EKN17 v Minister for Immigration
[2018] FCCA 3589
•13 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EKN17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3589 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority erred in failing to ask “what if I am wrong?” – whether Authority erred in application of the real chance test – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, pt.7AA |
| Cases cited: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 |
| Applicant: | EKN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3040 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 13 November 2018 |
| Date of Last Submission: | 13 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Stamford Law Firm |
| Solicitors for the Respondents: | Mr K Eskerie, Sparke Helmore |
ORDERS
The applicant has leave to rely on grounds 2-5 of the further amended application filed on 27 August 2018.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3040 of 2017
| EKN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 1 September 2017. The Authority affirmed a decision of a delegate of the Minister made on 22 May 2017 to refuse to grant the applicant a protection visa.
The applicant is a citizen of Iraq who arrived in Australia as an unlawful maritime arrival on 14 March 2013. After the Minister exercised his personal power to allow the applicant to apply for a protection visa the applicant lodged an application for such a visa on 6 March 2016.
The claims made by the applicant in support of his protection visa application are summarised accurately by the Authority at [4] of its statement of reasons for decision:
• He was working as a taxi driver from 2006 onwards. On 30 January 2013 he picked up three men to be taken into Najaf City and entered into conversation with them. They made derogatory comments about Moqtada Al-Sadr, the founder of the Mehdi Army, which he echoed and when they asked what he thought of Qais Al Khazali he made similar derogatory comments. The men became very angry and revealed that they were members of the AAH[1]. They demanded that he pull over and threatened to cut out his tongue. One man also produced a gun and threatened him with it;
• The applicant apologised profusely but was told that his only redress was to join the AAH. He would receive telephone instructions on how to do this. They photographed him and his taxi and demanded his phone number. After the incident the applicant made a report to the police but was told that they could do nothing to help;
• Two days later he received a phone call from an unknown number telling him to go to a certain place. The caller said “you know who we are”. The applicant responded that he did not know and would not go. The caller threatened him. Two days later the call was repeated; the caller said that this was the applicant’s last chance, the next time “we will act on it”. The applicant took steps to depart Iraq and left on 14 February 2013.
• In August 2013 his parents received a threat letter that said “death is coming even after a while”;
• He fears returning to Iraq because the AAH will find him and kill him for insulting their leader and for refusing to join them. They have offices everywhere, there is no part of Iraq where he would be safe.
[1] Asa’ib Ahl al-Haq.
It may be noted in passing for present purposes that in his statutory declaration dated 2 March 2016 made in support of the claim, and as noted in the summary by the Authority, the applicant referred to a threatening letter received by his family stating that “death is coming even after a while”. After being questioned by the delegate at an interview about that letter the applicant produced two further letters.[2].
[2] Exhibit A, pp.91-95.
On 22 May 2017 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the decision was referred to the Authority for review under pt.7AA of the Migration Act 1958 (Cth).
On 20 June 2017 the applicant’s adviser and solicitor sent written submissions to the Authority in support of the applicant’s claims and on 1 September 2017 the Authority made a decision to affirm the delegate’s decision.
The Authority accepted the applicant’s central claims to have come to the attention of AAH on 30 January 2013 and in particular the applicant’s account of the statements and actions of the militia members during the taxi ride. It was also satisfied that he received two telephone calls shortly after the event asking him to come to a certain place to join the organisation: see [6] of the Authority’s reasons.
It also accepted at [7], unlike the delegate before it, that the militia members demanded that the applicant join them having considered that it was plausible that he was told that he would have to join the AAH in order for his apology to be accepted. In [8] the Authority turned to consider the question of whether there had been any further threats but did not accept that such threats had been made or received or that the applicant remained of interest to the AAH or any other militia groups after early 2013. As [8] is central to the second and third grounds in the amended application I will return to that paragraph later in these reasons.
The Authority then turned to consider whether, on the basis of the facts found by it, the applicant faced a real chance of persecution or a real risk of significant harm. It noted at [11] that over four years had passed since the events in question and was not satisfied that on return to Iraq there was a real chance that the threats made against the applicant 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 that incident.
It then considered whether the applicant might face harm as a Shia Muslim, noting at [12] that there was information to the effect that Shias in a Shia dominated province of southern Iraq, such as where the applicant came from, were at a low risk of generalised violence but found that it was not satisfied from the material that the applicant faced harm from Shia militias or Shia armed groups due simply to being a Shia. At [13] the Authority considered the possible effect of generalised violence in Iraq upon the applicant on his return but concluded that there was no real chance of serious harm on that account. Once again [12]-[13] are central to consideration of two of the grounds, namely 4 and 5 and I will return to them in due course.
