EJX17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 422
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJX17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 422
File number: MLG 2124 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 24 May 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority decision is irrational or arbitrary due to failure to properly explain preference for one item of country information over another – whether Authority failed to actively and intellectually engage with country information – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth) ss 473CA, 476, 477 Cases cited: BIN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1094
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64
Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 28 February 2023 Place: Perth Counsel for the Applicants: Mr B Zipser Solicitor for the Applicants: Alkafaji Lawyers Pty Ltd Counsel for the First Respondent: Mr T Lettenmaier Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2124 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJX17
First Applicant
EKA17
Second Applicant
EKB17, by his litigation guardian EJX17 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
24 May 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 11 September 2017.
2.A writ of mandamus issue, directed to the second respondent, requiring it to reconsider according to law the review referred to it in accordance with 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 application before the Court is an application for judicial review of a decision made by the Immigration Assessment Authority (Authority) on 11 September 2017. The Authority affirmed a decision made by a delegate of the Minister not to grant the applicants protection visas. The application to this Court is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
By an amended application, the applicants raise a single ground alleging that the Authority decision was arbitrary or irrational or that the Authority failed to give proper and genuine consideration to particular evidence because, in assessing whether the first applicant would face a real chance of serious harm on account of his Sunni faith, the Authority preferred information from the United Kingdom Home Office (UK Home Office) over information from the Department of Foreign Affairs and Trade (DFAT) without providing a proper explanation for its preference.
For the reasons explained below, I have found that the single ground raised by the applicants establishes jurisdictional error in the Authority decision. It follows that the application to this Court is allowed and the applicants are entitled to relief in the form of writs of certiorari and mandamus.
BACKGROUND
The applicants are citizens of Iraq who arrived in Australia in April 2013 and who are unauthorised maritime arrivals. They are all members of the same family, with the fifth applicant being the wife of the first applicant and the second, third and fourth applicants being their children.
The applicants applied for protection visas on 2 November 2016. The applicants indicated in their Form 790B that only the first applicant was raising his own claims for protection and the other applicants were included in the application as members of the same family unit.
The first and second applicants attended an interview with an officer of the Department on 27 June 2017 to discuss the first applicant’s claims for protection.
On 21 July 2017 a delegate of the Minister made a decision not to grant the applicants protection visas. The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
The Authority affirmed the delegate’s decision on 11 September 2017. Given the limited issues raised in this proceeding, it is not necessary to summarise the claims advanced by the first applicant or the Authority’s findings in relation to these claims in any detail. Relevant parts of the Authority’s decision are discussed below in relation to the ground of application.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 3 October 2017, which is within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
The applicants rely on an amended application filed on 7 February 2023 which raises the following ground:
The applicants, who were Sunnis from Wassit province, claim to fear harm if required to return to Iraq because, among other reasons, they were Sunnis. Wassit province is a predominantly Shia area of Iraq. Before the IAA, there were conflicting assessments in a DFAT report and a UK Home Office report of the risk of harm to Sunnis returning to non-Sunni areas. The IAA at [20] purported “to reconcile the apparently different assessments”, but in fact adopted the UK Home Office assessment, which contained a lower assessment of risk than the DFAT report. The IAA did not explain why it preferred the UK Home Office assessment over the DFAT assessment. This is a jurisdictional error, either because the IAA failed to provide “a discernible basis upon which the selection and weight to be afforded such information is to be reached” (BIN18 v Minister [2020] FCA 1094 at [9]) or the IAA failed to give proper and genuine consideration to the relevant paragraph of the DFAT report: see Singh v Minister [2019] FCAFC 3 at [30].
The evidence before the Court comprises the court book filed on 8 June 2018 and a supplementary court book filed on 15 June 2022.
Notwithstanding that the ground relates to two country information reports, the applicants have opted not to produce in evidence full copies of those reports. Rather, in advancing their ground, the applicants rely on the summary of the information in the reports in the Authority decision and an extract of one of the reports in the delegate’s decision.
CONSIDERATION
The sole ground of application focuses attention on the Authority’s consideration of whether the applicants would face a real chance of serious harm on account of their Sunni faith. The Authority accepted in its reasons that the first applicant is a Sunni Muslim from Wassit province which is a predominantly Shia area in southern Iraq.
