FJX17 v Minister for Home Affairs
[2019] FCA 325
•4 February 2019
FEDERAL COURT OF AUSTRALIA
FJX17 v Minister for Home Affairs [2019] FCA 325
Appeal from: FJX17 & Anor v Minister for Immigration & Anor [2018] FCA 2131 File number: QUD 596 of 2018 Judge: LOGAN J Date of judgment: 4 February 2019 Catchwords: MIGRATION – appeal from Federal Circuit Court – whether Tribunal failed to find that the appellant was a member of a particular social group – whether real chance of harm – real chance test. Legislation: Migration Act 1958 (Cth) Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 4 February 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Solicitor for the Appellants: W J Markwell & Associates Solicitor for the Respondents: Minter Ellison ORDERS
QUD 596 of 2018 BETWEEN: FJX17
First Appellant
FJX17 AS LITIGATION GUARDIAN FOR FJY17
Second Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
4 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for leave to amend the Notice of Appeal so as to raise the ground specified as ground 1 in the Supplementary Notice of Appeal be refused.
2.The appeal be dismissed.
3.The first appellant pay the costs of the first respondent of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
This is one of those hard cases that highlights the differences between the exercise of a judicial review jurisdiction, an appellate jurisdiction in respect of a judicial review jurisdiction, and the exercise of administrative power directed to the making of a factual evaluative judgment. That, of course, hardly makes the case unique. The reasons why I have made these observations require some elaboration of the background to the case.
The appellants are each citizens of Iraq. The first appellant is an adult who also acts as litigation guardian for his son, the second appellant, who is as yet a minor. The appellants came to Australia in June 2013. The circumstances of their arrival were such that for the purposes of the Migration Act 1958 (Cth), they were unlawful maritime arrivals. Some years later, by permission, they came to apply for that class of visa known as a Safe Haven Enterprise visa (visa).
The second appellant’s visa claim is derivative in the sense that his entitlement to a visa is wholly dependant upon his father’s visa claim being accepted. The basis of that claim is set out in a statement annexed to the visa application and found at p 95 of the appeal book. There are two integers of that claim. One relates to a period during which the first appellant undertook construction work for United States authorities during that country’s deployment of troops to, and occupation of, Iraq. The other relates to his adherence to the Sunni branch of the Islamic faith. In his claim he stated:
Regrettably, on 05.05.2013 and then on 10.05.2013, I was fired at from a machine gun. In the first time I was near the Technical Institute heading to my home. In the second time I was heading for shopping near the French Consulate. It was the will of God to survive such attacks. I threw myself on the ground and avoided the bullets.
Suffice it to say, the appellant stated in his claim that these attacks terrified him, and pertinently, as will be seen, stated:
I heard about friends and relatives who had been ambushed, abducted and then killed without committing any sin. They were killed just because of sectarianism and the false accusation of dealing with the American occupation.
In short order after these attacks, the appellant sold a bobcat which he used for his construction site work and departed with his son on a journey that eventually led them to Australia later in 2013.
The appellants’ visa claim was rejected by a delegate of the Minister for Home Affairs (Minister).
The Minister is the only active party respondent to the appeal. The other respondent, the Immigration Assessment Authority (Authority), has signified that it will abide the order of the court save and respect of any costs issues.
Following the rejection of the claim by the Minister’s delegate, the visa application was referred to the Authority for assessment. On 20 November 2017, for reasons given in writing, the Authority affirmed the decision not to grant the appellants’ protection visas. They then sought the judicial review of the Authority’s decision by the Federal Circuit Court. On 6 August 2018 that court dismissed, with costs, their judicial review application. The appellants appeared on their own behalf in the Federal Circuit Court. It is not necessary to detail the basis upon which that court dealt with the judicial review application. That is because none of the bases upon which that court dealt with the application is raised as a ground of appeal. Rather, with particular forensic discernment, the appellants, who are now legally represented, have chosen to seek to advance a ground of appeal which was not raised before the Federal Circuit Court.
The grounds which are specified in the notice of appeal are not pressed. The ground which the appellants wish to raise is as follows:
1.The Federal Circuit Court judge erred in failing to find to find that the Second Respondent’s decision involved an error of law.
Particular
(a) The Federal Circuit Judge and the Second Respondent both failed to consider whether the First Appellant was a member of a Particular Social Group (PSG); with the PSG being a number of Iraqi citizens who assisted the Coalition Forces with their work in pacifying and stabilising Iraq after the overthrow of Saddam Hussein from 2003 to 2011.
(b) If the Federal Circuit Judge and the Second Respondent had considered whether the First Appellant was a member of the PSG, then the Federal Circuit Judge and the Second Respondent should have found that the First Appellant had a ‘well-founded’ fear of persecution as set out in s 5J(1)(a) of the Migration Act 1958 (The Act) and then may be classified as a Refugee under s5H(1)(a) and accordingly is then able to claim Protection under s36(2)(a) of the Act.
