EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 804
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804
File number: MLG 2085 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 4 September 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Secretary failed to comply with s 473CB of Migration Act 1958 (Cth) – whether Authority misapplied s 473DD of the Migration Act – whether Authority failed to consider a claim that clearly emerged on the materials – whether Authority failed to consider an integer of applicant’s claim – whether Authority made findings or proceeded in a manner that was unreasonable – whether Authority misconstrued and therefore failed to consider a claim raised by the applicant – whether the Authority erred in its assessment of whether applicant faced a real chance of harm in the reasonably foreseeable future – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth) ss 5AA, 5AAA, 36, 65, 473CA 473CB, 473DC, 473DD, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AIE15 v Minister for Immigration and Border Protection [2018] FCA 610
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
AWO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 27
BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642
CCW16 v Minister for Immigration and Border Protection [2017] FCCA 2
CGA15 v Minister for Home Affairs (2019) 268 FCR 362 ; [2019] FCAFC 46
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367; [2019] FCAFC 61
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCA 551; [2018] FCAFC 12
DIN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 164; [2021] FCAFC 44
EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299; [2019] FCAFC 20
GJM18v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 632
Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482; [2018] FCAFC 80
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZQKB (2012) 133 ALD 495; [2012] FCA 1189
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80
Nathanson v Minister for Home Affairs (2022) 178 ALD 536; [2022] HCA 26
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
SZMDS v Minister for Immigration and Citizenship (2010) 240 CLR 611; [2010] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 216 Date of last submission/s: 20 March 2023 Date of hearing: 30 January 2023 Place: Perth Counsel for the Applicant: Mr J Maloney Solicitor for the Applicant: Clothier Anderson & Associates Counsel for the First Respondent: Ms K McInnes Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2085 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIG17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
4 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 24 August 2017.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Iraq who applied for a protection visa. A delegate of the Minister refused to grant him a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision on 24 August 2017. The applicant now seeks judicial review of the Authority decision, invoking the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant advances nine grounds of application. For the reasons explained below, I have found that three of the grounds establish jurisdictional error in the Authority decision. Those grounds establish jurisdictional error on the basis that:
(a)the Secretary failed to comply with s 473CB(1)(c) of the Migration Act in failing to provide at least part of the applicant’s brother’s protection visa file to the Authority, and this failure vitiated the Authority decision (ground 1);
(b)the Authority failed to consider a claim that emerged clearly from the materials before it (ground 4); and
(c)the Authority failed to consider an integer of a claim advanced by the applicant (ground 5).
The application also raises other issues, which I have found in the circumstances of the present case do not amount to jurisdictional error. For the reasons explained below, I have found that the applicant has not established jurisdictional error on the basis that the Authority:
(a)misapplied s 473DD of the Migration Act (grounds 2 and 3);
(b)made findings or proceeded in a manner that was unreasonable (grounds 6 and 7);
(c)misconstrued and therefore failed to consider a claim raised by the applicant (ground 8); or
(d)erred in its assessment of whether the applicant faced a real chance or real risk of harm in Iraq in the reasonably foreseeable future (ground 9).
In circumstances where the applicant has established jurisdictional error in the Authority decision, a writ of certiorari will issue to quash the Authority decision and a writ of mandamus will issue, directed to the Authority, to require it to reconsider the review according to law.
VISA APPLICATION, INTERVIEWS AND ADMINISTRATIVE DECISIONS
The applicant entered Australia by sea without a visa in November 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
Shortly after his arrival in Australia, on 1 December 2012 the applicant attended an Irregular Maritime Arrival Entry Interview (arrival interview) with an officer of the Minister’s department (Department).
On 4 October 2016 the applicant applied for the protection visa. The applicant’s claims for protection were set out in a statutory declaration dated 16 September 2016, which accompanied his application.
The applicant attended an interview with an officer of the Department to discuss his claims for protection on 16 December 2016 (protection visa interview). On 9 March 2017 the officer of the Department invited the applicant to comment on concerns put to him at the protection visa interview that his claims were similar to those made by his brother, and that the applicant may have used his brother’s successful claims as a basis for his own. The applicant was also invited to comment on adverse information arising from inconsistencies between his claims and his brother’s claims. The applicant’s representative provided a response on 14 March 2017.
A delegate of the Minister made a decision refusing to grant the applicant a protection visa on 28 April 2017. The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
The applicant’s representative provided a submission and new information to the Authority on 24 May 2017.
On 24 August 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF AUTHORITY DECISION
Information before the Authority
The Authority had regard to:
(a)the material given by the Secretary under s 473CB of the Migration Act;
(b)the submission provided by the applicant’s representative on 24 May 2017 to the extent that it did not contain new information;
(c)new information regarding the genuineness of the threat letters the applicant said he received from the Free Striking Islamic Movement, in relation to which the Authority was satisfied that the requirements of s 473DD of the Migration Act were met; and
(d)a death certificate in relation to the shooting death in 2012 of a friend of the applicant.
The Authority was not satisfied that the requirements of s 473DD were met in relation to the following new information and therefore did not have regard to the information:
(a)a submission that the applicant’s claims should be assessed on the basis of:
(i)his actual and imputed political opinion as an anti-Shia militia activist;
(ii)his religious beliefs as a Shia Muslim who is likely to be targeted by Sunni insurgent groups for his previous involvement against Sunni extremist groups;
(iii)his imputed religious beliefs as a Sunni Muslim who was born and raised in a Sunni area and who is likely to be targeted by Shia extremist groups;
(iv)for being a member of unspecified particular social groups;
(b)a submission that the applicant would be unable to subsist in any area to which he is relocated because he defected from the Police Force and there is a current warrant for his arrest; and
(c)information and supporting documents which the applicant submitted showed that his claims were advanced before his brother’s claims, including a 2013 letter to the then Minister for Immigration and Citizenship appealing for the applicant’s release from Manus Island Detention Centre, a response to that letter, an undated statement that had been attached to the letter to the Minister, identity documents of the applicant and his brothers and part of an ‘Irregular Maritime Arrival and Induction Interview’ form containing the applicant’s nominal roll number.
Consideration of the applicant’s claims for protection
The applicant’s central claim was that he was targeted by a militia group and remains at risk, should he return to Iraq. The applicant claimed that he approached the militia in 2007 when they were using the land adjacent to his family home to fire rockets and he was stabbed in the back with a knife. The Authority accepted that the applicant made a report to the police in November 2007. The Authority noted that the applicant’s claim was similar to that of his brother but considered that it was plausible that a number of people who were affected by the actions of the militia may have approached them and asked them to relocate, to no effect.
The Authority accepted that the applicant had been stabbed in the shoulder or back but, due to inconsistencies in the applicant’s evidence, did not accept that this was directly related to his request of the militia to stop their attacks from the land adjacent to his home. The Authority considered it plausible that the militia may have threatened the applicant when he asked them to move but noted that on the applicant’s own evidence no harm came to his brothers when they made similar requests. The Authority did not accept that the militia regularly sprayed the applicant’s house with bullets, or that the applicant was imputed to be collaborating with the British Forces due to his request to the militia in 2007.
The Authority was not satisfied that threatening letters provided by the applicant to support his claims were genuine. The Authority was not satisfied that the applicant was asked to make a further statement or attend court in 2008 and did not accept that the applicant had received any threats or that he was forced to relocate.
The Authority accepted that, a few years later, a bomb was placed outside the applicant’s neighbour’s house and that the applicant was shot at when driving home with his friend. However, the Authority did not accept that the applicant was targeted in these attacks. The Authority did not accept that the applicant’s return would trigger any renewed interest in the applicant.
The Authority accepted that in September 2012 the applicant was staying at a hotel and a bomb was detonated outside that hotel killing many people. However, the Authority did not accept that the applicant was the target of this incident, instead concluding that the bomb was part of a larger series of attacks carried out across the country on that day.
The Authority did not accept the applicant’s claim that due to his refusal to cooperate with the militia he would be considered an infidel and apostate by the militia groups.
In circumstances where the Authority:
(a)had not accepted the applicant’s central claim that he had been threatened by the militia or that he feared harm from militia groups in the future, or that he was perceived to be a traitor, collaborator, infidel or apostate due to asking the militia to relocate from next to his home in 2007; and
(b)accepted that the applicant had been orally threatened when approaching militia men in 2007 (10 years before the Authority decision), but did not receive adverse attention from this group prior to his departure from Iraq in 2012,
the Authority was not satisfied that threats against the applicant in 2007 would be realised or manifest into actions causing serious harm or that he would be subject to any threats or harm in the future stemming from this incident.
The Authority accepted that the applicant is a Shia Muslim and acknowledged that although he had not claimed to fear harm on this basis alone, the delegate considered whether the applicant’s religion and the security situation in southern Iraq would give rise to protection obligations. The Authority noted that country information indicated that Sunni armed groups had attacked locations in southern provinces but that the level of violence overall in the southern provinces was lower than elsewhere in Iraq. Based on the referred material, including country information, the Authority was not satisfied that applicant faced harm from Shia militia or Shia armed groups simply for being Shia. The Authority also found that the security situation in Basra did not escalate to a level that would give rise to a real chance that the applicant would face serious harm, should he return. The Authority was not satisfied that the applicant faced a real chance of serious harm from general or sectarian violence.
Based on these findings, the Authority found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa).
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 27 September 2017, which is within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant relies on an amended application filed on 2 September 2022 which raises nine grounds of application which are set out under separate headings below.
The evidence before the Court comprises:
(a)the court book filed on 26 June 2018;
(b)an affidavit of Catherine Jane Farrell filed on behalf of the applicant on 2 September 2022, which annexes a transcript of the applicant’s interview with the delegate and a Country Report prepared by the Department of Foreign Affairs and Trade (DFAT) dated 13 February 2015;
(c)an affidavit of Catherine Jane Farrell filed on behalf of the applicant on 7 October 2022, which annexes an extract of the applicant’s arrival interview;
(d)an affidavit of Catherine Jane Farrell filed on behalf of the applicant on 3 March 2023,[1] which annexes a copy of the applicant’s brother’s protection visa application file held by the Department.
[1] This affidavit was filed after the hearing. The Minister’s lawyer confirmed via email to my associate that the Minister did not object to the affidavit being read and my associate advised the parties by email that I would treat the affidavit as read.
