Ezm17 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2022] FedCFamC2G 633

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EZM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 633

File number(s): SYG 3487 of 2017
Judgment of: JUDGE LAING
Date of judgment: 10 August 2022
Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority not to grant a Safe Haven Enterprise (Class XE) (subclass 790) visa – whether Authority acted unreasonably in failing to consider whether to exercise its power under s 473DC(1) of the Migration Act 1958 (Cth) – whether Authority erred in its application of the ‘real chance’ test by failing to ask ‘what if I am wrong’ – whether Authority failed to consider risk to the applicant immediately upon his return to Iraq – application dismissed
Legislation: Migration Act 1958 (Cth)
Cases cited:

APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23

BDI17 v Minister for Immigration & Anor [2018] FCCA 2162; 339 FLR 147

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; 93 FCR 220

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559

MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; 117 ALD 441
Number of paragraphs: 51
Date of hearing: 25 July 2022
Counsel for the Applicant Ms J Ambikapathy
Solicitor for the Applicant: D’Ambra Murphy Lawyers
Counsel for the First Respondent: Mr T Reilly
Solicitor for the First Respondent: HWL Ebsworth Lawyers
Solicitor for the Second Respondent Submitting appearance, save as to costs

ORDERS

SYG 3487 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

EZM17
Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:

JUDGE LAING

DATE OF ORDER:

10 AUGUST 2022

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. Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 13 October 2017. 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. He arrived in Australia on 12 February 2013 as an unauthorised maritime arrival. On 13 May 2016, the applicant applied for the protection visa. He attended a visa interview on 30 January 2017.

  3. On 8 February 2017, the Delegate refused to grant the applicant a protection visa. The Delegate’s decision was referred to the IAA for review.

  4. On 13 October 2017, the IAA affirmed the Delegate’s decision refusing the applicant a protection visa.

    THE IAA’S DECISION

  5. The IAA found in relation to the applicant’s identity that “the applicant was an Iraqi citizen at birth. He resided in Thi Qar province in Iraq from the age of three or four years. His parents are Iraqi citizens” (at [11]).

  6. The IAA accepted that:

    (a)the applicant was born in Kuwait (at [9]);

    (b)he and his family were deported from Kuwait following the Iraqi invasion and they moved to and settled in the Thi Qar province (at [9]);

    (c)the applicant was a Shia Muslim whose family was of mixed faith including a number of Sunni members (at [13]);

    (d)his family tribe “is known to be a mainly Sunni tribe” and “may be associated with Mosul” (at [14], [36]);

    (e)the applicant worked on the Imam Ali air base for approximately six months in 2010. However, the IAA found that he did not experience any harm or threats related to his employment and concluded that he was not of adverse interest on this or any other basis at the time he left Iraq (at [32]-[33]).

  7. The IAA did not accept:

    (a)that the applicant was born a stateless Bidoon (at [9]);

    (b)that the applicant or members of his family were perceived to be stateless, Bidoon, Kuwaiti, or associated with Gulf States for any reason in Thi Qar province. Nor did the IAA accept that the applicant experienced harm or discriminatory treatment, or was of adverse interest to any group or person on this basis at the time he left Iraq (at [10]-[12]);

    (c)that the applicant was perceived to be a Sunni Muslim for any reason, or experienced any harm, threats, or discriminatory treatment, or was of adverse interest to anyone in Nasiriya on the basis of perception that he was a Sunni Muslim (at [13]-[21]);

    (d)the applicant’s claim that he did not get ‘proper jobs’ as a result of any discriminatory treatment (at [22]);

    (e)that the applicant’s father died as a result of inadequate medical treatment including the discriminatory denial of adequate medical treatment for any reason (at [26]);

    (f)that hospital staff threatened to jail the applicant or his family, said his family didn’t belong, or referred to their religion, association with Mosul, or perceived Bidoon identity in response to complaints about his father’s medical treatment (at [26]);

    (g)that the applicant’s brother, whom the IAA accepted suffered psychological and other health problems, received inadequate medical treatment, mistreatment, harm, or discriminatory treatment on the basis of his Sunni religion (at [27]-[31]);

    (h)that the applicant’s family was perceived in Thi Qar to be associated with ISIL because of their tribal name (at [36]);

    (i)that the applicant’s family moved from Nasiriya to Al Batha because of threats made by members of Shia militia groups for any reason, including because of any perception that his family were associated with ISIL (at [40]); or

    (j)that the applicant’s family experienced threats or harm in Al Batha for any reason, including on the basis of their actual or perceived Sunni faith, or perceived association with Mosul or ISIL (at [41]).

