Ewz18 v Minister for Home Affairs

[2019] FCCA 321

FEDERAL CIRCUIT COURT OF AUSTRALIA

EWZ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 321

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Authority’s failure to not exercise the power in s.473DC(3) was legally unreasonable – whether the Authority failed to consider the applicant’s claims cumulatively – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CB, 473DC, 476

Applicant: EWZ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2664 of 2018

Judgment of: Judge Street

Hearing date: 13 February 2019

Date of Last Submission: 13 February 2019

Delivered at: Sydney

Delivered on: 13 February 2019

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law

Solicitors for the Respondents: Ms K Hooper
Minter Ellison

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 23 January 2019.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

DATE OF ORDER: 13 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2664 of 2018

EWZ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 23 August 2018 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 as an unauthorised maritime arrival on 2 May 2013. The applicant was found to be a Sunni Muslim from Najaf, that he operated a stall selling popular music, that he was threatened by the Mahdi Army for operating the business and playing music loudly and that he drank alcohol. The applicant fears that if returned to Iraq, the Mahdi Army will kill him because of his Sunni faith, because he formerly sold music and because he drinks alcohol.

3. The delegate on 19 February 2018 found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 22 February 2018, the Authority wrote to the applicant explaining that the application had been referred to the Authority for review. The Authority provided an attached facts sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions which were expressly referred to in the Authority’s reasons and to which the Authority had regard. Those submissions were dated 19 March 2018.

5. The Authority identified the background of the visa application and had regard to the material given by the Secretary under s.473CB of the Act.  The Authority also took into account new country information.

6. The Authority summarised the applicant’s claims including the reference in the Save Haven Enterprise visa that in March 2013 he was approached by two Mahdi Army officials who threatened to harm him because songs and music are forbidden. The applicant alleged in his Save Haven Enterprise visa interview that on around 10 occasions, people from neighbouring shops verbally abused him in relation to his playing of music. The applicant also complained that the Mahdi Army came after the applicant because he used to drink alcohol. 

7. The Authority then referred to a UK Home Office Report “Country Police and Information Note – Iraq: Sunni (Arab) Muslims” dated 28 June 2017 (“the UK Home Office Report”) that Sunnis, though marginalised by a Shia majority in Baghdad, are still represented in society and government. The Authority referred to the country information identifying that there are sectarian tensions but that the government has attempted reconciliation with the Sunni population. The country information referred to included that there are few reports that Sunnis experience human rights abuses at the hands of Shia militia or unknown perpetrators in the southern governorates, although the small number of examples cited did not refer to Najaf where the applicant lived. The Authority referred to that country information including that it did not appear to form part of a consistent or systematic risk to Sunnis and that in general, the UK Home Office’s opinion was that Sunnis in the southern governorates are not subject to treatment which would be persecutory or cause serious harm, although depending on their particular profile some Sunnis may be at risk.

8. The Authority referred to the DFAT Country Information Report for Iraq 2017 (“the DFAT Country Information Report”) providing a less favourable assessment concerning the situation for Sunnis, although that report was said to be high level and general in nature and does not refer to specifics. The Authority referred to DFAT noting that outside ISIL-controlled areas, Sunnis have claimed they face harassment and discrimination including through undergoing more intrusive inspections at checkpoints and the provision of poorer quality services in Sunni areas.

9. The Authority referred to the DFAT overall assessment that official and societal discrimination and violence towards Sunnis was increasing and tolerance for Sunnis in non-Sunni areas had declined.  The Authority noted that Sunnis located in non-Sunni areas such as Shia areas in the south faced a high level of societal discrimination and violence, but noted that no greater specifics had been provided. The Authority in reconciling the two reports noted that the DFAT Country Information Report offers an overall assessment of the level of violence faced by Sunni Iraqis generally in Shia areas, while the UK Home Office Report recognises that Sunnis in the south of Iraq may face a real chance of harm depending on their individual circumstances.

10. The Authority accepted that the applicant is a non-practicing Sunni Muslim who has lived most of his life in a Shia dominated Najaf governorate after spending his first few years in a Sunni community in Basra Governorate. The Authority also accepted that the applicant had suffered verbal insults from fellow stall holders when he sold and played CDs of popular music at a high volume near a holy Shia shrine. The Authority accepted it is plausible that the Mahdi Army told the applicant to close his stall on a number of occasions including in March 2013.  The Authority did not accept the Mahdi Army threatened to punish the applicant even if he closed his stall. The Authority accepted the Mahdi Army members confronted the applicant over a period of time without physically assaulting him or seizing or destroying his CDs and instead repeatedly asked him to pack up his stall.

