FCC17 v Minister for Immigration

[2018] FCCA 2807

FEDERAL CIRCUIT COURT OF AUSTRALIA

FCC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2807

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority erred in applying the real chance test – whether the Authority in considering the applicant’s risk of harm cumulatively – whether the adverse credibility findings were open to the Authority – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5H, 36, 473DC, 473DD, 476

Applicant: FCC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3582 of 2017

Judgment of: Judge Street

Hearing date: 26 September 2018

Date of Last Submission: 26 September 2018

Delivered at: Sydney

Delivered on: 26 September 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law

Solicitors for the Respondents: Mr T Galvin
Minter Ellison

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 13 September 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 26 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3582 of 2017

FCC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 17 October 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant was found to be a Shia Muslim from the Nasiriyah in the Dhi Qar Province. The applicant arrived in Australia on 26 November 2012 as an unauthorized maritime arrival.

3. The applicant claimed to fear harm from Sunni and Shia militias as well as a result of his brother having worked for Americans in 2011, and alleged threat letters and his brother not returning home. The delegate did not accept that the applicant’s brother disappeared at the time of the withdrawal of the US forces in December 2011, or that the applicant’s family received a number of threatening letters addressed to the brother and the applicant. The delegate concluded the applicant was not of any adverse interest to any militia groups and did not face a real chance of persecution or a real risk of significant harm due to this or for any other reason.

4. On 7 August 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review following the adverse decision of the delegate on 2 August 2017. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on submissions and new information. The applicant did provide submissions received by the Authority on 12 September 2017, which were expressly referred to in the Authority’s reasons and were considered under s 473DD of the Act.

5. The Authority’s consideration of what was identified to be new information reflects a consideration of both limbs of s 473DD(b) of the Act and there is no basis to conclude that there was any misunderstanding or misinterpretation of s 473DC or s 473DD of the Act in the Authority’s determination that there were not exceptional circumstances to justify considering the new information identified by the Authority.

6. The Authority summarised the applicant’s claims and evidence. The Authority accepted that the brother was issued with a threat letter in 2011 due to his work with the coalition forces. The Authority referred to the applicant claiming that three further letters were received. The Authority referred to the fact that during the Protection visa interview the delegate put to the applicant that it was not plausible that a militia group would come to their house on five occasions and deliver letters of threat, but at no point make good on those threats or enter the house to see if the applicant’s brother was present. The Authority did not accept that over the course of 2011 and 2012 there were further threat letters received at the applicant’s house, but that no action was taken by the group who allegedly sent the letters.

7. The Authority referred to the assertion that the brother did not return home. The Authority referred to the applicant’s differing evidence in relation to his father remaining in contact with the brother until the end of 2012 and considered the variations in the applicant’s evidence on this central issue reflected poorly on the applicant’s credibility.

8. The Authority also referred to the delegate tabling screenshots from the Facebook account in the applicant’s brother’s name and the Authority took into account the applicant’s responses but did not accept that the brother had disappeared after the withdrawal of the US troops from Iraq. The Authority found there is no evidence to indicate the brother was in any way harmed by any militia group since he ceased work with the coalition forces in 2011, and the Authority concluded that the brother was not so harmed. The Authority was not satisfied that the applicant’s brother left the family home due to a fear of harm from militia or armed groups.

9. The Authority referred to the applicant’s assertion that following the receipt of the third letter he fled to the desert for 10 months. The Authority found this was not consistent with the applicant’s address history identified in his arrival interview. The Authority found the applicant left his family home in early 2012. The Authority did not accept that at the time there was any threat against the applicant or another person. The Authority noted that the applicant did not claim that his remaining family in Iraq have been the subject of any adverse attention from militias or armed groups since his departure, and the Authority found that they have not been subjected to any adverse attention.

10. The Authority was not satisfied there is a real chance the applicant would face harm due to his brother’s former employment on return to Iraq.

11. The Authority referred to the applicant being a Shia Muslim and that he had not claimed to fear harm on that basis, albeit that the delegate had referred to the general security situation in southern Iraq. The Authority referred to considering whether the applicant faces harm from Shia militias or Shia armed groups simply due to being a Shia and was not satisfied on the material before the Authority that that is the case.

12. The Authority then turned to whether there was a real chance the applicant would suffer serious harm from the security situation more generally, including from Sunni armed groups, and took into account Department of Foreign Affairs and Trade country information. The Authority referred to ISIS and associated Sunni extremist groups being in control of northern, western and central Iraq; however, in the southern provinces, including the applicant’s home province, remains under control of the Iraqi Security Forces. The Authority referred to violence between opposing Shia militias as well as criminal activities, robberies and kidnapping. The Authority referred to Department of Foreign Affairs and Trade country information indicating the risk of being caught up in this is predominantly borne by those who are actively involved in militias or tribal groups, rather than ordinary civilians. The Authority was not satisfied the applicant was more than an ordinary civilian.

