FHZ17 v Minister for Immigration
[2020] FCCA 623
•4 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FHZ17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 623 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for temporary protection visa – whether the Authority was legally unreasonable – whether the Authority failed to consider whether or not to sexercise s.473DC of the Migration Act 1958 (Cth) – whether the Authority committed jurisdictional error – no jurisdictional error made out – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473 |
| Cases cited: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 |
| Applicant: | FHZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3753 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 2 March 2020 |
| Date of Last Submission: | 2 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 4 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hoyles |
| Solicitors for the Applicant: | Mr Alkafaji, Stamford Law Firm |
| Counsel for the Respondents: | Mr Jones |
| Solicitors for the Respondents: | Ms Morris, Clayton Utz |
ORDERS
The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3753 of 2017
| FHZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTILCULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant claims to be a Sunni Muslim of Arab ethnicity from Nasiriyah in Dhi Qar province in southern Iraq. The applicant arrived in Australia as an Unauthorised Maritime Arrival. On 2 August 2016, the applicant lodged an application for a temporary protection visa with the Department of Immigration and Border Protection. A delegate of the Minister for Immigration (“the delegate”) refused to grant the visa in a decision dated 16 March 2017. The delegate did not accept that the applicant had a real chance or risk of harm in Iraq. The delegate did not accept that the applicant was a convert to the Sunni Muslim faith.
The applicant was referred for merits review to the Immigration Assessment Authority (“the Authority”). In a decision dated 26 October 2017, the Authority affirmed the decision of the delegate to refuse the temporary protection visa application. The applicant now seeks judicial review of the Authority’s decision in this Court.
The Immigration Assessment Authority’s Decision
At paragraph 5 of its decision, the Authority noted that the delegate did not accept that the applicant had converted from the Shia to the Sunni faith as claimed and therefore did not refer to country information on the treatment of Sunnis in Iraq. As the Authority reached a different view than the delegate, regarding the applicant’s Sunni conversion, the Authority accepted it.
The Authority obtained the most recent country information available, which post-dated that of the delegate’s decision. The Authority was satisfied there were exceptional circumstances to consider that new country information.
At paragraph 6 of its decision, the Authority sets out the applicant’s claims. They are summarised as follows:
·He was a Shia by birth and his family remains Shia.
·He lived in a town of Dhi Qar.
·In 2009, he married a neighbour and a friend of his sister, who was of the Sunni faith. The applicant’s family thought his wife would convert to the Shia faith. She did not. This caused tension in the family.
·In 2010, the applicant and his wife moved in with her family. His father-in-law was a Sunni preacher during the Saddam Hussein regime. Influenced by his father-in-law, the applicant started praying in the Sunni Muslim faith manner.
·Towards the end of 2010, Shia militia threatened to kill the applicant’s wife’s family. Her parents and three sisters moved to another town. The applicant and his wife did not move, but stayed in the wife’s family home in Dhi Qar.
·The applicant worked as a barber. In approximately February 2013, three men visited the barber shop. They began insulting the Sunni faith. One of the men told the applicant they knew he had converted to the Sunni faith after his marriage, they knew who he was and the applicant would soon know who they were. The applicant was informed afterwards that these men were from the religious division of the Madhi Army.
·The applicant’s brother told him that he knew people in the Madhi Army. The applicant’s brother told the applicant that the Madhi Army was planning to eradicate him due to his conversion to the Sunni faith. The applicant moved to another town and stayed in a hotel room while arranging his departure from Iraq.
·The applicant’s wife and children moved to the town where his in-laws were then residing. The applicant’s brother told him by phone that the Madhi Army had raided the applicant’s home and had then come to the applicant’s family home and questioned his family about the applicant.
At paragraph 10 of its decision, the Authority was satisfied that the applicant was born in Kuwait, was a stateless Bidoon, but that he and his family had moved to Iraq in 1991, where they obtained Iraqi citizenship.
At paragraph 14 of its decision, the Authority accepted the applicant married a woman of the Sunni faith. The applicant’s family supported the marriage, but the applicant’s brother subsequently criticised his wife’s religion, after she did not convert to the Shia faith. As a result, the applicant and his wife moved in with her family. At paragraph 15 of its decision, the Authority accepted the applicant converted to the Sunni faith, under the guidance of his father-in-law.
