EZN17 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FedCFamC2G 701

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EZN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 701

File number(s): SYG 3488 of 2017
Judgment of: JUDGE LAING
Date of judgment: 11 August 2023
Catchwords: MIGRATION - application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA erred in its application of s 473DD of the Migration Act 1958 (Cth) – whether the IAA relevantly erred in relation to certain inconsistencies that it found – whether the IAA failed to consider the risk of harm into the reasonably foreseeable future – application dismissed
Legislation: Migration Act 1958 (Cth) s 473DD
Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439

CLI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1082

CPE15 v Minister for Immigration and Border Protection [2017] FCA 591

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

FPN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 315

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150
Division: Division 2 General Federal Law
Number of paragraphs: 44
Date of last submission/s: 3 August 2023
Date of hearing: 20 July 2023
Place: Sydney
Counsel for the Applicant: Mr B Zipser
Solicitor for the Applicant: Alkafaji Lawyers Pty Ltd
Solicitor for the Respondents: Mr G Pasas of Clayton Utz

ORDERS

SYG 3488 of 2017

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

EZN17

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:

JUDGE LAING

DATE OF ORDER:

11 AUGUST 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.

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 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 Protection (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 on 26 November 2012. 

  3. On 3 November 2016, the applicant applied for the protection visa that is the subject of these proceedings.

  4. The Delegate refused the application on 18 July 2017. The matter was then referred to the IAA for review.

  5. On 9 October 2017, the IAA affirmed the Delegate’s decision.

    THE IAA’S DECISION

  6. The IAA observed that it had received a submission that was made by the applicant on 17 August 2017. As the IAA’s treatment of that submission is the subject of complaint, it is appropriate to set it out reasonably fulsomely:

    3.… Section 473DD of the Act provides that the IAA must not consider any new information from an applicant except in limited specified circumstances. On 17 August 2017 the IAA received a submission from the applicant. The submission addresses the delegate’s decision and findings. As such, it may be regarded as argument rather than ‘information’ and I have had regard to it. The submission does however include the following:

    •the point that was missed by the decision maker is that I clearly stated during the interview that my brother [(Brother)] was in Nasseriya at the time of the killing of my father. He had come to visit our parents.

    4. Had this information been provided during the PV interview as claimed then it would not be “new information”, however from the audio record of the PV interview the applicant makes no such statement. The delegate specifically questioned the applicant as to why the militia would have been seeking [his Brother] in Nasiriyah (when he lived in Diyala) and his response was that they were not, however due to there being no protection in Nasiriyah the punishment for [his Brother] not ceasing his job as demanded was to target his family. The claim that his brother had come to visit his parents and was in Nasiriyah at the time of his father’s death is therefore new information. As the death of the applicant’s father is central to the applicant’s case I am not satisfied that the information could not have been provided earlier. As this claim contradicts other evidence given by the applicant I am not satisfied that it constitutes credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims. The applicant has not satisfied me that either ss.473DD(b)(i) or 473DD(b)(ii) is met and I am therefore prevented from considering it. Furthermore, I am also not satisfied that there are exceptional circumstances which justify consideration of the new information.

  7. The IAA observed that the applicant had also included two “police reports” relating to the death of his father, which were new information. The IAA was not satisfied the reports could not have been provided earlier and considered that parts of the reports were inconsistent with the applicant’s other evidence. The IAA was not satisfied that they comprised credible personal information. The IAA also did not consider that exceptional circumstances justified their consideration.

  8. The IAA accepted much of the applicant’s general background information including that he was a Shia from Iraq born in Nasiriyah city. The IAA accepted that the applicant’s Brother was a police officer as claimed and that in carrying out his duties he had been involved in the capture or arrest of members of various militias or armed groups (at [7]-[8]).

