FJX17 v Minister for Immigration

[2018] FCCA 2131

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJX17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2131

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority considered all claims by applicant – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2)(b)(i), 36(2)(c)(i), 473DD

Cases cited:

Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294

Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344

First Applicant: FJX17

Second Applicant: FJX17 AS LITIGATION GUARDIAN FOR FJY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1217 of 2017

Judgment of: Judge Jarrett

Hearing date: 3 August 2018

Date of Last Submission: 3 August 2018

Delivered at: Brisbane

Delivered on: 6 August 2018

REPRESENTATION

The First Applicant appeared in person

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 20 November, 2017 be dismissed;

2. The first applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1217 of 2017

FJX17

First Applicant

FJX17 AS LITIGATION GUARDIAN FOR FJY17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the second respondent made on 20 November, 2017 that affirmed a decision of a delegate of the first respondent to refuse the applicants protection visas.

2. The second applicant is the first applicant’s son.  The applicants seek that the second respondent’s decision be set aside and the application remitted for further consideration according to law.

3. There have been orders which permit the applicants to file an amended application for review and written submissions in support of their application.  Unfortunately, they have not taken advantage of that opportunity.

4. The application for review as filed on 11 December, 2017 contains two grounds of review, neither of which are proper grounds of review.  They are expressed as follows:

   1. The reasons for rejection are unconvincing

   2. They have no knowledge of my danger situation in my city

5. The first respondent opposes the application.  The second respondent enters a submitting appearance.

6. At the hearing before me, the first applicant appeared, but the second applicant did not.  I have taken the first applicant’s appearance to be on behalf of the second respondent (for whom he is a litigation guardian) as well.  For ease of reference and unless otherwise necessary, I will refer to the first applicant simply as the applicant throughout these reasons.

7. The applicant was assisted by a telephone interpreter.  He indicated that he had not received the first respondent’s outline of submissions notwithstanding that they had been sent to him by email and regular post as the first respondent was directed to do.  In the circumstances, I determined to proceed with the application, but I indicated that I would not have any reference to the first respondent’s written submissions.

8. I heard from each party and I have considered the second respondent’s reasons by reference to those submissions and, independently of those submissions, for myself.

9. The applicant’s oral submissions were unhelpful.  He wished for me to take further documents that he had in his possession.  I perused those documents, but they were not submissions; rather they were documents and material designed to advance the merits of his claims.  He confirmed that they had not been before either the delegate or the second respondent when they each made their decisions.  Consequently, I refused to accept or further consider them.

Background

1. The applicants are citizens of Iraq who arrived in Australia on 4 September, 2013.  Each is an unlawful maritime arrival for the purposes of the Migration Act 1958 (Cth).

2. On 27 October, 2016 the applicants, by their migration agent, applied for Temporary Protection visas.  The applicants submitted a number of documents in support of their application.  In response to a request from the first respondent’s department, on 21 November, 2016 the applicants’ migration agent submitted further documents in support of their claims.

3. On 24 March, 2017 the first respondent’s department wrote to the applicants’ migration agent again asking for further information from the second applicant, namely a statement of claims.  On 31 March 2017, the applicants’ migration agent submitted further.

4. On 24 April, 2017 the applicants attended an interview with a delegate of the first respondent.  They were represented by their migration agent at the interview.  Subsequently, the applicants’ agent provided further information and documents on their behalf.

5. The applicants each made their own claims to protection.  They claimed to be Sunnis from the Dhi Qar governorate in southern Iraq.  Both applicants witnessed violent attacks in May, 2013 which caused them to depart for Australia.  The first applicant described two instances five days apart where he was fired upon by Shia militias.  The second applicant described an incident where there was an explosion close to his school.

6. On 17 May, 2017 the first respondent’s delegate refused to grant the applicants protection visas, describing the refused protection visas as Safe Haven Enterprise visas, rather than Temporary Protection visas.

7. On 6 June, 2017 the first respondent’s decision was referred to the second respondent under Part 7A of the Migration Act. The secretary of the first respondent’s department advised the second respondent that because of an administrative error, the delegate’s decision incorrectly described the applicants as having applied for Safe Haven Enterprise visas, rather than Temporary Protection visas.

8. Nothing turns upon this error by the delegate.  It was corrected by the second respondent who properly recognised that the applicants were applying for Temporary Protection visas: Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294; Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at [92] and Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344.

