EKW18 v Minister for Immigration - [2020] FCCA 2819

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKW18 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2819

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Class XE) (Subclass 790) visas – Whether the Authority failed to actively consider a complementary protection claim – whether the Authority failed to actively consider the First Applicant’s claims for protection as a refugee – no jurisdictional error – application dismissed with costs.

Legislation:
Migration Act 1958, ss. 5J(4)(c), 36(2A)

Cases cited:
AWL15 v Minister for Immigration and Border Protection [2018] FCCA 1597
CDY15 v Minister for Immigration and Border Protection [2018] FCA 175
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1

First Applicant:

EKW18

Second Applicant:

EKX18

Third Applicant:

EKY18

Fourth Applicant:

EKZ18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File number:

MLG 2584 of 2018

Judgment of:

Judge Blake

Hearing date:

27 August 2020

Date of last submission:

27 August 2020

Delivered at:

Melbourne

Delivered on:

15 October 2020

REPRESENTATION

Counsel for the Applicants:

Mr Solomon-Bridge

Solicitors for the Applicants:

Victoria Immigration Lawyers

Counsel for the Respondents:

Ms Lucas

Solicitors for the respondents:

Sparke Helmore

ORDERS

The Application filed on 28 August 2018 be dismissed.
The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2584 of 2019

EKW18

First Applicant

EKX18

Second Applicant

EKY18

Third Applicant

EKZ18

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 30 July 2018 (‘Application’). In that decision, the Authority affirmed a decision of a delegate of the First Respondent (‘delegate’) not to grant the Applicants Safe Haven Enterprise (Class XE) (Subclass 790) visas (‘visas’).
For the reasons that follow, I have decided to dismiss the application for review.

Background

The Applicants in the present matter are a family of four, comprising of a Husband (‘First Applicant’), Wife (‘Second Applicant’), Daughter (‘Third Applicant’) and Son (‘Fourth Applicant’). The Applicants are Iranian nationals who arrived in Australia as unauthorised maritime arrivals on 1 May 2013 (Court Book 157). The First Applicant attended an arrival interview with an officer of the First Respondent on 9 May 2013 (Court Book 1).
The Applicants applied for the visas on 24 February 2017. The First Applicant made individual claims for protection, with the Second, Third and Fourth Applicants claiming to satisfy the relevant criteria for the visas on the basis of their membership within a family unit. The First Applicant is therefore the primary Applicant for the purposes of this Application. By order of this Court, the First Applicant is the litigation guardian for the Third and Fourth Applicants.
On 22 January 2018, a delegate of the First Respondent refused to grant the Applicants the visas.
On 30 July 2018, the Authority affirmed the decision of the delegate not to grant the Applicants the visas.
The Applicants subsequently filed an application in this Court on

28 August 2018, seeking judicial review of the Authority’s decision. An affidavit was filed in support of the Application, annexing the Authority’s decision.
The Applicants filed written submissions on 29 July 2020. The First Respondent filed written submissions on 13 August 2020, and a list of authorities on 24 August 2020.

