EGP17 v Minister for Immigration

[2018] FCCA 3615

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3615

Catchwords:
MIGRATION – Protection visa application – decision of Immigration Assessment Authority – whether Authority erred in failing to consider a claim – whether the Authority misapplied the real chance test – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: EGP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2952 of 2017

Judgment of: Judge Smith

Hearing date: 13 November 2018

Date of Last Submission: 13 November 2018

Delivered at: Sydney

Delivered on: 13 November 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law Firm

Solicitors for the Respondents: Mr K Eskerie, Sparke Helmore

ORDERS

1. The applicant has leave to rely upon grounds 2 and 3 of the amended application filed 27 August 2018 but not insofar as ground 3 is framed in [30] of the applicant’s written submissions filed 30 October 2018.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2952 of 2017

EGP17

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 dated 18 August 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa on 8 March 2017.

2. The applicant is a citizen of Iraq who arrived as an unlawful maritime arrival in Australia on 14 March 2013. He lodged an application for a protection visa on 9 April 2016.

3. The claims made in support of that application are summarised as follows in [7] of the Authority’s reasons:

   …

   • The applicant worked as an owner of two diesel generators that were used to generate electricity to the area that he lived in. After the fall of Saddam Hussein, power supplies were scarce and people used the diesel generators to generate power.

   • He used to charge people who benefited from the power supplies on a monthly basis. He used to be the only one in his area to provide these services to the people. Around 600 houses used to take power from the generators that he own. As such, he used to be perceived as a rich person.

   •In August 2012, his problem started. A group of four armed men came to his workplace and requested that he pay them a share of his income from the generators. Three of them were masked men. They wore black t-shirts and military trousers. They said they wanted to get a share of his income because he was rich and to support their national and religious services. He asked, but they declined to disclose about which party they belonged to. They just said that they can kill him or harm his family if he did not pay them half of what he used to get every month and that he will pay in the end no matter what. He refused to pay and asked them to leave. There were a lot of people who gathered and saw the altercation. The group left after they threatened him that they will teach him a lesson. He had not seen these people before and did not know who they were.

   • On 14 September 2012, his brother was killed. He heard from some friends that his brother was shot at by some people who were driving a car. His brother was in a market near their house when they killed him.

   • He reported the matter to the police. He told the police about the previous incident where they threatened to kill him or any member of his family if he did not pay them a share of his profits from his business. The police started the investigation but they did not know who killed his brother or who threatened him.

   • Around mid-November 2012, he received a phone call from an unknown person. The person said that ‘last time we killed your brother, now it is your turn to get killed.’

   • Towards the end of December 2012, his father received a phone call from an unknown person saying the same thing as they said to him.

   • On 10 February 2013, the applicant left Iraq for Australia

   • After he arrived in Australia, some people came to his family home and asked his father about him. His father told them that he was in Australia. They swore at his father and said that they will punish him when they find him. They then left.

   • In Iraq, there is a lot of lawlessness, gangs and militias target and extort people who they perceive as wealthy or people who generate constant good income.

   (Without alteration)

4. On 8 March 2017 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was referred to the Authority for review pursuant to pt.7AA of the Migration Act 1958 (Cth). The applicant’s legal advisor and migration agent made a submission to the Authority on 8 April 2017 and on 18 August 2017 the Authority made its decision to affirm the delegate’s decision.

5. The Authority’s reasons for decision are summarised in [7]-[10] of the first respondent’s submissions which I gratefully adopt:

   7 The Authority set out the applicant’s claims and the relevant law. The Authority accepted that:

   7.1 In August 2012, the applicant was approached by unknown armed men at his workplace who demanded money from him and threatened him, and on 14 September 2012, his brother, who used to work at the applicant’s workplace, was killed in a drive-by shooting.

   7.2 The police conducted investigations after the applicant reported the incidents, but were unable to establish who killed his brother.

   7.3 In November 2012, the applicant was called by an unknown person who said they had killed his brother and threatened to kill the applicant.

   7.4 In December 2012, the applicant’s father received a similar call threatening the applicant.

   7.5 From December 2012 until he left Iraq in February 2013, the applicant did not go to work often because he was concerned. His co-worker informed him that people went to the workplace asking about him.

   7.6 After he arrived in Australia in March 2013, people went to his family home and asked after him.

   8 However, the Authority was not satisfied that the applicant had a real chance of suffering harm because of the past incidents or that the threats would be carried out given its findings that: the militia’s actions since August 2012 indicated that they had no interest in extorting money from him after their failed attempt, nor an ongoing interest in the applicant; if the militia wished to harm the applicant’s family, this would have already occurred; and the applicant’s business had been sold when he left for Australia.

   9 In view of country information, the applicant’s particular circumstances, and his accepted profile, the Authority considered the prospect of harm as a result of acts of crime, extortion or kidnapping to be remote. The Authority was not satisfied that the applicant would 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. Further, the Authority found that there was only a remote chance of the applicant being caught in sectarian or generalised violence in southern Iraq upon his return. The Authority found that country information did not suggest that Shias were being targeted in Basra, and was not satisfied that the applicant would face a real chance of harm as a Shia of Arab ethnicity.