  9. The IAA’s reasoning at [9]-[12] is a focus of these proceedings:

    9. The applicant’s central claim is that [his Brother] was considered to be a traitor and collaborator due to his work as a Police Officer and due to this he and his family were targeted by militia groups. The specific incident recounted by the applicant was the murder of his father [in] 2012. In relation to this event, the applicant stated in his arrival interview of 16 December 2012 that armed men “broke into our house but [my Brother] wasn’t there at the time but my father was so they shot him”. The applicant has stated that this occurred around 3 am, but in his Statement of Claims received on 11 November 2016 that it occurred around dawn. At the PV interview the applicant was questioned in detail in relation to this event. He stated that he was not home at the time, he was “on shift” at the factory. When asked whether his wife and children were in the house he responded that they were not; he and his family lived in the house next door to his parents. When asked why the militia had shot his father the applicant responded that this was “to put pressure on us”. They could not get to [his Brother] because he lived in Diyala and his house was protected, but the militias were strong in the South and they knew that there was no protection for [his Brother’s] family in Nasiriyah. The applicant added that before they shot his father the militia asked about him (the applicant). The delegate asked why, if they were looking for him, the militia had not gone to his house next door. The applicant responded that they did not have time: “It only took three minutes so they didn’t have time to go next door and kill me, they have already killed one person”.

    10.There are a number of inconsistencies in the applicant’s evidence as to this event. He has maintained in his oral evidence that the family (that is, [his Brother’s] parents and/or siblings) were targeted because the militia were unable to harm [his Brother] himself in Diyala. He has however provided to the delegate a police report dated 21 March 2012 which includes his mother’s statement that the gunmen asked about [his Brother] and his father told them that he was in Diyala. If the purpose of the raid was to target [his Brother’s] parents and/or siblings as claimed, then the militia were well aware that [his Brother] was in Diyala (and at that point had lived in Diyala for some three years). The police report also states that at 3:20 am on [a date in] 2012 his mother… and [his Brother] attended the Nasiriyah Public Hospital to report the death. As Diyala is over 300 kilometres from Nasiriya it is not plausible that [the Brother] could have attended the hospital with his mother immediately after the shooting. The applicant has also stated that the gunmen asked about him before shooting his father, however this statement is at odds with his mother’s statement that they asked about [the Brother]; the applicant is not mentioned.

    11.Taking into account the inconsistencies as discussed, I do not accept that the applicant’s father was killed by militia on 21 March 2012 or that armed men raided the family home in Nasiriyah searching for [the Brother] or the applicant or were seeking to target members of [the Brother’s] family. I accept that the applicant’s father passed away aged 70 at that time and that the applicant’s mother went to live with her eldest son [the Brother] in Diyala, however I do not accept that the applicant or his family also moved to Diyala due to fear of being targeted by militia groups. I conclude that the applicant remained in Nasiriyah and worked at the… Factory until his departure from Iraq later in 2012.

    12. I do not accept that the applicant was of any interest to any militia groups prior to his departure from Iraq on the basis that his brother was a member of the Police Force and had been involved in the capture or arrest of militia members. The applicant also claims that he was considered to be a traitor by militias due to working in a state-owned factory. I am satisfied that the applicant worked for state-owned factories for the whole of his adult life, first as a boiler operator and then as a carpenter. Other than his claim that the militia who raided his parents’ home asked about him, which I have not accepted, the applicant has not stated that he had any adverse interactions with any militia groups prior to his departure from Iraq. I am not satisfied that he was imputed to be a traitor or collaborator due to working for state-owned factories from 1999 to 2012. The applicant further claimed that men came to his wife’s house in 2016 asking after him. As I have found that he was of no interest to any militia groups, I do not accept that this occurred.

  10. Having regard to country information, the IAA was not satisfied that there was a real chance that the applicant would be targeted by armed groups. It concluded that as the applicant’s home area was Nasiriyah and his Brother resided in Diyala, there was not a real chance that the applicant would be harmed as a result of any direct attacks on his Brother (at [15]).

  11. The IAA did not accept that the applicant was considered to be a traitor, or imputed with such an opinion, due to his employment in state-owned factories prior to leaving Iraq. The IAA observed that the country information contained no instances of state-run factories or their employees being targeted by ISIL or Sunni militias. The IAA concluded that there was only a remote chance of the applicant being so targeted “should he return to this sort of work in Nasiriyah” (at [16]).