I have also had regard to the applicant’s written submissions filed on 2 September 2022, 28 February 2023 and 21 March 2023, the Minister’s written submissions filed on 15 September 2022 and 14 March 2023 and the oral submissions advanced by both parties at the hearing.
GROUND 1: IS THE AUTHORITY DECISION AFFECTED BY JURISDICTIONAL ERROR DUE TO A BREACH OF S 473CB OF THE MIGRATION ACT?
Ground 1 of the amended application reads:
The Secretary did not provide the Authority with the Applicant’s brother’s file pursuant to s 473CB(1)(c) of the Migration Act 1958 (Cth) (Act). That was legally unreasonable, and vitiated the Authority’s review. Further, the Authority’s failure to exercise its discretion under s 473DC of the Act to get the Applicant’s brother’s file was unreasonable.
Particulars
The Applicant’s brother’s file was relevant to the review. The Secretary must be taken to have concluded that it was not. There was no evident or intelligible basis for that conclusion.
The Authority knew that the Applicant’s brother’s file had been before the Delegate, had been relevant to the Delegate’s decision, and contained information pertinent to the Applicant’s claims. Its failure to exercise its discretion to get the file lacked an evident or intelligible basis.
Ground 1 was not addressed at the hearing and was instead the subject of further written submissions by both parties after the hearing.
The ground is expressed on two alternative bases, both arising out of the failure of the Secretary to provide to the Authority the applicant’s brother’s protection visa application file. The applicant’s brother was previously granted a protection visa in Australia and there is some overlap between his claims and those of the applicant. The first basis on which the ground is advanced is that the Secretary breached s 473CB(1)(c) of the Migration Act, and the second basis on which the ground is advanced is that the Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act to get the brother’s protection visa file from the Department.
I deal first with the alleged breach of s 473CB.
Was it open to the Secretary to form the view that the applicant’s brother’s file was not information that needed to be provided in accordance with s 473CB?
Section 473CB provides:
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii)refers to the evidence on which those findings were based; and
(iii)gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review …
What is information relevant to the review?
There are now several judgments of the High Court and Federal Court addressing what amounts to material that is relevant to the review. In CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 (CNY17), Kiefel CJ and Gageler J said at [6] (footnote omitted):
To consider material that is in the Secretary’s possession or control to be relevant to the review within the meaning of the provision, the Secretary (who can be expected ordinarily to act through a delegate) obviously needs to form the opinion that the material is capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision.
In CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367; [2019] FCAFC 61 (CQR17), Derrington J said at [105]:
As the obligation of the IAA is to conduct a de novo hearing to consider the application for a protection visa afresh, all material which relates to every aspect of the visa application is necessarily relevant. Even where a delegate has decided a point in favour of the visa applicant, the material in the possession of the Secretary which tends to prove or disprove that issue can be said to be relevant to the review as the IAA is obliged to reach its own conclusions on each matter...
It can be seen from the words used in s 473CB(1)(c) that whether the information is relevant is to be assessed by the Secretary, which means that the assessment is subjective. The obligation in s 473CB(1)(c) must be exercised reasonably and on a correct understanding of the law: CNY17 at [6]. The test for whether a determination by the Secretary for the purposes of s 473CB(1)(c) was reasonable is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review: CQR17 at [39] per Jagot J.
While the parties largely agree on the relevant principles to be applied in determining whether the Secretary’s delegate had an evident and intelligible basis for not referring information from the applicant’s brother’s file to the Authority, there is considerable disagreement between the parties as to the application of those principles to the facts of this case.
Did the Secretary’s delegate turn his or her mind to the applicant’s brother’s protection visa file?
One such area of disagreement is whether the applicant has the onus of establishing whether the Secretary’s delegate turned his or her mind to the brother’s file and, if so, whether the applicant has discharged that onus. The Minister submitted that it is not enough that the Minister’s delegate who made the s 65 decision was aware of the file because that person is not necessarily the Secretary’s delegate for the purposes of s 473CB.[2] The Minister submitted that there is no evidence that the Secretary or a delegate of the Secretary considered the brother’s file at all. In response, the applicant submitted that any contention that the applicant needed to establish by evidence that the Secretary or a delegate considered the file and reached the view that it is not relevant is inappropriate and legally wrong. In advancing this submission, the applicant referred to Jagot J’s judgment in CQR17 where her Honour said at [33]:
…knowledge of the fact of the Secretary having considered whether the documents in question were relevant or not is a matter peculiarly within the knowledge of the Minister given that the Secretary may be inferred to be in a position within the Minister’s Department. Further, given that the task which s 473CB(1)(c) vests in the Secretary involves the Secretary’s subjective state of mind as to the relevance to the review of documents in the Secretary’s possession or control, the appellant has no power to produce evidence relevant to that question. In this context, given that the Minister has produced no evidence about that issue, the question is whether there is some evidence, even if comparatively slight, that the Secretary did not consider whether the documents were relevant.
[2] In the discussion in relation to ground 1, any references to ‘Minister’s delegate’ are intended to be a reference to the delegate of the Minister who made the decision under s 65 of the Migration Act and any references to the ‘Secretary’s delegate’ are intended to be a reference to the delegate who exercised the powers of the Secretary under s 473CB of the Migration Act. Any references to ‘delegate’ in other parts of this judgment are simply a reference to the delegate of the Minister who made the decision under s 65 of the Migration Act.
In the present matter, I draw no adverse inference against the applicant for any omission to put on evidence of the Secretary’s state of mind, or that of the Secretary’s delegate. Instead, I infer that the Secretary’s delegate did turn his or her mind to the applicant’s brother’s file and made a decision that the material in that file was not relevant. Even if the Secretary’s delegate for the purposes of s 473CB of the Migration Act was a different person to the Minister’s delegate for the purposes of s 65 (and I note there is no evidence before the Court in relation to this issue, with such evidence being purely within the Minister’s power to provide), information from the applicant’s brother’s file was a significant factor in the Minister’s delegate deciding not to grant the applicant a protection visa and was the subject of communications between the Department and the applicant that the Secretary’s delegate concluded were relevant to the review. Even a cursory view of the Minister’s delegate’s decision would have been sufficient to put the Secretary’s delegate on notice that material in the applicant’s brother’s file had the potential to be relevant and based on this I infer that the Secretary’s delegate turned his or her mind to the material in the brother’s file.
If, contrary to my finding above, the Secretary’s delegate did not in fact turn his or her mind to the applicant’s brother’s file for the purposes of s 473CB(1)(c), as acknowledged by both parties, that would arguably give rise to a different jurisdictional error, given that the Secretary is obliged to conduct reasonable searches for documents that may be relevant to the review. It is unnecessary to decide that issue in the present case.
Was it unreasonable for the Secretary’s delegate to form the view that documents in the applicant’s brother’s file were not relevant to the review?
Having found that the Secretary’s delegate turned his or her mind to the applicant’s brother’s file for the purposes of s 473CB, in circumstances where the brother’s file or documents from that file were not in fact provided to the Authority, it can be inferred that the Secretary’s delegate formed the view that the material was not relevant. The parties disagree as to whether it was unreasonable for the Secretary’s delegate to reach this conclusion.
The applicant submitted that the conclusion that the file was not relevant was unreasonable because the file had been before the Minister’s delegate and was crucial to the delegate’s decision, had been the subject of correspondence and submissions, and was relevant to the veracity of the applicant’s claims for protection. In relation to the latter point, the applicant submitted that not only could the information be relevant in the sense that it was used by the delegate, but it also could have supported the applicant’s claims.
The Minister submitted that it was open to the Secretary’s delegate to consider that the applicant’s brother’s file was not relevant in circumstances where:
(a)it is not apparent that the whole file was before the delegate;
(b)many documents in the file could not be said to be relevant to the applicant’s claims;
(c)it was the information in the file that was potentially relevant, rather than the file itself;
(d)the information that was capable of verifying or undermining the applicant’s claims was already captured in the applicant’s file, in particular, in the invitation to comment sent to the applicant; and
(e)information that other people had been targeted, harmed, killed or forced to relocate after making a complaint against militia was not qualitatively different to information that was already to be referred to the Authority.
In my view, the Secretary’s delegate’s view that material in the applicant’s brother’s file was not relevant was unreasonable. That is not to say that the whole file needed to be provided to the Authority. The file annexed to Ms Farrell’s affidavit filed on 3 March 2023 exceeds 400 pages and many of those pages do not contain any information about the basis on which the applicant’s brother claimed protection. However, to the extent that the documents within the applicant’s brother’s file that set out the brother’s claims for protection:
(a)showed that the claims advanced by the applicant and his brother were based on similar factual information or might otherwise be considered to be consistent; or
(b)suggested that the claims advanced by the applicant and his brother were inconsistent in a way that might undermine the credibility of the claims,
the documents contained information that was capable directly or indirectly of rationally affecting the assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review.
In this regard, it should be noted that material that is relevant in the sense described in cases such as CNY17 and CQR17 is not limited to material that supports an assertion or claim advanced by an applicant, but can also include material that rationally tends to disprove any such assertion or claim.
In this case, the Minister’s delegate plainly considered that information from the applicant’s brother’s file reflected negatively on the applicant’s credibility because it caused the Minister’s delegate to find that the applicant had copied his brother’s claims. The Minister’s delegate set out this information in his reasons and referred to it in correspondence with the applicant. In the proceeding before this Court, the Minister submitted that it was the information that was relevant, as opposed to the applicant’s brother’s file itself, and the information was already before the Authority in the referred materials. I do not accept this submission as a basis for finding that the Secretary’s delegate did not act unreasonably in the present case, because I do not accept the Minister’s submission that the information in the applicant’s brother’s file was not qualitatively different from the information already in the referred materials. The way in which the information itself was set out in the email inviting the applicant to comment on the similarities between his and his brother’s claims was not a verbatim account of the brother’s relevant claims and the delegate intentionally refrained from giving the precise information of the brother to the applicant, instead identifying those claims of the applicant that were similar to his brother’s claims. The Secretary’s delegate acting reasonably ought to have recognised that on a de novo review, it would be open to the Authority to form its own view of the extent to which the applicant’s claims and those of his brother were similar, and the consequences that flowed from that, but it was not possible for the Authority to do that based on the way the information from the applicant’s brother’s file was summarised or referred to in the email to the applicant and in the Minister’s delegate’s decision.