At paragraph 15 of its decision, the Authority accepted that the applicant’s father-in-law and family were threatened. The applicant’s family then moved to another town in Iraq, which had a Sunni majority, as a result of those threats in 2010. At the same time, the applicant and his wife remained in the family home in Dhi Qar.
At paragraph 17 of its decision, the Authority noted the applicant’s evidence that Shia militias knew who he was and where his family resided. Despite having the opportunity to do so, the Shia militias did not threaten or harm the applicant or his wife, at their home after her family moved to another town. The Authority considered the lack of harm to the applicant and his wife, at that time, suggested it was the applicant’s father-in-law who was the target for the harm.
The Authority found that the Shia militias had no interest in the applicant or his wife, including on the basis that they were Sunni, because they were associated with the wife’s father or for any other reason. The fact that the applicant and his wife remained in Dhi Qar, despite having the opportunity to move to another town with her family, suggested they were not in fear of being harmed at the time.
At paragraph 18 of its decision, the Authority deals with the claim that the applicant was threatened by three members of the Madhi Army while at work in a barber shop in February 2013. The Authority found it was implausible that the militia would not have targeted or threatened him at all before that day, despite knowing where he resided and worked. The Authority also found it implausible that members of the Madhi Army would spend some 45 minutes to an hour in the shop having their hair cut, only to make threats against the applicant when he admonished them for insulting the Sunni faith, but then leave without harming the applicant. The Authority also found it implausible that these people would then wait for over a month and, in fact, closer to two months, before they determined they wanted to “eradicate” the applicant, go into his home and that of his family to search for him.
At paragraph 19 of its decision, the Authority found it was not satisfied the applicant was of any interest to the Shia militias, including the Madhi Army, or anyone else, on the basis of his conversion to the Sunni faith or his association with his Sunni wife and father-in-law. At paragraph 20 onwards of its decision, the Authority deals with country information reports about Iraq and in particular, about southern Iraq. Information from those reports indicate that Shia militias were active in the town where the applicant’s wife and her family now reside. The applicant stated that his wife and family have not experienced any issues in the new town, which suggests that they are not of ongoing interest to the Shia militia groups.
The Authority found it was not satisfied that the applicant, if returned to Iraq, would be of interest to Shia militia groups because of his association with his wife, her family or her father. At paragraph 25 of its decision, the Authority discussed the fact that the applicant had steady ongoing employment in the past and has not claimed that he would experience harm for reasons associated with his employment.
There was nothing to suggest that the applicant would be unable to obtain employment or housing in the future. The Authority concluded, at paragraph 30 of its decision, that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act 1958 (Cth) (“the Act”) and did not meet the criteria in s.36(2)(a) of the Act.
At paragraphs 31 to 35 of its decision, the Authority deal with complimentary protection requirements. For similar reasons, the Authority found that the applicant did not meet the requirements for complimentary protection under s.36(2)(aa) of the Act.
Grounds of Appeal
Amended grounds of appeal were filed on 15 March 2018. The applicant now relies on a single ground of appeal. This was slightly amended during the course of oral submissions to the following:
The decision of the Authority was legally unreasonable because the Authority failed to consider whether or not to exercise s.473DC of the Migration Act 1958 (Cth) with respect to new information invited to be put forward by the Applicant regarding the basis on which the Authority proposed to decide the review so far as that basis was different from the basis for the Delegate’s decision.
I emphasise the words “or failed to exercise” because they were inserted during the course of oral submissions. The Court was prepared to allow that small amendment.
The Applicant’s Submissions
Counsel for the applicant relied upon the judgment of the Full Federal Court in Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 (“DZU16”). In that case, the Authority decided the review on a different basis from the delegate, namely relocation from Mazar-e-Sharif, rather than Kabul. Having made that determination, the ultimate critical point was that the Authority gave no consideration to exercising s.473DC(3) of the Act to obtain new information from the applicant. Counsel for the applicant submitted that the circumstances in the present case, the differences between it and DZU16, are immaterial.
Counsel submitted that unlike DZU16, there was no attempt by the Authority in the present case, to exercise s.473DE of the Act. Unlike DZU16, the basis for the Authority’s decision in departure from the delegate’s decision, was not relocation. However, like DZU16, the Authority exercised s.473DC(1) of the Act to get new information. Like DZU16, it ought to be inferred that the Authority did not consider whether to exercise s.473DC(3) of the Act. The applicant was permitted to make submissions, but those submissions were not material to the new basis upon which the Authority made its decision.
