Enu18 v Minister for Home Affairs

[2019] FCCA 254

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENU18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 254

Catchwords:
MIGRATION – Immigration Assessment Authority- whether the Authority erred in considering country information – whether the Authority failed to consider the applicants submissions made – no jurisdictional error identified – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 476.

First Applicant: ENU18

Second Applicant: ACC19

Third Applicant: ACE19

Fourth Applicant: ACF19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2463 of 2018

Judgment of: Judge Street

Hearing date: 6 February 2019

Date of Last Submission: 6 February 2019

Delivered at: Sydney

Delivered on: 6 February 2019

REPRESENTATION

The Applicants appeared in person.

Solicitors for the Respondents: Ms K Morris
Clayton Utz

ORDERS

1. The application is dismissed.

2. The first, second and fourth applicants pay the first respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2463 of 2018

ENU18

First Applicant

ACC19

Second Applicant

ACE19

Third Applicant

ACF19

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA dated 9 August 2018.

2. The applicants are citizens of Iraq and their claims were assessed against that country.  The first and second applicants are the parents of the third and fourth applicants. The third applicant is a minor, and an order was made appointing a litigation guardian, being the first applicant, for the third applicant on on 27 September 2018. 

3. The applicants are Shia Muslims of Arabic ethnicity from the Al Nasiriayh region in Iraq. The applicants claimed to fear harm arising out of an alleged kidnapping of the fourth applicant and in respect of the third and fourth applicant being at risk, being forced into militia groups as a matter of recruitment upon return to Iraq. The applicants claimed to fear they will not be able to re-establish their lives and that it is not safe anywhere for them in Iraq. The second applicant also claimed to fear that her medical needs may not be met in Iraq. The applicants arrived in Australia as unauthorised maritime arrivals on 28 March 2013.

4. On 12 March 2018, the delegate found the applicants failed to meet the criteria required for the grant of Safe Haven Enterprise Visas. Prior to the delegate’s decision, detailed submissions were provided on behalf of the applicants to the delegate. The first, second and fourth applicants each provided a statement in respect of which there was annexed an interpreter’s certificate. Each statement sought to address reasons for difficulty with the information provided at the arrival interview. No other issue was raised in the submissions or material before the delegate as to problems with interpreters or with lawyers. 

5. On 16 March 2018, the Authority wrote to the applicants explaining that the application for the Safe Haven Enterprise Visas for the applicants had been referred to the Authority for review. The Authority provided an attached fact sheet and practice direction giving the applicants an opportunity to put on submissions and new information. Submissions were put on, on behalf of the applicant, dated 5 April 2018 which were expressly referred to in the Authority’s reasons. 

6. The Authority found that no new information had been provided. The submissions provided by the applicants did not identify any issue with interpreters in respect of the statement of claims by the respective applicants or any issue with lawyers. 

7. The Authority in its reasons summarised the background to the visa application and had regard to the information given by the secretary under s 473CB of the Act. The Authority summarised the applicants’ claims to fear harm and referred to the issue raised by the applicants regarding the arrival interview. The Authority referred to the incident alleged by the fourth applicant concerning the kidnapping which was addressed by the applicants in their statements. 

8. The Authority did not consider the alleged approach for recruitment, the kidnapping of the fourth applicant and the subsequent visit to the family home to be credible. The Authority identified six reasons in support of that adverse credibility finding. None of those reasons were based on inconsistencies arising from the arrival interview. 

9. The first ground referred to the implausibility of the explanation in relation to the release of the fourth applicant. 

10. The second ground referred to the difference in timing in respect of the alleged visit to their home after the alleged kidnapping, as well as who was at home when the men allegedly visited, as impacting on the veracity of their claims. 

11. The third ground referred to the implausibility of the armed men obtaining the applicant’s phone number while he was in their captivity and allegedly obtaining the phone number of the second applicant in the subsequent home visit. 

12. The Authority took into account the absence of any attempt to contact the fourth applicant on the telephone, and found that they would have had no difficulty in finding the first applicant’s parents’ house if they were seeking to recruit the fourth applicant.

13. The fourth ground referred to the implausibility of the fourth applicant being targeted for recruitment by militia groups, in the absence of independent country information that Shia men were subjected to forced recruitment in southern Iraq. 

14. The fifth ground referred to the post-interview submissions and the absence of any evidence as to targeting for political views, sectarian reasons or any other reasons.