   10 The Authority found that the applicant’s claims, individually and cumulatively did not support a finding that the applicant had a well-founded fear of persecution. Relying on its anterior findings of fact, the Authority found that the applicant did not have a real risk of suffering harm if returned to Iraq.

   (References omitted)

6. By leave granted at the hearing, the applicant relied upon two grounds to contend that the Authority’s decision was affected by jurisdictional error. The first ground in the amended application was abandoned.

7. Ground 2 in the amended application is that the Authority fell into jurisdictional error in its conclusion that it was not satisfied that there was a real chance that the applicant would suffer harm for reasons relating to the incidents of threats and violence that had occurred previously and which were accepted by the Authority. The first particular of the ground relating to country information was ultimately not pressed.  The second particular concerns the claim about a visit received by the applicant’s father after the applicant had arrived in Australia.  It is necessary to provide some context in order to understand and then deal with this ground.

8. As noted in [7] of the Authority’s reasons the applicant claimed; firstly that in around mid-November 2012 he received a phone call from an unknown person who said “last time we killed your brother, now it is your turn to get killed”. Secondly, that towards the end of December 2012 the applicant’s father received a phone call from an unknown person saying the same thing as they said to him; and thirdly, as I have just mentioned, after the applicant had arrived in Australia he claimed that some people came to his family home and asked his father about him. His father told them that he was in Australia, they swore at his father and said that they will punish him when they find him and they then left.

9. As submitted by the applicant those claims were accepted at [14] of the Authority’s reasons:

   I accept that in November 2012, the applicant received a phone call from an unknown person who said that they killed his brother last time and threatened to kill him. I accept that towards the end of December 2012, his father received a similar call on his mobile that threatened to kill the applicant. I accept that from December 2012 until he left Iraq in February 2013, the applicant stayed more at home and did not go to work often because he was concerned, and that his co-worker told him that people came to his workplace asking about him. I also accept that after he arrived in Australia in March 2013, some people came to his family home and asked about him and they left after his father told them that the applicant was in Australia.

10. It was contended however that the Authority did not deal with the aspects of the claim in which the applicant said that the people who had visited his father after he arrived in Australia swore at the father and said that they would punish the applicant when they found him.  It was argued that nowhere did the Authority deal with the possibility that when the applicant returned the militia in question would harm him once they had found him.

11. The applicant relied upon the decision of the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593. In that case the Full Court noted that the applicant had as a significant element of his claims asserted that the marriage of his son to a Muslim woman would have repercussions for him and his wife upon their return to Iran. While the Tribunal had recounted the claims on the issue early in its reasons, its failure to consider the evidence and the contention led to the inescapable conclusion that the Tribunal had failed to address the issue. Earlier in its reasons, at [46]-[47], the Full Court had set out in a well-recognised passage the principles that it had applied in determining the issue before it:

    46.It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

    47.The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

12. The difficulty with this ground and the reason for which it is distinguishable from WAEE is that, not only did the Authority in this case expressly set out the claim earlier in its reasons, but it is clear from the last sentence in [14] of the Authority’s reasons that it accepted the claim in its entirety. The balance of its reasoning up to [20] must therefore be taken to have been made on the basis of the acceptance of that claim. While it is true, as the applicant says, that there is 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.

13. In particular, the 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.

14. Ground 3 is that the Authority fell into jurisdictional error by equating a low risk with a remote chance. The applicant contends, and it may be accepted, that just because there is a low risk of something does not necessarily mean that there is a remote chance of that thing occurring. He relies upon the well-known authorities of Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 389 per Mason CJ and 429 per McHugh J and Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572. The question however must depend upon the circumstances of each case and the reasoning understood not only in the context of the whole of the reasons of the Authority, but also the reasons read in a way that does not constitute an overly zealous scrutinisation aimed at the perception of error: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

15. The error is said to have arisen in the section of the Authority’s reasons where it considered the possibility that the applicant might be harmed as a result of the general situation in Iraq by reference not only to his location, but also to personal circumstances such as his wealth. The relevant paragraphs in its reasons are [21]-[30].

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 as 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.

19. Two things may be noted about this paragraph.  First, although it linked its earlier finding about the security situation in Iraq in [24] to its conclusion, that was not the only basis for that conclusion, there being the two other matters I have mentioned.  Secondly, by referring to the earlier finding that the risk of violence in southern Iraq was low this must be taken to have included the reference to the concluding sentence in [24] that “…[s]outhern Iraq remained secure and safe”.

1. Once those aspects are taken into account, including the analysis engaged in between [25]-[28], it is clear in my view 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.

Conclusion

1. For those reasons I am not satisfied that there is any jurisdictional error in the Authority’s decision and the application must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  7 December 2018