Eql17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 4)
[2021] FCCA 1263
•25 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EQL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 4) [2021] FCCA 1263
File number(s): SYG 3227 of 2017 Judgment of: JUDGE DRIVER Date of judgment: 25 June 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant not believed – whether the Authority misunderstood or misapplied the real chance test or the meaning of “serious harm” considered – no jurisdictional error Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 5J, 36, 477
Cases cited: AA (Article 15(c)) Iraq CG [2015] UKUT 544
CEO19 v Minister for Immigration [2020] FCCA 1472
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Craig v South Australia (1995) 184 CLR 163
EQL17 v Minister for Immigration & Anor (No 2) [2020] FCCA 2008
EQL17 v Minister for Immigration & Anor(No 3) [2020] FCCA 2078
EQL17 v Minister for Immigration & Anor [2020] FCCA 1512
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Number of paragraphs: 61 Date of hearing: 14 May 2021 Place: Sydney Counsel for the Applicant: Mr D Hughes Solicitor for the Applicant: D’Ambra Murphy Lawyers Counsel for the Respondents: Mr N Swan Solicitors for the Respondents: Mills Oakley ORDERS
SYG 3227 of 2017 BETWEEN: EQL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
25 JUNE 2021
THE COURT ORDERS THAT:
1.The application filed on 23 February 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 3 August 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
This matter has a convoluted procedural history, which I deal with below.
The applicant is a male citizen of Iraq and a Shia who arrived in Australia on 2 May 2013 as an irregular maritime arrival[1]. He participated in an arrival interview on 2 June 2013[2]. On 22 July 2016, he lodged an application for a protection visa[3].
[1] Court book (CB) 124
[2] CB 2-27
[3] CB 28-65
The applicant set out his protection claims in a written statement accompanying his visa application. In summary, he claimed[4];
(a)he was from a named region of Iraq (location A);
(b)he worked in a machinery shop and became a “heavy machinist driver”;
(c)in 1999, he bought a taxi which he later sold to buy a mini-bus which he used to transfer people between Samawa and Baghdad;
(d)in 2010, he was asked to join the Al-Sadar militia. He said “let me think about it” because any other answer would mean he was “with them or against them”;
(e)in 2011, a friend who was also transporting military personnel received a threatening message not to transfer military people anywhere. He ignored the threat and he was killed. The applicant reported the threat to the police but they told him there was not much they could do and he should arrange his own protection. The applicant decided to leave Iraq.
[4] CB 66-72
On 21 February 2017, the applicant attended an interview before the delegate where he made the following additional claims[5]:
(a)in late 2012, Al-Sadar threatened to kill him after he complained about electricity being cut off in his neighbourhood;
(b)in 2013, Al-Sadar spoke to the applicant’s brother three times in one week, asking the applicant to join them;
(c)on 1 March 2013, someone found a letter issued by Al-Sadar naming the applicant as a collaborator with the Americans and threatening him because he had transported plain clothed Iraqi military personnel to an American base in Mosul;
(d)since leaving Iraq, Al-Sadar asked the applicant’s brother about his whereabouts 10-15 times;
(e)he feared harm from Al-Sadar if he returns to Iraq and on the basis of his Shia religion.
[5] CB 126-127
On 28 April 2017, the delegate refused to grant the applicant a temporary protection visa[6], and the matter was referred to the Authority on 3 May 2017[7].
[6] CB 124-139
[7] CB 140-149
On 2 June 2017, the applicant’s authorised recipient sent the Authority an appointment of representative[8] and submissions for the applicant (the June 2017 submissions)[9].
[8] CB 150-151
[9] CB 153-154
As noted above, on 3 August 2017, the Authority affirmed the decision under review[10].