As in DZU16, the Authority, as a matter of legal unreasonableness, failed to consider exercising s.473DC(3) of the Act. In oral submissions, Counsel for the applicant clarified that the applicant had no complaint in respect of the bare failure of the Authority to put new country information to the applicant for comment. The case was based on a failure of procedural fairness, but this does not follow that obtaining new information was not relevant to legal unreasonableness.
Counsel conceded that the case would be weaker if the Authority based its decision on the same basis of the delegate, not being a convert to the Sunni faith. The fact that the Authority had done something favourable to the applicant, by finding him as a convert to the Sunni faith, did not mean that the failure to put the new country information was reasonable or excused a failure to exercise relevant jurisdiction.
The First Respondent’s Submissions
Counsel for the first respondent submitted that the applicant posited a simplistic equivalence between the present case and DZU16. It was submitted that under the Part 7AA scheme, procedural fairness requirements are excluded and there is no obligation seen in terms of procedural fairness to put dispositive issues on review to the applicant or alert the applicant to the fact that the Authority will affirm the decision on a different basis from the delegate (see DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [59]). The Authority’s statutory function on review, is to make a fresh decision and not simply correct an error in relation to the matters considered by the delegate.
Counsel noted that while s.473D of the Act obliges the Authority to give the applicant particulars about certain new information and invite the applicant to comment on it, that obligation does not apply unless the new information is “specifically about the referred applicant”. In this case, the relevant exceptions in s.473DE(3)(a) of the Act are applied and the Authority was not required to put new country information from the Department of Foreign Affairs and Trade (“DFAT”) report or the UK Home Office report to the applicant for comment.
Secondly, it will only in the applicable circumstances in each case be legally unreasonable “not to consider getting documents for information from the respondent” (see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82] (“CRY16”). Counsel submitted that in this case, there was no legal unreasonableness, in that the Authority was not obliged to inform the applicant of issues it considered to arise in the review, insofar as those issues were not found to be dispositive by the delegate.
Thirdly, Counsel submitted that CRY16, DZU16 andDGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (DGZ16), are authority for the limited or narrow proposition that a conclusion about legal unreasonableness in respect of the non-exercise of a consideration of the power under s.473DC(3) of the Act.
In undertaking an analysis of whether or not the circumstances of a particular case can be reasonable, due regard must be given to the broad zone of decisional freedom that the decision maker has (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, per French CJ at [28]). Further, legal unreasonableness is likely to involve only rare cases and the best is described as stringent.
Fourthly, Counsel submitted that both CRY16 and DZU16 involve very specific circumstances. These cases involve the legal principles applying to relocation in circumstances where the Authority knew it did not have information concerning the respondent’s relocation to a particular area and the respondent was likely to have such information. The significance of failing to exercise the discretion in those particular circumstances is based on the applicant’s claim. In those circumstances, the Authority “disabled itself from considering what was reasonable” in terms of relocation (see CRY16 at [82]).
Finally, Counsel submitted that these two cases deal in circumstances where “the Authority’s mistake had an operative effect on the performance of its statutory review task” (DZU16 at [79].
In both CRY16 and DZU16, the question of relocation to a particular area had not been raised or considered by the delegate. That was the context in which the Authority, in each case, had to assess the question of relocation and necessarily, an applicant specific factual inquiry was required, in order for it to answer that issue. In this case, the Authority was entitled to depart from the delegate’s findings that the applicant converted to a Sunni Muslim. The Authority went on to consider whether, based on country information that was not available to the delegate, some of which was new information, acceptance of the applicant’s claims meant that the applicant satisfied the risk of the persecution test.
As in DGZ16, the Authority was entitled to depart from the delegate’s findings and it need not alert the applicant of the different nature of the dispositive issues. The failure in considering getting further information or evidence from the applicant had no impact on the Authority’s statutory task. The Authority considered the claims that were before it. The applicant claims did not require an assessment of the particular circumstances of relocation to a particular area, as they did in CRY16 and DZU16.
