EVA17 v Minister for Immigration

[2018] FCCA 1048

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVA17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1048

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection (Class XD) visa – whether the Authority failed to consider relevant material – whether the Authority failed to identify or provide plausible reasoning in respect of the applicant’s claims – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: EVA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3361 of 2017

Judgment of: Judge Street

Hearing date: 30 April 2018

Date of Last Submission: 30 April 2018

Delivered at: Sydney

Delivered on: 30 April 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr L Dennis
MinterEllison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3361 of 2017

EVA17

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 18 October 2017 affirming the decision of the delegate not to grant the applicant a Temporary Protection (Class XD) 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 as an unauthorised maritime arrival on 19 August 2013.

3. The applicant claimed to fear harm from the Mahdi army because he had worked as a policeman in Mosul and Baghdad working with officers of the US Army. The applicant alleged he was threatened through his brother and that a religious court order had been issued in 2006 for him to be killed by the Madhi army. The applicant also alleged his father was shot in 2012 by the Madhi army and the applicant claimed to feared harm from sectarian violence and claimed that he would be targeted by the Madhi army.

4. On 16 August 2017, a delegate refused the applicant’s application for a protection visa and made adverse findings in relation to the applicant’s claims.

The Authority’s decision

1. On 22 August 2017, the Authority wrote to the applicant identifying that the application for a protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did provide submissions dated 11 September 2017 which were referred to and considered in the Authority’s reasons.

2. The Authority found the applicant was a Shia Muslim from the Dhi Qar province in Iraq. The Authority had regard to the information referred under s 473CB of the Act by the Secretary. The Authority referred to information provided with the submissions that was not before the delegate and having referred to both limbs of s 473DD of the Act was not satisfied that there were exceptional circumstances to justify considering that new information. Insofar as the submissions engaged with the Authority’s decision and findings, the Authority had regard to that information. The Authority also took into account a more recent DFAT country report consistent with the Authority’s powers under s 473DE(3)(a) of the Act.

3. The Authority identified the applicant’s claims for protection and identified that the applicant has his mother and several siblings who remain in his family home in Iraq. The Authority made reference to the applicant’s claims concerning a threat from the Madhi army. The Authority noted the applicant’s claim in relation to the men who provided information to his brother that they had a letter which was a religious Court’s order for him to be killed and that this information was provided to him in October or November 2006. That threat was made through his brother in a particular location and the applicant had never claimed to have worked or lived in that particular location.

4. The applicant was based some distance away from where his brother was. It was in those circumstances, the Authority did not consider it plausible that three Madhi army militia would encounter and recognise him in a different location as being the brother of a police officer who was stationed at a different place at a time when they were holding an order for his death from a religious Court. The Authority did not accept the applicant received a threat from the Madhi army or any other militia as claimed.

5. The Authority found the applicant left the police force at the end of 2006 to live in another area 20 kilometres from his home town where many of his relatives lived. The Authority found the applicant was not of any interest to the militia groups once he left the police force. The Authority made reference to the applicant’s claims concerning his father and accepted that his father was shot and that the family did not see the perpetrator. In considering whether this was associated with the applicant, the Authority took into account that this was in 2012 and that the Authority had rejected the applicant’s claim that he had been threatened by the Madhi army and also took into account where the applicant was living at the time that his father was shot. It is in those circumstances, as well as taking into account country information, that the Authority was satisfied that the applicant’s father’s death in 2012 had nothing to do with the applicant’s profile or his former employment. The Authority did not accept the applicant deserted the police force and found that the applicant had resigned.

6. The Authority identified the relevant law. The Authority concluded in relation to sectarian violence that it was not satisfied this would give rise to a real chance that the applicant would face serious harm should he return to Iraq. The Authority was not satisfied the applicant faced a real chance of harm on the basis of the time he spent in Australia or by reason of having unsuccessfully sought asylum in Australia. The Authority was not satisfied that the applicant’s profile was such that he 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 satisfy the criteria under s 36(2)(a) of the Act.