[10] CB 156-172
Authority’s decision
The Authority did not find the applicant to be a credible witness, found there were myriad inconsistencies in his evidence, and that elements of his evidence was “circular and nonsensical”. In summary;
(a)the Authority found the June 2017 submission addressed the delegate’s decision and was not new information. It “noted” the submission. The Authority also obtained new information in the form of a 2017 DFAT[11] information report published on 26 June 2017 in relation to Iraq and was satisfied there were exceptional circumstances to consider it (the 2017 DFAT Report)[12];
(b)the Authority accepted the applicant was a Shia Muslim of Arab ethnicity from location A. It also accepted the applicant’s claims about his early life; experiences during the Iraq-Iran War, the Gulf War and after the fall of Saddam Hussein; and work history[13].
(c)the Authority accepted DFAT’s assessment in the 2017 DFAT Report that individuals who had worked with or were associated with the international community faced a high risk of societal discrimination and a moderate risk of societal violence. Although it noted the applicant may not have a “photographic memory” of events that occurred some years ago, it held significant concerns about the applicant’s credibility as a witness in relation to his key claims and found that his responses to the delegate’s questions about inconsistencies in his evidence were “were often vague and evasive”[14];
(d)despite general concerns about the applicant’s credibility, the Authority accepted it was plausible that the applicant was aware of drivers who were threatened, injured or killed by Al-Sadar for transporting military personnel. It was prepared to accept that the applicant may have transported Iraqi military personnel dressed in plain clothes to a military base in Mosul, but noted this key claim was not mentioned by the applicant at his entry interview[15];
(e)however, the Authority did not accept the applicant was asked to join Al-Sadar in early 2010 or again in early 2013 or that Al-Sadar issued a letter in March 2013 personally threatening to kill the applicant for transporting plain clothes military personnel to the Mosul base. The Authority found the applicant’s evidence about these claims was “inconsistent and vague”. The Authority also noted further inconsistencies between the applicant’s evidence at the entry interview, in his written claims and at the protection visa interview in relation to the events leading up to his departure from Iraq. It found that the applicant’s evidence that he faced threats from Al-Sadar because they wanted him to join them whilst he also claimed that they threatened him for being an American collaborator was “circular and nonsensical”. Since the Authority did not accept the applicant was threatened by Al-Sadar, it also did not accept that he went to the police, he went into hiding for a month or that since he departed Iraq his brother has been questioned 10-15 times by Al-Sadar as to his whereabouts[16];
(f)the Authority had regard to country information that indicated Shia communities in Iraq were subject to indiscriminate and targeted violence from ISIL;[17] the violence against Shias was largely aimed at destabilising the government and increasing tensions between Sunnis and Shias, rather than at specific individuals; and Shias in Shia areas other than Baghdad (such as the south) faced a lower risk of violence. The Authority accepted that the applicant: could have observed looting, been stopped at checkpoints and had money stolen; and may have had a subjective fear of Sunni and Shia political parties and militias. However, it found he had not claimed to have suffered any adverse treatment at the hands of any such party or militia, other than Al-Sadar[18];
(g)although not expressly claimed, the Authority also considered the risk of harm to the applicant on the basis of his Shia religion and the general security situation in Iraq. Having regard to the applicant’s evidence about his religious practices and the country information previously considered, the Authority found that the chance the applicant would suffer harm due to his Shia religion or the security situation in Iraq was “less than remote”[19];
(h)in addition, the Authority considered the risk of harm to the applicant as a failed asylum seeker and returnee from a Western country. On the basis of country information that indicated returnees from Australia had generally been able to re-establish themselves in Iraq provided they returned to their original community and the applicant’s evidence that his wife, children and siblings continued to live in location A, the Authority found that there was not a real chance of harm to the applicant as a failed asylum seeker and returnee from a Western country. Accordingly, the Authority concluded that the applicant did meet s 36(2)(a) of the Migration Act 1958 (Cth) (Migration Act)[20]; and
(i)in assessing the applicant’s claims against the complementary protection criterion, the Authority found that since “real risk” and “real chance” involved the application of the same standard, it was not satisfied the applicant would face a real risk of significant harm for the reasons claimed and found he did not meet s 36(2)(aa) of the Migration Act[21].
