ESD17 v Minister for Immigration

[2018] FCCA 870

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 870

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misapplied s 5J of the Act – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476

Cases cited:

S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473
SZTFI v Minister for Immigration and Border Protection [2015] 231 SCR 232

Applicant: ESD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3267 of 2017

Judgment of: Judge Street

Hearing date: 11 April 2018

Date of Last Submission: 11 April 2018

Delivered at: Sydney

Delivered on: 11 April 2018

REPRESENTATION

Counsel for the Applicant: Mr D Hughes

Solicitors for the Applicant: D'Ambra Murphy Lawyers

Counsel for the Respondents: Mr H P T Bevan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3267 of 2017

ESD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 of the Act made on 25 September 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia on 18 September 2012 as an unauthorised maritime arrival.

3. The applicant was found to be a Shia Muslim of Bidoon ethnicity and that he had been sexually assaulted as a child, that he had in judo at a professional level, and that he had been involved in an argument with some men whilst training in judo. The delegate did not accept that the men, the subject of the argument, were members of the Asa’ib Ahl-Haq (“AAH”) militia and that they threatened the applicant and killed two of his colleagues and his brothers.

4. The delegate concluded that the applicant did not face a real chance of persecution or any real risk of significant harm from militia groups due to being a failed asylum seeker or for any other reason. The delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa on 16 June 2017.

The Authority’s decision

1. By a letter dated 21 June 2017, the Authority informed the applicant that the matter had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information. That is consistent with the obligations of the second respondent when conducting a review under Part 7AA of the Act, because whilst there is a constraint by reason of the statutory provisions of the natural justice hearing rule, Part 7AA of the Act is not a process that is conducted in secret. Subject to the statutory provisions excluding the same, obligations of procedural fairness still apply to the exercise of statutory powers.

2. A review under Part 7AA of the Act is the subject of an exclusion referrable to the natural justice hearing rule, but that does not mean that the Authority would be entitled to conduct the review without informing the applicant that a review is taking place, or that the Authority would be entitled to conduct a review without giving an applicant an opportunity to put on submissions in respect of the review or an opportunity to put on new information. Further, the Authority would not be entitled, consistent with the requirements of procedural fairness if submissions were provided in response to the letter sent by the applicant, to ignore the same in the conduct of the review, unless immaterial, any more than it would be entitled not to determine and consider whether any new information met the criteria under the Act. In that regard, the Authority does have an obligation of procedural fairness in the nature of legal unreasonableness that applies in relation to Part 7AA of the Act.

3. In response to the letter in the present case, submissions were provided by the applicant on 11 July 2017 which were identified and considered in the Authority’s decision. The Authority’s reasons identified the background to the visa application and identified having regard to the material referred to by the Secretary under s 473CB of the Act. The Authority addressed the substance of the submissions and was satisfied that there were exceptional circumstances to consider the new information.

4. The Authority summarised the applicant’s claims, including that the applicant was sexually abused by his maternal uncle and some older neighbourhood boys from 2005 to 2007. The Authority noted in respect of that claim that the applicant has never discussed this with anyone or sought counselling. The Authority noted in that regard that the applicant fears that if his family find out about this he will be cut off from them and his father will blame him.

5. The Authority accepted the applicant was of Bidoon ethnicity and a Shia Muslim. In this regard, the applicant referred to the fact that when the applicant was abused by neighbourhood boys, they would tell other men that the Bidoon boy is available for these actions. The Authority referred to country information which identified that the social discrimination against the ethnic and religious minorities is widespread, but there was no evidence of targeted violence against Bidoon communities. The Authority accepted that while the applicant was the victim of some societal prejudices due to his ethnicity, the Authority did not consider it plausible that he was beaten by his teachers, that his father was beaten by the police, or that he was sexually abused due to being a Bidoon.

6. The Authority referred to an alleged incident in May of 2012 and identified inconsistencies in the applicant’s evidence and concluded that two particular people were not killed as a result of an altercation at the training centre in May 2012, and accepted it was plausible that some men may have come to the centre and complained that the students were making too much noise, but not did not accept that these men were members of a militia or that they took any further action against students. The Authority referred to a letter provided by the applicant which it found was not consistent with the timing of the events asserted by the applicant, and did not accept that the applicant received a threat from the AAH.

7. The Authority referred to the applicant’s claims concerning his family continuing to be of interest to the AAH, and concluded that these events were fabrications made to further the applicant’s claims for protection and concluded that there was no reason for the family to relocate to Iran to escape the actions of the AAH, and did not accept that they have left Nasiriyah.

8. Critically for the purpose of the present proceedings, the Authority, in paragraph 15, turned to the applicant’s claim that he was the victim of sexual abuse from the age of 10 to 12. Notwithstanding concerns in relation to the applicant’s credibility, the Authority accepted the claims at face value. The Authority referred to the submissions to the delegate and to the Authority, where the applicant’s representatives had stated that the applicant will face stigma from his society and will be at risk of harm from militias due to his being the recipient of abuse and the perception that he is homosexual. The Authority observed in this regard that the applicant remained in Iraq for some five years after the abuse ceased. The Authority noted that the applicant had not mentioned the abuse to anyone, and it would appear that the perpetrators did not boast of their crimes. The Authority also noted that the applicant stated that his family are unaware of the abuse. The Authority observed it has now been 10 years since the abuse ceased. The Authority considered it remote that these events would now become generally known in the community or to the applicant’s family, or that the applicant would be considered to be homosexual or otherwise stigmatised.

9. The Authority referred to having accepted that the applicant was the victim of sexual abuse from 2005 to 2007, and noted that it had not accepted that the essential or significant reason for this was his race (Bidoon), religion, nationality, membership of a particular social group or political opinion. The Authority concluded that it is remote that in the future the existence of this abuse will be generally known or that the applicant will be considered to be homosexual due to being a victim of such abuse. The Authority was not satisfied that the applicant faces a real chance of harm due to this.