13. The Authority was not satisfied the applicant faces a real chance of harm from Shia militias, Sunni groups or otherwise arising from sectarian violence. The Authority referred to violent crime, including kidnappings and killings but, taking into account country information, was not satisfied that it is at a level that would give rise to a real chance that the applicant would face harm should he return.

14. The Authority referred to having found the applicant’s family remains in the applicant’s hometown. The Authority was not satisfied the applicant faces a real chance of harm on the basis that he has spent time in Australia or has unsuccessful sought asylum in Australia.

15. The Authority found that it was not satisfied that the factors discussed above by the Authority, as summarised by this Court, cumulatively raised the applicant’s profile to a level that the applicant would face a real chance of serious harm on return to Iraq.

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

17. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The two grounds in the amended application are as follows:

   1. The Immigration Assessment Authority ("the IAA") at [15] considered whether the applicant faced a real chance of serious harm as a Shia Muslim if required to return to Iraq. The IAA concluded that it was "not satisfied that the applicant faces a real chance of harm from Shia militias, Sunni groups or otherwise arising from sectarian violence", and it was "not satisfied that [violent crime] is at a level that would give rise to a real chance that the applicant would face harm should he return". The IAA, in making these findings, erred in applying the real chance test, including by failing to properly consider the two risks of harm cumulatively.

   3. The IAA stated at [10]-[11] that there was an inconsistency between evidence given by the applicant and "the applicant's address history as discussed at his arrival interview in which he stated that he lived at the family home in A from birth until departure from Iraq". The IAA relied, in a manner adverse to the applicant, on his failure to mention a detail at the entry interview. For reasons explained in MZZJO v Minister (2014) 239 FCR 436 at [55]-[57], the IAA fell into jurisdictional error.

2. Mr Zipser of counsel confirmed that ground 2 was not pressed and was abandoned.

Ground 1

1. In relation to ground 1, Mr Zipser of counsel on behalf of the applicant took the Court to the Authority’s reasons in paragraph 15. Mr Zipser submitted that the Authority had erred in the application of the real chance test by failing to properly consider the risks identified from Shia militias and Sunni groups as well as the risks from violent crime cumulatively. Mr Zipser submitted that the Authority’s reference to the cumulative consideration was one that referred to the applicant’s profile and did not reflect an application of the real chance test in respect of a cumulative consideration of the risks identified.

2. The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons must be read as a whole. The Authority’s reasons in paragraphs 15 and 17 reflect adverse findings in relation to the risks, and also adverse findings in relation to the real chance risk, in respect of the applicant being a Shia Muslim, as well as the general security situation, and ISIS and associated Sunni extremist groups, as well as criminal activities. The reference to the “factors as discussed” was clearly a reference to the factors identified in paragraphs 15 and 16 and the earlier findings in relation to the applicant’s family remaining in their hometown and the brother not being missing in the context of the reference to the applicant’s profile.

3. On a fair reading, the reference to the applicant’s profile reflects the Authority referring to the applicant’s circumstances as found by the Authority. There was no failure by the Authority to consider the identified risks cumulatively, and there is no basis to find that the reference in paragraph 17 to the cumulative consideration of those risks was not a real or genuine consideration.

4. Further, there is no basis to find on a fair reading that the Authority did not cumulatively consider those risks in relation to the applicant’s circumstances in respect of the real chance of serious harm on return to Iraq. Further, the reference to the applicant’s profile was in the context of having identified the applicant as being a Shia Muslim and being a person who is found by the Authority to be no more than an ordinary citizen, and, in that context, a fair reading of the Authority’s reasons reflects the Authority considering the personal circumstances of the applicant in the application of the real chance test. No jurisdictional error as alleged in ground 1 is made out.

Ground 3

1. In relation to ground 3, Mr Zipser submitted that the Authority had erred in the adverse findings in paragraphs 10 and 11 by making adverse findings by reference to the information in the irregular maritime arrival entry interview as to the applicant’s address and remaining at a particular location from 1995 until approximately November 2012.

2. This is not a case of a failure to mention details but a positive assertion of fact in the irregular maritime arrival entry interview, and it was open to the Authority to take into account that information in the making of adverse credibility findings. The adverse findings cannot be said to lack an evidence and intelligible justification. Further, this is not a case where the adverse credit findings by the Authority could be said to be solely based on what was identified in the irregular maritime arrival entry interview and accordingly there was no error of the possible kind identified in MZZJO v Ministerfor Immigration and Border Protection [2014] FCAFC 80. For the reasons summarised above, the Authority made a number of adverse credibility findings that were open to the Authority for the reasons given by the Authority. No jurisdictional error of the kind alleged in ground 3 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, accordingly the amended application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  23 November 2018