[11] Department of Foreign Affairs and Trade
[12] CB 160, [4]-[5]
[13] CB 160-161, [6]-[13]
[14] CB 162-163, [23]-[25]
[15] CB 163, [26]
[16] CB 163-164, [27]-[32]
[17] Islamic State of Iraq and the Levant
[18] CB 164-165, [36]-[37]
[19] CB 166, [44]-[45]
[20] CB 166-167, [46]-[50]
[21] CB 167-168, [53]-[55])
Judicial review proceedings
On 18 October 2017, the applicant applied to this Court for review of the Authority decision. The applicant required an extension of time under s 477(2) of the Migration Act to bring an application for judicial review of the Authority’s decision dated 3 August 2017. The applicant did not attend a scheduled callover on 14 March 2019 and the application was dismissed by Judge Barnes.
On 20 March 2019, the applicant filed a reinstatement application and on 12 June 2020, Judge Barnes delivered judgment setting aside the orders that dismissed the application[22].
[22] EQL17 v Minister for Immigration & Anor [2020] FCCA 1512
The application for an extension of time was listed for a hearing on 22 July 2020 by Microsoft Teams before Judge Street. The applicant did not appear and the matter was again dismissed for non-appearance.[23] Later that day, the applicant was able to appear, the matter was reinstated and the hearing of the application for an extension of time proceeded on 22 July 2020.
[23] EQL17 v Minister for Immigration & Anor (No 2) [2020] FCCA 2008
On 31 July 2020, Judge Street dismissed the application for an extension of time after finding that nothing raised by the applicant identified any arguable case of relevant error[24].
[24] EQL17 v Minister for Immigration & Anor(No 3) [2020] FCCA 2078
On 4 September 2020, the applicant filed an application under s 39B of the Judiciary Act 1903 (Cth) to seek review of the decision of this Court dated 31 July 2020.
On 18 January 2021, orders were made by consent quashing the orders and reasons for judgment of the Federal Circuit Court in EQL17 v Minister for Immigration & Anor (No 3)[25] and remitting the application for an extension of time to this Court for determination.
[25] [2020] FCCA 2078
THE CURRENT PROCEEDINGS
As noted above, these proceedings began with a show cause application filed on 18 October 2017. In that application the applicant did not seek an extension of time, although it had been filed out of time. That was remedied in an amended application filed on 11 July 2019.
On 2 February 2021 I granted leave for the applicant (who was then legally represented) to file and rely upon a further amended application. That was filed on 23 February 2021 and contains the following two particularised grounds:
1.The respondent authority (IAA) misunderstood the real chance test in s 5J(1)(b) of the Migration Act 1985 (Cth) and so made a jurisdictional error.
Particulars
a. The applicant made a claim that he feared harm in Iraq by reason of his Shia faith.
b. The IAA considered that claim, and had regard to country information that violence targeting Shias in “largely” aimed at destabilising the government rather than at specific individuals, that Shias in Baghdad face a “moderate” risk of violence, whereas Shias in other Shia areas face a “lower” risk of violence: at [36].
c. On the basis of this country information, the IAA found that the applicant faced a “less than remote chance” of suffering harm due to his Shia religion: at [45].
d. This finding was not open on the Country information referred to. Taken at its highest, a risk of violence that is “lower” than “moderate” does not rule out a real chance of the violence. It is to be concluded that the IAA misunderstood or misapplied the real chance test in s 5J(1)(b) of the Act.
2.The IAA misapplied the definition of “serious harm” in s 5J(5) of the Act, overlooked the applicant’s claims or an integer of his claims or evidence, and so made a jurisdictional error.
a. The applicant claimed to fear harm as a person returning to Iraq from the West.
b. The Delegate found (at page 11) that a person returning to Iraq will be returned to Baghdad in the first instance, and that country information supports that there is not a ‘real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates suffering serious harm on their journey’. In supporting of this proposition, the delegate referred to the UK Home Office “Country Information and Guidance Iraq: Return/Internal relocation” dated 18 August 2016 (Home Office Guidance).
c. The IAA adopted the delegate’s finding as to the Home Office Guidance (at [47]), and in reliance on the Home Office Guidance concluded that there was not a real chance that the applicant will suffer harm due to being a failed asylum seeker and a returnee from a Western Country: see [49].