Any similarities in the claims of the applicant and his brother do not inevitably lead only to the conclusion that the applicant copied his brother’s claims. The similarities in the claims may also have a corroborative effect. The apparent failure on the part of the Secretary to recognise this is a further reason why it was unreasonable for the Secretary’s delegate to conclude that material in the brother’s file, beyond that already provided in the referred materials, was not relevant for the purposes of s 473CB(1)(c) of the Migration Act.
I do not accept the Minister’s submission that the applicant’s non-reliance on his brother’s claims demonstrates that the decision of the Secretary’s delegate that mateiral about the brother’s claims for protection was not relevant to the review was reasonable. In circumstances where the Minister’s delegate expressly reviewed the applicant’s brother’s file, apparently with the view to seeing whether information in that file supported or disproved the applicant’s claims, and relied on that information in reaching his decision, it was unreasonable for the Secretary’s delegate to form the view that the relevant material setting out the applicant’s brother’s claims was not relevant to the review.
I therefore find that the Secretary did not comply with the obligation in s 473CB(1)(c) of the Migration Act because the Secretary, acting through a delegate, unreasonably formed a view that material in the applicant’s brother’s protection visa file addressing his claims for protection was not relevant to the review.
Was the Secretary’s error material?
A failure by the Secretary to comply with s 473CB(1)(c) may prevent the Authority from conducting the review contemplated by Part 7AA and may therefore lead to jurisdictional error in the Authority’s decision. Whether a breach of s 473CB results in the Authority decision being affected by jurisdictional error will depend on the gravity of the breach: EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299; [2019] FCAFC 20 at [35]. This will turn on whether, as a result of the Secretary’s error, the applicant was denied the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ). The applicant will need to show ‘as a matter of reasonable conjecture’ that there is a realistic possibility that the Authority’s decision could have been different if not for the error, with the standard of ‘reasonable conjecture’ being undemanding and not onerous: Nathanson v Minister for Home Affairs (2022) 178 ALD 536; [2022] HCA 26 at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ), [47] (Gageler J).
In the present case, the Authority did not make the same adverse credibility finding that the Minister’s delegate made based on the similarity in the applicant’s and his brother’s claims. Rather, the Authority accepted that ‘it is plausible that a number of people who were directly affected by the militias actions may have approached them and asked them to relocate, to no effect’ and was ‘prepared to accept’ that the applicant and his brother were involved in two separate incidents, each involving different passengers with similar names being shot in cars.
The applicant submitted that the failure to comply with s 473CB was material because if the brother’s file had been before the Authority, the Authority might have gone further than simply giving the applicant the benefit of the doubt on the question of copying his brother’s claims. The applicant submitted that the Authority might have considered the bearing of the brother’s claims on the veracity of the applicant’s claims that were rejected by the Authority, including that the applicant had been physically harmed when he challenged the militia and that he had been targeted by the militia after making a complaint about them. The applicant also identified specific information in the brother’s file, which went beyond the information already before the Authority, and submitted that consideration of the information might have caused the Authority to accept the applicant’s claims.
The Minister submitted that any failure by the Secretary to comply with s 473CB(1)(c) was not material to the Authority’s decision because the Authority’s findings with respect to the similarities between the applicant and his brother’s claims were not unfavourable to the applicant and the Authority was not disabled from performing its statutory task as a result of the brother’s file not being available to it. The Minister further submitted that the error was not material because the Authority’s finding that the applicant would not attract the attention of the militia if he returned to Iraq turned on its assessment of the applicant’s own circumstances, and would not have been affected by information from the applicant’s brother’s file, and the Authority was already aware of information about the killing of additional people in the applicant’s social circle.
I accept the applicant’s submission that the error in the present case was material, particularly noting the low bar to establish materiality. It is possible that the more detailed information in the applicant’s brother’s file would have been seen by the Authority as corroborating the applicant’s claims about the treatment by the militia of those who challenged them. There is therefore a realistic possibility that the outcome of the Authority’s review might have been different if the Authority had before it the material from the applicant’s brother’s file that addressed the applicant’s brother’s claims for protection, at least to the extent that the brother’s claims were similar to the applicant’s claims.
Other cases referred to by the parties in relation to s 473CB
The parties in their submissions referred to several other recent cases in relation to s 473CB by way of comparison, including AWO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 27, DIN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1 (DIN19) and GJM18v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 632. Each of these cases provides an example of an asserted breach of s 473CB, but it is not necessary to compare and contrast these cases for the purposes of making findings in the present case. In the context of my findings above, it is also unnecessary for me to resolve a submission advanced by the Minister that one aspect of DIN19 was wrongly decided. That submission of the Minister is best left to be fully considered in a case where it will be determinative of the outcome.
Did the Authority unreasonably fail to exercise the discretion in s 473DC of the Migration Act?
The second way ground 1 is framed is as an unreasonable failure to exercise the discretion in s 473DC of the Migration Act. The applicant submitted that in circumstances where the Authority was aware of his brother’s file and its contents, it was unreasonable for the Authority not to exercise its discretion in s 473DC to get it from the Department.
Section 473DC(1) of the Migration Act confers on the Authority a discretion to get new information which was not before the Minister’s delegate and which the Authority considers may be relevant to the review. In the present case, there is no information before the Court as to precisely what parts of the applicant’s brother’s file were before the delegate and therefore it is not possible to discern what parts of the brother’s file, if any, would amount to new information. Certainly, those parts of the applicant’s brother’s file that were before the delegate would not appear to amount to new information. For this reason, I have some doubts as to whether an unreasonable failure to exercise the discretion in s 473DC to get new information is the appropriate lens through which to view this ground. However, the parties have not advanced submissions in relation to this particular aspect of the ground and, given that I have found jurisdictional error on the basis of the Secretary’s failure to comply with s 473CB of the Migration Act, it is unnecessary to decide whether there has been an unreasonable failure to exercise the discretion in s 473DC.
Conclusion in relation to ground 1
Ground 1 is established on the basis that the Secretary failed to comply with s 473CB(1)(c) of the Migration Act, and failure was a material error that caused jurisdictional error in the Authority decision.
GROUND 2: DID THE AUTHORITY MISAPPLY S 473DD OF THE MIGRATION ACT?
Ground 2 of the amended application reads:
The Authority misapplied s 473DD of the Act to the new information provided to it.
Particulars
The Applicant provided new information to the Authority showing that the Applicant had advanced his claims before his brother. This was to rebut the Delegate’s conclusion that the Applicant had copied his brother’s claims.
The Authority found that the Applicant had not offered any explanation as to why the information was not, and could not have been, provided to the Delegate before its decision. That was incorrect. The Authority thereby misapplied s 473DD(b)(i) of the Act.
The Authority further concluded that the new information provided to it was a mere restatement of the Applicant’s claims as elsewhere made. That was also incorrect. The Authority thereby misapplied s 473DD(b)(ii), and also failed to consider the claims contained in the new information.
The issue raised by this ground is whether the Authority misapplied s 473DD of the Migration Act in deciding that various documents the applicant provided to the Authority to show that his claims for protection were raised before his brother’s successful protection visa application did not meet the requirements of s 473DD. The applicant asserts that the Authority misapplied both limbs of s 473DD(b).
New information and Authority’s reasons
The applicant provided a submission to the Authority on 16 May 2017, which relevantly stated:
In relation to the concerns about the applicant’s claims being similar to those of his brother’s, the delegate seeks to imply that the [review applicant’s] claims were copied from his brother’s successful claims. However, it is plainly apparent, based on the following documentation attached, that the [review applicant’s] claims arose long before his brother even had contact with the Department of Immigration and Border Protection:
•Manus Island Interview Record Transcription, conducted in 2013
•Letter to Minister submitted in 2013 by FCG Lawyers, dated 12 February 2013, submitted to the Minister of Immigration and Border Protection, from Professor Murray Gerkens of FCG Legal requesting special consideration for the applicant and detailing his claims, long before the [review applicant’s] brother even commenced his application.
•Acknowledgement of letter to minister referred to above.
•FOI release of Part C of interview with applicant section entitled “Reason to Leave”.
As foreshadowed in the submission, a number of supporting documents were attached to the submission.
The Authority addressed this new information at [8]-[10] of its reasons, where it said:
8.In addition to the legal submission, the applicant’s representative has submitted “relevant supporting documents not previously supplied to the Department of Immigration and Border Protection.” These comprise a letter to the then Minister for Immigration and Citizenship dated 12 February 2013, appealing for the applicant’s release from Manus Island Detention Centre, a response to that letter from the Department dated 22 March 2013, an undated statement from the applicant which had been attached to that letter, identity documents of the applicant and his brothers, a death certificate and part of an “Irregular Maritime Arrival and Induction Interview” form containing the applicant’s nominal roll number. In relation to the latter, it would appear that this form was completed as part of the applicant’s interview on Manus Island. The delegate did not refer to this document in his decision of 28 April 2017 and it was not part of the referred information. I am satisfied that it was not before the delegate and is new information, as are the other documents with the exception of the applicant’s identity documents and the Departmental response of 22 March 2013. All of the documents significantly predate the delegate’s decision. Again, the applicant’s representative has not provided any information on why this information was not and could not have been provided to the delegate. I am not satisfied that any of the documents could not have been provided to the delegate.
9.The undated statement from the applicant describes his life in detail and includes his claims for protection. The letter to the Minister of 12 February 2013 outlines the applicant’s claims for protection as well as a discussion of conditions on Manus Island. The part of the “Irregular Maritime Arrival and Induction Interview” form includes his reasons for leaving Iraq, which are essentially his claims for protection. The referred information already includes the applicant’s claims for protection as recounted at the arrival interview of 1 December 2012, as set out in his statutory declaration of 16 September 2016 and as discussed at the PV interview on 16 December 2016. Even if I consider that the new statements comprise credible personal information, I am not satisfied that exceptional circumstances justify consideration of three further statements of his claims which have been available for several years, so have not had regard to this information.
10.Conditions on Manus Island are irrelevant to this application, as are the identity documents of the applicant’s brothers. I have not had regard to this information. The death certificate relates to the shooting death of a friend of the applicant on 3 September 2012 and is a central part of his claims for protection. Although the applicant’s representative provided several corroborating documents with the applicant’s PV application this document was not included at the time and there is no explanation why. I am satisfied that it is credible personal information. Notwithstanding the recent presentation of this document, as the shooting of his friend is central to his claims I am satisfied that exceptional circumstances justify its consideration and have had regard to it.
