FLV17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 973

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

FLV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 973

File number(s):

SYG 3876 of 2017

Judgment of:

JUDGE LAING

Date of judgment:

1 November 2023

Catchwords:

MIGRATION - application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) affirming refusal of a protection visa – whether the IAA “overlooked an issue” in a manner capable of giving rise to jurisdictional error – whether the IAA’s reasoning was irrational, illogical or unreasonable – application dismissed

Legislation:

Migration Act 1958 (Cth) s 473CA

Cases cited:

AOJ18 v Minister for Home Affairs [2018] FCAFC 220

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175

Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 364 ALR 423

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200

Division:

Division 2 General Federal Law

Number of paragraphs:

31

Date of hearing:

6 September 2023

Place:

Sydney

Counsel for the Applicant:

Ms F McNeil

Solicitor for the Applicant:

Alkafaji Lawyers

Counsel for the First Respondent:

Mr G Johnson

Solicitor for the First Respondent:

Clayton Utz

Appearing for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 3876 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FLV17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	1 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The application be 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 LAING

1. Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of the Republic of Iraq (Iraq) who arrived in Australia in 2013 as an unauthorised maritime arrival.

3. On 3 April 2016, the applicant applied for a protection visa.

4. On 10 February 2017, the Delegate refused the application. The Delegate’s decision was then referred to the IAA for review pursuant to s 473CA of the Migration Act 1958 (Cth).

5. On 23 November 2017, the IAA affirmed the Delegate’s decision.

   THE IAA’S DECISION

6. The IAA accepted that:

   (a)the applicant was an Arab Shia Muslim from Basra (at [8]);

   (b)the applicant’s brother ([A]) operated a grocery store from approximately 1995 until 2012 (at [11]);

   (c)the store began selling alcohol, whilst continuing to sell food, from around 2004 (at [20]);

   (d)the store regularly sold a small amount of alcohol to people the applicant or [A] knew (at [21]);

   (e)the applicant sometimes sold alcohol to customers in [A]’s shop (at [22]);

   (f)[A] was shot and killed by a Shia militia group due to his involvement in selling alcohol (at [28]); and

   (g)the applicant would be returning to Iraq as an unsuccessful asylum seeker who had lived in Australia for years and was affected by the Department’s inadvertent disclosure of personal information on the internet in 2014 (at [36] and [41]).

7. However, the IAA did not accept that in the 5 month period before leaving Iraq, the applicant moved back into his family home or returned to work in [A]’s shop (at [18]). The IAA considered that the applicant’s evidence about alcohol sales was less detailed and more hesitant than might have been expected from a person involved in such sales for many years. However, the IAA considered that this was attributable to the applicant’s limited involvement in such sales in the shop (at [20]).

8. The IAA did not accept that the applicant was telephoned by any member of an armed group following the death of his brother, or threatened in any other way (at [32]). The IAA found it difficult to identify a plausible motivation for such a call, given that the applicant had not worked in the store for some months, only had a limited role in the sale and trade of alcohol whilst there, and no warning had been provided to his brother (at [29]-[30]). The IAA therefore did not accept that the applicant was of adverse interest to any armed group or person because of his own or his brother’s involvement in the sale of alcohol at the time that he left Iraq (at [31]). Having regard to the passage of time since the brother’s death, as well as what was found to have been the applicant’s limited involvement in the trade, the IAA did not accept that the applicant would be of any future adverse interest on this basis upon return to the Basra province (at [32]).

9. The IAA accepted that the applicant had limited education, but did not accept that he had only ever been engaged in the sale of alcohol in Iraq or that he would be unable to undertake any other form of employment on return. The IAA considered that the applicant would be able to use his skills and experience working in a grocery store and as a taxi driver to find employment upon return (at [33]). Considering that in 2016 the sale of alcohol had been banned by law in Iraq, the IAA concluded that the applicant would not sell alcohol on return (at [34]).

10. Having regard to country information, the IAA did not accept that the applicant faced a real chance of harm in the Basra province in the foreseeable future as a Shia Muslim who had unsuccessfully sought asylum and lived in Australia for a number of years. This was notwithstanding the disclosure of his personal information in 2014, which the IAA accepted may have been accessed. The IAA was not satisfied that any combination of the applicant’s circumstances gave rise to a real chance of relevant harm (at [35]-[47]).

11. The IAA therefore found that the applicant did not meet the criteria for a protection visa and affirmed the Delegate’s decision (at [43]-[47]).