10. Considering the applicant’s claim, the Authority was not satisfied the applicant would face a real chance of serious harm on return to Iraq. The Authority found the applicant did not meet the definition of “refugee” in s 5H(1) of the Act, and that the applicant did not meet the criteria under s 36(2)(a) of the Act.

11. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iraq from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. Mr Hughes, of counsel on behalf of the applicant, confirmed that ground 2 was not pressed and was abandoned.

2. The ground in the application is as follows:

   1. The IAA misapplied the test in s5J of the Migration Act 1958 (Cth).

   Particulars

   a. The applicant claimed that he would face persecution in Iraq because he had been sexually assault as a child and would be perceived as a homosexual.

   b. The IAA accepted that the applicant had been sexually assaulted, but found that he would not face harm in the future because the fact of his abuse would not be known: at [15].

   c. It was implicit in the IAA’s findings that the applicant would never himself disclose his abuse, whether to authorities, or family, or counsellors, or at all.

   d. The IAA was required to, but did not, turn its mind to the reason for its implicit finding that the applicant would not disclose the facts of his abuse, and did not consider whether the reason that the applicant would remain silent was because he feared persecution.

3. Mr Hughes of counsel submitted that the Authority had engaged in a jurisdictional error by failing to ask, in relation to paragraph 15 and the reasoning in relation to paragraph 24, why the applicant had remained silent. In that regard, Mr Hughes drew attention to submissions advanced on behalf of the applicant that the applicant had several unmodifiable characteristics that individually and cumulatively contributed to the unreasonableness of an impracticality of his relocation within Iraq. Reference was made to the submissions to the Authority that the applicant was a victim of child sexual abuse and a reference to a heading: ‘Stigma, Perceptions and Treatment’. Under that heading, there was relevantly included:

   Due to the stigma surrounding mental health, sexual abuse and perceived homosexuality in Iraq, the Applicant would risk facing harm anywhere in Iraq. Persecution within the theocracy of Iraq is widespread and fuelled by the forces of religious nationalism and ethnic antagonism.

4. Mr Hughes also drew attention to a heading ‘Access to support for child victims of sexual abuse in Iraq’, and the submission to the Authority included, relevantly:

   We submit that the Applicant would not be able to access adequate mental health facilities required to cope with the sexual abuse he suffered as a child if he was returned to Iraq.

5. Mr Hughes also drew attention to the delegate’s reasons in which the delegate referred to the applicant’s claims, and relevantly included in the third dot point:

   He was sexually abused and assaulted by his maternal uncle and other boys in the neighbourhood from 2005 to 2007. He has not told anyone of the abuse but fears his family will blame him if they found out. His uncle has left Iraq for America, however, people are still talking about what happened. He has not consulted with a counsellor and does not intend to speak to a counsellor.

6. Attention was also drawn in the submissions, in the second last dot point at page 159, to the effect:

   Being a victim of child sexual abuse, he would face stigma from his society and may be persecuted by militia groups on the basis that he was previously sexually abused by men or on the basis that he is perceived to be homosexual.

7. Mr Hughes also took the Court to the submissions put to the Authority which relevantly included the reference to the applicant’s claim as referred to above on page 187 and at 188 included:

   She emphasised that applicant would face serious harm due to his particular and unmodifiable characteristics and behaviours. These include his ability to speak English, his Westernised demeanour and accent. The applicant fears serious harm from members of the same tribe because of the previous sexual abuse he suffered. He also fears his family finding out information in relation to the sexual abuse he suffered at the hands of his relatives and members of his tribe. He fears that his tribe would disown him and this is significant in a country where tribal links and family ties are needed to subsist. Being a victim of child sexual abuse, he would face stigma from his society and may be persecuted by militia groups on the basis that he was previously sexually abused by men or on the basis that he perceived to be homosexual.

8. Mr Hughes submitted that because the applicant had never mentioned abuse to anyone, that the Authority had reasoned that the applicant was unlikely to do so in the future, and that the error lay in the Authority failing to investigate the reason for the applicant’s future silence. Mr Hughes submitted that the applicant had claimed to fear harm from others if the abuse were to become known by reason of the submissions referred to above.

9. Mr Hughes submitted that the case fell within the principle identified in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473 (“S395/2002”) at [43]. Mr Hughes took the Court also to the passages in the reasons of the matter Perry J in SZTFI v Minister for Immigration and Border Protection [2015] 231 SCR 232 at [64] to [69] and [77] to [82]. Mr Hughes submitted that the applicant’s silence was behaviour, and that the Authority had failed to ask the question why the applicant had remained silent and, that on the material before the Authority, the Authority had failed to address whether that was because of a fear of a relevant attribute, namely, being perceived to be homosexual, or by reason of other societal family ostracising abuse that the applicant may face.

10. Mr Hughes submitted that the Authority had failed to comply with the requirements of s 5J(3) of the Act which are as follows:

    (3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a) conflict with a characteristic that is fundamental to the person's identity or conscience; or

    (b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

1. I do not accept that the Authority made an assumption in relation to modification of the applicant’s behaviour. I do not accept that the applicant, by reason of having remained silent in respect of the past state of affairs, was engaging in conduct that was modifying behaviour. It was the applicant remaining silent in respect of the past state of affairs and not due to a current attribute. I do not accept that the principle identified in S395/2002 has application in the present case as there is no modification of conduct that required the Authority to ask why the applicant remained silent. There was no error in the reasoning of the Authority.

2. Accordingly, no jurisdictional error as alleged in ground 1 is made out.

3. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 June 2018