d. In adopting and relying on the Home Office Guidance, the IAA overlooked and failed to consider that the conclusion about serious harm in the Home Office Guidance was expressly directed to the definition of “serious harm” contained in Article 15(c) of the Qualification Directive (UK).
e. The definition of “serious harm” in Article 15(c) is narrower and materially different to the definition in s 5J(5) of the Act. Article 15(c) states that serious harm consists of… (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”.
f. By relying on and adopting the Home Office Guidance, the IAA constructively misapplied the “serious harm” test in s 5J(5).
g. Further, the IAA in its reasoning at [45] incorrectly characterised the applicant as “an ordinary civilian”, and so failed to consider the applicant’s claims to be a Shia who had transported military personnel (at [26]). That profile took the applicant outside that of an “ordinary civilian”, and it was that profile that the IAA was required to assess when travelling from Baghdad airport to the southern governorates. For instance, the DFAT Country Information Report on Iraq, 26 June 2017, contained information that “Violence targeted at Shias is particularly prominent in Baghdad” and “Shias in Baghdad face a moderate risk of violence”. The IAA failed to consider these claims.
In that application, the applicant maintained his request for an extension of time. The matter was listed before me on 14 May 2021 for an interlocutory hearing on the extension of time issue. The orders that I had made on 2 February 2021 also listed the matter for a final hearing on the same day if time was extended.
On 14 May 2021 I granted the extension of time sought. The extension of time having been granted after reasonably extensive oral submissions, the parties’ representatives elected to rely upon their submissions in chief on the extension of time issue for the purposes of the immediately following final hearing, save that counsel for the applicant made oral submissions in reply.
I received the following evidence:
(a)the court book filed on 15 December 2017;
(b)the applicant’s affidavit made on 10 July 2019 (limited to the extension of time issue);
(c)the affidavit of Justin Moyes made on 22 February 2021, to which is annexed UK Home Office country information and guidance in relation to Iraq published in August 2016;
(d)the affidavit of Mr Moyes made on 3 May 2021, to which is annexed a country guidance decision by the UK Upper Tribunal promulgated on 30 October 2015; and
(e)the further affidavit of Mr Moyes made on 3 May 2021, to which is annexed the 2017 DFAT Report concerning Iraq published on 26 June 2017.
CONSIDERATION
Ground 1 – did the Authority misunderstand the real chance test?
Applicant’s contentions
In considering the applicant’s claim to fear harm in Iraq as a Shia Muslim, the Authority considered country information, which it described[26] as follows:
According to DFAT Shia communities are subject to both indiscriminate and targeted violence at the hands of ISIL. However DFAT assesses that violence targeted at Shias is largely aimed at destabilising the Government and increasing tensions between Sunnis and Shias, rather than at specific individuals. Violence between opposing Shia militias (including those that fall under the umbrella of the Popular Mobilisation Forces (PMF)) does occur and is more pronounced in Shia areas (such as Baghdad and the south). This is sometimes linked to other criminal activities, including robberies and kidnappings. Credible in-country contacts suggest that the risk of being caught up in intra-Shia violence is predominantly borne by those who are actively involved in the militia or tribal group, rather than ordinary civilians who may be perceived to be part of a militia or tribal group’s constituency. DFAT concludes that Shias in Baghdad face a moderate risk of violence, whereas Shias in other Shia areas (such as the south) face a lower risk of violence.
[26] at CB 164, [36]
The Authority accepted that the applicant had a subjective fear of Shia and Sunni political parties and militias but had not claimed to have personally suffered any adverse treatment at their hands other than from the Al-Sadar Militia[27]. The Authority also noted that the applicant normally prayed at home, and only attended the mosque during Ashura[28].
[27] [37]
[28] [44]
The Authority then synthesised those considerations as follows:[29]
On the basis of the applicant’s evidence and country information cited previously, I find there is less than a remote chance now or in the foreseeable future the applicant will suffer harm due to his Shia religion or the security situation in Iraq.