9. On 14 June, 2017 the applicants’ representative wrote to the second respondent, enclosing further documents in support of the applicants’ visa applications.  The information was accurately described by the second respondent as:

   … a secondary school certificate for 2012/2013 for the second applicant (the Iraq school certificate); a letter from the Sunni Religious Endowments in Nasiriyah dated 25 May 2017 supporting that the first applicant is of the Sunni faith and is at risk of harm for this reason; an Authorisation Form from the Traffic Department in Dhi Qar dated 15 July 2008 supporting that the first applicant owned a Caterpillar Shovel (the Authorisation Form); a Memorandum from the Department of the United States (US) Army dated 8 August 2015 supporting the first applicant was a contractor  on the US Army Base at Camp Adder in Tallil (the Memorandum); letters in support of the second applicant from his school in Australia dated 8 June 2017 attached to which were photographs of he and his school friends and a school report card for 2017.

10. The second respondent dealt with each of these new documents or categories of documents separately.  Some of the information pre-dated the delegate’s decision and some of it post-dated that decision.  As to the information that pre-dated the delegate’s decision, the second respondent considered that:

    a)the Iraq school certificate for the second respondent pre-dated the delegate’s decision and the applicants did not satisfy the second respondent that it could not have been provided before the delegate made the relevant decision.  Moreover, while the information was credible personal information in relation to the second applicant, it was provided to evidence his school attendance in Iraq which was not in contention.  In any event, the second respondent was not satisfied that the information may have affected the consideration of the applicants’ claims.

    b)it was not satisfied that the authorisation form could not have been provided prior to the making of the delegate’s decision, or that it was credible personal information which, if known, may have affected consideration of the first applicant’s claims.

    c)it was not satisfied that the memorandum of understanding could not have been provided prior to the making of the delegate’s decision.  Nor did the applicants satisfy the second respondent that the relevant information was credible personal information, which was not previously know, and which, had it been known may have affected consideration of the applicants’ claims.

11. As to the material that post-dated the delegate’s decisions, the second respondent considered that:

    a)the letter from the Sunni Religious Endowment could not have been provided before the making of the delegate’s decision.  However, the applicant had provided documentary evidence of his Sunni faith, a letter of recommendation from a Mosque in Nasiriyah, in the visa interview and the matter of his faith was discussed with the first respondent’s delegate during that interview. The first respondent’s delegate accepted that the applicant was a Sunni Muslim and considered his claims accordingly.  The second respondent also considered that there was other information before the second respondent relevant to determining the risk of harm to those of the Sunni faith in Iraq;

    b)the information from the second applicant’s school in Australia could not have been provided prior to the making of the delegate’s decision about him.  But the second respondent did not consider that it had any bearing upon the matters it was required to consider.

12. On no account was the second respondent satisfied that there were exceptional circumstances to justify considering any of the new information that the applicants sought to put before it.

13. However, the second respondent (footnotes omitted):

    … obtained new information relating to the treatment of Sunni Muslims, those who worked with the international community, and returnees/failed asylum seekers from the west, including from the most recent Australian Department of Foreign Affairs and Trade (DFAT) Country Information Report on Iraq and the United Kingdom (UK) Home Office Report on Sunni Muslims. These reports in particular update the versions of those reports relied upon by the delegate. Noting the fluid and changing nature of the security situation in Iraq, I am satisfied there are exceptional reasons to justify considering this information

14. The second respondent’s consideration of the new information submitted to it was unremarkable.  It considered each item of information and gave reasons for its determination not to consider that information.  In my view, no error is revealed by the way in which the tribunal dealt with this information.

15. The second respondent recorded in its reasons, the applicants’ claims to protection.  The first applicant claimed to fear that he and his son would be harmed by the Shia militias due to his religion and/or because of his previous work for the coalition forces, particularly the US forces.  He also feared that he and his son would be abducted and murdered by criminal or armed gangs.  He had heard that armed gangs in Iraq are abducting children and are harvesting and trading their organs.  In submissions to the first respondent’s delegate, the applicants’ representative indicated that the first applicant also feared harm as a moderate Sunni who is hostile to fundamentalist Sunnis and Shias and as he will be imputed to have been secularised in Australia and will be considered an apostate.