The Application for Review

The Application contains three grounds of review. At the hearing, the Applicants abandoned Grounds two and three, and the second particular of Ground one. All that remains is the first particular of Ground one. Ground one and the first particular are as follows.
‘1. The Second Respondent committed jurisdictional error by failing to consider the Applicants' claims or their component integers.
Particulars:
A. The Second Respondent failed to make findings concerning whether the First Applicant had been stabbed in Iran as claimed ([26]), and failed to consider whether there was thus a risk of harm of the kind relevant to complementary protection status ([34]-[38]).’
The finding by the Authority in relation to the assault of the First Applicant in 2012 is set out at the end of paragraph [26] of the reasons of the Authority. Paragraph [26] of the reasons of the Authority is as follows:
‘The applicant claims to have been unaware that his mother in law was in the Basij until after his arrest in 2009. Even apart from the fact that I do not accept that arrest occurred, I note that on the applicant’s evidence, he lived with his mother in law for a number of years after his marriage in around 2003 and his wife was aware that her mother was in the Basij. I find it implausible that in those circumstances, the applicant would have learnt of his mother in law’s Basij membership only in 2009. The document he submitted at the protection visa interview as evidence of her Basij membership, which was verbally translated by the interpreter at the interview, appear to be an identity card for the purpose of monitoring elections. While I accept she may have performed such work and am also willing to accept the applicant’s claims that she was religious, having regard to the implausibility of the applicant’s evidence as to when he learnt of her Basij membership, and my other credibility concerns above, I do not accept she was a member of the Basij. If the applicant was attacked in 2012, I do not accept that this was carried out by or through the Basij at the instigation of his mother in law. His evidence was that his bag, phone and money were taken and I am not satisfied that this was anything other than a random incident.’
Prior to setting out the reasoning of the Authority with which the Applicants take issue, the nature of the finding above warrants some comment. The First Applicant’s claim was that he was stabbed in the chest, punched and kicked in an attack perpetrated by masked men who took his belongings. The First Applicant claimed the attack was organised by his mother-in-law through her contacts in the Basij. The Authority, relevantly, had two issues to resolve. Firstly, whether the attack in fact occurred. Second, whether the Authority was satisfied that the First Applicant’s mother-in-law had orchestrated the attack. In respect of this second matter, it is clear that the Authority in its reasons did not accept that any attack occurred at the instigation of the First Applicant’s mother-in-law.
Turning then to whether the attack in fact occurred. There is, in my view, a real question as to whether the Authority found that the attack occurred as a matter of fact. The use of the word ‘if’ at the beginning of the finding suggests that the Authority did not necessarily accept the fact that the attack occurred. However, notwithstanding its apparent lack of satisfaction as to whether an attack had occurred, the Authority went on to apparently conclude that the First Applicant’s bag, phone and money were taken, and that the incident was not ‘anything other than a random criminal incident’.
In my view, the Authority did not make a finding in paragraph [26] of its reasons that the attack occurred as a matter of fact. The better reading of paragraph [26] is that the Authority left open the possibility that an attack occurred. Having left open that possibility, it then did two things. First, it merely recited the First Applicant’s evidence that his bag, phone and money were taken, without concluding that those items were in fact taken. Second, the Authority stated that it was satisfied that any incident which may have occurred was nothing more than ‘a random criminal incident’. This interpretation of paragraph [26] is more sympathetic to the language used by the Authority in the paragraph. It is also an interpretation that sits somewhat comfortably with the Authority’s finding that the First Applicant’s mother-in-law did not orchestrate the attack.
At least one matter of significance falls from the interpretation of paragraph [26] that I have set out above. By leaving open the possibility that the attack occurred, the Authority was required to conduct an assessment of risk that paid sufficient regard to the fact that an attack may have occurred.
The findings of the Authority in relation to the complementary protection assessment of the Applicants with which the Applicants take issue are set out at paragraphs [34] – [38] of the decision of the Authority. Those paragraphs are as follows:
‘34. Under s.36(2)(aa) of the Act, a criterion for a protection visa is that the applicant is a noncitizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
Real risk of significant harm
35. Under s.36(2A) a person will suffer 'significant harm' if:
• the person will be arbitrarily deprived of his or her life
• the death penalty will be carried out on the person
• the person will be subjected to torture
• the person will be subjected to cruel or inhuman treatment or punishment, or
• the person will be subjected to degrading treatment or punishment.
36. I have accepted that the applicant will continue to have a difficult relationship with his mother in law, but have not accepted there is a real chance of the situation escalating to an extent that the applicants would suffer serious harm. Taking into consideration what I have accepted of the claims, including the applicant's evidence that the pressure she exerted lessened after the suicide attempts in 2009, I am not satisfied there is a real risk that the applicants would suffer harm that would involve the level of pain, suffering or humiliation required in the definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment or otherwise amount to significant harm within the meaning of s.36(2A).
37. Beyond this, I have found there is not a real chance of the applicant being harmed for any of the reasons he claims. The Federal Court has held that 'real risk' imposes the same standard as the 'real chance' test in the refugee criterion and I similarly find there is not a real risk of the applicant suffering significant harm. Nor am I satisfied there is a real risk of any of the other applicants suffering significant harm.
Complementary protection: conclusion
38. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. The applicants do not meet s.36(2)(aa).’
The Applicants’ submission before me is essentially this. The Authority’s finding in paragraph [26] of its reasons is a finding in relation to the First Applicant’s claims for protection as a refugee. The Authority however, failed to consider the risk of harm feared by the First Applicant arising from the alleged attack and whether it amounted to significant harm for the purposes of section 36(2A) of the Migration Act 1958 (‘Act’). This submission developed along the following lines. First, paragraph [26] is to be found under that section of the reasons which deals with the Authority’s assessment of whether the First Applicant is a refugee. Second, the use of the word ‘random’ is deliberate and a finding that is directed at disposing of the claim on the basis that the alleged persecution is not ‘systematic and discriminatory’ as required to satisfy the relevant refugee assessment provision contained at section 5J(4)(c) of the Act. Even a singular act can give rise to the requisite risk of harm: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [99] per McHugh J. Third, the Authority failed to assess the claim when it considered the application of the complementary protection criterion to the First Applicant in paragraphs [34]-[38] of the reasons. It is contended that what the Authority should have done was referred to the attack and examine the risks of significant harm from it.