[29] CB 166, [45]
There is said to be a contradiction between the Authority’s conclusion, and its acceptance that Shias in Baghdad face “a moderate risk of violence”, and those in other areas face a “lower” risk of violence.
The real chance test is not an onerous test (a 10% chance can suffice)[30].
[30] see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429. See also Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572
A moderate risk of harm would plainly meet this requirement. As I stated in CEO19 v Minister for Immigration[31]:
The assessment of “moderate risk”, as defined, gave to the risk of harm a systematic or targeted quality. Having accepted from the 2019 Report that the applicant faced a higher level of risk in his home region than other Shias in the former FATA the Authority could not, in my view, arrive at a conclusion that the risk he confronted was “remote” without explaining how and why the Authority departed from the assessment of “moderate risk” in the 2019 Report.
[31] [2020] FCCA 1472 at [54]
The applicant contends that a decision-maker correctly applying the test could therefore not have come to the Authority’s conclusion based on the findings that it made. That contradiction is said to point to jurisdictional error.
The applicant submits that, in the premises, it was not open to the Authority to conclude on the basis of its findings that the applicant did not face a real chance of persecution by reason of his Shia faith. The Authority did not analyse if the applicant faced a “lower” than moderate risk, or the extent to which the risk was lower.
The applicant submits that the only available inference is that the Authority must have misconstrued the “real chance” test in s 5J of the Migration Act and so made an error of law going to jurisdiction.
Minister’s contentions
The first ground alleges the Authority misunderstood the real chance test in s 5J(1)(b) of the Migration Act because it referred [32] to the 2017 DFAT Report which stated that Shias in Baghdad faced a “moderate risk” of violence, whereas Shias in other areas (such as the south) faced a “lower” risk of violence. The applicant submits that this is a contradiction, and that a risk of violence that is lower than moderate does not rule out a real chance of violence.
[32] at CB 164, [36]
Relevantly, the applicant consistently claimed (in his written statement and to the delegate) that he lived in the southern provinces of Iraq [33] and that he would not be able to relocate in Iraq[34]. The Authority did not dispute that he would be returning to the south.
[33] CB 68, 132-133
[34] CB 162, [21]
First, it is not clear how it was in any way a “contradiction” for the Authority to refer to the 2017 DFAT Report, and then to later find[35] that there was less than a remote chance that the applicant would suffer harm due to his Shia religion or the security situation in Iraq.
[35] at CB 166, [45]
To the extent that the applicant contends that the Authority needed to consider whether the “lower risk of violence” that the applicant could face in the South (where he claimed he would be returning) was so low that it was “less than a remote chance”, such a complaint is misguided. There is nothing contradictory about the Authority referring to country information that indicated Shias in southern areas faced a “lower risk” of violence relative to the risk faced in Baghdad, and then finding that this risk constituted “less than a remote chance of harm”.
Crucially, this ground misrepresents the Authority’s findings. The Authority did not find there was less than a remote chance of the applicant facing harm simply because it could be inferred from a single sentence in a DFAT report that the applicant faced a “lower” than moderate risk of harm. The Authority also found that[36]:
(a)country information indicated that: violence targeted at Shias was largely aimed at destabilising the government and not at specific individuals; and the risk of being exposed to intra-Shia violence was predominantly borne by those who were “actively involved in the militia or tribal group, rather than ordinary civilians who may be perceived to be part of a militia or tribal group’s constituency” (emphasis added)[37];
(b)the applicant had not claimed that he had personally suffered any adverse treatment at the hands of any Shia or Sunni political parties or militias, apart from the Al-Sadar militia (a Shia militia)[38] and the Authority did not accept those claims of harm[39];
(c)the applicant had claimed that he only prayed at home, not in mosques, and that he only attended the mosque during Ashura (a day of mourning)[40]; and
(d)the applicant did not particularise his claims to fear harm from a range of Shia and Sunni political parties apart from a “vague reference to a robbery”[41].