  8. The IAA found at [45] that if returned to Iraq, the applicant would return to Thi Qar province to live with his family in Al Batha. The IAA accepted that the applicant’s mixed faith family had been living there since around December 2015 and considered that the mixed faith composition of the family would be known within the community. The IAA did not accept that the applicant would be assumed to be Sunni or associated with ISIL because of his name, his absence from Iraq, the Sunni faith of some members of his family or for any other reason. The IAA considered that the applicant’s Shia faith would become known within the local community due to his practice of it in Al Batha (at [47]-[48]).

  9. The IAA was not satisfied there was a real chance of harm to the applicant “now or in the foreseeable future” in Al Batha on the basis that he would be perceived to be Sunni or associated with ISIL (at [49]). Nor was the IAA satisfied there was a real chance of harm to the applicant due to his leaving Iraq, having unsuccessfully applied for protection, having lived in Australia for a number of years, having worked on the Imam Ali airbase in 2010, due to the general situation in Iraq, or for any reason (at [50-[54]).

  10. On the basis of the above, the IAA concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, it affirmed the Delegate’s decision (at [54]-[59]).

    PROCEEDINGS BEFORE THIS COURT

  11. The applicant commenced the current proceedings on 10 November 2017. By the time of hearing, the follow grounds were pressed:

    Ground 1A

    The IAA acted unreasonably in failing to consider whether to exercise its power under s 473DC(1) of the Act.

    Particulars

    a.The “DFAT Country Information Report Iraq” dated 26 June 2017 (Updated DFAT Report) was credible, relevant and significant.

    b.There were material differences between the DFAT Report relied on by the IAA and the Updated DFAT Report, relevant to the Applicants claims such that there is a realistic possibility that the IAA could have reached a different ultimate conclusion.

    c.The Updated DFAT Report was not referred to in the decision of the IAA.

    d.The IAA failed to considered exercising its power under s 473DC(1) of the Act to get the Updated DFAT Report.

    e.It was legally unreasonable for the IAA not to have considered exercising its power under s 473DC(1) of the Act to get the Updated DFAT Report.

    Ground 2

    The IAA erred in its application of the ‘real chance’ test under s 5J(1)(b) of the Migration Act 1958 (Cth) by failing to ask ‘what if I am wrong’ in circumstances where it was required to do so.

    Particulars

    1.The Applicant is a Shia Muslim (IAA decision at [13]).

    2.The Applicant claims a fear of persecution on the basis of being perceived, inter alia, as a Sunni. He claims that his family was forcibly displaced from their home in Nasiriya in Thi Qar as a result of threats made by a Shia militia group in December 2015 and that the family was target by the militias because they were Sunnis who lived in a majority Shia area (IAA decision at [34]).

    3.The IAA was willing to accept that the Applicant's family has moved from Nasiriya to Al Batha but did not accept that the reason for the move was because of any threats made by members of Shia militia groups for any reason (IAA at [40]). This finding was not expressed as a finding without doubt.

    4.The Authority accepted that it was ‘not implausible’ that a family including Sunni members such as the Applicant's might be pressured to leave a Shia-majority area in the south of Iraq (IAA decision at [38]). It was ‘lead to doubt’ the reasons for the move on the basis of an absence of specific details of the threats made to his family and found it 'more plausible' that the move was motivated by other considerations. including the presence of relatives in Al Batha (IAA decision at [38] and [40]).

    5.Given the degree of uncertainty, the IAA was obliged to consider the Applicant's claims taking into account possibility that it’s finding that the Applicant's family had moved as a result of threats made by a Shia militia group because they were Sunnis who lived in a majority Shia area was not correct.

    6.This is so in circumstances where: (a) the Applicant claims a fear of persecution on the basis of being a Sunni and the IAA accepted that he was born a Sunni, members of his family are Sunni, his family name ‘is known to be usually Sunni’, his family tribe ‘is known to be a mainly Sunni tribe, and ‘may be associated with Mosul’, a Sunni dominated town (IAA decision at [35] - [36]); and (b) there was country information indicating that Sunnis in non-Sunni areas face a high level of societal discrimination and violence (Updated DFAT Report at [3.39]) and the Authority did not make any finding that people who were Sunnis or perceived to be Sunnis were not at risk.