    PROCEEDINGS BEFORE THE COURT

12. The applicants commenced proceedings before this Court on 14 December 2017. The applicant ultimately relied upon an amended application filed on 2 August 2023 containing the following grounds:

    1.As noted by the Immigration Assessment Authority ("IAA") in its decision dated 23 November 2017 at [34], in 2016 the sale of alcohol was banned by an Iraqi law which involved "implementing Sharia rules" (at CB 95.1). The IAA at [34] considered the 2016 law in the context of whether the applicant would resume selling alcohol on return to Iraq. The passing of the Iraqi law in 2016 was also relevant to the attitude militia groups and the authorities would take, upon the applicant's return to Iraq, to his conduct in selling alcohol up to the time of his departure from Iraq in 2012. The IAA did not take this matter into account in assessing whether the applicant faced a real chance of serious harm on return to Iraq. The IAA thereby overlooked an issue in its finding at [32] that it was not satisfied that the applicant faced a real chance of serious harm on return to Basra.

    2.The IAA found at [32] that having regard to, among other matters, "the applicant's limited involvement in [the past alcohol] trade [in the shop], I do not accept that the applicant would be of any future adverse interest to any Shia militia group or any other armed group on this basis on his return to Basra province". The IAA accepted that the applicant worked in the shop "from a date between approximately 2000 and 2003 until December 2012" (at [19]), "that the applicant sometimes sold alcohol to customers in [the] shop" (at [22]), and that "shops and bars where alcohol was sold became a target for attacks" (at [27]). In the circumstances, it is unclear how the applicant's role was "limited" and how any such "limited role" affected the applicant's profile on return to Iraq. The IAA erred in its reasoning process at [32].

    Ground 1

13. Ground 1 contended that the IAA “overlooked an issue” by not taking into account that the “passing of the Iraqi law in 2016 was also relevant to the attitude militia groups and the authorities would take, upon the applicant's return to Iraq, to his conduct in selling alcohol up to the time of his departure from Iraq in 2012”. The applicant contended that this error was material because if the IAA had considered the 2016 law in assessing whether the applicant faced a real chance of harm due to his previous involvement in selling alcohol, then the IAA may have concluded at [32] that the applicant may be of future adverse interest on his return to Iraq.

14. The applicant did not identify with precision in his written application or submissions the obligation upon the IAA to deal with this issue in the manner contended. It is apparent that the IAA engaged with the evidence regarding the passing of the 2016 law, which was not overlooked. At [34], the IAA considered that although it was unclear whether the law would be enforced, its potential enforcement would discourage the applicant from resuming the sale of alcohol.

15. At hearing, the applicant contended that a claim that the 2016 law increased his risk of harm due to his prior involvement in the sale of alcohol “clearly arose” in the sense considered in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503.

16. I accept the Minister’s submission that no claim was made to the IAA in this regard, or clearly arose in the requisite sense. The applicant claimed to be at risk due to adverse attention attracted from Shia militia for selling alcohol in the past, and that he would have no option but to continue to sell alcohol in the future if he returned to Iraq. The 2016 law appears to have been raised in the context of the latter claim. These claims were not accepted by the IAA.

17. The reference to the 2016 law appears to have been made at interview, where the applicant’s representative had submitted that the law had been passed “subjecting the country to demands of militias by implementing Sharia rules”. The government, it was said, was “now the official party that targets alcohol sellers in Iraq with criminal proceedings and penalties”.

18. It is not clear from the above that the passing of the 2016 law potentially increased the applicant’s risk on return due to his prior involvement in the sale of alcohol. The applicant does not appear to have claimed that the law would retrospectively apply, such that he may be exposed to criminal proceedings or penalties by the government due to his limited involvement in alcohol sales some years previously. No material capable of giving rise to such a claim was identified. Nor was any material identified suggesting that the development otherwise gave rise to any risk of harm from the government.

19. The applicant claimed, and the IAA accepted, that militia groups already had an attitude that was opposed to the sale of alcohol, to the extent that they had killed his brother due to his involvement in the practice. There was no claim made, nor other material capable of disclosing, any impact upon the militias’ attitudes following the passing of the 2016 law. It is speculative to suggest, as the applicant has done, that the passing of the law may have confirmed or encouraged the attitudes of militia against the sale of alcohol. Such groups, on the IAA’s findings, already possessed attitudes in relation to the sale of alcohol that disposed them to kill people who had attracted their adverse attention in relation to the practice. It is entirely possible that the government’s “subjecting [of] the country to demands of militias” by implementing laws allowing for criminal penalties may have reduced the militias’ motivations towards such violence, on account of the other avenues for address available. Regardless, no claim was made or clearly arose regarding the impact of the 2016 law upon the attitudes of militia groups.