16. The second respondent summarised the first applicant’s claims as follows:

    ·    He is a Sunni Muslim married to a woman of the Shia faith. He resides in Nasiriyah 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 forces 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 as 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.

17. The claims advanced separately by the second applicant were described by the second respondent as follows:

    ·    He is a Sunni Muslim from a majority Shia area in Nasiriyah in Dhi Qar. In March 2013 an explosion occurred close to his school. He was not injured but was fearful. In May 2013 his father was shot at. His mother stopped sending him to school because she was afraid he would be harmed and it was decided that he should leave Iraq with his father.

18. Having regard to the claims made by the applicants before the first respondent’s delegate, both on the visa applications and other material advanced by the applicants through their agents, I am satisfied that the second respondent accurately identified and summarised the applicants’ claims.  Additionally, the second respondent recognised that claims to fear harm as returnees/failed asylum seekers from a western country arose on the material for both the first and second applicants.

19. The second respondent accepted the applicant’s primary claim concerning his religion:

    17.    There is some evidence to suggest that the applicants may be Shia rather than of the Sunni faith as claimed. In particular, the first applicant is married to a woman of the Shia faith, and his Facebook page depicts images of Shia iconography and demonstrates that his friends have traditionally Shia names. At the DIBP interview the first applicant provided plausible explanations for these concerns, indicating that: he has many Shia friends and that marriages between Shia and Sunni were not uncommon. Independent information confirms that while marriages between Shia and Sunni have declined due to the recent sectarian tension, they were previously very common.2 The applicant has consistently stated throughout his interactions with the DIBP including in his arrival interview, that he is of the Sunni faith and his oral evidence on this issue was presented in a manner suggestive of personal experience. A recording of the DIBP interview demonstrates that the applicant provided a letter of recommendation from a Mosque in Nasiriyah to the delegate. This document was not referred to the IAA, but it was discussed in some detail in the DIBP interview and I accept it was presented in evidence. On the totality of the evidence before me I accept that the first and second named applicants are Sunni Muslims as claimed. I accept the first applicant is married to a woman of the Shia faith and that the second applicant is a child of their mixed faith marriage.

20. It accepted his claims about working with the United states forces (footnotes omitted):

    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 and 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 a 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.

21. The second respondent also accepted that the first applicant had been shot at (footnotes omitted):

    22.    The first applicant claimed he was targeted in two shooting incidents in May 2013. His evidence on this has been consistent and detailed and I note that he has not sought to exaggerate these claims. He stated that while he could not be certain, he believed he was targeted by Shia militias either due to his Sunni faith or his previous work on the US Army base, or both. There is independent information that Shia militias were operational in Dhi Qar at that time, they targeted Sunni Muslims for harm, as well as people who worked for the MSF-I and the USF-I and international companies. I accept that Shia militias shot at the first applicant on two occasions as claimed due to his Sunni faith and/or his previous work with coalition forces and that this prompted the first applicant to decide to leave Iraq with the second applicant several weeks later.

22. As to the second applicant, accepted that (footnotes omitted):

    21.    The second applicant claimed that a bomb exploded at his school in March 2013. This claim is broadly consistent with independent information that there were sporadic terror attacks in this area at the time. I accept that an explosion occurred at the second named applicant’s school; that he was not injured but was scared; and that some months later his mother decided it was not safe for him to attend school.

23. The second respondent then considered some country information before it including:

    a)“BA (Returns to Baghdad) Iraq CG “, United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), 23 January 2017, CISEDB50AD169.

    b)United Nations High Commissioner for Refugees, “UNHCR Position on Returns to Iraq”, 14 November 2016, CIS38A80122649;

    c)United Kingdom Home Office, “Country Information and Guidance Iraq: Security situation in Baghdad, the south and the Kurdistan Region of Iraq (KRI)”, 12 August 2016;

    d)Department of Foreign Affairs and Trade, “DFAT Country Information Report-Iraq”, 26 June 2017, CISEDB50AD4631;

    e)UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq”, 31 May 2012;

    f)UK Home Office, “Country Policy and Information Note - Iraq: Sunni (Arab) Muslims”, 28 June 2017, OG6E7028831;  and

    g)NGO Coordination Committee for Iraq, “Thi-Qar Governorate Profile”, 1 December 2015 CISEC96CF13696.