    Ground 3

    The Immigration Assessment Authority erred in its application of the ‘real chance’ test under s 5J(l)(b) of the Migration Act 1958 (Cth) by failing to consider the risk of harm to the Applicant immediately upon his return to Iraq on the basis of being perceived as a Sunni Muslim.

    Particulars

    1.The IAA accepted that the Applicant is a Shia Muslim, some members of his family are also Shia Muslim and his family is of ‘mixed faith’ (IAA decision at [13]).

    2.The IAA also accepted that the Applicant was born a Sunni, members of the Applicant’s family are Sunni, his family name ‘is known to be usually Sunni’, his family tribe ‘is known to be a mainly Sunni tribe’ and ‘may be associated with Mosul’, a Sunni dominated town and that his family was living in a Shia-majority province (IAA decision at [35], [36] and [39]).

    3.The IAA found that given the length of time the Applicant's family lived in Nasiriya, the family would have been known as a ‘mixed faith’ family (IAA decision at [35] and [48]).

    4.The IAA then went on to find that the Applicant’s Shia faith ‘will become known within the local community of Al Batha’ (emphasis added) on the basis that (a) the mixed faith composition of his family would be known in Al Batha, despite the Sunni associations noted above and despite his ‘mixed faith’ family having only been living in Al Batha since December 2015; and (b) the Applicant worshiped at a Shia Husseiniya in his neighbourhood in Nasiriya so would worship at a Shia Husseiniya or mosque in in Al Batha in the future (IAA decision at [47]).

    5.The IAA assumed that, over time, the Applicant would become known as a Shia and, as a result, not be exposed to any risk of harm as a Sunni.

    6.The IAA failed to consider: (a) what risk the Applicant would face immediately upon return or in the period prior to his Shia faith becoming known within the local community of Al Batha; (b) the possibility that he would be considered a Sunni on his return to Al Batha, given the Sunni associations noted above (that were accepted by the Authority) and his family connections in Al Batha which would have known he had been born to a Sunni mother and father; and (c) even if the ‘mixed faith’ composition of his family was known by the local community at the time of his return. that the local community would not immediately know whether the Applicant himself was either Shia or Sunni.

    7.The IAA only considered the risk to the Applicant at some undetermined time in the future, if and when. the Applicant would become known as a Shia within the local community.

    8.There was country information indicating that Sunni’s in non-Sunni areas face a high level of societal discrimination and violence (Updated DFAT Report at [3.39]) and the IAA did not make any finding that people who were Sunnis or perceived to be Sunnis were not at risk.

    Ground 1A – the Updated DFAT Report

  12. By ground 1A, the applicant contended that the IAA unreasonably failed to consider exercising its power under s 473DC(1) of the Act to obtain the Updated DFAT Report.

  13. The Updated DFAT Report was published on 26 June 2017, around and three and a half months before the IAA’s decision on 13 October 2017.  During the hearing, Ms Ambikapathy for the applicant referred to various parts of the Updated DFAT Report that were submitted to demonstrate that this report was materially different to the earlier, 2015 version (2015 DFAT Report) in two main respects:

    (a)the increased prominence and significance of ISIL; and

    (b)a higher risk of violence and societal discrimination against Sunnis that was increasing.

  14. The following passages in the Updated DFAT Report were relied upon in this regard:

    2.30The presence of ISIL remains the most acute issue influencing the current security situation throughout Iraq and the Kurdish region…

    2.33Overall, the security situation in Iraq, including and the Kurdish region, is fragile and susceptible to rapid and serious deterioration with large-scale conflict in some areas…

    3.35Sunnis’ removal from their privileged position under the Ba’ath Party regime resulted in many feeling excluded and marginalised. This has been further exacerbated by the perceived association of the Sunni community with ISIL and the limited capacity of the Government to assist Sunnis attempting to flee ISIL, who have been disproportionately affected by the current conflict…

    3.37…in-country contacts report that some Sunnis continue to be systematically harassed, accused of supporting ISIL and physically harmed by PMF groups and, to a lesser extent, other parts of the ISF in some areas.

    3.39Overall, DFAT assesses that official and societal discrimination and violence towards Sunnis is increasing and tolerance for Sunnis in non-Sunni areas has declined. Sunnis located in non-Sunni areas (such as Shia areas of Baghdad and the south) face a high level of societal discrimination and violence. In Sunni areas, the risk is lower. However, in ISIL-controlled areas, Sunnis who refuse to support ISIL face a high risk of discrimination and violence.