[36] at CB 164-166, [36]-[42]
[37] CB 164, [36]
[38] CB 165, [37]
[39] CB 163, [27]-[28]
[40] CB 166, [44]
[41] CB 166, [44]
The real chance test in s 5J requires “a substantial, as distinct from a remote chance, of persecution occurring.”[42] In circumstances where the country information indicated the applicant faced a “lower” than moderate risk of violence, and having regard to the matters identified above, it is clear the Authority did not misunderstand the real chance test, that it asked itself the question that it was required to ask, and answered it in the negative when it found[43] there was “less than a remote chance” that the applicant would suffer harm due to his religion or the security situation in Iraq.
[42] Chan at 389
[43] at CB 166, [45]
Resolution
I prefer the Minister’s submissions concerning the first ground. This case can be distinguished on its facts from my earlier decision in CEO19. In that case, it was an established fact that the applicant faced a higher level of risk in his home region than others in circumstances where the general risk was described in the DFAT Country Report as “moderate”. The Authority in that case had not explained how it arrived at a finding of “remote risk” in those circumstances.
In the present case, the assessment of a “moderate risk” related to Baghdad, whereas the applicant would be returning to the south, where the risk of violence was lower. In the present case, the Authority’s finding is clear and explicable.
I reject the first ground.
Ground 2 – did the Authority misapply the “serious harm” test?
Applicant’s contentions
As noted above, the Authority considered whether the applicant faced a risk of harm as a failed asylum seeker or returnee from a western country.
The delegate had found[44] that generally a person returning to Iraq “will be returned to Baghdad in the first instance.” The delegate then referred to country information which “supports” that there is not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorate suffering serious harm on their journey.
[44] CB 134
Footnote 39 on CB 134 identifies the source of the country information referred to by the delegate. It is a report by the UK Home Office dated 18 August 2016 (Home Office Report). As noted above, a copy of the Home Office Report is annexed to the affidavit of Mr Moyes made on 22 February 2021.
When considering this claim, the Authority also looked to country information which it summarised[45]. The only country information identified by the Authority to directly address the risk of harm was the Home Office Report. The Authority stated the following about that report:
The UK Upper Tribunal concluded that there is not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates suffering serious harm en route to such governorates.
[45] at CB 166-167 [47]
Footnote 8 makes clear that the Authority was relying on paragraph 2.2.18 of the Home Office Report. That paragraph reads:
Unless they are returned to the KRI, a person will be returned to Baghdad in the first instance. Therefore, when considering internal relocation to the southern governorates…, decision makers must consider whether the person will be harmed on the journey there from Baghdad. Decision makers must note that the UT concluded that there is not a ‘real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates suffering serious harm en route to such governorates so as to engage Article 15(c) of the QD’ (paragraph 117).
The reference to “paragraph 117” is a reference to that paragraph of the decision of the UK Upper Tribunal (Immigration and Asylum Chamber) in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC) (AA) (a copy of which I received). The reference to “Article 15(c) of the QD” is a reference to Article 15(c) of the Council Directive 2004/83/EC which is known as the “Qualification Directive”.[46]
[46] see AA at [2]
Article 15 is extracted in AA at [83]. It provides:
Serious harm consists of:
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; and
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
The important point to note is that the definition of “serious harm” in Article 15 is narrower than the definition in s 5J(5) of the Migration Act.
The applicant contends that the Authority therefore erred by implicitly accepting and adopting a different test to the statutory test that it was bound to apply. It is said to follow that the Authority applied a test that was different to the statutory test that it was obliged to apply, and so made a jurisdictional error[47].
[47] Craig v South Australia (1995) 184 CLR 163
Additionally, in its reasoning[48], the Authority is said to have incorrectly characterised the applicant as “an ordinary civilian”, and so failed to consider the applicant’s claims to be a Shia who had transported military personnel (something that the Authority accepted[49]). The applicant submits that that profile took the applicant out of that of an “ordinary civilian”, and it was that profile that the Authority was required to assess when considering the risk to the applicant travelling from Baghdad airport to the southern governorates. There was material before the Authority that was relevant to this question. By way of example, the applicant points to the 2017 DFAT Report of 26 June 2017[50] which contained information that “violence targeted at Shias is particularly prominent in Baghdad” and “Shias in Baghdad face a moderate risk of violence”[51]. As noted above, I also received a copy of that report.
