FBX17 v Minister for Immigration and Border Protection
[2024] FedCFamC2G 302
•10 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FBX17 v Minister for Immigration and Border Protection [2024] FedCFamC2G 302
File number(s): SYG 3571 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 10 April 2024 Catchwords: MIGRATION – Protection Visa – refusal – review of Immigration Assessment Authority (“IAA”) decision.
ADMINISTRATIVE LAW – allegation that the Tribunal’s decision affected by jurisdictional error – no matter of principle.
Legislation: Migration Act 1958 (Cth), ss 5H, 36, 474 Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 33 Date of hearing: 28 February 2024 Place: Sydney Counsel for the Applicant: Mr A. d’Arville Solicitor for the Applicant: Baker McKenzie Counsel for the Respondent: Mr T. Reilly Solicitor for the Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 3571 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FBX17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
10 APRIL 2024
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 Cameron
INTRODUCTION
The applicant is a citizen of Iraq who arrived in Australia on 2 May 2013 by boat. On 30 July 2016 he lodged application for a protection visa with what is now the Department of Home Affairs (Department), alleging that he feared he would be persecuted in Iraq by Shia militias because he had previously volunteered for a non-government organisation (NGO) named Handicap Children’s Care Organisation (HCCI) which supported children with disabilities. On 20 March 2017 the applicant’s application was refused by a delegate (Delegate) of the first respondent (Minister). The application was then reviewed by the second respondent (IAA). The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or …
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
...
5H Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
…
BACKGROUND FACTS
In its decision the IAA summarised the facts alleged in support of the applicant’s claim for protection as follows:
…
•The applicant was a full time employee with the water office in [southern Iraq]. In 2006, in addition to his full time employment, he began volunteering with a French NGO called Handicap Children Care Organisation in Iraq (HCCI) in their branch in [southern Iraq]. The applicant's role was to visit disabled children at their homes to study their situation and then produce reports about their medical conditions, needs and their financial situation. He became well known as a representative of the HCCI within the local community due to his work.
•Approximately four to eight months after he began volunteering, a member of the Madhi Army approached him at the HCCI office and threatened to harm the HCCI employees and volunteers as they were working with the infidels. The applicant began to conduct his activities in a secretive manner, but he could not give up his work with the HCCI because of his strong belief in helping children and in the humanitarian work of the organisation.
•In 2011 the applicant was kidnapped by six members of the Madhi Army when he was leaving the HCCI office. He was beaten, tortured and held captive for three days. They released the applicant after he promised to quit his work with HCCI and threatened to kill him if he reported the matter to the police. Despite his promise to the Madhi Army, he continued to volunteer with the HCCI as his conscience did not allow him to quit.
•In January 2012 an improvised explosive device (IED) was placed in front of the HCCI office. It exploded while the applicant was exiting the HCCI office and he and two other workers were injured. The applicant lost consciousness for almost 45 days. He awoke to find himself in hospital with severe burns to his body and fractures to his right arm and his head. Some shrapnel remains in his hand. A member of the Madhi Army approached him in hospital and made further threats to the applicant.
•The applicant resided with his sister while recovering from his injuries. He stayed at home and avoided going out except for medical treatment. In about March 2013 his sister found writing on the external walls of their house saying something akin to "death to infidels". The applicant realised he would be targeted sooner or later and fled Iraq on 27 March 2013.
10. The applicant fears being targeted by Shia militias, in particular that [sic] Madhi Army due to his past work with the HCCI. The delegate considered that claims to fear harm as a Shia, as a failed asylum seeker/returnee from a western country and due to his medical conditions arose on the material.
The applicant also claimed to have PTSD, depression and various other ongoing health concerns resulting from injuries sustained in the 2012 bomb attack.