  12. At [17]-[18], the IAA reasoned (footnotes omitted):

    17. I accept that the applicant is a Shia Muslim. He has not claimed a fear of harm on this basis alone although the delegate considered whether this, and the security situation in southern Iraq more generally, would give rise to protection obligations. Considering whether the applicant faces a real chance of harm from Shia militias or Shia armed groups due simply to being a Shia, I am not satisfied on the material before me that this is the case. In relation to whether there is a real chance that the applicant would suffer serious harm from the security situation more generally, including from Sunni armed groups, the DFAT Country Report before the delegate notes that the security situation in Iraq is fragile and susceptible to rapid and serious deterioration with large scale conflict in some areas4. In January 2017 a report issued by United Nations Iraq points out that “Although quieter than the rest of the country, the south of Iraq experienced a number of IED attacks that led to civilian casualties in the southern governorates of Basra, Dhi Qar and Muthanna. ISIL claimed responsibility for all these attacks”.5 No direct confrontations between ISIL/Daesh militants and Iraqi forces have been reported in the southern provinces, where security incidents take the form of sporadic terror attacks with a limited number of civilian casualties.6 Violence between opposing Shia militias occurs and is more pronounced in Shia areas such as Nasiriyah. This is sometimes linked to other criminal activities, including robberies and kidnappings. However, the DFAT report suggests that the risk of being caught up in this is predominantly borne by those who are actively involved in the militia or tribal group, rather than ordinary civilians.7 I am not satisfied that the applicant faces a real chance of serious harm from Shia militias, Sunni groups or otherwise arising from sectarian violence. Although violent crime, including kidnappings and killings, does occur in Nasiriyah, on the basis of the material before me I conclude that it is not at a level that would give rise to a real chance that the applicant would face serious harm, should he return.

    18. I am not satisfied that the factors as discussed above cumulatively raise the applicant’s profile to a level such that he would face a real chance of serious harm on return to Iraq.

  13. The IAA concluded that the applicant did not meet the definition of a refugee in s 5H(1) of the Migration Act 1958 (Cth) (Act) and therefore did not meet s 36(2)(a) of the Act (at [19]).

  14. The IAA observed that the “real risk” and “real chance” tests involved application of the same standard. The IAA was not satisfied that the applicant faced a “real risk” of serious or significant harm. The IAA therefore found that the applicant was also unable to meet s 36(2)(aa) of the Act and affirmed the Delegate’s decision (at [20]-[23]).

    THE CURRENT PROCEEDINGS

  15. The applicant commenced the current proceedings through an application filed on 13 November 2017. He ultimately relied upon an amended application filed on 17 May 2023 containing the following grounds:

    1.As recorded in the delegate's decision dated 18 July 2017, the applicant, in giving evidence concerning the attack of a militia group on his parents' house in Nasiriya, stated that "[his Brother] was outside and not in the house" (CB 107.4). On a fair and reasonable interpretation of this evidence, the applicant was giving evidence that [his Brother] was in Nasiriya at the time of the attack. The applicant stated in a submission to the Immigration Assessment Authority ("IAA") sent on 17 August 2017 that "I clearly stated during the interview that ... [the Brother] was in Nasiriya at the time of the killing of my father". The IAA stated in its decision dated 9 October 2017 at [4] that "from the audio recording of the PV interview the applicant makes no such statement". This finding is not correct. While the applicant did not expressly state that [his Brother] was in Nasiriya, he gave evidence to that effect when he stated during the PV interview that "[his Brother] was outside and not in the house". The IAA at [4] went on to find that that, pursuant to s 473DD of the Migration Act, it was prevented from considering this evidence. The IAA, by not having regard to the applicant's evidence during the PV interview that "[his Brother] was outside and not in the house", fell into jurisdictional error in making this finding under s 473DD. Further, the IAA, in making its findings under s 473DD(a) and 473DD(b)(ii), overlooked the significance of the applicant's evidence that [his Brother] was in Nasiriyah, which is evident from the IAA's reasons at [10] when it found that "it is not plausible that [the Brother] could have attended the hospital [in Nasiriya] with his mother immediately after the shooting" since [the Brother] was in Diyala at the time.

