Ezi17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1144

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EZI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1144

File number(s):

SYG 3486 of 2017

Judgment of:

JUDGE LAING

Date of judgment:

6 December 2023

Catchwords:

MIGRATION - application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) affirming refusal of a protection visa – whether the IAA failed to consider an integer of the applicant’s claims – whether the IAA decided the case without evidence – limitations of the Court’s role and powers on judicial review – application dismissed

Legislation:

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) part 12

Migration Act 1958 (Cth) ss 473DD, 476

Division:

Division 2 General Federal Law

Number of paragraphs:

36

Date of hearing:

8 November 2023

Place:

Sydney

Appearing for the Applicant:

BFQ23 as Litigation Guardian

Solicitor for the First Respondent:

Ms A Wilford of Sparke Helmore Lawyers

Appearing for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 3486 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EZI17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	6 DECEMBER 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of Iraq who arrived in Australia as an unauthorised maritime arrival in 2013.

3. The applicant applied for a protection visa on 5 August 2016.

4. On 12 May 2017, the Delegate refused to grant the application. The application was then referred to the IAA for review.

5. The IAA affirmed the Delegate’s decision on 17 October 2017.

   THE IAA’S DECISION

6. The IAA observed that it had received a submission from the applicant’s representative on 11 June 2017. To the extent that it restated the applicant’s claims or provided argument, the IAA stated that it had been noted. The IAA observed that the submission also referenced certain country information and unspecified RRT Guidelines. The IAA was not satisfied that this was credible personal information within the meaning of s 473DD(b)(ii) of the Migration Act 1958 (Cth) (Act) or that it could not have been provided prior to the Delegate’s decision. The IAA was not satisfied that exceptional circumstances justified consideration of this new information (at [5]-[7]). The IAA found, however, that exceptional circumstances justified consideration of an updated report on Iraq by the Department of Foreign Affairs and Trade (DFAT) (at [8]).

7. The IAA accepted that the applicant was a Shia Muslim from Iraq of Arab ethnicity and certain other biographical details (at [14] and [21]-[23]).

8. The IAA accepted that the applicant may have visited holy sites in Iraq and that from time-to-time attacks against Shias by Sunni militants occur in southern Iraq. However, having regard to country information, the IAA was “not satisfied that the risk of harm to the applicant now or in the reasonably foreseeable future on the basis of his Shia religion or the general security situation in Thi Qar governorate [was] more than remote” (at [23]).

9. In relation to the applicant’s claims to face harm on account of his previous work selling CDs, the IAA reasoned at [36]-[40] (footnotes omitted):

   36.I accept that for several months in early 2013 the applicant worked in the CD shop established and previously run by two of his brothers and that during this period the applicant may have sold some CDs that conservative elements in Iraqi society consider un-lslamic or immoral.

   37.I accept that some segments of Iraqi society are hostile towards persons or businesses selling and distributing un-lslamic or immoral CDs and there is evidence of occasional attacks on sellers of these goods and / or their premises, including in southern Iraq. I note the more violent attacks have occurred in ISIS held areas rather than Iraqi government held areas like Nasiriya⁶ and there is no evidence before me of attacks on CD / music sellers in Thi Qar governorate where the applicant resided.

   38.Having regard to the applicant's inconsistent evidence over time and the lack of country information suggesting attacks on sellers of un-lslamic or immoral CDs in Thi Qar governorate, I do not accept that the applicant was visited and threatened by militants twice in the two months he operated a CD shop in Nasiriya. I have reviewed the written transcript of the applicant's case assessment and bio data interview and listened to the audio recording of the applicant's arrival interview. On each of these occasions the applicant indicated he had not personally experienced any difficulties as a result of buying and selling CDs.

   39.I do not accept the applicant's explanation as to why he failed to mention during his two early interviews the two incidents he later said he personally experienced with the militant group. I note that during each interview the applicant was asked why he left Iraq and asked an open ended question that provided him with an opportunity to raise any issue that he would like to discuss; and the interviews were conducted in private. It was also explained to the applicant that he was expected to give true and correct answers to the questions asked and that if the information he gave at any future interview was different this could raise doubts about the reliability of what he said. I also note that during one of these interviews the applicant answered 'no' to a question as to whether there was anyone in the centre of concern to him, who he was afraid of or who had been threatening him. While I accept that the applicant may have been suffering from stress and isolation after his arrival in Australia, I am not satisfied such feelings explain him failing to mention what is a key claim.