7. The Authority found there are 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 would 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. On 30 November 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents had been filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that in summary this meant the Court was considering the applicant’s grounds in the application filed by the applicant and also considering whether the Authority’s decision was unlawful or unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision of the Authority would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing explained by the Court.

4. The applicant confirmed that he had received the first respondent’s submissions and the Court summarised the first respondent’s submissions to the applicant.

The applicant’s submissions form the bar table

1. From the bar table, the applicant maintained that he had received a threat from the Madhi army and that he was a person who was at risk and made reference to other persons having been taken out of Iraq who had assisted the forces in Iraq. The applicant made reference to the threat through his brother and the reasoning that he was not in the same location as his brother and suggested from the bar table that he was in hiding at that time of the threat.

2. When the Court raised with the applicant that his statement did not identify that he was in hiding at the time of the threat, the applicant then indicated he went into hiding after the threat. The applicant maintained it was not safe for him in Iraq and the applicant reasoned that his father had been killed because of the threat he had received from the Madhi army.

3. From the bar table, the applicant otherwise referred to thousands of people having been granted refugee status and maintained that he would be killed if returned to Iraq and that he knew the situation in Iraq and that he wanted to stay in Australia. The Court repeated the explanation to the applicant that the Court has no power to decide the matter on the merits of the application or on compassionate grounds. The Court explained that it had no power to grant relief on discretionary grounds. The Court repeated that it was confined to considering whether the Authority’s decision was unlawful or unfair and that the Court could not grant relief unless satisfied that the Authority’s decision was unlawful or unfair.

4. I accept the first respondent’s submissions that what was said by the applicant from the bar table invited the Court to engage in impermissible merits review. The Authority did address the applicant’s claims concerning the Madhi army as summarised above. Those reasons took into account the different location of the applicant and his brother. The adverse finding in that regard was open on the material before the Authority and cannot be said to be illogical or unreasonable. No explanation of hiding was advanced by the applicant to the Authority. Nothing said by the applicant identified any relevant legal error by the Authority.

5. The grounds of the application are as follows:

   1. The Second Respondent has reached a mistaken conclusion and failed to consider relevant material in determining that there is no evidence to suggest that the families of any individuals associated with the Government are targeted by armed groups as a matter of course.

   Particulars

   a) Paragraph 10 of the second respondent’s decision makes this comment.

   b) There is country information which highlights the families of government employees are personally targeted as a result of their employment.

   2. The Second Respondent has failed to identify or provide plausible reasoning in relation to the aspects of claims that my father was killed by the Mehdi army.

   Particulars

   a) The Second accepts that my family was shot and killed outside his home. They do not accept that my claim that he was shot by the Mehdi army but do not provide any plausible reason as to who killed him, yet they make the comment that it is safe to return to this area and country.

   b) If the Department is unsure as to who killed my family, then I should have a positive finding on complementary protection as to the threat against my life.

Ground 1

1. In relation to the applicant’s complaints concerning the finding of the Authority, both orally and in ground 1, concerning the threat through his brother, the Authority provided logical and rational reasons as summarised above that were open to the Authority and cannot be said to be illogical or unreasonable. That included the different location of the applicant and his brother and the implausibility of identification as summarised above. The Authority made reference to the nature of the alleged religious Court order and the implausibility of the applicant’s brother being recognised in a different location to that where the applicant had lived or work and took into account more recent country information in the making of that adverse credibility finding. That course was open to the Authority on the material before the Authority. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to the applicant’s submissions in respect of ground 2 concerning his father having been shot by the Madhi army, the Authority’s reasons were open to it for the reasons summarised above and cannot be said to be logical or unreasonable. In particular, the Court took into account and had not accepted that the applicant was threatened by the Madhi army and that the perpetrator of the shooting of the applicant’s father some six years later was not identified. The Authority did not have to draw inferences favourable to the applicant and the Authority explained the adverse finding as summarised above. Nothing said by the applicant makes out any relevant legal error in relation to ground 2. Ground 2 fails to make out any jurisdictional error.

2. Accordingly, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 23 May 2018