    2.The IAA at [11] found that "taking into account ... inconsistencies as discussed, I do not accept that the applicant's father was killed by militia on 21 March 2012 or that armed men raided the family home in Nasiriya ... ". The claimed "inconsistencies" are discussed at [10]. One alleged inconsistency was that, because [the Brother] was in Diyala (which was over 300 km from Nasiriyah), "it is not plausible that [he] could have attended the hospital [in Nasiriyah] immediately after the shooting". But the applicant stated at the PV interview that "[his Brother] was outside and not in the house" at the time of the shooting, and did not state that [the Brother] was in Diyala at the time of the shooting. A second alleged inconsistency is set out in the first seven lines at [10]. But this is not an "inconsistency". In the circumstances, the IAA fell into jurisdictional error in its rejection at [11] of the applicant's claim concerning the attack on his parents' house and the killing of his father.

    3.The IAA at [17] found that "the security situation in Iraq is fragile and susceptible to rapid and serious deterioration with large scale conflict in some areas". The IAA found at [18] that it was not satisfied that the applicant "would face a real chance of serious harm on return to Iraq". The IAA, by focusing on the point of the applicant's return to Iraq, failed to consider whether the applicant, into the reasonably foreseeable future, would face a real chance of serious harm. In circumstances where "the security situation in Iraq is fragile and susceptible to rapid and serious deterioration", this error was material.

    Ground 1

  16. Ground 1 relied upon the applicant’s construction of his statement at interview that “[his Brother] was outside and not in the house" when his father was killed. The applicant contended that “a fair and reasonable interpretation of this evidence” was that his Brother “was in Nasiriya at the time of the attack”. This, it was submitted under ground 1, meant that the IAA erred in its application of s 473DD of the Act, in rejecting that the applicant had stated at his interview that his brother was in Nasiriya at the time. The IAA was also said to have failed to have appreciated the significance of the evidence, by reference to its finding at [10].

  17. These contentions depend upon construction of what the applicant said at interview. A transcript that is in evidence indicates that the following was said (inter alia):

    Officer: why did they do this to your father?

    Applicant: because they considered [my Brother] and all his family were like one person, so it was a kind of threat and to put pressure on us. And because they couldn't reach [my Brother] because the house he was living in was protected.

    Officer: so, where was [your Brother] at that time?

    Applicant: he was outside, he wasn't in the house with them, so my mother and my father were only at the house.

    Officer: so where were your wife and children at that time?

    Applicant: I had a house that was next to my parent's house at that time, and my wife and children were at that house at that time.

    Officer: you said that [your Brother] lived in Diyala since 2009, so why would they be looking for him in Nasiriyah where your parents are?

    Applicant: so he moved to Diyala in 2009

    Officer: yes, but you are saying this incident occurred in your parents' house in Nasiriyah, is that correct

    Applicant: yes, in 2012

    Officer: so why were they looking for [your Brother] in Nasiriyah, when [he] was living in Diyala?

    Applicant: so as I mentioned before, that these militias are present in the south areas, and um so they were unable to reach or get to [my Brother] in Diyala because his place where he was living was guarded and protected, so they came after his family because they know that they have no protection…

  1. The applicant also referred to the following passage from the Delegate’s decision:

    In relation to the circumstances of his father’s death ... [t]he applicant replied that a group of the [militia] entered their house in Nasiriya and killed his father ... The applicant was asked why he thought they did this to his father. He replied that it was because they considered [his Brother] and [his Brother’s] family to be a threat and to pressurise him through them because they could not directly harm [his Brother] as his house was protected. The applicant was asked where [his Brother] was at the time of their father’s death. The applicant replied that [his Brother] was outside and ‘not in the house’. However, I note that the applicant has also stated that [his Brother] lived in Diyala with his family since 2009 or 2010...