1. The second respondent also had regard to a number of media articles.

2. The second respondent determined that the applicants’ circumstances did not give rise to a well-founded fear of persecution. The second respondent made the following findings:

   a)there had been no threats or further attempts to harm the first applicant following the May, 2013 shooting incidents, nor was there any suggestion that anyone had been searching for the applicants since their departure from Iraq. This suggested that no one had an ongoing interest in harming the applicants;

   b)while country information showed that the Islamic State group targeted collaborators with western governments, the southern governorates (including Dhi Qar) remained under government control, and thus there was no real chance of harm from IS or other Sunni armed groups on account of the first applicant’s prior work for the US armed forces;

   c)current country information showed that Shia militias were not presently targeting current or former workers of international companies as they had done previously;

   d)while country information from the Department of Foreign Affairs and Trade stated that Sunnis located in non-Sunni areas of Iraq faced a high level of discrimination and violence, country information from the UK Home Office provided a more specific assessment of the threat faced by Sunnis in southern Iraq.  The UK Home Office report concluded that in general Sunnis did not face a real risk of persecution in the southern governorates of Iraq;

   e)there was no information to suggest that anyone was targeting people of mixed Shia–Sunni marriages, or children of such marriages;

   f)there was no information to suggest that the community at large (aside from Shia militias) would discriminate against or harm the applicants on account of their Sunni faith; their status as young Sunni males; the first applicant’s past work for US armed forces; the first applicant’s marriage to a Shia woman; or the second applicant for being a child of a multi-faith marriage;

   g)the applicants did not have a sufficient profile to risk being harmed by Shia militias for any reason;

   h)the applicants had not opposed the Sunni insurgency in the past, had not done so while in Australia, and were not likely to do so in the future;

   i)there was no information to suggest that criminal or armed groups were kidnapping children for the purpose of stealing their organs; and

   j)the applicants continued to identify as Muslim and there was no evidence that they would be considered to have secularised or to be apostates on return to Iraq.

3. The second respondent also considered that:

   a)the country information suggested that the applicants would not face a generalised risk of violence in the Dhi Qar governorate, as country information from various sources indicated that the southern governorates of Iraq were generally safe overall for residents.  Criminality, while on the rise, was limited to struggles between opposing Shia militias and tribal groups. There was no evidence that the applicants would have reason to get involved in such disputes;

   b)the country information suggested that returnees from the west, including failed asylum seekers, were able to settle back into southern Iraq without significant difficulties;

   c)while the first applicant’s brother had been granted asylum in Britain, there was nothing in evidence before the second respondent to suggest that the applicants would be targeted for their association with him; and

   d)the applicants could safely fly into the international airport at Basra and travel to southern Iraq.

4. The second respondent concluded that the applicants did not meet the requirements of the definition of refugee under s.5H(1) of the Act and nor did Australia owe complementary protection obligations to the applicants. As neither of the applicants met the definition of refugee or the complementary protection criterion, neither of them met the family unit criteria in either ss.36(2)(b)(i) or 36(2)(c)(i) of the Act.

5. On 20 November, 2017 the second respondent affirmed the delegate’s decision to refuse to grant the applicants protection visas.

The review application

1. The first respondent submits that both grounds of review are plainly seeking impermissible merits review.  Plainly that is so.  There is no attempt to specify a ground of review that might indicate that the second respondent’s decision is attended by jurisdictional error.

2. In my view, there is no jurisdictional error in the second respondent’s reasons. There was no error in the way in which the second respondent dealt with the further material that the applicants, through their agents, sought to put before the second respondent. The second respondent’s application of s.473DD was not erroneous.

3. The second respondent considered each of the applicants’ claims raised upon the material before it.  Its reasons for concluding that the applicants did not face a real chance of serious harm if they returned to Iraq were clear and supported by the second respondent’s analysis of the country information before it.  That others might have come to a different conclusion is not to the point.  There is nothing illogical or irrational about the fact finding in which the second respondent engaged.  The second respondent’s reasoning between paragraphs 31 and 41 of its written reasons is clear and transparent.  It provides a logical and probative basis for its ultimate conclusions concerning the applicants’ claims to protection.

Conclusion

1. The application must be dismissed with costs.   

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 August, 2018.

Date: 6 August, 2018