The Authority considered whether the applicants would face a real chance of serious harm on account of their Sunni faith if they returned to Wassit. Its reasons in relation to this issue are set out at [18] to [21] of its reasons, where it said (footnotes omitted):
18.I have not accepted that the applicant was targeted in any way due to his work as a mechanic prior to the fall of the Saddam regime. I accept that the applicant is a Sunni 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. In the most recent country information, DFAT has stated that discrimination and violence against Sunnis in Iraq is increasing. DFAT does not specifically identify provinces in which Sunnis may face such treatment, rather its risk assessment appears to be based more generally on whether an individual is in a Sunni or a non-Sunni area. DFAT states that tolerance for Sunnis in non-Sunni areas has declined, and overall assess that Sunnis located in non-Sunni areas, face a high level of discrimination and violence. The southern governorates including Wassit are considered to be non-Sunni areas. The DFAT report does not provide specific examples of recent incidents of harm to Sunnis in the southern governorates, only citing examples from central Iraq. It assesses that Sunnis who are opposed to the Sunni insurgency are also at risk of harm from ISIS and associated Sunni armed groups, though this risk is higher in the ISIS controlled areas in northern and western Iraq rather than in the government controlled southern provinces.
19.In its June 2017 report on Sunni Muslims in Iraq, the UK Home Office notes that there are a few reports that Sunnis have experienced human rights abuses at the hands of Shia militias or unknown perpetrators in the southern governorates, including Wassit. The UK Home Office has assessed that overall incidents such as these do not appear form part of a consistent or systematic risk to Sunnis in the south. Nonetheless, they continue to assess that while in general Sunnis do not face a real risk of serious harm in the southern governorates, an individual may be able to demonstrate a risk of harm in areas where there is a Shia militia presence, depending on their particular profile and circumstances. Relevant factors in assessing this may include an individual’s family connections, profession and origin.
20.I note DFAT and the UK Home Office are authoritative sources of information and these reports are the most recent reports before me regarding the situation for Sunni Muslims in Iraq. I consider that it is possible to reconcile the apparently different assessments of DFAT and the UK Home Office on the risk of harm to Sunnis. DFAT offers an overall assessment of the level of violence faced by Sunnis in Shia areas of the country, while the UK Home Office offers a more specific assessment on the risk from Shia militias in the southern governorates, expressly including Wassit in the assessment. As noted, the UK Home Office recognises there may be a risk to Sunnis from Shia militias depending on the circumstances of the individual. On the information before me, I find that some Sunnis, depending on their profile, including their family connections, profession and origin, may face a real chance of harm from Shia militias in the south of Iraq, including in Wassit governorate.
21.In the applicants’ case, the applicant husband was resident in Wassit from birth to 1999 and the applicant wife until 2005. The applicant husband ran a successful business in [place] and is a qualified auto mechanic; the applicant wife trained as a teacher though has not worked in that capacity. The referred information does not indicate that either of these professions are in any way contentious or would lead to an increase in a person’s profile. Both the applicant husband and the applicant wife have a number of family members residing in [place] and they have not indicated that any of their family members have been targeted or have received the adverse attention of any militia groups. Taking into account their overall profile, including that they have not been resident in Iraq for a considerable time, I am not satisfied that the applicants would face a real chance of harm in Wassit on the basis of their Sunni faith.
It can be seen from the above extract that the Authority, in considering the risk of harm to the applicants on account of their Sunni faith, addressed two country information reports.
The first of these was a report prepared by DFAT in June 2017 titled ‘Country Information Report for Iraq 2017’ (DFAT report), which contained the following information, as extracted in the delegate’s decision (footnotes omitted):[1]
Sunnis’ removal from their privileged position under the Ba’ath Party regime resulted in many feeling excluded and marginalised. This has been further exacerbated by the perceived association of the Sunni community with [the Islamic State in Iraq and the Levant (ISIL)] and the limited capacity of the Government to assist Sunnis attempting to flee ISIL, who have been disproportionately affected by the current conflict. While the Government has worked hard to protect civilians in the fight against ISIL, it has at times failed to respond firmly to acts of retribution by the Iraqi Security Forces (ISF) or the [Popular Mobilisation Forces (PMF)]. These factors have intensified tensions between Sunni and Shia communities in Iraq.
