FCH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 680
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 680
File number(s): SYG 3588 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 22 August 2022 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – whether Authority misapplied a statutory test or failed to engage in an active intellectual process Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 473CA, 473CB Cases cited: Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 5 April 2022 Place of hearing: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Immi House Legal Counsel for the Respondents: Mr N Swan Solicitor for the Respondents: Mills Oakley ORDERS
SYG 3588 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
22 AUGUST 2022
THE COURT ORDERS THAT:
1.The application, as amended on 4 June 2020, is 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 GIVEN:
By an application to show cause filed in this Court on 20 November 2017, the applicant seeks review of a decision of the Immigration Assessment Authority (Authority) made on 17 October 2017 affirming a decision of a delegate of the first respondent (delegate) refusing to grant the applicant a protection visa (visa).
The following statement of background facts and summary of the Authority’s decision are derived from the submissions of the first respondent but are not in dispute.
BACKGROUND AND APPLICANT’S CLAIMS
The applicant is a citizen of Iraq born in June 1995 (Court Book (CB) 41). He first arrived in Australia on 26 November 2012 as an unauthorised maritime arrival (CB 103) and applied for the visa on 18 July 2016 (CB 27 to 64).
In support of his application, the applicant claimed that:
(a)he is a Shia Muslim (CB 67);
(b)he and his family live in the same house as his cousin (S). In 2011 S commenced work with a company (KBR) which was responsible for supplying American forces. During his time with KBR, S received three threatening letters (CB 67). After receiving the threatening letters, S stayed on an American base because he was fearful (CB 68);
(c)after the Americans left Iraq in December 2011, another threatening letter was received, which named the applicant and another cousin as being targets of the militia (CB 68). The applicant fled to the desert and lived there in a tent with a friend, from January to October 2012. During that time, the applicant’s family received two further threatening letters (CB 68); and
(d)the applicant fears going back to Iraq as the militias are targeting those who worked with American forces and their families (CB 68).
On 2 August 2017, the delegate refused to grant the visa (CB 100 to 117). On 7 August 2017, the delegate’s decision was referred to the Authority for review (CB 119 to 120). On 12 September 2017, a submission was sent to the Authority in relation to the review (CB 131 to 135; CB 141 at [3]). On 17 October 2017, the Authority affirmed the delegate’s decision (CB 140 to 150).
The Authority’s decision
The Authority accepted that the applicant was a Shia Muslim from Nasiriyah, Dhi Qar province, in southern Iraq (CB 141 at [1] and 142 at [5]).
The Authority accepted that the family of the applicant and S lived in the same house, and that due to S’ work with coalition forces, he had received threatening letters in 2011. However, the Authority did not accept that further threatening letters were received after S ceased working for the Americans (CB 142 to 143 at [6] to [7]). The Authority did not accept that S disappeared after December 2011 and noted there was no evidence before it to show that S was harmed by militia groups after he ceased working with coalition forces (CB 143 at [8]). The Authority also did not accept that the applicant left the family home in Nasiriyah in early 2012, or that any other family members (other than S) had received threatening letters. It also noted that there was no suggestion of any threats being made, or that the applicant was of any adverse attention from militia or armed groups, since his departure (CB 143 at [9]).
The Authority observed that the available country information did not support the conclusion that there was a risk of harm to members of the families of persons who worked to foreign companies or the coalition forces. The Authority also observed that it was now six years since S had worked for the Americans, and he had not been harmed or received adverse attention since 2011. The Authority was not satisfied that there was a real chance the applicant would face harm due to S’ former employment (CB 144 at [12]).
The Authority was also not satisfied that the applicant would face harm on account of being a Shia Muslim (CB 144 at [13]). The Authority observed that country information stated that the southern provinces (ie. including where the applicant’s family was living) remained under the control of the Iraqi Security Forces. The Authority was not satisfied that the applicant faced a real chance of harm from Shia militias, Sunni groups, sectarian violence, or violent crime (CB 145 at [13]). Finally, the Authority was not satisfied that the applicant faced a real chance of harm on the basis of being a failed asylum seeker from Australia (CB 145 at [14]).
As a result, the Authority was not satisfied that the applicant met the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth) (Act), or that he met the s 36(2)(a) criterion (CB 145 at [16]). In reliance on its earlier factual findings, the Authority was also not satisfied that the applicant met s 36(2)(aa) of the Act (CB 145 to 146 at [17] to [20]). Accordingly, the Authority affirmed the delegate’s decision.