  15. Ms Ambikapathy accepted that the mere fact that the IAA did not refer to the discretion under s 473DC in its decision did not mean that it was not considered. However, she submitted that I ought to draw the inference that it was not considered in this case because:

    (a)the report was available to the IAA nearly 4 months before its decision;

    (b)such reports are routinely considered by the IAA (and must be considered by the Delegate);

    (c)the Updated DFAT Report was credible and relevant to the issues that the IAA was called upon to decide; and

    (d)no reference was made to the Updated DFAT Report in the IAA’s decision.

  16. Ms Ambikapathy relied upon, inter alia, the decision in BDI17 v Minister for Immigration & Anor [2018] FCCA 2162; 339 FLR 147 (BDI17). In that case, it was considered that “[a]t the very least, the [IAA] should consider getting any updated DFAT report on the country of reference where it is reasonably practicable to do so” (at [70]). The IAA’s failure to do so despite the report in question being available nearly a month before its decision was found to have been legally unreasonable (at [71]-[72]).

  17. A different outcome was reached in the later decision of APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (APH17). In that case, the applicant also contended that the IAA’s failure to consider obtaining an updated DFAT report under s 473DC of the Act was legally unreasonable. After considering the statutory context of s 473DC and case law relevant to the applicant’s argument, the Court reasoned as follows:

    56.The appellant submits that I would draw two inferences: first, that the Authority did not have the 2017 Report before it; and secondly, that the Authority did not consider whether it should exercise the discretion under s 473DC of the Act to obtain the 2017 Report or, perhaps more accurately, to ensure that it had the current DFAT report before it. I accept that the former, but not the latter, inference is available.

    57.As to the former, in its decision record the Authority refers to the 2015 Report on a number of occasions as well as to other country information including, for example, UK Home Office, “Sri Lanka: Tamil Separatism Version 2.0”, 19 May 2016 and US Department of State, Sri Lanka - Country Report on Human Rights Practices 2015”, 13 April 2016. In contrast, it makes no reference to the 2017 Report. Had the 2017 Report been before the Authority, it is likely that it would have referred to it in its decision record.

    58.As to the latter, there is nothing in the Act that requires the Authority to give reasons for the exercise or non-exercise of its discretionary powers under Pt 7AA of the Act. That the Authority did not mention, in this case, the discretion conferred by s 473DC of the Act does not support the drawing of an inference that the exercise of the discretion was not considered by it: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [40].

    59.Thus I would not infer that the Authority did not consider whether it should exercise the discretion under s 473DC of the Act to obtain the 2017 Report simply because of the lack of a reference to undertaking that assessment in its decision record. There is nothing to suggest that such an inference should be drawn. For example, there is no evidence that the Authority was aware that the 2017 Report had been published. The appellant accepts that the Authority did not have constructive knowledge of its existence at the time it made its decision. It is equally open to infer, based on the facts of this case, that the Authority did turn its mind to whether there was a more up-to-date DFAT report available but it did so prior to the publication of the 2017 Report, which occurred only six days prior to the date of the Authority’s decision. This demonstrates the danger in drawing the inference urged by the appellant.

    60.Putting that to one side, even assuming that the Authority failed to consider the exercise of the discretion under s 473DC to get the 2017 Report, it was not legally unreasonable for it not to do so in this case. As set out above, what is reasonable must be considered in the context of the statutory scheme. The exercise of discretion in s 473DC(1) and (3) must be read with s 473DC(2) which provides that the Authority does not have a duty, among other things, to get or request new information: see CCQ17 at [32]. As Thawley J further observed in CCQ17 at [48], the statutory scheme contemplated by Pt 7AA is one of limited review on the papers with a default position of not accepting or requesting new information pursuant to s 473DB(1). In that context, any failure to consider the exercise of the discretion under s 473DC could not be seen as unreasonable: see Peko-Wallsend at 45; SZJTQ at [40]. That is particularly so in circumstances where there is no evidence that the Authority had actual knowledge of the 2017 Report and it is accepted by the appellant that the Authority did not have constructive knowledge of its existence at the time it made its decision.

  1. Ms Ambikapathy sought to distinguish APH17 primarily by reference to the passage of time in the present case. In this case, the Updated DFAT Report was published around three and a half months before the IAA’s decision. In APH17, the report in question was published some 6 days before the decision under review.

  2. I accept that, in this regard, the present case differs from APH17. I also accept that the Updated DFAT Report in this case was available to the IAA on or around its publication date. This was conceded by the Minister at the hearing.