    It was put to the applicant to explain why, if ... [his Brother] lived in Diyala, would the Shia militia search for him in Nasiriya where his parents were. The applicant replied that it was because the militia were present in the south and were unable to reach [his Brother] at his residence in Diyala, which was well protected.

  2. The applicant contended that in reasoning at [4] that the claim that his Brother was in Nasiriya at the time of the shooting was “new information”, the IAA misapplied s 473DD of the Act. That provision was as follows:

    MIGRATION ACT 1958 - SECT 473DD

    Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

  3. The applicant contended, firstly, that the information he had provided was not “new information” because a “fair and reasonable interpretation” of his evidence at interview that “[his Brother] was outside and not in the house" when his father was killed was that his brother “was in Nasiriya at the time of the attack”. In this regard, the applicant contended that the IAA erred in rejecting his submission that he had “clearly stated” at interview that his brother was in Nasiriya at the relevant time.

  4. I am unable to accept this. The applicant’s statement at interview that his Brother was “outside and not in the house” with his parents when they were attacked went no further than its terms. The applicant did not say whether his Brother was “outside” of the house but nearby, nor specifically whether he was “outside” of Nasiriya, in this part of his evidence. He simply said that his brother was “outside and not in the house" when the attack occurred.

  5. The applicant next contended that his statement after the Delegate’s decision regarding his Brother’s location was no more than “a clarification” of his earlier evidence. He submitted that this was not “new information” for the purposes of s 473DD of the Act.

  6. I accept that the applicant’s further submission may be characterised as “a clarification”. However, it was clarification that occurred through a communication of “knowledge of facts or circumstances relating to material… of an evidentiary nature", which was not before the Delegate and had been considered to be potentially relevant to the review. This was new information for the purposes of s 473DD of the Act: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [9] per Kiefel CJ, Bell, Gageler and Keane JJ.

  7. The applicant further submitted at hearing that the IAA’s reasoning involved the type of misconstruction of “credible personal information” considered in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 per Bromberg (as considered in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150 at [56]-[80] per Mortimer and Jackson JJ). This was, it was submitted, by applying a higher standard than whether the information was “capable of being believed”.

  8. However, I am not persuaded that the IAA’s decision was affected by the error found in CSR16. Unlike in CSR16, the IAA does not appear to have crossed the preliminary threshold towards evaluating whether or not the information was true. Rather, it evaluated the information on the basis of not being “satisfied that it constitute[d] credible personal information”. This was having regard to the IAA’s consideration that the information appeared to contradict other evidence that had been given by the applicant. The IAA was not precluded from taking such inconsistencies into account in evaluating whether or not the information was “credible”:  see FPN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 315 at [51]-[53] per Nicholas J.

  9. The applicant submitted that his evidence that his Brother was in Nasiriya at the time of the shooting did not “contradict” the evidence that he had given at interview. However, for the reasons given below in relation to ground 2,  I consider that it was open to the IAA to have considered the effect of the applicant’s evidence at interview to have been inconsistent with a claim that his Brother was in Nasiriya at the time of the shooting. For the reasons considered below, it was open to the IAA to have considered that the applicant’s evidence at interview at least gave the impression that he was claiming that his brother was in Diyala at the time that the shooting occurred. 

  10. The applicant also submitted, in post hearing submissions, that the IAA made the type of error considered in CLI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1082 (CLI19) at [29]-[30] per Rares J. In that case, the IAA was found to have erred in relying upon reasoning that it had “serious reservations” regarding the veracity of the new information, without factoring in the ability of the new information to meet s 473DD(b)(ii) in assessing whether there were exceptional circumstances for the purposes of s 473DD(a) (at [29]-[32]). The decision in CLI19 therefore turned upon a particular manner of reasoning on the part of the IAA that did not occur in the present case. In the present case, the IAA did not merely find that it had “serious reservations”. It directly found that the new information was not “credible personal information”. It is therefore not apparent how the IAA could be said to have “made the same type of error as the IAA in CLI19”. This was not explained in the applicant’s post hearing submissions.

