EQD17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 851
Federal Circuit and Family Court of Australia
(DIVISION 2)
EQD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 851
File number(s): SYG 3219 of 2017 Judgment of: JUDGE EGAN Date of judgment: 16 November 2022 Catchwords: MIGRATION – Whether Authority intellectually engaged with the applicant’s claims and arguments – whether findings of the Authority were unreasonable – no jurisdictional error established – application dismissed. Legislation: Migration Act 1954 (Cth) ss. 5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB Cases cited: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 5 October 2022 Date of hearing: 5 October 202 Place: Brisbane Counsel for the Applicant: Mr S Lawrence Solicitor for the Applicant: Shelly Legal Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: MinterEllison Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 3219 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EQD17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
16 November 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Further Amended Application for Review filed by leave on 5 October 2022 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,600.00.
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 Egan
Introduction
The applicant was a Shia Arab from Karbala which is situated in the southern part of Iraq. The applicant arrived at Christmas Island in Australia as an unauthorised maritime arrival in March 2013.
On 7 May 2016, the applicant lodged an application for a Temporary Protection Visa (TPV). The applicant claimed that he feared harm should he be returned to Iraq because of his previous relationship with his female cousin.
On 5 April 2017, a delegate of the Minister refused to grant the visa. The delegate found that the applicant was not a person to whom protection obligations were owed.
The matter was referred to the Immigration Assessment Authority (the Authority) for review of the decision of the delegate.
On 19 September 2017, the Authority affirmed the decision of the delegate and gave written reasons for its decision.
At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Migration Act 1954 (Cth) (the Act).
At [4] of its reasons, the Authority recorded that on 29 May 2017 it had received a submission from the applicant’s representatives which the Authority had considered.
At [6] of its reasons, the Authority recorded what constituted a person as a refugee pursuant to the provisions of s. 5H(1) of the Act.
At [7] of its reasons, the Authority recorded what constituted a well-founded fear of persecution pursuant to the provisions of s. 5J of the Act.
At [5] of its reasons, the Authority summarised the applicant’s claims for protection as follows:
“[5] The applicant's claims can be summarised as follows:
•The applicant claims to be Shia Muslim born in 1985 in Karbala, a conservative city and one of the most sacred places for the Shia sect in Iraq and the world.
•In around 2009 or 2010, he developed a relationship with his cousin, the daughter of his maternal uncle. Due to the conservative environment in Karbala, he was unable to take her out and they talked to each other through the mobile phones most of the time.
•In 2012, some of his relatives went to her family for approval so he could marry his cousin. However, his maternal uncle and his wife rejected their proposal. This was because he did not have a good relationship with his maternal uncles, and they thought that he came from a broken family given that his parents were divorced, his mother was remarried and his parents used to have daily problems so his maternal uncle thought that the same thing would happen to his daughter if they agree to their marriage.
•One month later, his relatives tried again, but were unsuccessful in getting marriage approval from her family.
•After this, he and his cousin decided to flee Karbala so that they could get married away from their families. In late 2012, he and his cousin left for Baghdad and they stayed in a hotel in [place omitted], Baghdad. They stayed in this hotel because his friend worked as a receptionist at the hotel. His cousin, who looked similar to his sister, used his sister's ID so they would allow them to book a hotel room. He gave her his sister's ID so she could use it just in case. They stayed at the hotel for a few days.
•During these few days that they stayed at the hotel, her family came to the hotel and kidnapped her. He was outside when the kidnapping occurred. After that, he rang his hotel receptionist friend who told him that they took her away.
•He did not return to the hotel. He moved to Najaf due to fear of being killed in Baghdad.
•On 2 December 2012, his cousin died. While in Najaf, his sister rang and told him that they found his cousin's body hanged in their family house. He believed that her father hanged her to death because of their relationship and that she ran away from them.
•He felt he lost everything. He felt that his life was at risk because honour killing was practiced in Iraq and her family will seek retribution by targeting him. Therefore, he moved between Erbil, Najaf and Baghdad.
•On [date omitted], his brother was shot dead on a street. The murder was recorded to be against an unknown person. But he and his family believe that his maternal uncle was responsible for killing his brother as revenge against him. His family reported to the police about what happened to him and his cousin and they believed that her father was responsible for the death of his cousin and his brother.
•His family believe that the police station commander deliberately covered up her father's actions because of her father's personal relationship with the police and also because her brother worked as a policeman in that police station.
•He fears being killed by his cousin's father, siblings and uncles.
•On 7 March 2013, he left Iraq for Australia.