What was the Authority required to consider for the purposes of s 473DD?
Section 473DD provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In addressing whether new information provided by a referred applicant meets the requirements of s 473DD, the Authority is required to first assess the information against the criteria in both s 473DD(b)(i) and (ii) and, if either or both of those criteria are met, take its findings into account in assessing whether there are exceptional circumstances to justify considering the new information for the purposes of s 473DD(a): AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 at [11]-[12] (Kiefel CJ, Gageler, Keane and Gordon JJ).
Did the Authority misapply s 473DD(b)(i)?
The applicant submitted that it was clear from his submission to the Authority that the new information was provided in order to challenge the delegate’s conclusion that the applicant did not face a real chance or a real risk of harm on return to Iraq, which was a conclusion based largely on the delegate’s finding that the applicant had copied his brother’s claims for protection. The applicant submitted that the Authority misconstrued or overlooked his explanation that he provided the new information to show that he had advanced the claims before his brother, instead finding that the applicant’s representative had not provided any explanation as to why this information was not and could not have been provided to the delegate. The applicant submitted that it was obvious the material was provided after the delegate’s decision because it was responsive to the delegate’s finding and therefore the Authority erred in its assessment of whether the information could have been provided before the delegate’s decision, and so whether it satisfied s 473DD(b)(i).
The Minister submitted that insofar as ground 2 relates to the applicant having advanced his claims before his brother’s claims were advanced, the ground fails for two reasons:
(a)The applicant was on notice prior to the delegate’s decision that the delegate had concerns that the applicant may have used his brother’s successful claims for a protection visa as the basis for his own claims for protection, and had been provided with an opportunity to respond to that concern. Therefore the applicant’s submission that the new information was ‘responsive’ to the delegate’s decision overstates the position, because it was also responsive to the earlier request for information. The Authority therefore did not err in its assessment of whether the information could have been provided prior to the delegate’s decision.
(b)The Authority’s factual findings in relation to the similarities between the applicant’s claims and those of his brother were not unfavourable to the applicant. Therefore, any error in the Authority’s consideration of s 473DD(b)(i) could not have resulted in any different outcome and therefore was not material.
In my view, the Authority did not err in finding that the applicant’s representative did not provide an explanation as to why the information was not and could not have been provided to the delegate, or in not being satisfied that the information could not have been provided to the delegate prior to the delegate’s decision.
While it is true that the delegate made adverse credibility findings against the applicant for reasons relating to the similarity between the applicant’s claims and those of his brother, the applicant had been on notice of the delegate’s concerns in this regard prior to the delegate’s decision. This can be seen in particular from an email sent from the Department to the applicant’s representative on 9 March 2017, which reads in part:
… At interview, it was put to [the applicant] that the claims he made were very similar to those made by his brother. As his brother is in Australia and has been found to be a refugee, I am concerned that [the applicant] may have used his brother’s successful application claims as a basis for his own.
At interview, you requested that I provide you with the applicant’s brother’s claims. I have looked into providing you with the claims, but have found that I cannot provide you with his documents as they are protected by client confidentiality. You may wish to ask the applicant’s brother to release the relevant documents, in which case a signed statement sent to me allowing this to happen will suffice, or you can FOI them if you the brother does not wish to release the information.
What I can offer you explicitly is a list of the applicant’s claims that appear to be the same as his brother’s:
1.One night, my frustrations with the situation boiled over… I approached the militants and respectfully ask them if they could locate another area… but the militants did not take very kindly to being spoken to in that way. They grew angry with me and accused me of trying to protect the British groups, despite my protestations and explanations that I was merely fearful for the lives and safety of my family.
2.I had to report the incident to the police, despite knowing that I would not be protected nor assisted, so I attended [the police station] and filed a report… I made this complaint together with my friend’s brother, [name redacted], whose brother [name redacted] had been killed by the same militia. We both requested police protection to no avail.
3.I had no choice but to leave town, relocating to Al-Nasiryah to stay with relatives for a short period of time before departing for the UAE for work in my … business. I would travel back and forth between Iraq and the UAE and for some time, life returned somewhat to normal.
4. Went with [name redacted] to lodge complaint regarding the militia.
The applicant accepted the opportunity to respond to this and provided information in an email dated 14 March 2017 addressing why his claims appeared similar to his brother’s claims but were in fact different. The applicant did not attach any documents to that email and he did not make any assertion that his claims should be accepted because they predated his brother’s claims.
The Authority’s observation that no explanation was offered as to why the new information was not provided prior to the delegate’s decision needs to be viewed in the context of the applicant being afforded by the delegate an express opportunity to comment on the delegate’s concerns that he had copied his brother’s claims. In these circumstances, the applicant’s submission that it was clear that he provided the new information to the Authority to challenge the delegate’s finding that he copied his brother’s claims does not amount to any explanation as to why the new information could not have been provided to the delegate prior to the decision made under s 65 of the Migration Act. It is simply an explanation as to why the information was subsequently provided to the Authority, which is not directly relevant to the application of s 473DD(b)(i).
I do not accept that the Authority misapplied s 473DD(b)(i) of the Migration Act and, in these circumstances, it is unnecessary to address the Minister’s submission in relation to materiality.
Did the Authority misapply s 473DD(b)(ii)?
The applicant submitted that the Authority misconstrued the new information itself and that, contrary to the Authority’s assessment, the new information did not merely restate the applicant’s claims as elsewhere advanced. Rather, the letter to the then Minister for Immigration and Citizenship dated 12 February 2013 (2013 letter) and the undated statement attached to the 2013 letter (undated statement) made reference to incidents where bullets were fired at the applicant’s house and the applicant’s inability to find permanent employment and difficulty subsisting in Iraq.
The incidents where bullets were fired at the applicant’s family home were referred to in the undated statement. The applicant referred to an operation against the militia that took place in March 2008 and then said:
Few months later I felt secured to return back to my family home but even at that time we had a few incidents where bullets fired at our house at night time for no clear reason.
The information about the applicant’s difficulties finding employment and his concerns about his standard of living were expressed in the 2013 letter, where, in the context of outlining the applicant’s claims to fear harm from the militia, the representative said:
Throughout his adulthood, [the applicant] tried very hard to look for long term employment and worked very hard to secure a better future. However, all his hard work was futile given the unstable political situations that he often found himself the victim of.
The information about the applicant’s difficulties finding employment and his concerns about his standard of living was also expressed in the undated statement, in which the applicant said that every time he tried to live in Iraq he and his family encountered new concerns for their ‘standard of living’ and that he ‘tried hard to work and to settle there but no luck’.
The applicant submitted that the Authority’s misconstruction of the new information was significant for two reasons. First, the new information contained prima facie credible claims not advanced elsewhere and was capable of satisfying s 473DD(b)(ii) and this in turn could constitute an exceptional circumstance for the purposes of s 473DD(a). Second, the fact that the new information contained additional claims means that, had the Authority not erred in its application of s 473DD, and had it decided to consider that information, its assessment of the applicant’s claims may have been different and therefore the misapplication of s 473DD is material.
The Minister submitted that the Authority’s statements that the undated statement ‘includes his claims for protection’ and that the 2013 letter ‘outlines the applicant’s claims for protection’ are not indicative of the Authority having failed to appreciate that those documents contained further information relating to previously raised claims. The Minister submitted that the further information itself does not rise to the level of being a ‘claim’ because it was not the subject of a substantial clearly articulated argument relying on established facts, nor did it clearly emerge on the materials. The Minister acknowledged the Authority’s finding at [9] that even if it considered that the new statements comprised credible personal information, it was not satisfied that exceptional circumstances justified further consideration of the information and submitted that this reflects the Authority recognising that some of the content of the 2013 letter and the undated statement might be considered credible personal information, but was nevertheless not satisfied that the criteria in s 473DD were met. The Minister submitted that no misconstruction of s 473DD is apparent.
In oral submissions, Counsel for the Minister expanded on these submissions. In relation to the information about the applicant’s difficulties finding work and concerns about the standard of living in Iraq, the Minister submitted that it is an overstatement of what was said in the 2013 letter and undated statement to paint those comments as being new claims that were allegedly not considered. Counsel for the Minister submitted that the Authority’s reasons at [9] show that the Authority was cognisant that the new information contained previous claims for protection. In not being satisfied that the 2013 letter and undated statement could not have been provided to the delegate, the Authority proceeded on a correct understanding of the content of those documents. Counsel for the Minister submitted that there is no error in how the Authority approached the documents, particularly noting that the Authority was prepared to assume that they contained credible personal information.
I am not satisfied that the Authority misconstrued the new information, thereby causing it to misapply s 473DD(b)(ii) of the Migration Act. First, I do not accept that the applicant accurately described the Authority’s reasons in the particulars to this ground, where the applicant asserted that the Authority concluded that the ‘new information provided to it was a mere restatement of the Applicant’s claims as elsewhere made’.[3] The Authority nowhere indicated that the information in the 2013 letter and the undated statement were ‘mere restatements’ of information already before the Authority. Rather, the Authority noted that it already had before it in the referred materials three iterations of the applicant’s claims, namely, as advanced at his arrival interview, his statutory declaration that accompanied his protection visa application and his protection visa interview.
[3] See also [26] of the applicant’s written submissions filed on 2 September 2022 where the applicant suggested that the Authority found that the new information ‘merely restated the Applicant’s claims as elsewhere advanced’.
Second, and relatedly, there is no basis to infer from the Authority’s reference to the referred materials including the applicant’s claims ‘as recounted at the arrival interview of 1 December 2012, as set out in his statutory declaration of 16 September 2016 and as discussed at the PV interview on 16 December 2016’ that the Authority was not aware that the articulation of the claims in the new information was not identical, in form or in substance, to that already before it in the referred materials. There is therefore no basis to infer that the Authority, when deciding whether the criteria in s 473DD was met, proceeded on an assumption that the new information did not contain any claims that were not otherwise referred to in the referred materials.
The applicant’s ground insofar as it is based on an asserted misapplication of s 473DD(b)(ii) of the Migration Act was premised on the applicant’s characterisation of the Authority’s reasons as including a conclusion that the claims as articulated in the new information were a ‘mere restatement’ of the claims as articulated in referred materials. Given that I have rejected this premise, the asserted misapplication of s 473DD(b)(ii) is not established.