[48] at [45]
[49] at [26]
[50] which was referred to by the Authority in footnote 3, CB 163
[51] at [3.32] & [3.34]
The applicant contends that the Authority made a further jurisdictional error in overlooking this aspect of the applicant’s claim and this important material[52].
[52] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister’s contentions
Properly understood, this ground contains two complaints:
(a)the Authority at [47] misapplied the “serious harm” test because it relied on the Home Office Report, which contemplated a “narrower” definition of “serious harm” contained in Article 15(c) of the Qualification Directive than the definition in s 5J(5) of the Migration Act; and
(b)the Authority overlooked the applicant’s claims to be a Shia who transported military personnel and incorrectly characterised him as an “ordinary civilian”.
First, there is no evidence that the Authority was somehow contemplating a different “serious harm” test simply because it referred to the Home Office Report, nor could this be inferred simply because the Authority extracted a section of the Home Office Report which referred to the existence of a “real risk”. Such a line of argument is inviting the Court to adopt an artificial interpretation of the Authority’s reasons.
The mere fact that the Authority used the term “serious harm” does not mean that it somehow “misapplied” the definition. An extract from the Migration Act was reproduced as an annexure to the Authority’s decision, including s 5J(5), which further reinforces the clear inference that the Authority clearly understood the definition of “serious harm” that it was required to apply[53]. The Authority also appreciated that the “real risk” and “real chance” tests involved the application of the same standard and cited Minister for Immigration and Citizenship v SZQRB.[54] That case includes a detailed breakdown of the legislative scheme in relation to protection visas and, most relevantly, extrapolates the criterion for a protection visa as provided for in s 36(2) of the Migration Act[55].
[53] CB 169-172
[54] (2013) 210 FCR 505
[55] see SZQRB at [67]
There was nothing impermissible about the Authority relying on the Home Office Report or referring to its use of the term “real risk”. Plainly, it was relevant and directly applicable to the applicant’s circumstances given he would be travelling to the “southern governorates”.
Secondly, the complaint that the Authority incorrectly considered the applicant an “ordinary civilian” should not be made out. Whilst the Authority[56] was “prepared to accept that as a mini-van driver the applicant may have transported Iraqi military personnel”, it also later noted that the applicant had claimed he stopped working as a driver transporting military personnel and found that “more than four years have passed since the applicant left Iraq and there is no evidence before me to suggest that if returned to Iraq he would recommence driving military personnel”[57]. The Authority effectively did consider the applicant would be returning as an “ordinary civilian” and assessed him against that profile.
[56] at [26]
[57] CB 166, [42]
The Authority[58] also found that country information suggested that the risk of being implicated in intra-Shia violence was predominately borne by those who were “actively involved in the militia or tribal group, rather than ordinary civilians who may be perceived to be part of a militia or tribal group’s constituency”. Clearly, the Authority was making the point that, contrary to those actively involved in the militia and tribal groups, the applicant was only an ordinary civilian, notwithstanding the fact that it had accepted the applicant’s claims that he may have, in the past, transported military personnel. Similarly, it was clearly contemplating the applicant’s profile when it referred to the Home Office Report and the risk to an “ordinary civilian” travelling from Baghdad airport to the southern governorates.
[58] CB 164, [36]
Resolution
I also prefer the Minister’s submissions in relation to the second ground. The Authority was entitled to have regard to the Home Office Report and the decision of the UK Upper Tribunal in AA. The mere fact that the concept of “serious harm” or “real risk” may carry a different meaning, or shade of meaning, in the UK than in Australia does not establish that the Authority misapplied either of those terms. I agree with the Minister that the Authority’s reasoning indicates that it understood the definition of “serious harm” that it was required to apply. As the Minister notes, the Authority also appreciated that the “real risk” and “real chance” tests involve the application of the same standard.
Further, by reference to the Minister’s submissions, I do not accept that the Authority fell into any error in considering the applicant’s profile.
I reject the second ground.
CONCLUSION
The applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 25 June 2021
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