  3. However, I am not satisfied that the particular circumstances of this case are sufficient to support an inference that the IAA did not consider obtaining the Updated DFAT Report, or that failure to do so was capable of meeting the high threshold for legal unreasonableness.

  4. As was found in APH17, reasonableness must be considered within the context of the statutory scheme. There was no general duty on the IAA to get or request further information. The scheme under Part 7AA contemplated a limited form of review, with the default position being that this was to occur on the papers without accepting or requesting new information.

  5. There is no evidence that the IAA was aware of the Updated DFAT Report. Further, the IAA’s decision in this case did not turn on nuances in the country information. It turned, largely, on credibility findings that were based upon reasoning that did not depend on the precise security situation in Iraq at the time.

  6. In contending that the Updated DFAT Report was materially relevant to the IAA’s findings, Ms Ambikapathy referred to [16]-[18], [21]-[22], [25] and [36]-[41] of the IAA’s decision.

  7. At [16]-[20], the IAA raised credibility concerns based upon (a) the applicant’s failure to mention claims in his entry interview; and (b) what was perceived to be vague and unclear evidence he had given regarding his own experiences of discriminatory treatment. On account of these two issues, the IAA at [21] rejected that the applicant “was perceived to be a Sunni Muslim for any reason in Nasiriya”. When these concerns were considered together with the applicant’s limited education and the high levels of unemployment in Iraq, the IAA did not accept at [22] that the particular areas of employment the applicant had engaged in were the result of discriminatory treatment for any reason.

  8. At [25]-[26], the IAA rejected that the applicant’s father’s death was due to inadequate, discriminatory medical care. This was due to a lack of corroborative evidence and what was considered to be the general implausibility of hospital staff responding to the family’s complaints in the manner claimed by the applicant.

  9. With regard to the above, Ms Ambikapathy suggested that the IAA’s reasoning could have been affected by indications in the Updated DFAT Report that discrimination against Sunnis had worsened.

  10. I accept this is possible, although not necessarily likely. The IAA’s reasoning regarding the above did not depend on discrimination against Sunnis in Iraq being at a lower or higher level as between the two reports. Rather, the IAA did not accept that the applicant was or would be perceived to be Sunni and took issue with what it considered to be the general implausibility of his account regarding the actions of hospital staff.

  11. Ms Ambikapathy suggested that the IAA might have been more likely to find that the applicant would be perceived to be Sunni if it viewed his claims within the context of a worsened security situation. It might also be suggested that the Authority may have considered the alleged actions of hospital staff more plausible if considered within the context of higher levels of discrimination.

  12. However, even if I accept that there was some possibility of this, such a possibility is not, to my mind, sufficient to establish that the IAA failed to consider obtaining the Updated DFAT Report, or that failure to consider this would have met the high threshold for legal unreasonableness. The thresholds for materiality, and legal unreasonableness, within this context will not always precisely overlap.

  13. Given the limited review contemplated by the statutory scheme, it cannot have been unreasonable for the IAA to have failed to obtain, or consider obtaining, specific country information simply because it ‘might’ have had some bearing on the case. In the present case, it was by no means inevitable that it would have done so. This is in circumstances where the IAA’s credibility findings were not expressed to depend on country information indicating that serious discrimination against Sunnis did not occur. To the contrary, the IAA appears to have accepted that discrimination against Sunnis did occur, and to a significant extent (for example, at [38]).

  14. The IAA did not accept the applicant’s claims due to “concerns in relation to the applicant’s evidence” (see [38]), and its rejection that the applicant would be perceived as Sunni in his specific situation (at [47]). It was not due to the situation that was more broadly indicated by the country information.

  15. A similar difficulty affects the balance of the paragraphs in the IAA’s decision that were relied upon by the applicant. At [36], the IAA rejected that the applicant’s family were perceived in Thi Qar to be associated with ISIL because of their tribal name. This was having regard to what was considered to be the limited effect of the applicant’s tribal association with Mosul, given “the applicant’s parents’ origins in Al Batha in Thi Qar province, and the length of time the family lived in Nasiryia”. These matters, together with other credibility issues affecting the applicant’s evidence, informed the IAA’s findings at [37]-[41] that it did not accept the family were threatened and moved for the reasons claimed (including association with Mosul or ISIL).

  16. Again, it may be possible that such findings could have been affected by indications in the Updated DFAT Report regarding increased discrimination, or the increased presence and significance of ISIL. However, this would not have necessarily been the case. The IAA’s reasons were expressed as being dependent upon its findings regarding the particular circumstances of the family locally and other issues it had identified in the applicant’s evidence. The IAA’s findings were not expressed as being dependent upon ISIL’s level of presence, or upon discrimination more generally being at a particular level in Iraq.