At [14] the Authority considered the possibility that the applicant might be harmed as a returned asylum seeker but rejected that possibility. On the basis of those findings the Authority was not satisfied that the applicant met the criteria for the grant of a protection visa and affirmed the decision of the delegate.
The applicant was granted leave to rely upon grounds 2- 5 in an amended application filed on 27 August 2018. The second and third grounds, as I have noted, turn on [8] of the Authority’s reasons where it stated:
8. In considering whether the applicant would remain of any interest to the AAH after some four years, he contended in his statutory declaration that in August 2013 his family found a threat letter saying that “death is coming even after a while”. The delegate asked the applicant about this at the PV interview. The applicant stated that his parents had received the letter but when he asked them to send it to him in Australia they said they no longer had it. The applicant however then provided two further typed documents bearing the AAH letterhead and watermark. These documents are dated 22 February 2013 and 8 September 2014. The first states that he will be punished for his refusal to join the AAH and will be murdered, the second advises that they are aware that he has travelled overseas and urges all members of the Islamic Resistance to search for him and murder him. The applicant has at no point mentioned receiving these documents. In his statutory declaration of March 2016 the only threat letter mentioned was that of August 2013, which he now states his parents did not keep. I am not satisfied that the documents provided at the PV interview are genuine. I am not satisfied that any threat letter has been received by his family at any point since he has departed Iraq. He has not claimed that any members of his family have been approached by the AAH and I am satisfied that they have not. I do not accept that the applicant remained of interest to the AAH or any other militia groups after early 2013.
Ground 2 is that as the Authority had some doubt in making the finding about the two letters provided to the delegate at the interview it ought to have considered, but did not, that it might be wrong about its finding when assessing whether or not there was a real chance of persecution for the purposes of the review. The argument relies on the way in which the Authority expressed its finding about the two letters, namely that it was not satisfied that they were genuine. In my view the finding expressed in that way does not give rise to any inference that the Authority had any doubt about its findings such that it was required to ask whether it was wrong.
The obligation upon which this ground is based was explained by Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60], [62]-[63] and [67]:
60. It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred eventhough it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a “real substantial basis” for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
…
62. In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
63 Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.
…
67. In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT's reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
(Without alteration, emphasis in original)
Whether or not the decision-maker has entertained sufficient doubt to warrant the application of that principle turns upon the reasons in the context of the whole of the statement prepared by the decision-maker.
The Minister argues that the reasons in this case are no different from those considered by the Full Court of the Federal Court of Australia in Dhiman v Minister for Immigration & Multicultural Affairs [2000] FCA 221 where the Court considered where the Tribunal in that matter stated in its reasons (at [6]): “… [t]he Tribunal is not satisfied as to the veracity of the applicant’s claims as to the cause of his father’s death”. At [12] the Court noted the submission that the Tribunal made no explicit findings rejecting the evidence of the mother and the sister or as to the authenticity of the letters in question but simply that the Tribunal said that it was not satisfied as to the veracity of the applicant’s claims, and continued to find:
…That is an explicit finding that it did not accept that his evidence was true. The Tribunal’s rejection of the appellant’s claim as to the cause of his father’s death was a positive and unqualified finding…
Although as I have noted the question depends upon the findings in their context I agree that the same reasoning applies to the facts in this case.
The mere fact that the findings made in [8] of the Authority’s reasons were expressed in terms of satisfaction does not mean that the Authority did anything other than reject those claims. I note in particular in the last sentence of [8], which was a culmination of the previous consideration, that the Authority stated that it did not accept “that the applicant remained of interest to the AAH or any other militia groups after early 2013”. On the basis of that conclusion the principle explained by Sackville J in Rajalingam did not apply and this ground must be rejected.
The third ground, again based upon the findings at [8], is essentially that the Authority was illogical in that on the one hand it relied upon the truth of the statement in the statutory declaration which referred to the August 2013 letter to find that the other threat letters were not authentic; and yet on the other hand it relied upon its finding about the other letters to determine that the applicant had not received the August 2013 letters. This, it was argued, was illogical or irrational.
The difficulty however is that that is not how the Authority reasoned. Even though the Authority referred to the lack of mention in the statutory declaration of the 22 February 2013 and 8 September 2014 letters, that is not the same as saying that it accepted for the purposes of its reasoning the truth of the statutory declaration. It was one thing to accept what is said in a declaration and quite another to note that certain matters have not been mentioned in it.