Given my finding that the premise on which the applicant’s asserted misapplication of s 473DD(b)(ii) of the Migration Act is based is not established, it is largely unnecessary to address the balance of the parties’ submissions on s 473DD(b)(ii), including those submissions advanced in relation to materiality. However, in relation to the applicant’s submission that the new information contained prima facie credible claims and was capable of satisfying s 473DD(b)(ii) and this in turn could constitute an exceptional circumstance for the purposes of s 473DD(a), I observe that the Authority effectively proceeded, for the purposes of deciding whether the criterion in s 473DD(a) is met, on the understanding that the new information was credible personal information. Although the Authority’s reasoning is expressed in the propositional form of ‘[e]ven if I consider that the new statements comprise credible personal information’, in my view, this effectively amounts to an acknowledgement that the relevant new information was credible personal information.
Conclusion in relation to ground 2
I am not satisfied that the Authority misapplied either limb of s 473DD(b) and ground 2 is therefore not established.
GROUND 3: DID THE AUTHORITY MISAPPLY S 473DD OF THE MIGRATION ACT?
Ground 3 of the applicant’s amended application reads:
The Authority misapplied s 473DD of the Act to the Applicant’s claim to face harm due to his actual or imputed opinion as an anti-Shia militias activist.
Particulars
The Applicant’s representatives submitted to the Authority that his claims gave rise to a fear of harm as a result of his imputed or actual opinion as an anti-Shia militias activist. This was not new information: it was a submission about the consequences of the existing pool of information before the Authority. The Authority therefore erred in applying s 473DD to it. Even if it had been new information, it was prima facie credible and responsive to the Delegate’s decision; so the Authority erred in concluding that it did not satisfy ss 473DD(b)(i) and (ii).
Like ground 2, this ground asserts that the Authority misapplied s 473DD of the Migration Act, albeit on a different basis. There are two issues raised by this ground. The first is whether the Authority erred in identifying as new information the applicant’s claim to fear harm as a result of an actual or imputed political opinion as an anti-Shia activist. The second is whether the Authority erred in finding that the information was not credible and responsive to the delegate’s decision.
Identification of new information and Authority’s reasons
The submission to the Authority prepared by the applicant’s representative comments on the delegate’s adverse findings and then states (emphasis added):
Accordingly, we respectfully invite the Tribunal to adopt a more lenient approach in assessing our client’s claims which are based on the following conventional grounds:
•His actual and imputed political opinion as an anti-shia militias activist.
•His religious beliefs as a Shia Muslim who is very likely to be targeted by Sunni Insurgent groups for his previous involvement against Sunni extremist groups.
•His imputed religious beliefs as a Sunni Muslim being born and raised in a Sunni area and who is very likely to be targeted by extremists Shia groups such as [Jaysh al Mahdi (JAM)].
•For being a member of the particular social groups:
The Authority addressed this part of the submission collectively in its reasons and said at [6] and [7] (emphasis added):
6. The applicant’s representative also contends, in the submission to the IAA, that his claim should be assessed on the basis of:
•His actual and imputed political opinion as an anti-shia militias activist;
•His religious beliefs as a Shia Muslim who is very likely to be targeted by Sunni Insurgent groups for his previous involvement against Sunni extremist groups;
•His imputed religious beliefs as a Sunni Muslim being born and raised in a Sunni area and who is very likely to be targeted by extremists Shia groups such as JAM (the Mehdi Army);
•For being a member of the particular social groups: (none have been specified).
7.This is also new information. The applicant has not previously indicated that he is or is considered to be an anti-Shia militia activist or that he has undertaken any activities against Sunni extremist groups. He has at no point claimed to be a Sunni Muslim or to belong to any particular social group. … There is no explanation in the submission as to why this information was not and could not have been provided to the delegate, or why it is credible personal information. I am not satisfied on the information provided that either ss.473DD(b)(i) or 473DD(b)(ii) is met or that there are exceptional circumstances to justify considering the new information.
It is only the Authority’s treatment of the information that the applicant’s claim should be assessed on the basis of his actual and imputed political opinion as an anti-Shia militia activist that is the subject of this ground and the emphasised portions of the extracts above are the parts of the submission and reasoning relating to this information.
Was the information that the applicant’s claims should be assessed on the basis of his ‘actual and imputed political opinion as an anti-Shia militias activist’ new information?
The applicant submitted that, in the submission to the Authority, his representatives were merely emphasising that his claims as already advanced should be considered as including to a claim that he faced harm on the basis of his actual and imputed political opinion as an anti-Shia militia activist. The characterisation of his claim in this way was consistent with the applicant’s earlier claims to have confronted the local militia, made a police report and cooperated with Operation Knight’s Charge. The applicant submitted that the Authority erred by treating his claim to fear harm on the basis of his actual and imputed political opinion as an anti-Shia militia activist as new information and by failing to consider whether the applicant’s making of a police report or complaint to the local militia might lead to him being regarded as an anti-Shia militia activist.
In submitting that the information was not ‘new information’, the applicant relied on the judgment of the Full Court of the Federal Court (Flick, Griffiths and Perry JJ) in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482; [2018] FCAFC 80, where their Honours said at [35]:
The Authority, it is concluded, is not precluded by ss 473DC and 473DD from entertaining a “submission” directed to matters such as:
•the information already made available to the Authority and the consequences which it is “submitted” should flow from that already established pool of factual information; or
•the reasons why “new information” should be considered, including a “submission” as to why such “new information” satisfies the criteria in s 473DD.
The Minister submitted that the Authority was correct to recognise that the applicant was seeking to advance a new claim that was appropriately regarded as new information and suggested that the ground conflates the applicant advancing a new claim in his submission with the claim being consistent with his earlier claims.
The Minister submitted that the applicant’s claims to have confronted the local militia, made a police report and cooperated with Operation Knight’s Charge were advanced in the context of him being considered as an infidel or apostate. He had not previously sought to characterise his claims as arising on the basis of an actual or imputed political opinion as an anti-Shia militia activist. The claims are only consistent to the extent that they might be said to be based on the same underlying facts and the characterisation of the claims was new information correctly dealt with as such by the Authority. In oral submissions, Counsel for the Minister accepted that where a submission is based on pool of facts that were already before the Authority it is not new information. However, Counsel for the Minister submitted that in the present case, what the applicant was asking the Authority to consider was not based on the pool of established facts. The applicant was not simply trying to re-characterise previous factual information in a different way, but was rather making a whole new claim. None of the previous facts said anything about the applicant being regarded as an activist and just because the stabbing incident grounded the alleged claim to fear harm does not mean that the facts ground the claim that he was perceived as an activist. There was no evidence that the applicant had put forward to the Authority that he was recognised as an activist in the past or that he would continue to be perceived as an activist in the future.
Counsel for the Minister also submitted that even if the Authority was wrong in treating the information as new information, the Authority had rejected the factual proposition that was the basis of the claim, namely that the applicant had testified against the militia. Because the Authority had rejected the factual information that was said to give rise to the claim that the applicant would face harm as a result of his actual or imputed political opinion as an anti-Shia militia activist, even if it had inappropriately considered the information to be new information it could not have led to a different conclusion by the Authority.
In the present case, in my view the information that the applicant would be imputed to be an anti-Shia militia activist was properly recognised as new information. Although the basis for the assertion arose out of information that was already before the Authority, namely, the applicant’s past interactions with the militia and making a complaint about them, the assertion that these actions would lead to an imputed political opinion as an anti-Shia militia activist was not before the Authority, and, in my view, went beyond simply being a submission in relation to the consequences of information already before the Authority based on an established pool of factual information. Instead, I accept the Minister’s submission that the suggestion that the applicant would be imputed to be an anti-Shia militia activist was essentially a new claim.
If I am wrong in making that finding, then I note for completeness that I would not accept the Minister’s submission to the effect that any error was not material. The assertion that the applicant would be imputed to be an anti-Shia militia activist was not based solely on the factual assertion, rejected by the Authority, that the applicant had testified against the militia. It was also based on aspects of the applicant’s claims that the Authority accepted, such as that he asked the militia not to fire missiles near his house and that he made a report to the police. If the Authority had not considered it to be new information and had considered the claim in its substantive reasoning, there is a realistic possibility that the Authority might have assessed the applicant’s claims differently.
Did the Authority misapply s 473DD in relation to the information?
In any event, the applicant submitted that his submission to the Authority that the applicant’s claims should be assessed on the basis of his actual and imputed political opinion as an anti-Shia militias activist was prima facie credible and responsive to the delegate’s decision and therefore the Authority erred in concluding that it did not satisfy the criteria in s 473DD(b)(i) and (ii). In oral submissions, Counsel for the applicant submitted that even if it was open to the Authority to conclude that the information was new information, the Authority provided no reasoning to support any finding that the new information was not credible personal information and did not appreciate that the new information had been advanced in response to the delegate’s decision and, in particular, in response to the delegate’s failure to consider the applicant’s claims on this basis.
I do not accept that the Authority misapplied s 473DD in relation to the new information. The Authority expressly noted that the applicant did not advance any reasons why the information was not provided to the delegate or why it was credible personal information. The applicant has not asserted that the Authority was wrong in this finding. This finding is particularly relevant because s 473DD(b) expressly states that the applicant is required to satisfy the Authority of those matters referred to in s 473DD(b). The express finding that the applicant failed to offer any explanation effectively means that the applicant could not satisfy s 473DD(b).
Further, to the extent that the applicant’s submissions appear to suggest that the Authority ought to have found that s 473DD(b)(i) was satisfied because the information was advanced in response to the delegate’s decision and the delegate’s failure to assess the applicant’s claims on that basis, I reject the submission. This is not a new issue that the applicant was made aware of for the first time by the delegate’s decision. Rather, if the applicant wanted his claims to be assessed on the basis of being imputed as an anti-Shia militias activist, it was up to him to advance his claims before the delegate on that basis. He did not offer any reason to the Authority why he did not do this when his matter was before the delegate.
I therefore find that the Authority did not misapply s 473DD of the Migration Act.
Conclusion in relation to ground 3
Ground 3 is not established.
GROUND 4: DID THE AUTHORITY FAIL TO CONSIDER A CLAIM THAT EMERGED ON THE MATERIAL BEFORE IT?