While in part related to the fight against ISIL, in-country contacts report that some Sunnis continue to be systematically harassed, accused of supporting ISIL and physically harmed by PMF groups and, to a lesser extent, other parts of the ISF in some areas. Outside of ISIL-controlled areas, Sunnis have claimed they face harassment and discrimination, including through undergoing more intrusive inspections at checkpoints and the provision of poorer quality services in Sunni areas.
Overall, DFAT assesses that official and societal discrimination and violence towards Sunnis is increasing and tolerance for Sunnis in non-Sunni areas have declined. Sunnis located in non-Sunni areas (such as Shia areas of Baghdad and the south) face a high level of societal discrimination and violence. In Sunni areas, the risk is lower.
Sunnis are active and present in the Government and the bureaucracy. Some Provincial Governors (including the Governors of Anbar and Ninewa provinces) are Sunni. Despite this, the implementation of non-discriminatory legislation is often subject to societal prejudice against Sunnis.
Southern Iraq (including Basra, Karbala, Wasit, Qadisiyah, Maisan, Dhi War, Muthanna and Najaf provinces) has been and remains more secure than other parts of the country, although recent reports suggest a deterioration of law and order in Basra. Generalised criminality occurs, but at a lower level than in Baghdad..
A wide range of ethnic and religious minority groups reside in southern Iraq. The overwhelming majority is Shia, although there are approximately 400,000 Sunnis (in-country contacts suggest that the number of Sunnis may have since declined), as well as Iraqis of African descent, Christians and Sabaean-Mandeans. While ongoing conflict has seen religiously mixed areas becoming more mono-religious, usually Shia or Sunni, in-country contacts claim that tolerance of religious minorities remains higher in southern Iraq than in central Iraq. Despite this, Iraqis who have sought asylum overseas have returned to southern Iraq without significant difficulty.
Lack of employment remains a significant issue in southern Iraq, despite the large-scale oil industry and associated economic activity. In-country contacts suggest that there are limited employment opportunities and that people from southern Iraq are internally relocating to other areas of Iraq, such as Baghdad, in search of jobs…
[1] I have not reproduced part of the DFAT report as extracted in the delegate’s decision because some parts of the delegate’s decision that purport to be part of the extract of the DFAT report clearly contain information personal to the first applicant. In circumstances where neither party has adduced a copy of the DFAT report in evidence, or taken issue with the accuracy of the information in the delegate’s decision despite its obvious flaws, I have not checked the accuracy of the extract of the DFAT report in the delegate’s decision.
The other country information report was a report prepared by the UK Home Office in June 2017 titled ‘Country Policy and Information Note – Iraq: Sunni (Arab) Muslims’ (UK Home Office report). Neither a full copy of that report, nor any extract of that report, is in evidence before the Court.
The applicants submitted that the Authority’s purported reconciliation of the two reports at [20] of its reasons amounts to the Authority adopting the assessment in the UK Home Office report in preference to the assessment by DFAT. The applicants accepted that the weight a decision-maker gives to country information is a matter for the decision-maker, citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. However, the applicants also submitted that where there are items of country information with conflicting information or opinions and a decision-maker prefers one item over another, the decision-maker must explain the basis for his or her preference, and to assert a preference for one item over another without any explanation makes the decision arbitrary or irrational. Alternatively, the applicants asserted that the Authority failed to give proper, genuine and realistic consideration to the DFAT report, relying on Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 at [30], [36]-[37].
In advancing their submissions, the applicants rely heavily on the judgment of Lee J in BIN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1094 (BIN18). There are some obvious factual similarities between that case and the present case. Both involved consideration of whether a Sunni Muslim would face harm in southern Iraq, both took into account the same country information in the DFAT report and the UK Home Office report and both purported to reconcile those reports.