APPLICATION TO THIS COURT
By an application to show cause filed with this Court on 20 November 2017, the applicant sought review of the Authority’s decision. The matter was initially docketed to Judge Dowdy. On 22 February 2018 his Honour ordered by consent, inter alia, that the applicant file any amended application, including full particulars of the grounds on which he intended to rely, by 18 May 2018. The applicant did not avail himself of that grant of leave but did file a proposed amended application on 4 June 2020 shortly after he changed legal representatives.
At hearing before me, Counsel for the applicant sought leave to rely upon that proposed amended application. The first respondent did not oppose that application and accordingly I made an order at hearing granting the applicant leave to rely upon it. The sole ground of review is now as follows:
1.The Authority made a jurisdictional error in relation to its finding that the Applicant did not face a relevant risk of harm from Shia militias, Sunni groups or otherwise arising sectarian violence:
a.The real chance test requires a chance that is substantial and not remote or far-fetched, regardless of whether it is less or more than 50 per cent (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 389, 398, 407, 429; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [242] to [247]);
b. The law of legal unreasonableness required an evident and intelligible justification for the Authority’s decision (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [82]);
c. Proper, genuine and realistic consideration requires the Authority to engage in an active intellectual process directed towards the Applicant’s case (see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45];
d. The Authority found at paragraph 13 of its decision that country information indicated that the security situation in Iraq, including violence from Sunni armed groups, was fragile and susceptible to rapid and serious deterioration with large scale conflict in some areas;
e. The Authority found at paragraph 13 of its decision that “the risk of being caught up in this” was “predominantly borne” by those actively involved in the militia or tribal group rather than ordinary civilians;
f. The Authority concluded, therefore, that there was not a real chance of relevant harm;
g. The Authority equated a predominant risk with insubstantial or not remote or far-fetched, thereby misunderstanding and misapplying the real chance test;
h. There was no relevant justification for the Authority’s conclusion as to real chance or active intellectual engagement with the fluid nature of the security situation in Iraq as part of its assessment of a real chance.
The matter was heard by me utilising the Microsoft Teams online platform due to ongoing COVID-19 precautions. There were no technical difficulties during the conduct of the hearing. I received the following documents at hearing (each of which was tendered or read as appropriate) without objection:
(a)the Court Book filed on 6 April 2018, which was marked “Exhibit 1R”;
(b)an extract from the Oxford English Dictionary (2nd revised edition) of the word “predominantly”, which was tendered for the applicant and marked “Exhibit 1A”;
(c)the Affidavit of Amina Youssef sworn on 5 April 2022, who is the applicant’s solicitor and which was read for the applicant, annexing a Change of Name Certificate pertaining to him; and
(d)the Affidavit of Arielle Bianca Zinn affirmed on 29 March 2022 and read for the first respondent, annexing country information (a DFAT report dated 26 June 2017 (DFAT report) and a UK Home Office report) which was before the Authority.
The applicant and the first respondent each filed pre-hearing written submissions (including submissions in reply from the applicant) and made oral submissions by their Counsel at the hearing. I have been assisted by those submissions.
CONSIDERATION
The applicant says the Authority failed to undertake the requisite active intellectual engagement with the applicant’s case when at [13] (CB 144 to 145) the Authority found (emphasis added):
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.
The applicant says that the Authority relied upon the risk of violence between opposing Shia militias as being “predominantly” borne by participants in the militias rather than ordinary civilians. Relying on the definition of “predominantly” from the Oxford English Dictionary which is “mainly” or “for the most part”, the applicant says that this is a different standard than the real chance test for the purposes of the refugee and complementary protection criteria, which he contends requires the risk to be more than remote.
Accordingly, the applicant says that in [13] of its reasons the Authority equated the fact that ordinary civilians such as the applicant do not face the predominant risk as being the absence of a real chance of harm, which is a misapplication of the real chance test. Expressed differently the applicant says that this constitutes illogical reasoning, having an obvious connection with the result because the fact a person is not in the group which is predominantly at risk, does not mean that they do not face a real chance of harm. The applicant lastly contends that this same malady exhibits a want of active intellectual engagement with the country information referring to those predominantly at risk.
The first respondent says there is no reason to infer that the Authority misunderstood the relevant questions it was required to ask and answer, referring in particular to [10] to [11] of the Authority’s reasons for decision, where it correctly summarised the meaning of “refugee” in s 5H of the Act and the meaning of “well-founded fear of persecution” in s 5J of the Act. The first respondent says that the Authority was plainly aware that the latter inquiry included, inter alia, an assessment of whether there was a “real chance” that the person would be persecuted (CB 144 at [11] (dot points 1-2) and see also at [19], where the Authority (correctly) explained its understanding that the “real chance” and “real risk” tests involved the application of the same standard.