11. The Authority found the Mahdi Army did not approach him in the month he remained at home after he had closed his business. The Authority did not accept the Mahdi Army enquired as to the applicant’s whereabouts after he had departed Iraq. The Authority found that at the time the applicant left Iraq, he was not of adverse interest to the Mahdi Army or anyone else. The Authority noted that the applicant has not claimed that he has any intention or desire to sell popular music CDs if he returns to Iraq. It was in those circumstances, the Authority was not satisfied there is a real chance the applicant would suffer harm from the Mahdi Army because he ran a stall selling Iraqi popular music five years ago.

12. The Authority referred to the applicant’s father maybe knowing someone whose relative was kidnapped by the Shia militia at some point in time and that a niece of the applicant may also have been kidnapped by an unknown perpetrator. The Authority did not accept there is any connection between the kidnappings and the threats directed at the applicant by the Mahdi Army in 2013, or the verbal insults that he experienced. The Authority was not satisfied there is a real chance the applicant will suffer harm as a result of these incidents many years ago.

13. The Authority did not accept the applicant’s Sunni faith prevented him from finding a job. The Authority also considered whether the applicant is more generally at risk of harm because he is a Sunni living in Najaf.  The Authority referred to country information and found that the country information does not suggest that the attacks in the south are aimed at Sunnis. The Authority found country information does not support that Shia militias are systematically targeting Sunnis in the southern provinces.

14. The Authority found the country information indicates that as a consequence of being one of Iraq’s holiest Shia cities, security is particularly tight in Najaf and it has suffered very little violence in recent times. It was in that context that the Authority accepted that there is a lower risk of harm in an area but does not necessarily preclude there being a real chance of harm in that area. The Authority found, however, in this case, not only is there a lower risk of harm in the Najaf governorate from both sectarian and more general violence but having regard to the nature and frequency of incidents in that governorate, the Authority was not satisfied that the level of harm is such that it rises to a real chance.

15. The Authority then turned to the applicant’s circumstances and the information before the Authority and accepted that if the applicant were to return to Najaf governorate, there is a real chance the applicant will experience low level discrimination such as verbal abuse because of his Sunni faith. The Authority did not accept that the applicant will be forced to participate in Ashura as his representative suggested. The Authority found the applicant was not previously forced to participate in the festival but was rather insulted because he did not join in. The Authority was not satisfied that such low level discrimination arises to the level of serious harm. The reference to low level discrimination was clearly a reference to the Authority’s finding of the applicant being subjected to discrimination in the nature of verbal abuse. The Authority noted the applicant has not claimed that his family, who have continued to live in Najaf, have suffered any adverse treatment, apart from verbal abuse.

16. The Authority referred to the applicant’s circumstances and his education and the submission that he would have difficulty finding employment. The Authority took into account country information and was not satisfied there is a real chance the applicant will be denied the capacity to earn a livelihood of any kind such that it would threaten his capacity to subsist. The Authority took into account that the applicant is young and healthy and there is nothing in the information to suggest he would not be able to undertake work similar to that he had undertaken before and to earn a living if he were returned to Najaf.

17. The Authority referred to the applicant’s claim that he drank alcohol and that he would continue to drink alcohol if he returns to Iraq. The Authority referred to country information in relation to prohibiting the import and sale and transport of alcohol and that Southern Iraqis are allowed to legally consume and own alcohol. The Authority accepted that the applicant surreptitiously drank alcohol in Iraq and accepted that he has continued to drink alcohol on a regular basis in Australia.

18. The Authority accepted there was a particular incident in 2011 where the applicant was verbally abused for drinking alcohol. The Authority noted that apart from that disparaging comment, the applicant did not suffer any adverse treatment as a result of that episode, and went on to live in the same location and continued drinking alcohol clandestinely without further incident.

19. The Authority was satisfied that if the applicant returns to Iraq he may continue to drink alcohol covertly, as he did in the past. The Authority was not satisfied that the societal disapproval or verbal abuse rises to the level of serious harm. 

20. The Authority turned to consider the applicant’s circumstances as an asylum seeker and returnee from a Western country. The Authority referred to the country information not suggesting that returnees to Iraq who had sought asylum in the West are attributed with an imputed political opinion by either the Iraqi government or the Mahdi Army, or anywhere else for that matter.

21. The Authority noted that it found the applicant does not have a particular profile and was not of adverse interest to the Mahdi Army when he departed in 2013. The Authority referred to the fact that the applicant will be returning to the province where his family continues to live. It was in those circumstances, that the Authority was not satisfied there is a real chance the applicant would suffer harm as an asylum seeker and returnee from a Western country now or in the reasonably foreseeable future.

22. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria in s.36(2)(a) of the Act. 

23. The Authority turned to the issue of complementary protection.  After referring to the requirements as to significant harm, the Authority noted that it had concluded that the applicant does not face a real chance of harm because of the Mahdi Army because he formerly sold Iraqi popular music, because his niece and an acquaintance were kidnapped, because of violence in Najaf governorate, because he is an asylum seeker or returnee from a Western country, or in terms of his ability to subsist in Najaf governorate.

24. The Authority found that 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 will suffer significant harm. The Authority found the applicant did not meet the criteria in s.36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds of the amended application are as follows: 

   1. The Immigration Assessment Authority ("the IAA") considered whether the applicant faced a real chance of serious harm as a Sunni if required to return to his home city of Najaf. The IAA found at (20)-(211 that the applicant did not face a real chance of serious harm. The IAA made two errors in connection with its findings as follows:

   a) The IAA did not consider the position for the applicant into the reasonably foreseeable future.

   b) The IAA found at [21] that if the applicant "were to return to Najaf governorate there is a real chance the applicant will experience low level discrimination …. because of his Sunni faith". But the country information on which the IAA relied referred to "a high level of societal discrimination. The IAA made a finding of fact ("low level discrimination") on a significant matter which was contrary to the country information relied on by the IAA ("high level of societal discrimination") without an explanation for the variance from the country information. The IAA's finding lacked an evident and intelligible justification, and was thereby irrational or illogical in a manner which constituted jurisdictional error.

   2. The IAA failed to consider the applicant's protection visa claims cumulatively. This was a jurisdictional error.

   3. The applicant claimed he drank alcohol and faced a risk of serious harm for this reason if required to return to Iraq. The manner in which the IAA disposed of this claim by the applicant was different to the manner in which the Minister's delegate disposed of the claim. In the circumstances, it was legally unreasonable for the IAA not to exercise its power under s 473DC of the Migration Act 1958 (Cth) to invite the applicant to comment on the different way in which the IAA was considering disposing of the claim.

Ground 1

1. In relation to ground 1, Mr Zipser of counsel took the Court to the Authority’s reasons, and in particular the reasons in paragraph 20 and 21.  Mr Zipser submitted that notwithstanding the references to future language, the Authority had not applied the correct test in relation to the foreseeable future in determining whether the applicant faced a real chance of harm if returning to the southern Najaf Province. Mr Zipser in particular took the Court to the assessment of the country information in paragraph 15, and he referenced to the UK Home Office Report, as summarised above, as well as the reference to the DFAT Country Information Report and the reference to Sunnis in non-Sunni areas such as Shia areas of the south facing a high level of societal discrimination and violence referred to in the DFAT country information report.

2. Mr Zipser submitted that the Authority had focused on the situation of the applicant at the point of time that he returns to Najaf, but had not considered the situation before the applicant in the reasonably foreseeable future. The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons do refer to the future in paragraph 21, referring to “if he were to return to Najaf governorate” and in the reference to “I do not accept he will be forced”, all of which are consistent with the Authority applying the correct test as to the reasonably foreseeable future. The Authority in its reasons, correctly identified the relevant law, which was incorporated as an annexure “Applicable Law”.

3. The Authority’s reasons expressly refer to the reasonably foreseeable future in paragraph 28. I do not accept that the Authority’s reasons should be read as if only addressing the applicant’s situation at the point of time on return to Najaf. The language of the Authority referring to the future should not be read with a keen eye for error. There was no failure by the Authority to take into account the reasonably foreseeable future.

4. In the adverse findings made ultimately in paragraph 29 of the Authority’s reasons under the Refugees Convention, the Authority took into account the findings that had been made relevantly in paragraph 21, the reference made back to paragraph 15 of the Authority’s reasons, and the reference to the DFAT Country Information Report supporting a low level of societal discrimination and violence. In the circumstances, the finding in paragraph 21, referring to not being satisfied that such low level discrimination rises to the level of serious harm was a finding that cannot be said to lack an evident and intelligible justification.

5. Mr Zipser in that regard, referred to the finding in paragraph 20, as well as the acceptance in paragraph 21 that there is a chance if the applicant were to return to Najaf governorate, that he will experience low level discrimination. Mr Zipser’s submissions in that regard omitted the reference to the Authority’s reasons describing low level discrimination as verbal abuse. There is no illogicality or legal unreasonableness in the Authority’s finding that discrimination of a low level, such as verbal abuse, does not rise to the level of serious harm. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Zipser took the Court to paragraph 22 of the Authority’s reasons and contended that there had been a claim that had to be addressed by the Authority in respect of the cumulative consideration of the applicant’s claims. Paragraph 22 referred to the applicant’s Safe Haven Enterprise visa interview and the submissions made by the applicant’s representative about his personal circumstances, the country information concerning Sunnis being discriminated against in employment, that the chances of employment would be minimal, and that the cumulative effect of the applicant’s persecution should be considered.