15. The sixth ground found there were inconsistencies in the fourth applicant’s evidence as to how he was forced into the car when he was kidnapped. 

16. It was in these circumstances, that the Authority was not satisfied the alleged kidnapping of the fourth applicant occurred. 

17. The Authority was not satisfied the fourth applicant was approached by communists, Daesh/IS, Shia militia or any other armed group for joining any of those groups. The Authority was not satisfied the applicants’ home was visited by any of those groups. The Authority was not satisfied that the fourth applicant’s relocation to Baghdad and then Sulaymahiya was for the reason claimed. The Authority was not satisfied the fourth applicant was facing forced recruitment from any militias or terrorist groups in 2013 or that the applicants were threatened for this reason.  The Authority was not satisfied that any of the applicants were of adverse interest to anyone in Iraq before they left in 2013. 

18. The Authority identified the relevant law. The Authority was not satisfied that either the third or fourth applicant faced a real chance of being forcibly recruited by Sunni or Shia militia groups if they returned to southern Iraq, now or in the reasonably foreseeable future.  The Authority was not satisfied that the applicants face a real chance of harm from Daesh/IS, or Sunni groups, from Shia militias or anyone else, or as a result of the security situation in their home region. The Authority was satisfied that the applicants would be able to safely return to their home region via Baghdad airport and Basra airport. 

19. The Authority referred to the second applicant who is suffering from diabetes. The Authority was not satisfied that the first or second applicants’ medical needs cannot be met in Iraq.  The Authority was satisfied that the first and second applicants can access medical care and medication as they require. The Authority was not satisfied that any difficulty the applicants face amount to serious harm or that they are a consequence of systematic or discriminatory conduct.  The Authority was not satisfied the applicants face a real chance of harm from the Iraqi Authorities or anyone else because they are returning from Australia as failed asylum seekers and have spent several years in Australia.

20. The Authority was not satisfied the applicants will not be able to re-establish themselves if they were to return to their home region. The Authority was not satisfied the applicants’ capacity to subsist will be threatened or that they face a real chance of serious harm. It was in those circumstances the Authority was not satisfied the applicants face a real chance of persecution for any of the reasons claimed. The Authority found the applicants did not meet the requirements of the definition of refugee in s 5H(1) of the Act, and that the applicants did not meet the criteria in s 36(2)(a) of the Act. 

21. The Authority turned to the issue of complementary protection and was not satisfied there are substantial grounds for believing, that as a necessary and foreseeable consequence of the applicants being returned to Iraq from Australia, there is a real risk that the applicants will suffer significant harm. The Authority found the applicants did not meet the criteria under s 36(2)(aa) of the Act. 

22. The Authority found that the third applicant, as a member of the family unit of the first, second and fourth applicants, was in these circumstances, not entitled to a protection visa. The Authority found that none of the applicants met the definition of refugee or complementary protection criteria, and that, accordingly, the family unit criteria under s 36(2)(b) and s 36(2)(c) of the Act was not met, and affirmed the decision under review. 

23. These proceedings were commenced on 3 September 2018. On 24 September 2018, orders were made giving an opportunity for the applicants to file an amended application, affidavit evidence and submissions. No such documents have been filed by the applicants.

24. At the commencement of the hearing, the Court explained to the applicants the nature of the hearing, and the first, second and fourth applicants confirmed that they understood the explanation given by the Court. From the bar table, the first applicant maintained that he had difficulty because he was not able to obtain an Arabic lawyer. The first applicant alleged that he had problems with interpreters. The first applicant alleged that all the problems they faced in the adverse findings arise out of interpreting errors.

25. There is no evidence to support the first applicant’s assertions of interpretation errors in relation to the Safe Haven Enterprise Visa interview. No such issue was raised in the submissions that were advanced to the delegate, nor to the Tribunal. There was also no issue raised in relation to problems with lawyers. The second applicant, in substance, agreed with the first applicant and asserted that there were interpreter problems. There is no evidence before the Court to support those assertions. The certificates of interpretation, the submissions referred to and the reference in the delegate’s reasons to there being an interpreter at the Safe Haven Enterprise Visa interview do not support the assertions of any problems with the interpreter, and no such issue is apparent on the submissions advanced on behalf of the applicants. The Court is not satisfied that there was any interpreter issue that gave rise to any material misunderstanding by the Authority in the conduct of the review by the Authority. 