The underlying assumption in the findings by the Authority in [8] was, contrary to the submission by the applicant, simply that had the applicant in fact received the threat letters of 22 February 2013 and 8 September 2014 as claimed he would have referred to those at the same time as mentioning the letter of August 2013. For those reasons the factual premise to this ground has not been established and the ground must be rejected.
The fourth and fifth grounds concern findings at [12]-[13] of the Authority’s reasons:
12.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 from 2015 indicates that Sunni armed groups have attacked locations in southern provinces, but overall the level of violence is much lower than elsewhere in Iraq. The referred material includes a number of media articles from 2016 relating to bombings carried out by ISIS; such events occurred in the southern cities of Basra and Nasiriyah, as well as Baghdad and the Northern and Western provinces. A US Army officer offers the opinion that as IS loses territory, it is increasingly turning to bombings in a bid to stay relevant. More recently, the number of casualties in Iraq has increased again in early 2017, but the majority of these are due to the fight to recapture Mosul, which commenced in February. Casualty figures from March 2017 indicate that there were 6,732 dead and wounded in Iraq in March 2017 in 715 reported security incidents; of these, in Najaf province one shooting incident occurred. While the referred material indicates that violence does occur in Najaf 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.
13. In relation to whether there is a real chance that the applicant would suffer serious harm from generalised violence and the security situation more generally, the DFAT[3] Country Report before the delegate 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. 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 Najaf 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 Najaf, 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.
(Footnotes omitted)
[3] Department of Foreign Affairs and Trade.
Ground 4 turns upon the fact that, in [12], the Authority refers to there being a “low risk of generalised violence” and yet, in [13], concludes that there was no real chance that the applicant would face serious harm. The applicant argued that the collocation of those two statements indicates that the Authority equated the existence of a low risk of harm with a lack of real chance of harm. He pointed to various authorities to establish that a low risk of harm can nevertheless constitute a real risk of harm: see Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 389 per Mason CJ and 429 per McHugh J; Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572. What is said in those cases may be accepted even though the statutory regime is different to that which was considered in those cases.
The problem for the applicant is that the Authority did not in fact reason in the way that the applicant alleges. The reference in [12] to Shias facing a “low risk of generalised violence” was a reference to what is cited as “referred material”. In [13] the Authority proceeds to examine in greater detail the country information concerning the risk of harm that might face the applicant upon return by virtue of the generalised violence that occurs in Iraq. It referred again to a DFAT country report concerning the deterioration of the general security situation in 2013 and 2014 as well as the coordinated bombings and shootings however noted in contrast that the government forces retain control of southern Iraq including the province from which the applicant came from. It was after that assessment of the further information that the Authority came to the view that there was no real chance the applicant would face serious harm should he return on the basis of the level of general violence.
In brief I do not accept, as contended by the applicant, that the Authority reasoned solely from the fact that there was a low risk of violence that there was no real chance of violence. I do not accept it made the error that is contended for in ground 4 and that ground must be rejected.
Ground 5, again relating to [13], is that, because the Authority did not expressly refer to the “reasonably foreseeable future” in making a finding in [13], it may be inferred that it failed to turn its mind to the reasonably foreseeable future in making its findings in that paragraph.
Counsel for the applicant accepted that there was no obligation in light of the criteria for the grant of a protection visa, including the definitions of a refugee in s.5H as understood in light of s.5J, that the Authority make any such express findings. Nevertheless he submitted that it was part of the task of determining a real chance of persecution that the Authority does address the question. Once again that much may be accepted; however, the mere lack of reference to the reasonably foreseeable future does not mean that the Authority closed its mind from considering what might happen to the applicant at a time immediately after he arrives in Iraq.
In my view the whole of the Authority’s assessment of the facts and application of those facts of the applicant’s claims to the country information is premised upon a forward looking test. For example, although the Authority accepted that the applicant had been threatened by the AAH and feared harm in light of the incident in early 2013, given the lapse of time and the lack of ongoing interest the Authority concluded that the applicant would not be subject to any threats of harm in the future: see [11] of the Authority’s decision. Similarly [12]-[13] are premised upon the hypothesis that the applicant will return to Iraq and that there has been a change in the security situation in various parts of the country there.
For those reasons I am not satisfied that the Authority failed properly to appreciate and to apply the test posed by sub-s.36(2)(a) and 36(2)(aa) in light of the definitions of real risk and real chance of harm found in the Act. In other words it applied itself to the question of what might reasonably occur in the future so far as it can assess on the basis of the material before it: see CPE15 v Minister for Immigration & Border Protection [2017] FCA 591 at [60] per Mortimer J. For those reasons ground 5 is rejected.
Conclusion
I am not satisfied that there is any jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 10 December 2018
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