  11. Finally, the applicant submitted that the IAA ought to have appreciated the significance of the information by reference to its consideration at [10] where it found that "it is not plausible that [the Brother] could have attended the hospital [in Nasiriya] with his mother immediately after the shooting" as [the Brother] was in Diyala at the time. At hearing, the applicant clarified the submission as being that the IAA ought to have considered the consistency of the information with the statement in the “Police Report” indicating that his Brother had attended the hospital in Nasiriya (thus indicating that he was there). However, it is apparent from [5] of the IAA’s decision, where it referred to this aspect of the “Police Report”, that it was conscious of this information at the preliminary stage. I therefore do not accept that the IAA failed to appreciate the significance of the information when considered against the reference in the “Police Report” to the location of the Brother. Nor do I accept that the reference in the “Police Report” to the Brother’s attendance at the hospital “immediately after the shooting” (emphasis added) denied the applicant’s evidence that his brother had been in Nasiriya “at the time” of the shooting the status of new information.

  12. For the above reasons, I am not persuaded that ground 1 is able to succeed.

    Ground 2

  13. Ground 2 disputed two inconsistencies that were found by the IAA.

  14. The first concerned the IAA’s finding at [10] that it was “not plausible” that the applicant’s Brother could have attended the Nasiriya Public Hospital immediately after the shooting, as Diyala was over 300 kilometres from Nasiriya. The applicant submitted that this contained an erroneous assumption that his Brother was in Diyala at the time of the shooting. As set out above, the applicant had given evidence that his Brother was “outside” and not “in the house” when his father was shot. I accept that the applicant did not directly state that his brother was in Diyala at the time of the shooting.

  15. However, I also accept the Minister’s submission that this understanding of the effect of the applicant’s evidence was open to the IAA on the material before it, having regard to the following:

    (a)the applicant had given evidence, including at interview, that his Brother resided in Diyala;

    (b)the applicant had provided evidence, through the “Police Report”, that his father had told his attackers that the Brother was “in Diyala” at the time of the attack. Whilst there may well have been reasons for the father saying this other than its factual correctness, this was one of aspects of the evidence indicating that the brother was in Diyala;

    (c)in response to the question of "why were they looking for [the Brother] in Nasiriyah, when [he] was living in Diyala" at the relevant time, the applicant did not contest the premise of the question when giving his response; and

    (d)the applicant’s evidence did not at any point state that his brother was in Nasiriya at the time of the attack. As noted above, when asked where his Brother was at the time, the applicant simply stated that he was “outside” and not “in the house”.  He did not state that his Brother had travelled to Nasiriyah and was in the area at the relevant time.

  16. The above combined to give a logically available impression that the applicant’s evidence was that his brother was in Diyala at the time of the attack. Whilst another decision maker may well have taken a different view of this evidence, this is not sufficient to demonstrate that the IAA’s reasoning was not logically available to it.  For these reasons, I also do not accept that it was closed to the IAA to have regarded the reference in the “Police Report” as inconsistent with its understanding of the applicant’s evidence as being to the effect that his Brother was in Diyala.

  17. The second inconsistency disputed by the applicant concerned the IAA’s reasoning at [10] as follows:

    10.… He has maintained in his oral evidence that the family (that is, [his Brother’s] parents and/or siblings) were targeted because the militia were unable to harm [his Brother] himself in Diyala. He has however provided to the delegate a police report dated 21 March 2012 which includes his mother’s statement that the gunmen asked about [his Brother] and his father told them that he was in Diyala. If the purpose of the raid was to target [his Brother’s] parents and/or siblings as claimed, then the militia were well aware that [his Brother] was in Diyala (and at that point had lived in Diyala for some three years).

  18. The applicant contended that in the above extract, the IAA understood the mother’s account of the attack in the Police Report to be that the gunmen asked a question to the effect of “Where is [the Brother]?” However, the report stated that the gunmen “asked about [the] Brother”, not that they asked about his location.