The Minister accepts that a single incident can constitute significant harm for the purposes of assessing the complementary protection criteria. The Minister contends, among other things, that the Authority’s description of the incident as a ‘random criminal incident’ is important. In summary, the Minister says this was the risk assessment. By describing the incident as random, the Authority should be taken to mean, inter alia, that there was nothing to suggest an attack would occur in the future. Having disposed of the incident in this way, it was submitted that there was no need for the Authority to consider the matter again expressly when it came to consider complementary protection.
In respect of this submission, the Minister relies on the decision of CDY15 v Minister for Immigration and Border Protection [2018] FCA 175 (‘CDY15’). At paragraph [39] of that decision, Derrington J stated as follows:
‘Once the Tribunal had rejected the first appellant’s evidence that he was being targeted because of the actions of his brother, it was not required to speculate as to why it was that he had been attacked on two previous occasions or whether he would be at risk of similar attacks in the future or face serious or significant harm in the future. In this latter respect Mr McDermott for the Minister referred to MZZHA v Minister for Immigration & Citizenship (2014) 224 FCR 365. That case concerned a slightly different context although the point of principle is applicable. The appellant in that case had sought a protection visa and although the Tribunal had accepted that he had been given the lash in Iran it did not accept the appellant’s evidence as to why he had been so punished. The appellant claimed that the Tribunal was required to go further and ascertain why he had been punished and, without doing so, it was not able to make an assessment of the risk of harm to the appellant in the future. That argument was rejected by North J who said that the Tribunal was not required to speculate as to the reasons as to why the appellant had been punished and whether he would commit similar crimes in the future which might warrant such treatment. That conclusion can be applied to the present case. Here the Tribunal made findings which removed any rationale for the attacks which were inflicted upon him and that necessarily negated the prospect of the first appellant being at risk of similar violence in the future. The best that can be said of the past attacks is that they were serious and unfortunate events, but there is nothing in their circumstances, as found by the Tribunal, which suggest that they may reoccur.’
I have considered the decision in CDY15. I am not convinced that it is of assistance to the Minister in the present matter. While I understand the passage relied on by the Minister, the circumstances in CDY15 are different from those in the present matter. Significantly, in CDY15, the Tribunal had expressly dealt with the relevant claimed attack as part of its consideration of whether the applicant qualified for complementary protection under the Act. So much is apparent from paragraph [36] and [38] of the judgment of Derrington J. In this matter, however, there is not any express consideration by the Authority of the attack in 2012 when it comes to consider the application of the complementary protection criteria set out in paragraphs [34]-[38] of its reasons. I also observe that CDY15 has been distinguished in other matters that have come before this Court: see AWL15 v Minister for Immigration and Border Protection [2018] FCCA 1597.
Without the assistance of CDY15, the Minister’s contention seems to come to this. The words ‘random criminal incident’ connote the totality of the risk assessment in relation to the attack in 2012, and that those words were sufficient for the Authority to dispose of the incident for the purposes of both the refugee assessment and the complementary protection assessment. Further, that when paragraphs [26], [32] and [37] are read, the Authority did conduct an assessment of risk that included the attack at paragraph [37] of its reasons.
I do not accept the Minister’s contentions above. The Authority assessed risk in relation to the attack in that part of its reasons dealing with whether the First Applicant satisfied the refugee criteria. It failed, however, having left open the possibility of the attack having occurred, to assess that risk in the context of the application of the complementary protection criteria to the First Applicant. Further, paragraph [37] of the reasons does not assist the Minister. That paragraph refers to the Authority finding that there is not a real chance of the First Applicant being harmed ‘for any of the reasons he claims’ (emphasis added). Paragraph [26] of the reasons, of course, connotes a rejection of the First Applicant’s claim before going on to speculate as to the incident. In my view, therefore, the Authority failed to consider whether there was a risk of significant harm to the First Applicant in respect of his application for complementary protection.
The question that then arises is whether the failure by the Authority to consider the 2012 attack in its assessment of complementary protection for the First Applicant was material.
The Applicants contend that the failure was a material failure. The Applicants submit that a single incident is capable of constituting significant harm for the purposes of the complementary protection criteria. The Applicants also submit that the use of the word ‘random’ says nothing about the likelihood of a particular event occurring, and that the use of the word random cannot of itself indicate any level of risk assessment.
The Macquarie Dictionary defines the word ‘random’ as an event that occurs ‘not according to a pattern or method’ or events occurring ‘without definite aim, purpose or reason’.
The Minister concedes, and I accept, that a single event can give rise to a finding of ‘significant harm’. I consider, however, that when the Authority used the word ‘random’ in respect of the attack, it was of the view that the attack occurred ‘without definite aim, purpose or reason’. It seems to me that at least the following matters flow from this. First, there was no reason or purpose to the attack. Second, it being the case that there was no reason or purpose to the attack, no assessment could properly be made as to whether there existed a real risk of significant harm in the future.
Considered in this way, the failure of the Authority to consider the attack was not a material failure. The attack was ‘random’ in that it occurred without purpose or reason. It also occurred in a context where the Authority found it was not carried out by the Basij at the instigation of the mother in law. In the circumstances, it would have been unable to assess any future risk of harm, let alone that there was a real risk of any significant harm. Going further, in my view, it would have been inconsistent for the Authority, on the one hand, to find any attack that may have occurred as ‘random’, and on the other hand, to conclude that a ‘random’ attack could constitute a ‘real risk’ of significant harm in the future.

Having regard to my reasons above, the Application must be dismissed. Costs ordinarily follow the event and I will award costs to the Minister, fixed in the sum of $5,000.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 15 October 2020