[sic]
Thus, the first question for resolution is whether the appellants should have leave to raise this ground, notwithstanding that it was not raised in the court below?
As I have observed in the past and others also, it is necessary to remember that the jurisdiction exercised by the Court in a case such as this is appellate, not original jurisdiction. The Court is concerned with whether the judgment of the Federal Circuit Court is attended with error. There is no direct judicial review role for the Court in relation to decisions of the Authority. Exceptionally though, the judgment, in other words, the formal order, may be attended with error even though the error concerned was not pressed before the Federal Circuit Court. To secure a grant of leave, an appellant is not obliged to prove to demonstration that the ground must succeed, only that it is arguable. Further, it must be demonstrated that it is expedient in the interests of justice to grant leave: see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [46].
All of this was accepted by Mr Markwell, who argued the appellant’s case with discernment and said everything which might be said in favour of the granting of leave.
It is true that the Authority does not, in terms, identify that those who undertook contract or other work for the American forces during the Iraq occupation constitute or are capable of constituting a particular social group in terms of the protection visa criteria. But it does not follow from this that there is an arguable case warranting a grant of leave to amend the notice of appeal. Why that is so requires particular passages from the Authority’s reasons to be set out. Before so doing, I record that it is necessary to read those reasons as a whole and not narrowly and with an eye for error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Further, if the Authority failed to deal in its assessment with an integer of a claim, it would fail to exercise its jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.
The Authority summarised, at [11], the first appellant’s visa claims as follows:
11. The first applicants’ claims can be summarised as follows:
•He is a Sunni Muslim married to a women of the Shia faith. He resides in Nasiriya in Dhi Qar, which is a province dominated by Shiite militias.
•He owned and drove his own bobcat and between 2004 and 2011 he was a contractor for the coalition force on the US Army base in Nasiriya, which included working with the US, British and Australian forces. When this work ceased, he continued to drive his bobcat as a contractor for the private sector.
•The applicant was fired upon by persons unknown on two occasions. The first incident occurred on or about 5 May 2013 when he was walking near the Technical Institute heading to his home. The second incident occurred on or about 10 May 2013 when he was shopping near the French Consulate. In both incidents he threw himself onto the ground and avoided the bullets. He is unsure why he was targeted but believes it was by Shia militias because he is a Sunni and/or because he undertook work with the coalition forces and in particular, the US forces. He heard about friends and relatives who had been ambushed, abducted and then killed because of sectarianism and fake accusations of dealing with the Americans.
•After the second shooting it was decided that he and their son, the second applicant, should leave Iraq. The first applicant sold his bobcat to finance the trip to Australia.
•His brother escaped Iraq before him and obtained asylum in Britain. He is now a British citizen.
[sic]
The Authority accepted particular critical, factual elements of the first appellant’s claims. It accepted that he had worked for the American forces. The Authority summarised that in this way at [20]:
20.The first applicant claimed he worked as a contractor with the coalition forces on the US Army Base in Nasiriyah between 2004 and 2011. His oral evidence on this matter was detailed and presented in a spontaneous manner suggestive of personal experience. For example, he was able to explain how he funded the purchase of his own bobcat, detail how he obtained work with the coalition forces, and describe the kind of work he undertook. His written statement also provided details regarding the facilities on the base of the identity and security requirements on the base. He also provided documentary evidence that he had undertaken training in the use of construction vehicles and that he held a license to drive such vehicles, and provided a copy of the memorandum of understanding between the US Army and the company for which he was a contractor, which was signed by the first applicant in October 2008. His evidence is also consistent with independent information regarding subcontractors undertaking work for the Multi-National Forces in Iraq (MNF-I) and the United Sates Forces in Iraq (USF-I). On the evidence before me, I accept that the applicant owned his own bobcat and that he worked with the collation forces on the US Army base between 2004 and 2011. I also accept the first applicant’s evidence that upon ceasing this work he continued to work as contractor driving a bobcat in the private sector.
[sic, footnotes omitted]
The essence of the Authority’s assessment is to be found in the following passage in its reasons. While lengthy, it is necessary to set that passage out in full in order to deal with the proposed ground of appeal:
31.In this case, neither of the applicants have experienced harm, violence or discrimination from members of the community in the past including due to the their Sunni faith, being in or being the child of, a mixed faith marriage, and/oror due to the first applicant’s past contract work with the coalition forces in the US Army base. The first applicant ceased work with the MSF-I and the USF-I in 2011 and continued to work in the construction industry without harm from the community. He has skills working as a taxi driver and experience as a bobcat driver and there is nothing to suggest he will be unable to gain employment on return to Dhi Qar. The second named applicant attended school in Iraq and has continued his education in Australia and there is nothing to suggest he will not be able to continue his education in Iraq. I note that his family remain in their home in Nasiriyah. There is nothing before me to suggest that applicants would face violence or discrimination or any other harm from the community due to their Sunni faith, as young Sunni males, first applicant’s past work with the MSF-I and the USF-I, or being in a mixed Shia-Sunni marriage or being a child of such a marriage.