  19. I accept that the mother’s account in the report did not state, in terms, that the gunmen had asked the Brother’s location. However, I consider that this interpretation was open on the evidence. This is considering that, on the mother’s account, it appears to have been the father’s interpretation of the question (given that his answer was to tell the gunmen the Brother’s location by responding that “[the Brother] is in [Diyala]”). I am unable to find that it was logically closed to the IAA to have considered that this was the effect of the question, when this appears to have been the interpretation placed upon it by the applicant’s family as recorded in the Police Report. I accordingly consider that it was open to the IAA to have found that such a question sat uneasily with the applicant’s claims of the militia’s awareness, prior to asking the question, that the Brother was in Diyala.

  20. For the above reasons, ground 2 is unable to succeed.

    Ground 3

  21. Ground 3 contended that the IAA failed to consider, into the reasonably foreseeable future, whether the applicant would face a real chance of serious harm. This was in circumstances where the IAA found at [18] that it was not satisfied that the applicant "would face a real chance of serious harm on return to Iraq". It was also in circumstances where the IAA cited country information indicating that “that the security situation in Iraq is fragile and susceptible to rapid and serious deterioration with large scale conflict in some areas”. In submissions, the applicant additionally contended that the IAA made the same error at [22] in relation to the complementary protection limb. In this regard, the applicant observed that the reference to “foreseeable consequence” in s 36(2)(aa) of the Act similarly requires the decision maker to consider the situation into the reasonably foreseeable future.

  22. The Minister submitted that on a fair reading of the IAA’s decision, this is what the IAA did. The Minister relied upon what was said in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [59]-[60] per Mortimer J (as her Honour was):

    59.In my opinion, the prospects of success of the proposed new ground of appeal depend in part on the understanding of what is meant by the now well-established and orthodox approach to the determination of risk of harm to a person occurring in the future: that is, is there a real chance a person may suffer serious harm on return to her or his country and nationality… To make that assessment, there must be speculation about the future, and the period of time throughout which that speculative task must be carried out has been expressed to include so much of the future as is “foreseeable” or “reasonably foreseeable”…

    60.The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.

  23. The language used by the IAA at [18] is, perhaps, unfortunate. It would have been preferable, and clearer, if the IAA had used language in that paragraph that made clear that its assessment in relation to s 36(2)(a) had been undertaken by reference to the reasonably foreseeable future.

  24. However, on balance, I accept the Minister’s submission that this analysis was undertaken by the IAA, having regard to its decision as a whole:

    (a)The IAA’s reasoning at [15] reflects an assessment undertaken into the reasonably foreseeable future. There, after considering country information and the applicant’s circumstances, the IAA concluded that there was not a real chance of the applicant being targeted or harmed due to his family connection with his brother.

    (b)Similarly, this was reflected in the IAA’s assessment at [16]. There, the IAA concluded that there was “only a remote” chance of the applicant being targeted due to his own employment in state-run factors “should he return to this sort of work in Nasiriyah”. This focussed upon the applicant’s potential circumstances not only immediately upon return, but also into the reasonably foreseeable future.

    (c)At [17], the IAA acknowledged country information indicating that the security situation was “fragile and susceptible to rapid and serious deterioration” and that violent crime “does occur in Nasiriya”. Such information bore upon the question of the chance of harm to the applicant in the reasonably foreseeable future. However, on the balance of the country information, the IAA concluded that the level of risk to the applicant should he return to Nasiriyah would not give rise to a real chance of serious harm.

    (d)At [20]-[23], the IAA considered the risk of harm to the applicant under the complementary protection criterion, noting that the “real risk” and “real chance” tests involved the same standard. This was in the context of the IAA’s express recognition at [20] and [23] that its analysis in relation to complementary protection required it to assess whether there were “substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there [was] a real risk that the person [would] suffer significant harm” (emphasis added).

  25. I am therefore not persuaded that ground 3 is able to succeed.

    CONCLUSION

  26. For the above reasons, the application before this Court must be dismissed. 

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

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       11 August 2023

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ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Duncan v Independent Commission Against Corruption [2016] NSWCA 143
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474