Counsel submitted that, in the particular circumstances of this case, there was no disabling by the Authority of its review function. The Authority carried out its review function on a different basis to that of the delegate and relied on information that was not specific to the applicant. Bearing in mind, the nature of the applicant’s claims, it cannot be said that the outcome lacked evident and intelligible justification or was capricious. Any suggestion of an unreasonable failure to exercise discretion must be referable to the applicable statutory framework. The Authority was not required to invite comment under s.473DC of the Act, where it merely found facts different to the delegate that the applicant was a convert to the Sunni faith.
It was submitted by Counsel that this was a favourable outcome to the applicant. Having done so, the Authority then referred to new information which was appropriate about the risks to Sunni Muslims in the applicants hometown and included, on a proper basis of the consideration of the facts, that he did not face the risks he claimed.
It was submitted that there was nothing capricious or unreasonable in the course of action the Authority followed.
Consideration
This review was carried out pursuant to Part.7AA of the Act. Part 7AA proceeds upon the basis that the Authority will not seek new information or interview the applicant (see s.473DB of the Act). New information may be obtained, but there is no requirement to obtain such new information (see s.473DC of the Act). Even if new information is provided to the Authority, it will only be accepted in certain circumstances (see s.473DD of the Act). Section 473DE of the Act sets out the circumstances where new information must be given to the applicant for comment. This does not require and does not apply to information that is not specifically about the applicant, but is about a class of persons of whom the applicant is a member.
In this case, the Authority obtained up to date country information about the risks to Sunni Muslims in southern Iraq. As compared to the delegate, the Authority was satisfied that the applicant had indeed converted to the Sunni Muslim faith. Having made that finding, the Authority then went on to consider whether or not the applicant’s risks or his claims of risk, if returned, could be sustained, taking into account all of the information available to the delegate and by reference to the new country information.
The Authority found it did not accept the applicant’s claims that it would be unsafe for him to return to his hometown. At paragraph 17 of its decision, the Authority considered the fact that the applicant and his wife remained in Dhi Qar despite having the opportunity to move to another town with her family following alleged threats. The Authority found this suggested that they were not in fear of being harmed at that time. At paragraph 18 of its decision, the Authority found it implausible that the Madhi Army would make threats about eradicating the applicant when it had the opportunity to do so at the barbershop.
At paragraph 9 of its decision, the Authority found that, taken cumulatively, the matters that the Authority identified did not lead it to accept that the applicant was ever threatened by members of the religious division of the Madhi Army in the barbershop. The Authority did not accept that the Madhi Army raided the applicant’s home or that they visited the home of his family, searching for him. The Authority was not satisfied that the applicant was of any interest to Shia militias, including the Madhi Army or anyone else associated with him in the past, or upon the base of his conversion to the Sunni faith, his practice of the Sunni faith or his association with his Sunni wife or father-in-law or any other reason.
In the light of the confident adverse findings made against the applicant, that he did not have a well-founded fear of persecution in his hometown, it was unnecessary for the Authority to consider relocation (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437). The Court was satisfied that CRY16 and the cases that follow from it, deal with circumstances that involve a consideration of relocation where that was not considered by the delegate.
CRY16 is authority, that in these circumstances, it may be necessary where the new information is considered, in order for the Authority to undertake its statutory task, it must invite comment on that new information as a matter of practical fairness. The new information that was considered in this case, merely opined to the risks associated to Sunni Muslims in southern Iraq. This was the area where the applicant was from and where it was proposed he would return, if his application was unsuccessful.
The Authority was not satisfied there was a real risk of persecution or serious harm in the applicant’s hometown or indeed Dhi Qar, where the applicant’s father-in-law and family had moved. The need to put the new country information or invite comment upon relocation to an area that was not considered by the delegate and whom information was in the possession of the applicant and was easily ascertainable, was never engaged to the Court’s mind in this matter.
Thus, the legal principles outlined in CRY16 and DZU16 were never applicable. The decision to invite comment is a procedural matter. There is no requirement for the Authority to provide reasons for the exercise or non-exercise of that power. The fact that it was not referred to in the decision, does not mean that the discretion to seek comment was not considered. The Court does not accept the applicant’s submission that, like DZU16, it ought be inferred that the Authority did not consider whether to exercise its power under s.473DC(3) of the Act.
To suggest that it was capricious or legally unreasonable not to seek comment on what was merely new country information not specific to the applicant, in the circumstances of this case, to stretch the principles in CRY16 and DZU16 too far.
Conclusion
The Court is not satisfied that jurisdictional error is established.
Accordingly, the application is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 31 March 2020
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