Ground 4 of the applicant’s amended application reads:
The Authority failed to consider whether the Applicant faced a real chance or risk of harm as an asylum seeker returning from the west.
Particulars
The Delegate had considered whether the Applicant faced a real chance or risk of harm as an asylum seeker. However, the Authority failed to consider this claim.
The issue raised by this ground is whether the Authority was required to consider a claim that was not expressly raised by the applicant, on the basis that the claim clearly emerged on the materials before the Authority, in circumstances where the delegate considered the claim arose on the materials.
Applicant’s claims and submissions and decision of the delegate
The applicant did not, when his application was before the delegate, expressly raise any claim to be in need of protection as a result of being an asylum seeker returning from the west and he did not claim to have any subjective fear on this basis.
As part of the assessment in relation to whether the applicant met the complementary protection criterion, the delegate considered whether the applicant would face harm as a failed asylum seeker returning from the west. The delegate reasoned (footnotes omitted):
I have considered whether the applicant would be harmed on the basis of being a failed asylum seeker returning from a western country.
I note there are reports of people being targeted by Islamic State (IS) and the broader Sunni insurgency on the basis of perceived links with Western governments. However, as stated above the applicant’s home area is not under IS control.
The 2015 DFAT Country Report on Iraq indicated that many Iraqi’s who have sought asylum have returned to Southern Iraq without facing significant problems. In March 2016 DFAT confirmed that the assessments it made on the treatment of failed asylum seekers returned to Iraq in its 2015 report remained current. I note that the overall security situation in Iraq remains uncertain considering the presence of IS, mass forced displacement and ongoing sectarian conflict,; I acknowledge the UNHCR’s views on the overall security situation in Iraq; however I place greater weight on more recent advice from DFAT which demonstrates persons are not targeted for seeking asylum in a western country.
I have previously found the applicant is not of ongoing interest to individuals connected to the Mahdi Army or any other groups in Iraq. Based on the country information cited above, I find that the risk of the applicant being harmed on account of being a failed asylum seeker from a western country is remote. I therefore find the applicant does not face a real risk of persecution for being a failed asylum seeker from a western country.
The applicant’s representative did not make any express submission based on this aspect of the delegate’s reasons in the submission provided to the Authority.
In his submissions to the Court, Counsel for the applicant referred to the applicant, in his submission to the Authority, having emphasised the relevance of the UNHCR report which was referred to in the delegate’s reasons. The applicant’s submission to the Authority contained the following paragraph, which appeared under the heading ‘Relocation’:
We respectfully invite the Tribunal to have regard to the UNHCR Position on Returns to Iraq, published in October 2014, in particular:
As the situation in Iraq remains highly fluid and volatile, and since all parts of the country are reported to have been affected, directly or indirectly, by the ongoing crisis, UNHCR urges States not to forcibly return persons originating from Iraq until tangible improvements in the security and human rights situation have occurred. In the current circumstances, many persons fleeing Iraq are likely to meet the 1951 Convention criteria for refugee status. When, in the context of the adjudication of an individual case of a person originating from Iraq, 1951 Convention criteria are found not to apply, broader refugee criteria as contained in relevant regional instruments or complementary forms of protection are likely to apply. In the current circumstances, with massive new internal displacement coupled with a large-scale humanitarian crisis, mounting sectarian tensions and reported access restrictions, particularly into the Kurdistan Region of Iraq, UNHCR does in principle not consider it appropriate for States to deny persons from Iraq international protection on the basis of the applicability of an internal flight or relocation alternative.
Counsel for the Minister submitted that nothing in the paragraph relied on by the applicant refers in any way to someone being a returnee as opposed to someone generally in Iraq and there was nothing in the submission that specifically addressed the claim.
In my view, while the extract of the submission forms part of the materials before the Authority and should not be disregarded in considering whether any claim that the applicant would face a risk of harm as a result of being a failed asylum seeker returned from a western country clearly emerged on the materials before the Authority, the extract does not of itself indicate whether the applicant had any expectation that the Authority would consider the alleged emerged claim or whether he abandoned any such claim. The information does not expressly refer to returnees from western countries or indicate that failed asylum seekers might face harm on that basis. Further, the inclusion of this information under the heading ‘Relocation’ suggests that the reference to the information was to support a contention that, if the Authority accepted the applicant faced a real chance of harm in his home area, it should not find that he could reasonably relocate to another part of Iraq. This does not suggest that the applicant is pressing any separate claim that he would face harm as a result of being a failed asylum seeker from a western country. I therefore find that this extract does not assist the applicant in advancing this ground, but I also find that the extract does not show that the applicant distanced himself in any way or abandoned any claim that the delegate found emerged on the materials. The issue of possible abandonment is addressed further below.
Did the Authority consider whether the applicant would face a real risk of harm on the basis that he is a failed asylum seeker from the west?
At the hearing, Counsel for the Minister submitted that the reasoning employed by the Authority was not a criticism of the applicant not having given a complete account of every detail of this claim during the interview. Rather, the Authority was saying that it would have expected that the applicant would have disclosed a significant claim in his arrival interview.
It did not, in my view, amount to jurisdictional error for the Authority to rely on the failure of the applicant to mention his involvement in Operation Knight’s Charge or the threat letters at his arrival interview as one of several reasons for rejecting the applicant’s claims. This is the case notwithstanding that the applicant was told, toward the end of the interview, that he would have another opportunity to make his claims for protection. I accept the Minister’s submission that the Authority would be aware that arrival interviews afford interviewees an opportunity to state their claims in summary form only. Despite this, it is often reasonably open to a decision-maker to find that that a failure to mention an important claim at an entry or arrival interview can cast doubt on the credibility of the claim.
In considering this ground, I have had regard to the caution regarding the reliance on omissions in arrival interviews issued by the Full Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 (MZZJO). In that case, the Full Court said at [56]-[57]:
56.On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
57.Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.
Likewise, in the present case, I would be concerned if the Authority relied solely on the failure of the applicant to mention his involvement in Operation Knight’s Charge and the threat letters at the arrival interview. But the Authority did not do that. The Authority had a number of reasons for rejecting the applicant’s claim to have been involved in Operation Knight’s Charge, set out above, and rejected the applicant’s claim to have received threat letters after examining the letters and concluding that they were fabrications.
I consider the observations of the Full Court in MZZJO to be more relevant to the ground as pleaded than DPI17, which was relied on by the applicant and which concerned whether the Authority acted unreasonably in failing to consider exercising its discretion in s 473DC to get new information in relation to evidentiary inconsistencies that were inconsequential in the delegate’s acceptance of a claim, but were significant in the Authority not accepting a claim.
Oral submission advanced by the applicant that the Authority acted unreasonably in not exercising the discretion in s 473DC of the Migration Act
Toward the end of his oral submissions addressing this ground, Counsel for the applicant submitted:
To the extent that any unreasonableness might have been cured by an attempt to get information on this point from the applicant by exercising its discretion under s 473DC, then the Authority’s failure to take that course was also unreasonable.
The ground is not pleaded as an unreasonable failure to exercise the discretion in s 473DC of the Migration Act. Not surprisingly, in circumstances where the assertion of unreasonableness in the exercise of s 473DC was not pleaded and was referred to only briefly, without elaboration, in the context of lengthy oral submissions, Counsel for the Minister did not respond to the submission.
In circumstances where the assertion of jurisdictional error based on an unreasonable failure to exercise the discretion in s 473DC was not pleaded in the context of this ground and was not the subject of notice given to the Minister, I do not consider it further.
Conclusion in relation to ground 7
Ground 7 is not established.
GROUND 8: DID THE AUTHORITY MISCONSTRUE AND FAIL TO CONSIDER THE APPLICANT’S CLAIMS TO HAVE BEEN ASSAULTED BY AND ASKED TO FIGHT WITH THE MILITIA?
Ground 8 of the applicant’s amended application reads:
The Authority misconstrued, and so failed to consider the Applicant’s claim to have been assaulted by and asked to fight with Shia militia.
Particulars
The Authority rejected the Applicant’s claim to have been stabbed in a confrontation with Shia militia. It also rejected his claim that the same militia had asked him to fight with them. It found these claims to be inconsistent with his claims as elsewhere made. That finding was based on a misunderstanding: that the Applicant had only had one encounter with the militia. In fact the Applicant made clear that there had been more than one encounter.
Relevant claims of the applicant and findings of the Authority
It can be seen from the particulars that the ground takes issue with the Authority’s rejection of the applicant’s claims that:
(a)he was stabbed in a confrontation with the militia; and
(b)he was asked to fight with the militia.
The applicant’s claim that he was stabbed in a confrontation with the militia is set out at [4] and [5] of his statutory declaration that accompanied his protection visa application. In these paragraphs, the applicant relevantly said:
4.… One night, my frustrations with the situation boiled over; the way the militants would use the land beside our house for their deadly purposes, not having a care for civilians caught in the crossfire, deeming everybody killed or injured as collateral damage in their battles for victory, that I could no longer see my family and young children cowering in fear. I approached the militants and respectfully ask them if they could locate to another area from which to counter the attacks of the troops, as I knew sooner or later, one of my family members or neighbours would be killed or permanently disfigured in missile fire. When I spoke to them, I knew I was incurring a risk, however I had to have courage to defend my family, but the militants did not take very kindly to being spoken to in that way. They grew angry with me and accused me of trying to protect the British groups, despite my protestations and explanations that I was merely fearful for the lives and safety of my family.
5.During this incident, one of the militants crept up behind me and stabbed me with a knife in my back, threatening to kill me if I ever intervened or spoke to them thus again. Other militants began shooting the guns in the air to strike more fear into me and surrounding neighbours as I collapsed to the ground. My brother heard the commotion and begged the militants to allow me to be taken to hospital. Only at the promise made my brother that we would never interfere with them again, was he allowed to haul me to hospital to attend to my injury.
The applicant did not raise any claim that the militia had asked him to fight with them in his statutory declaration.
In his protection visa interview, the applicant was asked about what happened when the militia were using the block next to his house in 2007. The applicant said that ‘they were asking me to cooperate with them’ and when invited to explain this, he said:
They were planting explosives. They were asking me to fight with them, and I follow different (indistinct). This (indistinct) sector is different sector they follow. (Indistinct) base they believe in security, safety, and it says that you can’t kill someone. It’s forbidden to kill innocent people.