THE IAA’S DECISION AND REASONS
After discussing the claims made by the applicant and the evidence before it, the IAA was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2) of the Act. The IAA’s decision was based on the following findings and reasons:
(a)the IAA accepted that the applicant:
(i)was a Shia Muslim who had resided in southern Iraq and who, if he returned to Iraq, would return to that area as his family remained there; and
(ii)suffered from PTSD, depression and ongoing physical injuries which he sustained during an improvised explosive device (IED) attack in Iraq in 2012;
(b)the IAA accepted that:
(i)the applicant had been a volunteer for an organisation named HCCI which provided support to children with disabilities, had been known in his community for his volunteer work and was identifiable as a worker for HCCI;
(ii)four to eight months after volunteering with HCCI, the applicant received threats from the Madhi Army and in 2011 was kidnapped by them and held for three days before being released when he promised to stop his work; and
(iii)however, he continued to work and in January 2012 HCCI was subjected to an IED attack in which the applicant and two others were injured;
(c)the IAA did not accept that the applicant had been threatened by a member of the Madhi Army while he was in hospital after the attack because:
(i)it considered such an approach implausible in circumstances where the Madhi Army had “achieved its purpose in targeting the organisation and injuring three of its workers including the applicant”; and
(ii)the applicant had not suggested that the other injured workers had also received threats after the attack;
(d)the IAA did not accept that after the attack the Madhi Army or any other Shia militias had written threats on the wall of the applicant’s sister’s home because:
(i)there was no clear reason why the applicant would still be of interest to the Madhi Army since he had effectively complied with their order to cease working for the HCCI after the attack; and
(ii)the applicant’s evidence regarding the timing of this incident was inconsistent in that his written statement indicated it had occurred in March 2013, whereas his oral evidence in his departmental interview indicated it had occurred:
several months after he left the hospital in 2012, that he organised someone to paint over the message and that nothing further occurred between this incident and his leaving Iraq in 2013;
(e)the applicant had not been harmed by the Madhi Army or other Shia militias after he ceased volunteering, which strongly indicated that he was of no ongoing interest to them;
(f)the IAA noted the applicant did not claim to have experienced any discrimination due to his Shia faith and DFAT country information indicated that the risk of Shias facing harm in southern Iraq was low;
(g)the IAA was satisfied that the Department of Foreign Affairs and Trade (DFAT) country information did not indicate that the applicant would face harm upon return to Iraq as a returnee from a Western country or as a failed asylum seeker.
The IAA was not satisfied the applicant faced a real chance of any harm in Iraq due to his previous work for HCCI, in connection with any past or future association with an NGO, or as someone who was perceived to be working for "the infidels", notwithstanding that it was plausible that he would undertake further volunteer work for foreign organizations on his return to Iraq and country information provided by DFAT indicated that individuals associated with the international community were at high risk of societal discrimination and a moderate risk of societal violence.
THE PROCEEDING IN THIS COURT
In his further amended application, the applicant alleged:
…
3.The decision of the IAA was affected by jurisdictional error because in coming to its decision it:
a. made a finding that was not supported by evidence: and/or
b. relied on irrelevant material: and/or
c. engaged in a reasoning process which was irrational and/orunreasonable.
Particulars
i. The IAA rejected the Applicant's account of a threat made to him in hospital.
ii. One of the reasons for that rejection was the IAA's finding that the Mahdi Army had "achieved its purpose".
iii. The evidence before the IAA was that the purpose of the Mahdi Army was to dissuade and prevent the Applicant from working for HCCI.
iv. Accordingly, The IAA decision was based on either:
1no evidence; or
2the IAA’s unwarranted assumption as to how the Mahdi militia group in [southern Iraq] would act, unsupported by evidence.
4. The decision of the IAA was affected by jurisdictional error because in coming to its decision it:
a. made a finding that was not supported by evidence: and/or
b. relied on irrelevant material; and/or
c.engaged in a reasoning process which was irrational and, therefore, unreasonable.
Particulars
i. The IAA rejected the Applicant's account of a threat made to him in hospital.
ii. One of the reasons for that rejection was the IAA's finding that there was "no suggestion that other injured workers were also threatened after the attack"
iii. There was no evidence before the IAA about whether other injured workers were or were not threatened after the attack.
iv.The Applicant was not asked any questions about whether other injured workers were or were not threated after the attack;
v. Accordingly, the finding was based on either:
1. no evidence: or
2. the IAA's unwarranted assumption that the Applicant should have known had [sic] happened to other injured workers, would have provided and information, and/or that the other injured workers would necessarily be threatened;
5. The decision of the IAA was affected by jurisdictional error because in coming to its decision it:
a. ignored relevant material; and
b. engaged in a reasoning process which was irrational and/or unreasonable.