   40.The applicant's own evidence is that he only worked in the CD shop for several months before closing the shop and leaving Iraq and that for the majority of his working life he made a living buying and repairing watches. The applicant has not worked in the CD shop for more than four years; the shop no longer operates; and the applicant has not indicated that he has any interest in or opportunity to re-open the CD shop should he return to Nasiriya. I am satisfied that there is not a real chance that now or in the reasonably foreseeable future the applicant would suffer serious harm as a result of previously having sold un-lslamic or immoral CDs in Nasiriya in 2013 as I did not accept he was of interest to a militant group then.

10. The IAA accepted that the applicant’s maternal cousin may have died in an attack as claimed on account of evidence from DFAT indicating that violence against Shias was particularly prominent in Baghdad. However, the IAA considered that the applicant’s chance of suffering harm, given the general security situation in his home area, was remote (at [41]).

11. The IAA did not accept that the applicant’s brother was abducted and killed by a militant group in 2016 based on the applicant having sold immoral CDs in 2013. The IAA noted that it had rejected the applicant’s claim about being threatened at the CD shop on two occasions in early 2013. It followed that the IAA did not accept that three years later the same militant group targeted the applicant’s brother. The IAA also observed that the applicant’s evidence regarding his brother’s death was inconsistent. Considering this and country information regarding the availability of fraudulent death certificates, the IAA was not prepared to accept the applicant’s evidence regarding the death of his brother (at [42]).

12. The IAA was not satisfied that a letter and video allegedly received by the applicant’s father threatening the applicant were genuine. This followed from the rejection of the applicant’s claims regarding adverse interest from a militant group. The IAA also doubted that, at the time of the decision or in the reasonably foreseeable future, militias would be interested in the applicant on the basis of his brief involvement in the sale of CDs some four years previously (at [43]).

13. Considering available country information and the applicant’s personal circumstances, the IAA was not satisfied that there was a real chance of the applicant suffering relevant harm as a returnee to Iraq from a Western country (at [45]-[48]).

14. Having regard to the above, the IAA concluded that the applicant did not face a real chance of harm as a result of practising his Shia religion; as a result of the security situation in southern Iraq; as a result of his cousin's death; as a result of having sold CDs in 2013; or as a result of being a returnee from a western country (at [52]). The IAA found that the applicant was unable to meet the criteria for the protection visa and therefore affirmed the Delegate’s decision (at [49]-[54]).

    PROCEEDINGS BEFORE THIS COURT

15. The applicant commenced the current proceedings through an application filed on 14 November 2017.

16. On 10 May 2023, orders were made appointing the applicant’s partner as his litigation guardian in the proceedings. This was on the basis of an informal application that had been made orally and in writing, in which the applicant and his partner had expressed that the applicant was unable to represent himself in the proceedings. In support of the application, medical reports were provided. The reports referred to difficulties experienced by the applicant with concentration, memory and cognition, and to lesions that had occurred in the applicant’s brain. The relevant rules regarding appointment of litigation guardians were drawn to the attention of the applicant and his partner, and also interpreted for the applicant, prior to the appointment being made.

17. Having regard to the additional complexity involved with such an appointment, a pro bono referral was also made at the applicant’s request in accordance with Part 12 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I wish to express the Court’s appreciation for the acceptance of that referral, in accordance with which I understand that some assistance has been provided to the applicant.

18. The applicant was ultimately unrepresented at the hearing of this matter. Both the applicant and his litigation guardian attended the hearing. The applicant was assisted by an interpreter.

19. The stated grounds of the application to this Court are as follows:

    1.        THE IAA FAILED TO CONSIDER AN INTEGER OF MY CLAIMS.

    2.        THE IAA DECIDED MY CASE WITHOUT EVIDENCE.

    Ground 1

20. Ground 1 contended that the IAA failed to consider an integer of the applicant’s claims.

21. At the hearing before the Court, the applicant submitted (through his litigation guardian) that although he had not been granted refugee status in another country, he had not (to his knowledge) had such status refused. This was in response to [9] of the Minister’s submissions, which referred to the IAA’s acceptance at [18]-[22] that the applicant had sought but not been granted refugee status in other countries.

22. I accept that the applicant’s evidence was not that he had been refused refugee status in other countries. As was set out in the Delegate’s decision, the applicant claimed that refugee status had been sought but that he had not received an outcome. However, the IAA’s reasoning at [17]-[22] was consistent with this. The IAA did not find that the applicant had been refused refugee status in other countries.  I therefore do not understand how the IAA’s reasoning in this regard could be said to have resulted in any material error.