Justice Lee set out the relevant parts of the Authority decision at [5] of BIN18. The Authority summarised the information in the UK Home Office report and the DFAT report and then continued:
I consider it possible to reconcile the apparently different perspectives offered by DFAT and the UK Home Office, both of which represent authoritative and recent assessments of the situation faced by Sunni Muslims in Iraq. DFAT offers an overall assessment of the level of violence faced by all Sunni Iraqis in all Shia areas, while the UK Home Office report recognises that Sunnis in the south of Iraq may face a real chance of harm depending on their individual circumstances. I conclude that some Sunnis, depending on their profile, may face a real chance of harm in the south of Iraq.
Justice Lee found that the Authority decision considered in BIN18 was affected by jurisdictional error. His Honour found that:
(a)while the selection and weight to be afforded to information, including country information, forms part of the fact-finding function of the Authority, the Authority must demonstrate, by its reasons, a discernible basis upon which the selection and weight to be afforded to such information is reached (at [9]);
(b)both reports considered the risk to Sunnis in areas that included Basra, which was the relevant area in that application, and so the slightly different focus of the reports did not explain why the Authority adopted the conclusion reached in the UK Home Office report (at [11]); and
(c)the Authority’s assertion that some Sunnis, depending on their profile, may face a real chance of harm in the south of Iraq, was simply a replication of the views contained in the UK Home Office report and, while it was open to the Authority to prefer these views over those in the DFAT report, it needed to show an intelligible reason why it did so, particularly in circumstances where the reports offered differing opinions on a matter integral to the question for determination (at [12]).
There is a substantial overlap between the critical reasoning purporting to reconcile the information in the DFAT report and the UK Home Office report in BIN18 and in the present case. In both cases:
(a)the Authority recognised that both the DFAT report and the UK Home Office report are recent and authoritative sources of information;
(b)the Authority expressed the view that it is possible to reconcile the apparently different perspectives offered by the two reports;
(c)the Authority noted that the DFAT report offered an overall assessment of the level of violence faced by all Sunni Iraqis in all Shia areas;
(d)the Authority noted that the UK Home Office report recognised that Sunnis in the south of Iraq may face a real chance of harm depending on their individual circumstances; and
(e)the Authority expressed the conclusion that some Sunnis, depending on their profile, may face a real chance of harm in the south of Iraq.
There is one critical feature of the Authority reasoning in the present case that was absent from the Authority’s reasoning considered in BIN18, which the Minister highlights as a way to distinguish the present case from BIN18. The Authority in the present case noted that the UK Home Office offered a more specific assessment on the risk from Shia militias in the southern governorates including Wassit. The emphasis on the specificity of the UK Home Office report is consistent with the Authority’s earlier reference at [18] of its reasons to the DFAT report not specifically identifying provinces ‘where Sunnis may face such treatment’, and its reference at [19] to the UK Home Office report expressly referring to Wassit. The Minister submitted that the Authority’s reference to the higher level of specificity in the UK Home Office report was an intelligible justification for its preference and indicates that the Authority gave proper, genuine and realistic consideration to the claims and evidence before it. The Minister also submitted that the Authority’s reasons in this regard need to be considered in the light of the first applicant’s evidence that he had not previously faced issues on account of his Sunni faith.
In response to these submissions, Counsel for the applicants submitted that the more specific assessment offered by the UK Home Office report was a more specific assessment in relation to the risk of harm from militia. The greater level of specificity does not amount to an intelligent justification for preferring the UK Home Office report to the DFAT report because the broader question of the risk to the applicants that the Authority was considering was a risk that they would face harm on the basis of their Sunni faith, which was not limited to a risk of harm from Shia militias.
In my view, the Authority in the present case has made the same error as that identified in BIN18 and the two cases are not distinguishable in any material way.
The Authority’s explanation that that UK Home Office report offers a more specific assessment on the risk from Shia militias in the southern governorates does not amount to an intelligible justification for its preference of the UK Home Office report over the DFAT report in relation to the chance of harm to the applicants on account of their Sunni faith. The question of whether the applicants face harm on account of their Sunni faith is broader than the question of whether they face harm from Shia militia on account of their Sunni faith.
In reaching this view, I have been mindful of the need to avoid reading the Authority’s reasons with an eye keenly attuned to the perception of error: Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30]. I have also been mindful of the need to read the reasons as a whole. In particular, I have considered the explanation for the preference of the UK Home Office report at [20] in conjunction with the Authority’s summary of the information in that report at [19] of its reasons and the summary of the information in the DFAT report at [18] of its reasons.