Particulars
i. The IAA did not accept the Applicant’s account of the Mahdi Army having threatened him by writing on the wall of the house in which he was living in March 2013.
ii. One of the reasons for that finding was that the Applicant was not volunteering in a foreign organisation so that it was not clear why the Mahdi Army would have an interest in the Applicant.
iii. The IAA found that the Applicant was kidnapped by the Mahdi Army in 2011 and was released after he promised to stop working with the HCCI;
iv. The IAA found that after that time, the Applicant continued to work for the HCCI
v. In light of that material, an obvious reason for the Mahdi Army to threaten the Applicant was to prevent him from working for HCCI in the future:
vi. In making the finding referred to in particular (1), the IAA ignored its own findings in respect of the Applicant's previous behaviour and the purpose of the Mahdi Army in dissuading and preventing the Applicant from working for the HCCI.
6. The decision of the IAA was affected by jurisdictional error because in coming to its decision it engaged in a reasoning process which was irrational and, therefore, unreasonable.
Particulars
i. The IAA did not accept the Applicant's account of the Mahdi Army having threatened him by writing on the wall of the house in which he was living.
ii. One reason for that was the IAA rejected the Applicant's account was because of an "inconsistency".
iii. The inconsistency to which the IAA referred was a statement that the writing on the wall occurred "in March 2013" and a different statement that it occurred "several months after he left the hospital in 2012".
iv. In fact, the applicant’s statement was that the writing on the wall occurred “in around March 2013”.
v. There is no inconsistency between the two statements.
vi. Alternatively, if there is some inconsistency, it was of such a trivial nature that a finding against the Applicant based on that inconsistency amounted to an illogical and irrational decision-making process.
…
9. The decision of the IAA is affected by jurisdictional error in that the IAA, in considering the risk of future harm to the applicant on the basis of the country information before it:
a.engaged in an illogical and/or unreasonable process of reasoning; and/or
b.misunderstood relevant material.
Particulars
i.At [27], the IAA considered that: “DFAT has assessed that there is a high risk in Iraq of societal discrimination and a moderate risk of societal violence from the community against individuals associated with the international community”.
ii.The IAA reasoned that the applicant had not been “targeted by members of the community due to his past work with the HCCI”.
iii.The DFAT Report did not state that the risk of moderate risk of societal violence was “from the community”.
iv.The IAA misunderstood the DFAT report by assuming that “societal violence” (as distinct from “official violence”) could not encompass violence from Shia militias, and/or reasoned illogically or unreasonably.
v.At [28], the IAA found that “the information suggests that Shia militias are not presently targeting current or former workers of NGO' s or international companies as they were in the past”.
vi.In making the finding at particular (v), the IAA relied on the DFAT report;
vii.The IAA's reasoning was illogical, irrational or unreasonable because the DFAT report was incapable of supporting the positive finding at particular (v).
(References omitted)
Ground 3
The third ground of the application was based on para.23 of the IAA’s decision which said:
However, I am not satisfied that the applicant was threatened by a member of the Madhi Army in hospital as claimed. In circumstances where the Madhi Army had achieved its purpose in targeting the organisation and injuring three of its workers including the applicant, and where there is no suggestion that other injured workers were also threatened after the attack, I do not consider it is plausible that they would continue to threaten the applicant.
The applicant submitted that there was no evidence upon which the IAA could conclude that there had been a singular motive for the Mahdi Army's actions or to conclude that the threat of it acting against him in the future as it had in the past had been dispelled by the achievement of that purpose. He argued that the IAA’s conclusion that the Mahdi Army had “achieved its purpose” had simply been an assumption on its part and that its decision was affected by jurisdictional error as a result.
It is important to note that in the paragraph preceding para.23, the IAA had stated:
On the totality of the evidence before me, including the oral evidence of the applicant and the independent information, I accept that: the Madhi Army made verbal threats to the applicant about four to eight months after he began working with the HCCI; that he was kidnapped by the Madhi Army in 2011, held for three days and released after he promised to stop his work with the HCCI but that he returned to work; and the HCCI was subject to an IED attack in January 2012 in which the applicant and two of his colleagues were injured.
In addresses, the applicant referred to comments made by the Delegate to the applicant during the course of the departmental interview, the more relevant of which was:
So look based on what you've told me it looks like the Mahdi Army they had two goals: they wanted to shut down HCCI and they wanted to stop you from working for the HCCI. They achieved both of these goals or they achieved one of them, they stopped you from working but they also put an explosion in front of the building and potentially stopped that organisation
Although there might not have been comprehensive evidence of the Mahdi Army’s entire political or military agenda, there was evidence of its intentions towards the HCCI and those associated with it. Those intentions were identified by the Delegate whose analysis, it can be inferred from its reasons, was adopted by the IAA following its own consideration of the relevant evidence. It is also relevant in that connection that the applicant did not claim to have suffered further at the hands of the Mahdi Army in the period before he left for Australia.