When asked at the protection visa interview why the militia wanted to harm him, the applicant responded:
Because they refused (indistinct words), and most of the time I was asking them to leave that area, and my life and my family’s life is at risk, and they were (indistinct words) talking to me too much, and (indistinct) at a point when they stab me with a knife, and they shot (indistinct) just to frighten me.
In relation to the incident where the applicant was stabbed, the following exchange took place between the applicant and the delegate at the protection visa interview:
Q90. … Now, what led to you being stabbed with a knife? In your claims your say you went out and said, ‘With all respect you’re very close to my house and I think this is too dangerous for my family’, and you got in an argument and someone stabbed you in the back. Is that correct?
A Yes
Q91. Okay. You said they warned you by stabbing you in the back, but they didn’t intend to kill you. Is that correct?
A Yes, that was the beginning.
Q92. Okay. They’ve stabbed you in the back, is there any reason why you think it was just a warning?
A Okay. I was very serious in just telling them that they have to leave, because my life and my family members’ life is at risk, and then they start to beat me and push me.
…
Q94. Have they already stabbed you?
A And then later on they stabbed me.
Q95. Later they stabbed you. Okay. And they said if you intervene again they will kill you?
A Yes
Q96. Now what happened after you were stabbed, how did you survive this?
A Yeah, my elder brother interfered (indistinct), and then he tried to quiet them, to keep them quiet, and just to them give them a chance to take me for treatment, and then he promise that he will not interfere…
The Authority relevantly addressed these claims at [13], [15] and [20] of its reasons. In these paragraphs, the Authority relevantly said (emphasis added):
13.The applicant’s central claim is that he had been targeted by a militia group and remains at risk, should he return to Iraq. He has stated that he initially came to the attention of this group due to approaching them in 2007 when they were using the land adjacent to his family home to fire rockets at the British Forces. The applicant stated in his statutory declaration that “[d]uring this incident, one of the militants crept up behind me and stabbed me with a knife in my back, threatening to kill me if I ever intervened or spoke to them thus again”. Together with his PV application and statutory declaration the applicant lodged a report he made at … Police Station, Basra, on … November 2007. This states in part: “When I tried to stop them from firing rockets from the block of land, as I was concerned for the safety of people in the area, they threatened to kill me if I re-attempted to stop them. A few days later, they stabbed me with a knife. I was unable to know who the perpetrators were because they were all face-masked. After that, they once again threatened to kill me and my family if I wouldn’t leave the area”. Then applicant then states that he immediately left for …. As the statement of … November 2007 was made after his return to Basra, it is not clear how much time elapsed between the event and the statement being made. I accept that the applicant made a report to the … Police Station on … November 2007.
…
15.In relation to the applicant’s injury and subsequent threats, there has been inconsistency in his own evidence. He stated that he was stabbed at the time that he approached the militia but has also stated that this occurred three days after he approached the militia. I accept that the applicant has been stabbed in the shoulder/back at some time but in view of the inconsistency in his evidence not that this was directly related to his request of the militia in 2007 that they stop their attacks from the land adjacent to his home. I also accept as plausible that militia members would have orally threatened the applicant and accused him or siding with the British when he asked them to cease or move on, however from his own evidence his two brothers made similar requests and came to no harm from this group. …
…
20.… At his PV interview the applicant contended that, when he approached the militia in 2007, they asked him to fight with them but he refused. This is not consistent with the remainder of his evidence relating to this event and I do not accept that it occurred.
Did the Authority misconstrue the applicant’s claim?
The applicant submitted that the Authority’s findings about the inconsistencies in his evidence were premised on an unfounded assumption that the applicant had only one encounter with the militia. The applicant submitted that the Authority’s reference to ‘this event’ shows that it considered that there was a single encounter. The applicant submitted that this assumption was unfounded based on:
(a)comments made by the applicant in an interview conducted on Manus Island in 2013 that ‘[w]e told them many times to leave these two places’;
(b)the words ‘most of the time’ in the extract of the applicant’s protection visa interview at [177] above and the references at the protection visa interview to the incident where the applicant was stabbed; and
(c)the statement to the police, referred to at [13] of the Authority’s reasons, which discussed two distinct interactions with the militia.
I note that the document referred to at [180(a)] above is the document that appears at page 174 of the court book, which is also referred to at [13(c)] above as an ‘Irregular Maritime Arrival and Induction Interview’ form containing the applicant’s nominal roll number. The Authority found that this document was new information which did not meet the requirements of s 473DD of the Migration Act. It was therefore not before the Authority for the purposes of the Authority’s consideration of the applicant’s claims for protection and it is not appropriate for the Court to take it into account in considering this ground.
The applicant submitted that he had claimed to have more than one encounter with the militia, so there was no inconsistency in in the different details he supplied about those encounters.
The Minister submitted that the Authority considered a number of alleged encounters that the applicant had with the militia, and accepted that the applicant may have been threatened orally but did not accept that the militia had shot at the applicant’s home or that he had been stabbed in a confrontation with the militia. The Minister submitted that the Authority clearly considered that there was more than one alleged encounter and no misunderstanding can be inferred or is apparent on a fair reading of the decision record.
At the hearing, Counsel for the Minister submitted that the incident involving the applicant being stabbed was the ‘primary incident’ claimed by the applicant and the inconsistency that the Authority was addressing at [13] was the inconsistency between the applicant’s explanation of this event in his statutory declaration and in the police report. Counsel for the Minister submitted that the Authority was not concerned with how many interactions the applicant had had with the militia, but rather on the inconsistency in relation to what he said about the first time he came to their attention. The fact that the Authority’s reasoning does not explicitly state that there had been multiple instances of confronting the militia does not mean that the Authority overlooked that.
I do not accept that the findings of inconsistency at [15] (taking into account the inconsistency identified at [13]) and [20] of the Authority’s reasons demonstrate any misunderstanding of the applicant’s claims.
I accept the Minister’s submission that the ‘inconsistency’ identified at [13] and [15] was an inconsistency between the way that the incident where the applicant was stabbed in the back was described in the statutory declaration and the way in which it was described in the report to the police. The inconsistency did not turn on how many times the applicant had interacted with the militia. It was an inconsistency in how a key event in the context of the applicant’s claims was described. On the one hand, the applicant said in his statutory declaration that he approached the militia to ask them to relocate and they became angry and ‘during this incident’ one of the militia stabbed the applicant in the back and threatened to kill him if he intervened or spoke to them again. On the other hand, the applicant said in his police report that he attempted to stop the militia from firing rockets from the land and they threatened to kill him if he again attempted to stop them. Then a few days later, they stabbed him in the back. Contrary to the applicant’s submissions, the police complaint does not indicate that stabbing a ‘few days later’ was the consequence of second approach to the militia to ask them to relocate or not fire rockets.
The Authority properly understood the evidence as advanced and there was nothing unreasonable or illogical in the Authority finding that the two accounts of the circumstances of the applicant’s stabbing were inconsistent. I also note for completeness that the applicant’s protection visa interview does not clarify any inconsistency. Although the applicant refers to the stabbing happening ‘later’, there is nothing in the context of the interview that indicates one way or the other whether the applicant intended to convey later in the course of the same interaction as the threats and alleged beating, or later on an entirely separate occasion. The applicant’s protection visa interview does not establish that the Authority misconstrued his claim.
The Authority found at [20] of its reasons that the applicant’s claim at the protection visa interview that when he approached the militia in 2007 they asked him to fight with them but he refused was inconsistent with his other evidence about ‘this event’. This finding does not demonstrate that the Authority misconstrued the applicant’s evidence. The finding was raised in the context of the consideration of the applicant’s claim that he would be regarded by the militants as an infidel and an apostate. The Authority considered those claims and the relevant evidence as articulated by the applicant in his statutory declaration and in his protection visa interview. When the finding at [20] is read fairly in the context of the evidence as a whole, it does not indicate that the Authority misconstrued the applicant’s claims.
Conclusion in relation to ground 8
Ground 8 is not established.
GROUND 9: DID THE AUTHORITY ERR IN ITS ASSESSMENT OF WHETHER THE APPLICANT WOULD FACE A REAL CHANCE OF SERIOUS HARM OR A REAL RISK OF SIGNIFICANT HARM IN THE REASONABLY FORESEEABLE FUTURE?
Ground 9 of the applicant’s amended application reads:
The Authority erred in its assessment of whether the Applicant faced a real chance or risk of harm in Iraq in the reasonably foreseeable future.
Particulars
The Authority accepted that there was ongoing violence in the Applicant’s home region, and that the security situation in Iraq had deteriorated. It also accepted that the Applicant had been seriously affected by generalised violence in the past. In concluding that the Applicant did not face a chance or risk of harm from sectarian or generalised violence in Iraq, it failed to conduct a forward-looking assessment, applied too high a threshold and applied a relativistic approach to the real chance/real risk test.
The ground relates to the Authority’s finding that the applicant did not face the requisite chance of harm as a result of general or sectarian violence in Iraq and requires the Court to consider:
(a)whether the Authority applied too high a threshold in considering the risk;
(b)whether the Authority adopted a relative approach by assessing the risk of harm in one area compared to the risk of harm in another area; and
(c)whether the Authority failed to conduct a forward looking assessment as to whether the applicant would face a real chance of serious harm or a real risk of significant harm in the ‘reasonably foreseeable future’.
Relevant findings of the Authority
The Authority’s findings in relation to the applicant’s risk of harm from general and sectarian violence are set out at [24] and [25] of its reasons, where it said:
24.I accept that the applicant is a Shia Muslim. He has not claimed a fear of harm on this basis alone although the delegate considered whether this, and the security situation in southern Iraq more generally, would give rise to protection obligations. On the evidence before me, the applicant originates from a Shia dominated region of Iraq. Country information indicates that Sunni armed groups have attacked locations in southern provinces, but overall the level of violence is much lower than elsewhere in Iraq. While the referred material indicates that violence does occur in Dhi Qar province, it also indicates that Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence. Considering whether the applicant faces harm from Shia militias or Shia armed groups due simply to being a Shia, I am not satisfied on the referred material that this occurs.