The first respondent contends that the applicant’s submissions at [22]-[23] impugn [13] of the Authority’s reasons by focusing on the one sentence which contains the word “predominantly” and says that this seeks to read parts of the Authority’s reasons in isolation, as opposed to a beneficial reading, as a whole, fairly, in context and without an eye keenly attuned to finding error (citing Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43]-[45]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
The first respondent contends that a beneficial reading requires that attention be paid to the fact that the Authority:
(a)acknowledged there to be a risk of “societal violence” aimed at persons who had worked with “the international community”, but the available country information assessed this risk as being “moderate” and that risk did not extend to their families (CB 144 at [12]);
(b)found that there was not a risk of harm to the applicant from Shia militias and/or armed groups by reason of being a Shia (CB 144 at [13]);
(c)summarised country information which indicated that ISIS and Sunni extremist groups controlled large parts of northern, western and central Iraq whereas the applicant was from a southern province which was under the control of the Iraqi Security Forces (CB 144 at [13]) (and the DFAT report and a 2015 UK Home Office Report indicated, inter alia, that southern Iraq remained more secure than other parts of the country);
(d)was clearly of the view that the applicant was an “ordinary civilian” which the first respondent says is unsurprising given its earlier findings about the applicant’s experiences in Iraq, and that the applicant had not claimed to be involved in any militia or criminal activities;
(e)found at [9] (CB 143) that the applicant’s family had not been the subject of attention from militias or armed groups since the applicant’s departure in 2012; and
(f)did not simply reason that because the risk of harm of being caught up in violence between Shia militias was borne by those involved in them, this therefore inevitably and necessarily meant there was no “real chance” of harm at all to the applicant. The first respondent says that the Authority’s decision reveals no conflation or false equivalence. Rather, the Authority’s reasoning as to the risk of harm from Sunni and Shia groups and sectarian violence, and the degree of that risk, should be considered far broader and to encapsulate a range of other matters as noted above.
The first respondent says that it is a matter of moment that the applicant has not referred to any country information which did positively show that such a risk existed, nor did he advance any such material to the Authority, despite being represented and the delegate having not accepted there to be any real chance of harm to him on this basis.
RESOLUTION
The Authority’s reasons at [13] encapsulate an array of source material, analysis and conclusions in relation to many aspects of the applicant’s claims including the bases on which he was said to fear harm, aspects pertaining to his family which intersected with those claims, geography and other extant geo-political matters which might impact him such as sectarian violence and crime.
It is overly simplistic and contextually isolating to take a solitary sentence in which the Authority was weighing the information before it and seek to divine therefrom a global misapplication of the relevant statutory test.
When read in a holistic way, the Authority was expressing no more than that, in contrast to reports which indicate that violence between opposing Shia militias was more pronounced in Shia areas of which the applicant’s home region was one (CB 144 at [13]) and such violence was also occasional linked to criminal activities, “the risk of being caught up in this” (with “this” being inter-Shia militia violence and/or criminal incidents) mostly attached to persons who were involved in the militia or tribal groups themselves.
That the sentence which immediately following this weight of evidence went on to say that the Authority was not satisfied that the applicant faced a real chance of harm from Shia militias, Sunni groups or otherwise from sectarian violence, the proximity of the two propositions does not necessarily give rise to post hoc, ergo propter hoc. Rather, a full contextual reading of the Authority’s reasons, including the multitude of findings in [13] which precedes the statement, and those which also follow, gives a more thorough view of the Authority’s analysis and the application of the tests. Of particular significance is the last sentence of [13] in which the Authority said:
Although violent crime, including kidnappings and killings, does occur in Nasiriyah, on the basis of the referred information I conclude that it is not at a level that would give rise to a real chance that the applicant would face harm, should he return.
The term “referred information” is not precisely the language of the statute, with s 473CB of the Act defining the material which the Secretary must give to the Authority in respect of each fast track reviewable decision under s 473CA of the Act as the “review material”. However, in my view the Authority’s reference to the “referred information” was intended to have that meaning. The s 473CB review material included the DFAT report which was summarised in [13] of the Authority’s reasons but it also included everything else, including materials submitted by the applicant since the time of his visa application and each of the review stages.
The construction of [13] which is contended for by the applicant invites the Court to review the reasons of the Authority, narrowly and with a view to finding an error which is not borne out by a broader and more contextual reading of the Authority’s entire decision. I agree with the submissions of the first respondent that the Authority’s expression and application of the relevant statutory tests is evident throughout the decision. The Authority did not misapprehend or misapply the real chance test, nor did it fail to engage in an active intellectual process.
Accordingly, the ground of review is not made out and the decision is not affected by jurisdictional error. The decision of the Authority is a therefore a privative clause decision and the application must be dismissed. I so order.
I will hear the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 22 August 2022
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