Grounds of Review
On 15 June 2021, the applicant filed an Originating Application for Review of the decision of the Authority. At the hearing before the Court, the applicant relied upon a Further Amended Application for Review, the grounds of which were as follows:
“Grounds
One
The IAA fell into jurisdictional error by not applying the correct legal test in determining that the applicant did not face a real chance of relevant harm, by not considering whether there was a real possibility that the events upon which the applicant's claim was based had occurred, in circumstances where the reasons of the primary decision maker and IAA both reveal doubt attended that question.
Two
The IAA fell into jurisdictional error in the way in which it dealt with the evidence of the brother of the Applicant being murdered in Iraq, by:
Failing to properly consider the evidence, in the required legal sense, which required the IAA to engage with how the matter was advanced by the Applicant and how it might have supported the Applicant's case; and
Making unreasonable findings of fact/findings in the absence of probative evidence about the issue, including finding at [43] that, "if her family wished to kill, threaten or harm the applicant's family members as a means of washing their shame away, they would not have waited until 16 January 2013, about a month and a half after the claimed death of his cousin on 2 December 2012. to kill one of the applicant's brothers" and at [44] “ I consider that if his cousin's father wished to kill the applicant to wash the shame away. he would not have ceased harassing the Applicant's family member just because the Applicant has left Iraq"”
As to Ground 1 of the Further Amended Application for Review, it was submitted on behalf of the applicant that there had been a constructive failure on the part of the Authority to exercise jurisdiction, in that the Authority had failed to apply the real chance test, particularly by not asking “what if I am wrong?”. Such submission was made on the basis that the Authority had expressed doubt when making critical findings. There is no merit to such claim.
The applicant relied upon the judgment of Sackville J (with whom North J agreed) in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 at [62] – [67] inclusive where it was held as follows:
“[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".
[64]In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.
[65]Nor do I think that there is anything in the reasoning of the High Court which permits a court exercising powers of judicial review to "impute" to the RRT (or other administrative decision-maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant's fear of persecution was not well-founded. To take this course on the basis of the court's own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision-maker's failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by Migration Act, s 430(1)(c)). It is another to decide what factual findings the RRT should or should not have made.
[66]None of this is to deny that there may be cases in which a failure by the RRT to consider whether an alleged event may have occurred constitutes a ground of review, even though the RRT considers it likely that the event did not occur. To take an example from Guo, the applicant may rely on the experiences of previous groups of boat people who had been returned to their country of origin. The RRT may find that it is unlikely (in the sense of less rather than more likely on the balance of probabilities) that the previous group had been persecuted for a Convention reason. But the RRT's reasons may show that no consideration was given to the possibility (albeit not a likelihood) that such persecution had occurred, a possibility left open by the RRT's findings. If the RRT's reasons demonstrate that the experiences of the earlier groups materially bear on the chances that the applicant will be persecuted, a finding that there is a substantial chance (although not a likelihood) that previous groups were in fact persecuted might have to be taken into account if the RRT is to undertake the reasonable speculation required of it. Again, if an applicant relies on the possibility that a particular event occurred as supporting his or her claim to a well-founded fear of persecution, a failure by the RRT to make a finding as to that possibility might constitute non-compliance with s 430(1)(c) of the Migration Act.
[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) that 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 (FC), 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.”
It was submitted that on a fair reading of [19] – [45] of the reasons of the Authority, the Authority was only satisfied “on balance” about significant facts, and that the Authority could not have been reasonably satisfied beyond that, such that the question as to whether or not the real chance test applied or not had not been properly considered.
In circumstances where the Authority had made a number of adverse credibility findings against the applicant on important factual issues going to the question as to whether or not the applicant was ever in a relationship with his female cousin, the Court finds that there was no doubt on the part of the Authority as asserted by the applicant. The adverse credibility findings were relevantly as follows:
(a)At [18] and [21] – [23] of its reasons, a finding that the applicant’s account of how he had allegedly met his cousin and how their relationship had allegedly developed was not credible.
(b)At [28] of its reasons, a finding that the applicant gave inconsistent evidence about whether or not he had seen his cousin’s kidnapers.
(c)At [29] and [32] of its reasons, a finding that it was not credible that the applicant would not have attempted to have helped his cousin.
(d)At [34] of its reasons, a finding that the applicant’s evidence concerning his cousin’s birth certificate raised a number of questions because although the applicant had stated that he and his cousin were not married to each other, the cousin’s death certificate recorded her pre-death occupation as being a “housewife”.
(e)At [37] of its reasons, a finding that the death of the applicant’s brother was unrelated to any alleged payback killing perpetrated by members of his cousin’s family.
(f)At [44] of its reasons, a finding that it was implausible that members of the cousin’s family would cease to target the applicant’s family after the time that the applicant had left Iraq.