25.The DFAT Country Report notes that the security situation in Iraq generally deteriorated significantly in 2013 and 2014 and violent crime increased. In these years, coordinated bombings and shootings took place on a daily basis. I have accepted that the applicant was involved in a random shooting in September 2012 and his friend was killed, and also that a bomb exploded outside of a hotel where he was staying in Nasiriyah. DFAT advises that Daesh and associated Sunni extremist groups are currently in control of large parts of northern, western and central Iraq, however government forces retain control of southern Iraq, including Basra province. No direct confrontations between Daesh militants and Iraqi forces have been reported in the southern provinces, where security incidents take the form of sporadic terror attacks with a limited number of civilian casualties. Although violent crime, including kidnappings and killings, does occur in Basra, on the basis of the referred information I conclude that it is not at a level that would give rise to a real chance that the applicant would face serious harm, should he return. Nor am I satisfied that the applicant faces a real chance of serious harm from sectarian violence.
Did the Authority apply too high a threshold?
The Authority was required to consider whether the applicant faced a ‘real chance’ of serious harm, or a ‘real risk’ of significant harm. The ‘real chance’ and the ‘real risk’ tests involve the application of the same standard: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [246] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ) and [342] (Flick J). A ‘real chance’ is one that is not ‘remote’ or ‘far-fetched’ and can arise even when the probability of harm occurring is less than 50%: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).
The applicant submitted that it can be seen that the Authority applied too high a threshold in finding that he did not face a real chance or risk of harm from general or sectarian violence, given that it accepted:
(a)country information indicating that the security situation in Iraq had significantly deteriorated, violent crime had increased, coordinated bombings and shootings were daily occurrence, Sunni extremist groups had taken control of large parts of Iraq adjacent to the applicant’s home region, and terrorist attacks, violent crimes, killings and kidnappings were occurring in the applicant’s home region;
(b)that the applicant had almost been killed on more than one occasion as a result of generalised violence.
The applicant submitted that the only intelligible bases for that finding were that crime was not at a level that would give rise to a real chance of harm to the applicant, no direct confrontations between Daesh militants and Iraqi forces have been reported in the southern provinces and government forces retain control the southern Iraq. The applicant submitted that the Authority failed to explain why he does not face a real chance a real risk of harm from the violence it accepts was occurring in his home region.
At one point in his oral submissions, Counsel for the applicant described the Authority’s finding as a finding that ‘there is not even a chance, not even a risk’ that the applicant may be harmed. Counsel for the Minister submitted that this is not an accurate characterisation of the Authority’s finding. I agree with Counsel for the Minister. The Authority did not, and was not required to, consider whether the applicant faced any chance or risk of harm at all. Rather, the Authority assessed that the chance of serious harm that the applicant would face from sectarian violence or generalised violence in Basra did not amount to a real chance. The language adopted by Counsel in his oral submissions is not reflective of the language used in his written submissions.
The Minister otherwise submitted that it was open to the Authority to rely on country information in the way that it did and nothing in the Authority’s reasons indicates that it imposed a higher standard than the applicable tests. The Minister submitted that it is entirely orthodox for the Authority to find that a low level of general violence does not rise to a real chance or real risk that the applicant would face serious or significant harm should he return.
I do not consider that anything in the Authority reasons showed that it applied too high a threshold in assessing the risk of harm to the applicant. In considering the risk of harm to the applicant as a Shia, the Authority relied on country information that suggested that Shias in Shia-dominated areas of southern Iraq are at ‘low risk of generalised violence’. In assessing the risk of harm from generalised violence, the Authority accepted that there was an increase in violent crime in Iraq in 2013 and 2014 and that the applicant had previously been involved in random acts of violence. However, the Authority distinguished the situation in different parts of Iraq and, focusing on the area in the south of Iraq to which the applicant would be returned, noted that government forces retained control and security incidents tended to involve sporadic terrorist attacks with a limited number of civilian casualties. The Authority accepted that there was some violent crime, including kidnapping and killings, in Basra, but based on the country information it did not consider that the violent crime was of such a level that it would amount to a real chance of serious harm. There is nothing in the Authority’s findings to suggest that it did not understand that a ‘real chance’ of serious harm is one that is not remote.
Did the Authority apply a relative approach to determining whether there was a real chance of the applicant facing serious harm or a real risk of him facing significant harm as a result of generalised violence?
In CGA15 v Minister for Home Affairs (2019) 268 FCR 362 ; [2019] FCAFC 46, the Full Court (Murphy, Mortimer and O’Callaghan JJ) explained at [23]:
The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe than another place. It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place...
The applicant also submitted that the same reasoning of the Authority referred to at [192] above suggests that the Authority erred by applying a relative approach to determining the risk of harm that the applicant would face. The parties largely relied on the same submissions in relation to this aspect of the claim and the assertion addressed above that the Authority applied too high a threshold.
The Authority in the present case did not find that the chance of harm the applicant would face in Basra as a result of generalised and sectarian violence was not a ‘real’ one simply because Basra and other parts of southern Iraq were safer than northern Iraq. Rather, the approach of the Authority at [25] reflects its acknowledgement that there was an increase in violence in Iraq in 2013 and 2014, and it then distinguished the situation facing the north of Iraq and the south of Iraq. The assessment of whether the applicant faced a real chance of serious harm was based on its assessment of circumstances in the south of Iraq and, based on that assessment, it was not satisfied that the chance of serious harm amounted to a real chance.
It was open to the Authority to reason in this way. I do not accept that the Authority adopted a relative approach to the assessment of the chance of harm.
Did the Authority fail to conduct a forward looking assessment?
The Authority was required to assess the chance of harm to the applicant in the reasonably foreseeable future, rather than simply assessing the chance of harm at present or in the immediate future: SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [2] (Allsop J); Minister for Immigration and Citizenship v SZQKB (2012) 133 ALD 495; [2012] FCA 1189 at [41] (Yates J).
The applicant submitted that there was no assessment by the Authority of his chance of harm in the reasonably foreseeable future and, in circumstances where the situation in Iraq was volatile, it was incumbent on the Authority to explore whether, in the reasonably foreseeable future, the threats and the applicant’s home region may escalate and how this might impact on the risk of persecution or significant harm to the applicant.
The Minister submitted that although the security situation in Iraq was volatile, there was no reason to think that the Authority’s assessment of the current situation was insufficient in the circumstances of the present case. The country information referred to by the Authority showed an upward trajectory in violence in 2013 and 2014. Counsel for the Minister submitted that what was important was not whether there had been an increase in violence in 2013 and 2014, but rather whether, at the time of the Authority decision, the Authority was confident that the information before it would have applied then and in the reasonably foreseeable future.
In advancing his submissions, the applicant relied on AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 (AIE15) and BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642 (BSU20).
In AIE15, the Federal Court (Perry J) found that that the Tribunal had not assessed the chance of harm faced by the appellant in the reasonably foreseeable future. The parts of the reasoning in AIE15 most relevant to the present case are set out at [34] of Perry J’s reasons. Her Honour there said:
… [T]his is not a case … where it could be assumed that the past was a reliable basis for determining what might occur in the future, given the Tribunal’s increasing attacks findings with respect to the proposed areas of relocation. Rather, having found that the frequency of attacks appeared to be increasing, the Tribunal failed to consider whether the risk of attacks may continue to escalate in the foreseeable future, that is, was this a continuing trend, and how might that impact on the risk of persecution or significant harm to the appellant? To the contrary, the Tribunal’s reasoning was that, despite the spate of attacks in late 2014 and early 2015, the frequency of attacks before that time was limited numerically and for this reason the Tribunal discounted the risk of persecution or significant harm to the appellant (Tribunal reasons at [36]). As such … the Tribunal appeared to dismiss the increasing attacks finding by reference to the historical frequency of attacks occurring before the recent increase in attacks. … [T]he FCC with respect ought to have held that the Tribunal fell into error in failing to assess what might occur in the reasonably foreseeable future and in failing to consider the implications of its increasing attacks findings.
The Minister submitted that the applicant’s reliance on AIE15 was misplaced, because that case turned on a fact-specific scenario where the frequency of attacks appeared to be increasing and the Tribunal failed to consider whether the risk of attacks may continue to escalate in reasonably foreseeable future and how that might impact the appellant.
At the hearing Counsel for the applicant acknowledged that each case turns on its facts, but submitted that the same type of error was made in the present case.
I accept that the principles discussed in AIE15 apply in the present case, and I have considered those principles in assessing this ground. The outcome of the application of those principles in AIE15 does not assist in resolving the ground advanced in the present case, because the Authority reasons are different and the information before the Authority was different to that in AIE15.
The issue in BSU20, the other case relied on by the applicant, was whether the Authority had failed to consider a submission of substance raised by the appellant, which included a contention that the security situation in Kurram Agency was ‘volatile’ and at ‘risk of deteriorating in the reasonably foreseeable future’: BSU20 at [11] (see also [10]-[19] for a more complete summary of the contentions raised). The applicant in the present matter relied on BSU20 at [33] and in particular that:
… no findings were made concerning whether the security situation in Kurrum Agency could or might (or would not) deteriorate in the reasonably foreseeable future. The appellant emphasises that there was no analysis of whether, should the position in Kurrum Agency deteriorate, the appellant would face, in those circumstances, a real chance of suffering serious harm…
The Federal Court (Greenwood J) in BSU20 found jurisdictional error on the basis that the Authority failed to consider the submissions put to it by the appellant and failed to consider a particular item of country information: BSU20 at [47]-[48].
Given that BSU20 turned in large part on the content of a submission made to the Authority, and the Authority’s failure to consider that submission or make findings about the matters raised in the submission, it is of no direct relevance in resolving the ground in the present case, which is not pleaded as a failure to consider a submission or evidence advanced by the applicant.
Turning then to the Authority’s reasons in the present case, I am not satisfied that the Authority failed to assess the chance of harm faced by the applicant in the reasonably foreseeable future. While the information addressed by the Authority referred to a significant deterioration in the security situation in Iraq in 2013 and 2014, the Authority’s assessment of the chance of harm faced by the applicant was based primarily on the information before it addressing the security situation in the south of Iraq. The Authority did not make any finding in its reasons, and I have not identified anything obvious in the DFAT report relied on by the Authority, that would suggest the information before it in relation to the security situation in southern Iraq, including Basra, was not the appropriate basis for an assessment of the chance of harm in the reasonably foreseeable future.
Conclusion in relation to ground 9
Ground 9 is not established.
CONCLUSION
I have found that three of the applicant’s ground establish jurisdictional error in the Authority decision. I therefore issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconsider the review according to law.
I certify that the preceding two hundred and sixteen (216) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 4 September 2023
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