23. The applicant (through his litigation guardian) initially contended that he had attended an interview on Christmas Island where he had claimed to have also sold alcohol through the shop in Iraq. This was said to have been the reason that the militia had told him to close the store.

24. In response, I observed that I was unaware of any evidence before me that was capable of demonstrating what had been submitted. I explained that I would not be able to take into account submissions from the bar table as evidence, but that the applicant could seek to provide further evidence under oath or affirmation, either through an affidavit or orally at the hearing.

25. The applicant was given the opportunity to consider during an adjournment whether he sought to place further evidence before the Court in relation to the submission that he had made. I observed that the applicant may also seek that a copy of any audio held by the Minister be provided to him. However, I also informed the applicant (through his litigation guardian) that any further procedural steps in the matter may result in increased costs. If the Minister were ultimately successful, then it is possible that he may seek that such costs be paid by the applicant.

26. The Minister submitted that even if the applicant had raised the sale of alcohol at an early interview, and even if this resulted in a claim or evidence that the IAA was required to consider, it was not apparent that any failure to consider this claim or evidence could have affected the outcome of the IAA’s decision. All of the material subsequently put forward by the applicant indicated that it was the sale of CDs or other material considered by some conservative elements to be un-Islamic or immoral that had brought him to the adverse attention of the militia. The IAA accepted that such material had been sold. However, based upon issues it had identified in the applicant’s evidence, the IAA was not satisfied that he had come to the adverse attention of the militia or that he would do so in the future. The Minister submitted that the precise type of work that the applicant undertook at the store was therefore not critical to the ultimate findings that were made by the IAA.

27. After the Minister had made submissions on this issue, the applicant was given a further opportunity to consider whether he wished to place any evidence before the Court regarding what he said had occurred at an early interview. The applicant did not seek to do so and his litigation guardian confirmed that the applicant did not intend to press the point. In the absence of further evidence or submissions, what was initially raised by the applicant in this regard is not capable of demonstrating jurisdictional error.

    Ground 2

28. Ground 2 contended that the IAA decided the applicant’s case without evidence.

29. At the hearing, I explained that the IAA is not generally required to have positive or rebutting evidence in order not to accept an applicant’s evidence or claims. However, the IAA’s reasons do need to provide a logical basis for the IAA’s decision. I observed that it was not clear from the ground what findings the applicant said required evidence to support them and that, without this, I may not be able to understand how the ground might demonstrate relevant error on the part of the IAA.

30. The applicant suggested that it was illogical for the Department to have accepted that the applicant was at risk due to selling CDs but to have found that he was not at risk due to his role in the shop. The applicant also generally submitted that the IAA’s decision was wrong, and that he would face harm on return due to his health issues and the situation in Iraq. The applicant asked that I revisit the IAA’s decision, or refer the matter to the Minister for consideration according to a humanitarian point of view.

31. To the extent that the applicant sought review of the Delegate’s decision, I have no jurisdiction to undertake such a review: s 476(2) of the Act. The IAA accepted at [37] that some people in Iraq were hostile towards persons or businesses selling and distributing CDs considered to be un-Islamic or immoral, and that there was evidence of attacks upon some sellers of such goods. However, the IAA was not satisfied that the applicant faced a real chance of harm on this basis. This was in circumstances where the IAA considered that the applicant had given inconsistent evidence regarding the adverse interest that he claimed to have attracted, there was a lack of evidence of attacks in his particular area of residence, and some years had passed since the applicant’s involvement with the store (at [38]-[44]). Whilst another decision maker may have reasoned differently, the matters relied upon by the IAA appear to have been logically capable of informing the findings that the IAA made. It has not been demonstrated that this reasoning was relevantly closed to the IAA.

32. I accept that the applicant may disagree with the IAA’s decision. However, such disagreement does not provide an adequate basis for setting that decision aside.

33. As I sought to explain during the hearing of this matter, the Court’s powers in this kind of proceeding are limited. The Court is unable to remake the IAA’s decision, or require the Minister to consider favourably any request for intervention. This does not mean that the Court is unsympathetic to the applicant’s situation, or the situation of his partner. It simply reflects the limited role of this Court on judicial review.

34. In order to set aside the IAA’s decision, this Court would need to find that some legally relevant error occurred and materially impacted the outcome of the IAA’s review. Such an error has not been demonstrated by the applicant. No such error is apparent upon my own review of the materials. In these circumstances, I have no option but to dismiss the application that is before the Court.

    CONCLUSION

35. For the above reasons, the application must be dismissed.

36. I will hear from the parties in relation to costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Deputy Associate:

Dated:       6 December 2023