  17. Given this, I am not prepared to draw an inference that the IAA did not consider obtaining the updated country information. It may be that, instead, the IAA did not consider such information was likely to alter its decision. It is also possible that the IAA considered obtaining information at a point prior to the Updated DFAT Report becoming available.

  18. Regardless, I am not persuaded that it would have been unreasonable for the IAA not to have considered obtaining the Updated DFAT Report within the context of its particular reasoning, and the particular statutory scheme, applicable in this case.

  19. It follows that I am not persuaded that ground 1A ought to succeed.

    Ground 2 – ‘what if I’m wrong’

  20. By ground 2, the applicant contended that the IAA failed to ask itself "what if I’m wrong” despite expressing doubt or uncertainty in relation to its non-acceptance that the applicant’s family had moved in 2015 due to threats associated with their Sunni religion.

  21. In this regard, the applicant relied upon what was said in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; 93 FCR 220 at [62] (per Sackville J):

    In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution…

  22. The applicant also relied upon MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; 117 ALD 441 at [95(b)]:

    In this connection it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence.  Therefore, if the Tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering whether the applicant has a well-founded fear of persecution.

  23. The parties were in agreement that the IAA was not required to ask “what if I’m wrong”, however, if “no real doubt” attended the IAA’s conclusion: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 576.

  24. For the applicant, Ms Ambikapathy submitted that doubt was apparent from the IAA’s reasoning at [38]. There, it expressed that it was “not implausible” that a family including Sunni members might be pressured to leave a Shia-majority area in the South of Iraq. The IAA then expressed that it was “lead to doubt” the reasons for the move due to concerns regarding the applicant’s evidence (at [38]). The IAA found instead that it was “more plausible” that the family were motivated by other considerations (at [40]).

  25. If this was the extent of the IAA’s reasoning, there may have been more substance to this ground. This was in the context relied upon by the applicant, which included (a) the IAA’s acceptance that his family were known to be of a mainly Sunni tribe (at [35]-[36]) and (b) country information indicating that Sunnis in non-Sunni areas faced a high risk of violence ([3.57] of the 2015 DFAT Report).

  26. However, no doubt is apparent in the IAA’s ultimate conclusion at [40], which was expressed unequivocally as follows:

    … I do not accept that the applicant’s family moved to Al Batha because of any threat or threats made by members of Shia militia groups for any reason, including any perception that his family was associated with ISIL.

  27. The fact that the IAA engaged in an earlier process of reasoning weighing matters for and against this conclusion does not demonstrate that relevant doubt attended the IAA’s ultimate findings in this regard.

  28. It follows that I am not persuaded that ground 2 ought to succeed.

    Ground 3 – risk of harm to the applicant immediately upon his return

  29. By ground 3, the applicant contended that the IAA misapplied the real chance test by failing to consider the risk of harm to him immediately on return to Iraq on the basis of him being perceived to be a Sunni Muslim.

  30. In support of the ground, Ms Ambikapathy observed that the IAA had accepted that the applicant was of a mixed faith family and that his family name and tribe were generally known as Sunni (at [35]-[36]). The IAA had found that the family would have been known as ‘mixed faith’ (at [35] and [48]). At [47], the IAA had relied upon a finding that the applicant’s Shia faith would “become known within the local community” of Al Batha. Ms Ambikapathy submitted that in so finding, the IAA failed to consider the risk to the applicant immediately upon return (before his Shia faith became known), given his family background and country information indicating that there was a risk to Sunnis in non-Sunni areas.

  31. The difficulty with this ground is that the IAA additionally rejected that the applicant would be assumed to be Sunni in Al Batha due to the faith of his family members, or his tribal name (at [47]-[48]). The IAA therefore did not accept that the applicant would be regarded as Sunni, and face the attendant claimed risk, from the time of his arrival until the time that his Shia faith had “become known”. At [49], the IAA concluded that it “not satisfied that there [was] a real chance of harm to the applicant, now or in the foreseeable future” (emphasis added) on the basis (inter alia) that he would be “perceived to be Sunni”.

  32. Having regard to these findings and language used by the IAA, I am not persuaded that the IAA failed to consider the claimed risk to the applicant immediately upon his return.

  33. It follows that ground 3 is unable to succeed.

    CONCLUSION

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

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated: 10 August 2022

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0