1. The Authority proceeded to make a finding that there is not a real chance the applicant would be denied the capacity to earn a livelihood such that it would threaten his capacity to subsist. On a fair reading, that was a finding made in the context of a consideration of the applicant’s circumstances cumulatively. The Authority on the face of its reasons, made dispositive findings in respect of each of the applicant’s individual claims, and made express finding as to the applicant not having any particular profile or being of adverse interest to the Mahdi Army when he departed Iraq in 2013. 

2. On a fair reading of the Authority’s reasons as a whole under the Refugees Convention, the Authority made dispositive findings of the applicant’s claims, including the applicant’s concern as to the cumulative effect of the applicant’s alleged persecution. The only level of potential harm the Authority accepted was in relation to a low-level discrimination in the nature of verbal abuse. It was found not to rise to the level of serious harm. That was a finding made in the context of the applicant’s family continuing to live in Najaf and not having suffered adverse treatment apart from verbal abuse.

3. That the Authority had considered the applicant’s claims cumulatively under the Refugees Convention is also supported by paragraph 32 of the Authority’s reasons. Given the findings made by the Authority in the circumstances of the present case, there is no requirement for the Authority to make any express finding in respect of the submission concerning the alleged cumulative effect of the applicant’s persecution as the findings made by the Authority were dispositive of the applicant’s claims. The reference to the applicant not meeting the requirements of the definition of refugee and not meeting the criteria under s.36(2)(a) of the Act, on a fair reading of the Authority’s reasons as a whole, were dispositive findings in respect of the applicant’s claims. No jurisdictional error as alleged in ground 2 is made out. 

Ground 3

1. In relation to ground 3, Mr Zipser took the Court to the delegate’s findings in respect of the applicant having drunk alcohol and the delegate’s reasoning which identified that the applicant may be subjected to corporal punishment if caught and that this might amount to serious harm. Mr Zipser identified the delegate’s reasoning as finding the applicant could modify his behaviour in that regard and that it was not one that was an innate or immutable characteristic of the applicant within s 5J(3) of the Act and that there was a finding by the delegate that it was reasonable for the applicant to modify his behaviour and accordingly reasonable for the applicant to take steps to avoid a real chance of persecution by not openly drinking alcohol. 

2. Mr Zipser identified the Authority’s reasoning as differing from that of the delegate and submitted that in those circumstances it was legally unreasonable of the Authority not to expressly consider the exercise of its power under s.473DC of the Act. Although submissions were put to the Authority following the letter from the Authority inviting the same, there was no request for the exercise of any such power in those submissions. That of course, is not of itself determinative of the question of whether the Authority as a matter of legal reasonableness, should exercise the power of s.473DC of the Act. 

3. The Authority is not bound by the findings made by the delegate and the Authority took into account the incident that the applicant had identified of encountering verbal abuse in 2011 and found that such treatment did not rise to the level of serious harm. That was a finding that was reasonably open to the Authority and took into account that the applicant may continue to drink alcohol covertly as he did in the past. I do not accept given the statutory scheme of Part 7AA these circumstances required the Authority to invite the applicant to attend an interview or to provide further information in exercise of the power under s.473DC of the Act. 

4. The delegate had rejected the applicant’s claim to fear harm albeit on different grounds in respect of consumption of alcohol. This was not a new claim or matter that had not been addressed by the delegate and the applicant, as a result of the letter dated 22 February 2018, was given an opportunity to put on new information and submissions. In all these circumstances the Court does not accept that the Authority was required, as a matter of reasonableness, to expressly consider whether to exercise a power under the power of s.473DC of the Act before departing from the reasoning adopted by the delegate in respect of rejecting the applicant’s claim concerning the consumption of alcohol. The Authority merely reassessed the material that the delegate considered and made different findings.

5. The applicant had an adequate opportunity to advance any new information or submissions if he wished to do so, in respect of his claim concerning the consumption of alcohol. The Authority’s failure to expressly consider the exercise of the power under s.473DC of the Act cannot be said to lack an evident and intelligible justification in these circumstances. No jurisdictional error as alleged in ground 3 is made out. 

Conclusion

1. Accordingly, the amended application is dismissed. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  26 March 2019