The IAA’s conclusion did not depend on an assumption. It was based on evidence at its disposal, was open on that evidence and was not one which no reasonable decision-maker could have reached on that evidence.
Ground 4
The fourth ground of the application also relied on para.23 of the IAA decision record. It alleged that because there had been no evidence about whether other workers injured in the 2012 bombing were threatened subsequently, the IAA’s finding that there was “no suggestion” that they had been was unsupported by evidence. The applicant submitted that the IAA had, without justification, assumed that he had had knowledge of the other injured workers’ relationships with and communications from the Mahdi Army and would have perceived the evidentiary importance of communicating such knowledge to the Department in connection with his application.
The applicant’s argument overstates what the IAA found, which was that there was no evidence on the subject. There being no evidence on the subject, the IAA did not err by stating as much or by concluding that the evidentiary situation before it did not support a finding that the Mahdi Army would continue to threaten the applicant. The finding that the evidence was insufficient to support such a conclusion was not affected by error.
Ground 5
The fifth ground of the application was based on para.24 of the IAA’s decision which relevantly said:
I am also not satisfied on the evidence before me that anyone, including the Madhi Army or other Shia militias, wrote a threatening message on the applicant's wall. The applicant's evidence was that he ceased working with the HCCI after the IED explosion and in doing so, complied with the orders of the Madhi Army to stop working for that organisation. As he was no longer volunteering for a foreign organisation, it is not clear why they, or anyone else, would have an interest in the applicant. Further, the applicant's evidence regarding the timing of the message was inconsistent. In his written statement he indicated it was written in March 2013, and that it was the event that prompted him to leave Iraq. However, at the DIBP interview, he stated it occurred several months after he left the hospital in 2012, that he organised someone to paint over the message and that nothing further occurred between this incident and his leaving Iraq in 2013. …
The applicant submitted that the IAA’s lack of satisfaction that the Mahdi Army had painted a threatening message on the wall of his sister’s house was based, at least in part, on an unwarranted conclusion that by the time the message was allegedly painted, the Mahdi Army was no longer interested in him because he had ceased to worked for the HCCI. However, I have found that it was open to the IAA to conclude that the Mahdi Army had no continuing interest in the applicant once its relevant goals were met. It was therefore not erroneous of the IAA to reason that, given those circumstances, it was not clear why Mahdi Army would have been interested in the applicant at the time the wall was allegedly defaced.
Ground 6
The sixth ground of the application also relied on para.24 of the IAA’s decision record and alleged that, contrary to the IAA’s view, there had been no inconsistency between the applicant’s two accounts of the defacing of the wall and so it was erroneous to rely on the supposed existence of such an inconsistency to conclude that a message had not been painted on the wall as claimed. The applicant submitted:
Looking at the supposed inconsistency:
(a) The Applicant’s written evidence (in a statutory declaration accompanying his application for a visa) was that this occurred in “around March 2013”. The Authority’s summary of that evidence (“in March 2013”) was inaccurate.
(b) The IAA Decision records the Applicant’s evidence in the DIBP interview as being that it was “several months after he left the hospital in 2012”.
There is no inconsistency between those two things. Around March 2013 is several months after he left the hospital in 2012.
The answer to this submission lies in considering the relevant evidence in greater detail. Much of it was quoted earlier in these reasons but is worthy of repetition:
•In January 2012 an improvised explosive device (IED) was placed in front of the HCCI office. It exploded while the applicant was exiting the HCCI office and he and two other workers were injured. The applicant lost consciousness for almost 45 days. He awoke to find himself in hospital with severe burns to his body and fractures to his right arm and his head. Some shrapnel remains in his hand. A member of the Madhi Army approached him in hospital and made further threats to the applicant.
•The applicant resided with his sister while recovering from his injuries. He stayed at home and avoided going out except for medical treatment. In about March 2013 his sister found writing on the external walls of their house saying something akin to "death to infidels". The applicant realised he would be targeted sooner or later and fled Iraq on 27 March 2013.
That overview by the IAA appears to have been drawn from the Delegate’s summary of the evidence which, in turn, was largely drawn from the applicant’s statement of 26 July 2013 accompanying his visa application.
