for other reasons, now or in the reasonably foreseeable future”.
[18]At [29], the Authority then dealt with the question of generalised violence or sectarian violence and it made three points in this respect: first it noted that it did not accept that the applicant was of ongoing interest to the militias or anyone in Iraq for any reason; secondly there was nothing to suggest that he experienced past harm as a result of generalised violence or sectarian violence even when the violence peaked in 2006 and 2007; and thirdly the Authority noted that it had found that the risk of violence in southern Iraq was low. It was on the basis of those matters it considered that there was only a low chance that the applicant would be caught up in generalised violence or sectarian violence.
Ground 1 challenges the Federal Circuit Court’s failure to disturb the Authority’s factual finding that the militia no longer had an interest in attempting to extort money from the appellant.
Ground 1 cannot succeed. The Authority set out the appellant’s claim of what had occurred and accepted that account. The Authority expressly considered and accepted the appellant’s claim that his family was visited by unknown men looking for the appellant following the appellant’s departure to Australia (at A[14]) and accepted the existence of the claimed extortion attempt on the appellant in 2012 (at A[12]). However, having regard to all the information before it, the Authority concluded that “… there is only a remote chance that the militia or anyone will carry out their threats or seek to harm the applicant on the basis of the past incidents”. That was because the appellant was not of ongoing interest (including because he had exited his business), he had not previously been the subject of generalised violence, and because the risk of violence in Southern Iraq was low.
As identified by the primary judge, the Authority expressly stated that its conclusion was based on the “totality of the information” before it. Its conclusions were open and rational. The Federal Circuit Court could not disturb the Authority’s factual conclusions. Accordingly, ground 1 must fail.
Ground 2
Ground 2 is:
The appellant contended in the Federal Circuit Court that the IAA misapplied the real chance test as the IAA equates a “low risk” with “a remote chance”. But this is contrary to Australian High Court jurisprudence in this field. The Federal Circuit Court erred in dismissing this ground of review.
The relevant legislative context here is ss 36(2)(a) and 36(2)(aa) of the Act. In order for the decision-maker to grant a protection visa, the appellant needed to satisfy the decision-maker that he met at least one of the criteria in s 36(2). The criterion in s 36(2)(a) is referred to as the “refugee criterion”. The criterion in s 36(2)(aa) is referred to as the “complementary protection criterion”. The “real risk” test for complementary protection involves the same standard as the “real chance” test applicable to the assessment of whether a person has a “well-founded fear of being persecuted” for the purposes of the refugee criterion; it is to be understood as a real chance as opposed to a remote chance: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [242]-[248](Lander and Gordon JJ), [297] (Besanko and Jagot JJ), [342] (Flick J).
The appellant submits that the Authority misapplied the relevant test by equating “a low risk” with “a remote chance”. The Authority used the term “low risk” when referring to country information at A[24] (footnotes omitted):
Overall, DFAT assessed that discrimination against Shias in Shia-dominated provinces, including Basra, rarely occurs. Shias in Shia-dominated provinces are at a low risk of generalised violence.
The Authority then assessed the appellant’s claims in light of that country information. The Authority concluded at A[29] that the appellant was not of ongoing interest to the militia or anyone else in Iraq and “there is only [a] remote chance that the applicant will be caught up in generalised violence or sectarian violence in southern Iraq upon return”.
The Authority did not equate a “low risk” with “a remote chance” of harm. The primary judge correctly pointed out that the Authority’s finding that there was no more than a remote chance of harm to the appellant was based on an analysis of the appellant’s claims and country information. The finding that there was only “a remote chance” of harm was in part informed by the fact that there was a “low risk” of generalised violence. That was a rational and logical use of the country information. That does not mean the Authority supplanted the real chance test with some other test. The Authority’s reasons cannot fairly be read in that way.
The appellant failed to satisfy the Authority that there was a sufficient risk to the appellant of being subjected to violence upon return to Iraq. It was open to the Authority to conclude that although the appellant faced threats and an extortion attempt in 2012, the material before it did not show that the appellant would face similar threats on return to Iraq sufficient to expose the appellant to the level of risk necessary to engage Australia’s protection obligations. The Authority’s reasoning does not display a misunderstanding of the “real chance” test, and the grounds of appeal do not establish any appellable error on the part of the primary judge.
The appellant submitted during oral argument that, even if he faced only a slim danger on return to Iraq, there was still a danger. He also submitted that the earlier decision-makers could not guarantee his safety. The delegate and Authority had to address whether there was a real chance of persecution for a convention reason (s 36(2)(a)) or a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to a receiving country (s 36(2)(aa)). The Authority was not satisfied that either issue could be answered in the appellant’s favour because there was only a remote chance of any persecution or harm occurring on return to Iraq. The issue for the Authority was not whether it could guarantee the appellant’s safety or conclude that there was absolutely no question of any risk to the appellant. There is no error identifiable in the Authority’s reasoning in applying the relevant test.
CONCLUSION
The appeal must be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate:
Dated: 16 May 2019
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