For example, the Authority’s summary of the UK Home Office report includes that there are a ‘few reports that Sunnis have experienced human rights abuses’ perpetrated by ‘Shia militias or unknown perpetrators’ (emphasis added), which may be interpreted in a way that extends beyond harm from militias. Further, the summary of the UK Home Office report is that ‘in general Sunnis do not face a real risk of serious harm in the southern governorates’, but that some Sunnis, depending on their profile, ‘may be able to demonstrate a risk of harm in areas where there is a Shia militia presence’.
On the other hand, the summary of the information in the DFAT report includes information that goes to the generality of the report, such that that ‘DFAT does not specifically identify provinces’ where discrimination and violence against Sunnis is increasing, and that the report ‘does not provide specific examples of recent incidents of harm to Sunnis in the southern governorates, only citing examples from central Iraq’.
The Minister relied on these features of the summary to submit that the reconciliation process adopted by the Authority was sufficient. Counsel for the Minister submitted at the hearing:
So when you come to finding that consideration of the country information … the IAA has reached the view that, well, the DFAT report doesn’t give any specific reports of the harm faced in the south. The UK Home Office actually makes mention of the fact that there are few reports of human rights abuses, which … can include things like discrimination and violence from not just Shia militia, that in the IAAs view there really is nothing left to do, and the real issue is will the applicant face a risk of harm as a Sunni from Shia militia in southern Iraq…
But the threshold for justifying relying on one particular report is low, and in light of … the way the applicants’ case was put and the information before it, the fact that it considered the UK Home Office report provided specific evidence about the threats of harm from the Shia militia in Wasit does indicate why it preferred … that or relied on that in terms of assessing the applicants’ claim of harm…
With these submissions in mind, I have considered whether, properly construed, the Authority’s reasoning at [20] might reflect an assessment that the Authority considered the UK Home Office offered a more specific assessment of the risk of harm to Sunnis in southern governorates, with only the risk from Shia militia likely to engage protection obligations, and that is a risk which is only faced by individuals with certain profiles. However, this would require the Court to read too much into the Authority’s reasons, and the Court is not permitted to fill in gaps in the Authority’s reasoning process: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 at [61]. After summarising the country information, the only explanation offered by the Authority for its preference for the information in the UK Home Office report is the greater specificity about the risk of harm from Shia militias in the southern governorates. It has not made any finding, expressly or implicitly, to the effect that, based on the greater specificity in the UK Home Office report in relation to the risk of harm to Sunnis in southern Iraq, it considered that the only risk to Sunnis that would engage protection obligations is the risk from Shia militias.
The Minister’s submission that the Authority reasons should be read in the light of the first applicant’s assertion to the delegate that he did not face issues in the past on account of his Sunni faith is of limited assistance in the present case. The Authority considered whether the applicants would face harm on account of their Sunni faith as a claim which arose on the materials before it, and the country information considered by the Authority addressed recent developments that reflected a worsening situation. By the time of the Authority’s decision, the first applicant had predominantly lived outside of Iraq for approximately 12 years. His assertion that he did not face harm in the past on account of his Sunni faith does not have any bearing on the construction of the Authority’s reasons in relation to the claim.
While I accept the Minister’s submission that the Authority did not need to give any detailed justification for its preference of the information in the UK Home Office report to that in the DFAT report, I find that the explanation it gave was insufficient. The Authority was addressing the risk of harm that the applicants may face in Wassit on account of their Sunni faith, with the claim it was considering being a claim of harm from all sources. That the UK Home Office report provides greater detail about the harm from one source, that is, Shia militias, does not amount to an intelligible justification as to why the Authority preferred the information in that report to address the risk of harm from all sources. It was open to the Authority to prefer the information in the UK Home Office report to that in the DFAT report when assessing the risk of harm to Sunnis in Wassit, but it needed to give an intelligible reason for doing so.
The ground raised by the applicants is established.
CONCLUSION
In circumstances where I have found the applicants have 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 to require the Authority to reconsider the review according to law.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 May 2023
SCHEDULE OF PARTIES
MLG2124/2017 Applicants
Fourth Applicant:
EKC17
Fifth Applicant:
EKD17
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8
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