32.I have accepted that the first applicant was shot at on two occasions in the past by Shia militias. However, independent information above demonstrates that Shia militias are no longer targeting current or former workers for the international community as they did in the past, and it also suggests that there have been few incidents of harm against Sunnis or Dhi Qar. I have found above that the applicants were not of ongoing interest to the Shia Militias, or anyone else, after May 2013, and there is nothing in the evidence before me to suggest that they have a profile such that they would face a real chance of harm from Shia militias on return to Nasiriya in Dhi Qar for any reason, including as young Sunni males, due to their family connections, the first applicant’s former work with the MSF-I and the USF-I, being in a mixed Shia-Sunni marriage or being a child of such a marriage.
33.The first applicant has not claimed that he would undertake further work with the international community on return to Iraq. However, I have accepted that he has qualifications in the construction industry and that he has worked with the international community as a contractor in the past. I accept that he may undertake similar work with the international community on return to Iraq. However, having regard to the applicants’ circumstances and the independent information, I am not satisfied that there is a real chance they would face any harm from members of the community, Sunni armed militias, including ISIL, Shia militias or anyone else on this basis on return to Nasiriya, Dhi Qar.
34.DFAT has assessed that Sunnis opposed to the Sunni insurgency are at risk of harm from ISIL and associated Sunni armed groups. In this case, neither the first or second applicant have opposed the Sunni insurgency or fundamentalist Sunnis in Iraq in the past. They have also not done so in Australia despite having the opportunity to do so and I consider they have no interest in doing so and that they would not engage in this activity on return to Iraq in the future. Further, in the context of assessing the risk of harm to Sunnis, DFAT asserts that the risk of harm is higher in the ISIL controlled areas in northern and western Iraq rather than in the government controlled southern provinces, which includes Dhi Qar.
35.Having regard to all of the information before me, including the applicants particular circumstances and to independent information, I am not satisfied that they face a real chance from any harm from Shia militias, Sunni insurgent groups, including ISIL, the Government, the community or anyone else, if they return to Nasiriyah, Dhi Qar now or in the reasonably foreseeable future, including due to the first applicant’s past work with MSF-I and the USF-I, any future association with international community, for their Sunni faith, as young Sunni males, due to the first applicants mixed faith marriage, or due to the second applicant being the child of such a marriage.
[sic, footnotes omitted]
In my view, this passage demonstrates that the Authority did address specifically that aspect of the first appellant’s claims that related to his past work for the American forces. As I have already observed, in so doing, the Authority did not, in terms, identify that group as a particular social group. Rather, the conclusion is reached that having that past association did not give rise to a real chance of harm. It may be that in so doing the Authority assumed in the appellants’ favour that those who had worked for the American forces and who were targeted by reason of such association could constitute a particular social group or it may be, as the Minister submitted, that without embarking on that question, the Authority just addressed whether having had that association gave rise to a real chance of persecution. Either way though, the conclusion reached was that there was not a real chance. That conclusion was not the only conclusion which might have been reached on the whole of the material before the Authority, particularly the country information, but it was a conclusion which was possible to reach.
At a personal level for the appellants, a fact which is noted by the Tribunal and which is doubtless a source of some angst for them is that the first appellant’s brother has been granted asylum in the United Kingdom and is now a citizen of that country. However, the Authority had no information before it as to why that brother had been granted asylum. It was not incumbent upon the Authority to seek such information. It was in the first appellant’s interests to place such material as he could, including any comparative circumstances which led to his brother being granted asylum in the United Kingdom before the Minister’s delegate and if not then able so to do, to seek to place that material before the Authority. This course of action apparently was not undertaken.
However that may be, the coincidence of key factual elements, namely, working for the Americans and being the subject of attack having been accepted and a brother being granted asylum in the United Kingdom provoked the opening remarks in these reasons for judgment. It is, though, a necessary discipline in the exercise of judicial power to recognise its limits. It is not for me to decide whether or not to accept the first appellant’s claims. That was for the Minister’s delegate and then for the Authority. That the Authority chose to affirm the Minister’s delegate’s decision has been explained by the Authority logically. The conclusion reached by the Authority was one reasonably open to it. Further, however one approaches the Authority’s reasons, whether just on the basis of an assessment as to an absence of a real chance in respect of either of the key integers of the claim or on the additional basis of an assumption in the appellants’ favour that they also worked in the past for the American authorities could constitute a particular social group, the end result is that there is just no arguable case in respect of the proposed grant of appeal.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 12 March 2019
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