At [45] of its reasons, the Authority clearly found that the applicant and his cousin never had any relationship, finding as follows:
“[45]Given the applicant's problematic evidence above and having considered the totality of the evidence before me, I am not satisfied that the applicant had a romantic relationship with his cousin. I do not accept that the applicant asked his relatives to propose to his cousin, or that her family rejected his marriage proposals. I do not accept that the applicant eloped with his cousin, or they went to Baghdad or stayed in a hotel. I do not accept that his cousin was kidnapped or taken from the hotel. I do not accept that the applicant's cousin was hanged by her father or that she died because of, or for any reasons relating to, the applicant. I have accepted that the applicant's brother died. But I do not accept that his brother's death was in any way related to the applicant, or that because of his cousin's father and brother's connections with the police, they could not pursue the matter any further. I do not accept that the applicant was or will be perceived as having committed adultery, involved in illegitimate relationship, or brought shame to the families. I do not accept that the applicant moved between Erbil, Najaf and Baghdad due to fear of harm. I do not accept that the applicant is or was of adverse interest to his cousin's father, brothers, his or her uncles or other family members, any other relatives, tribes, the Iraqi government, the police or the other authorities, any militias or any other groups or persons because of the claimed relationship or past incidents. As such, I find that the applicant will not face a real chance of punishment, imprisonment or any harm on these bases now or in the reasonably foreseeable future.”
Having found that the applicant’s claims about his having had a relationship with his cousin lacked credibility, it was open for the Authority to find that Australia owed no protection obligations to the applicant. The Authority was not required to set out in minute detail each and every deliberative step it took before arriving at such conclusion. Having also rejected the proposition that the applicant’s profile was such that he would be targeted by the Authorities if he returned to Iraq, either by reason of his being a Shia, or alternatively, because he was a failed asylum seeker, it was open for the Authority to find that the applicant did not satisfy the refugee criterion under s. 36(2)(a) of the Act, or otherwise met the criteria for complementary protection under s. 36(2)(aa) of the Act.
The Court finds that it was reasonably open for the Authority to make the findings it did. The Authority had intellectually engaged upon a consideration of the applicant’s claims but had rejected them. The fact that the Authority found that the applicant’s account was implausible and that it was not persuaded by the applicant’s account does not equate with it having doubt as to whether such adverse findings as were made by it against the applicant were valid or not. It was simply the way in which the Authority expressed itself.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. [1] There is no merit to such ground.
[1] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135].
Ground 2 asserted that the Authority had failed to properly consider the applicant’s claims, and that it had in two respects made unreasonable findings of fact – namely:
(a)At [43] where the Authority said “I consider that if her family wished to kill, threaten or harm the applicant's family members as a means of washing their shame away, they would not have waited until 16 January 2013, about a month and a half after the claimed death of his cousin on 2 December 2012, to kill one of the applicant's brothers.”
(b)At [44] where the Authority said “I consider that if his cousin's father wished to kill the applicant to wash the shame away, he would not have ceased harassing the applicant's family members just because the applicant has left Iraq.”
It was submitted on behalf of the applicant that the Authority failed to intellectually engage with the admitted fact of the applicant’s brother’s death, and how that might have corroborated the applicant’s claims. It was submitted that the Authority’s treatment of that fact was only partial. There is no merit to such claim.
At [41] of its reasons, the Authority clearly found that in circumstances where there was no evidence as to who was responsible for the applicant’s brother’s death, it was speculative only to attribute the reason for such death to members of the applicant’s cousin’s family. So much was trite, and it was open for the Authority to so find.
At [42] of its reasons, the Authority noted that contrary to the applicant’s claims, the brother’s death certificate did not record that he had been killed by an “unknown” person. At [43] of its reasons, the Authority reasonably found that had there been a relationship between the applicant and his cousin, and had there been lingering desires on the part of the cousin’s family to involve itself in honour killings, such family would not have waited some 1.5 months after the alleged killing of the cousin until one of the applicant’s brothers was killed. At [44] of its reasons, the Authority intellectually engaged with the question as to why action against the applicant’s family had ceased since the applicant had departed Iraq, noting that lingering family shame would not be erased by such departure. The Court finds that there is no merit to the claims that the Authority failed to properly consider the applicant’s allegations or arguments.
Further, the Court finds that the test for legal unreasonableness had not been established, in that the findings of the Authority were not findings which no reasonable person could have arrived at. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:
“[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”
The findings of the Authority were based upon adverse credibility findings which did not lack a logical, rational or probative basis. [2] There is no merit to such ground.
[2] DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30].
The applicant has failed to establish jurisdictional error on the part of the Authority.
The grounds of review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 13 October 2022
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