The IAA also referred to the applicant’s departmental interview, relevantly recording:
… at the DIBP interview, he stated [that the painting of the message] occurred several months after he left the hospital in 2012, that he organised someone to paint over the message and that nothing further occurred between this incident and his leaving Iraq in 2013.
The explosion occurred in January 2012, in fact 5 January 2012 according to the applicant’s Arrival and Induction Interview form, and the applicant was discharged from hospital about 50 days later. He said that while he was in Iraq he lived with his sister. It can be accepted that the IAA was aware that by early March 2012, the applicant had returned to his sister’s home to live.
The evidence before the IAA on this question, given by the applicant, was that the message had been painted on the wall either in about March 2013 or several months after early March 2012. The IAA was not mistaken in observing that those accounts were not consistent with each other. By no stretch of reasoning could March 2013 be considered to be several months after early March 2012. The factual basis for the allegation in the sixth ground of the application has not been shown to exist.
The applicant also submitted that if there had been any inconsistency in his accounts of the message on the wall, the inconsistency was so trivial that it had been illogical of the IAA to have relied on it to conclude that the wall had not been defaced as he alleged. I do not agree. In his statement of 26 July 2016, the applicant said that once he learned “in around March 2013” that writing had been placed on the wall of his sister’s home, he realised that he would be “targeted sooner or later” and left Iraq within the month. However, in his departmental interview the applicant had said that the message had been painted on the wall several months after he left the hospital in 2012 and that “nothing further occurred between this incident and his leaving Iraq in 2013”. The differences in the two accounts were not trivial in that they indicated that the one message elicited two quite different responses from the applicant, supporting a conclusion that there had been no such message.
Ground 9
The burden of the ninth ground of the application was that the IAA had based its decision on a misunderstanding of evidence contained in a DFAT report relevant to the potential targeting of the applicant for harm by certain groups in Iraq. The IAA recorded that:
DFAT has assessed that there is a high risk in Iraq of societal discrimination and a moderate risk of societal violence from the community against individuals associated with the international community. …
It went on to say:
… In this case, neither the applicant nor his family have been targeted by members of the community due to his past work with the HCCI and in fact, his evidence is that due to the nature of his work, he was widely known and respected in the community for this volunteer work. …
The applicant submitted that the DFAT report had not referred to a risk of harm from “the community” but had instead referred to “societal violence” and he argued that the IAA had misunderstood or misinterpreted what DFAT had reported. He submitted:
The Authority either misread this passage, or made an assumption that “societal violence” meant violence “from the community” in a sense that it did not encompass violence from Shia militias. The Authority did not explain the basis for that assumption and none is apparent from the material before the Authority. The DFAT Report makes reference throughout to “societal”, as distinct from “official”, discrimination or violence (See, e.g., [3.14]-[3.15], [3.29]-[3.30], [3.39]). The former designation can readily encompass Shia militia groups active in a local area.
The IAA analysed the risk of the applicant facing “societal violence” in two paragraphs of its decision record: paras.27 and 28. In para.27 it considered the risk of harm from individual members of the community and in para.28 it considered the risk of harm from groups within the community, such as the Mahdi Army and ISIL. The applicant’s argument has focussed on the former and has had insufficient regard to the latter. It is apparent that the IAA did not limit its consideration in the manner asserted or, by implication, misunderstand or misinterpret the information in question.
The applicant also submitted that the IAA’s finding that
… the information suggests that Shia militias are not presently targeting current or former workers of NGO's or international companies as they were in the past
was not supported by the DFAT report, which had been cited as the source of that information. He argued:
The Authority cited the DFAT Report in support of this finding. Separate from the first error referred to above, the DFAT Report was incapable of supporting the positive finding that Shia militias were no longer targeting NGO workers as they had in the past.
On the Authority’s reading of the DFAT Report, it was silent on that question, addressing only “societal violence” from “community members”. It must be inferred that the Authority reasoned from the absence of information in the DFAT Report that Shia militias had ceased targeting people with the applicant's profile. That course of reasoning was illogical or unreasonable.
Contrary to this submission, the discussion in paras.27 and 28 of the IAA’s decision demonstrates that it understood “societal violence” to comprehend not only the actions of single individuals but also the actions of groups of individuals. The IAA was not guilty of the contended for logical error.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 10 April 2024
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