26. Further, the Court takes into account that the adverse credibility findings were in substance made on implausibility and inconsistency as referred to above and did not arise from the entry interview, which was the only topic of alleged concern by the applicants in their statements in terms of the information provided and its accuracy. No jurisdictional error arises by reason of the applicants’ complaints in relation to the interpreter and/or in relation to the lawyers. 

27. The fourth applicant maintained that they could not return safely to Iraq.  The Authority made findings in relation to the criteria under the Refugees Convention and in relation to complementary protection that on their face, were open and dispositive of the applicants’ claims.  The fourth applicant’s disagreement with those adverse findings does not identify any relevant jurisdictional error.  On the face of the Authority’s reasons the adverse credibility findings were rational, and logical and open for the reasons given by the Authority as summarised above. 

28. The fourth applicant sought to raise a new claim in relation to a tattoo on his hand. There is no reference in any of the material before the Authority, to any claim to fear harm by reason of the tattoo on the fourth applicant’s hand.  A claim that is not raised before the Authority cannot give rise to any jurisdictional error.

29. The applicants’ submissions from the bar table otherwise invited the Court to engage in merits review.  This Court does not have power to review the merits. Nothing said by the applicants from the bar table identified any jurisdictional error. 

30. The grounds in the application are as follows:

    1. The Immigration Assessment Authority (IAA) erred in its decision in considering my home country information.

    2. The Immigration Assessment Authority (IAA) erred in its decision not considering the submission made by the representative.

    3. The Immigration Assessment Authority (IAA) made judicial error in fact finding and did not give sufficient consideration to the fact that I would suffer serious harm if I returned to Iraq.

    4. The Immigration Assessment Authority (IAA) erred in its judgment not considering my fear of being subjected to significant harm.

Ground 1

1. In relation to ground 1, it was a matter for the Authority to determine what country information the Authority accepted.  It is apparent from the Authority’s reasons that the Authority did take into account country information. The applicants’ assertion of an error in relation to their home region does not identify any relevant error by the Authority in its findings.  The Authority’s reasons, on their face, indicate the Authority had regard to the source of the country information referred to in the applicants’ post-SHEV interview submissions by reason of the reference in paragraphs 12, 17, 18 and 24 and footnotes 6 and 7, of the Authority’s reasons.  It was not necessary for the Authority to refer to every piece of evidence before the Authority.  Further, it was open to the Authority to prefer one body of country information to another. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the assertion that the Authority did not take into account the submissions made by the representative is inconsistent with the Authority’s reasons which expressly refers to taking the submissions of 5 April 2018 into account in paragraph 3.

2. Those submissions addressed, the contention concerning the fourth applicant’s kidnapping and being approached for recruitment. The Authority’s reasons address those topics. In these circumstances there is no basis to infer that the Authority failed to have regard to the submissions. On the face of the Authority’s reasons, the Authority had a real and meaningful engagement with the submissions advanced on behalf of the applicants to the Authority.

3. Further, the Authority expressly referred to the post-SHEV interview submissions in paragraphs 12, 17, 18 and 21 of its reasons. 

4. It is apparent from the Authority’s reasons that the Authority addressed the claims of attempted forcible recruitment, fear of harm by existing and emerging militia groups, returning as failed asylum seekers and inability to re-establish themselves, the subject of those submissions as articulated and identified in those submissions, in the making of the dispositive findings. 

5. In these circumstances, the Court is satisfied that the Authority had a real and genuine engagement with the whole of the evidence and submissions advanced on behalf of the applicants before the Authority, including the submissions that were advanced to the delegate.  No jurisdictional error as alleged in ground 2 is made out. 

Grounds 3 and 4

1. Grounds 3 and 4 seek to disagree with the adverse findings by the Authority and, on their face, are a disagreement with the merits.  On the face of the Authority’s reasons the Authority correctly identified the relevant law in relation to the Refugees Convention and in relation to complementary protection, and made findings that were reasonably open and cannot be said to be the subject of legal error, unreasonableness or unfairness on the face of the Authority’s reasons.

2. Further, on the material before the Court, the Authority complied with the requirements of procedural fairness in the conduct of the review and complied with its statutory obligations in the conduct of the review.  Accordingly, no jurisdictional error as alleged in ground 3 and 4 are made out. 

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2019