20. Having regard to the above, I am not persuaded that the IAA was obliged to reason in the manner contended by the applicant. Ground 1 is therefore unable to succeed.

    Ground 2

21. Ground 2 contended that the IAA “erred in its reasoning process” in circumstances where it was “unclear” how the applicant’s role in the sale of alcohol was "limited" and how any such "limited role" affected his profile on return to Iraq.

22. In submissions, the applicant contended that the IAA’s reasoning was irrational or illogical. The applicant referred to the following circumstances in which the authorities indicate that a finding may be irrational, illogical or unreasonable:

    (a)if the finding of fact lacks an evident and intelligible justification: Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486 at [48]; Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [61];

    (b)“if there is no logical connection between the evidence and the inferences or conclusions drawn”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135];

    (c)if there is no “rational or probative evidence to support” the finding, or the finding is “made without any probative foundation” or “without any material to found” it: see Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 364 ALR 423 (Hands) at [44]-[47]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(2)]; AOJ18 v Minister for Home Affairs [2018] FCAFC 220 at [31];

    (d)if the finding of fact is not “based upon facts having logical and probative weight”: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [41]; or

    (e)if the finding of fact is “simply incapable of being reasonably made by any decision-maker, there being no evidence at all to support [the finding] and all evidence to the contrary to a reasonable decision-maker”: Hands at [45].

23. The applicant did not identify how the alleged errors in the IAA’s reasoning process or findings of fact resulted in the IAA’s ultimate decision being illogical or unreasonable, thus resulting in jurisdictional error.

24. In any event, I am not persuaded that the IAA’s reasoning process was illogical, irrational or unreasonable. As was submitted by the Minister, it was plainly relevant to the assessment of the applicant’s risk profile that it examine the applicant’s role in the selling of alcohol.

25. It did not necessarily follow that any involvement in [A]’s store gave rise to an adverse profile with militia(s). The IAA did not accept that the applicant had previously been the subject of adverse attention in relation to the shop. The IAA rejected the applicant’s claim to have been threatened after his brother’s death by phone or otherwise (at [31]). This was for the reasons that it gave and which are summarised above, namely, the IAA’s difficulty in understanding why the militia would have threatened or warned the applicant in circumstances where they had not warned his brother, and the applicant had more limited involvement in the sale of alcohol that had ceased some months before his brother was attacked. These reasons were comprehensible. The IAA was not obliged to accept the applicant’s claims to have been threatened by militia.

26. The IAA also gave intelligible reasons for finding that the applicant’s involvement in the sale of alcohol was limited. At [20], the IAA considered the applicant’s description of the beverages sold to be “less detailed and more hesitant than might be expected of a person who claimed to have been involved in the sale of alcohol for many years”. The IAA considered that this was attributable to the applicant’s limited involvement in the sale of alcohol in the shop. The IAA observed that the applicant had indicated that his brother was “in charge” of the shop and that only his brother was involved in obtaining alcohol from suppliers (at [22]). Considering this with what the IAA found to be the somewhat vague and evasive nature of the applicant’s evidence as to his own role, as distinct from his brother’s, the IAA found that although the applicant “sometimes” sold alcohol to customers in his brother’s shop, this role was limited (at [22]).

27. It was not irrational or illogical for the IAA to have considered that the applicant’s risk of adverse interest was influenced by its findings regarding his limited involvement and rejection that he had previously been contacted or threatened in relation to a role that he had ceased some months previously. These matters were logically capable of informing whether or not militia were interested in harming the applicant, as they had harmed his brother. So too was the passage of time, with some years having passed since the applicant’s limited involvement in alcohol sales at his brother’s shop (at [32]).

28. Having regard to the above, it was open to the IAA to have considered that the applicant was not, and would not be, of adverse interest to militia groups and would not face a real chance of harm on this basis if he returned to Iraq. This is notwithstanding country information indicating that some attacks had occurred upon liquor shops and alcohol sellers, and its acceptance that the applicant’s brother had been the subject of such an attack some years previously. As was observed by the Minister, there does not appear to have been any information before the IAA indicating that former alcohol sellers were targeted. The IAA found that the applicant would not return to selling alcohol (at [34]). The country information before the IAA did not require a conclusion that anyone involved in the sale of alcohol, no matter how limited nor how long ago, would be of adverse interest in Iraq.

29. Ground 2 is therefore unable to succeed.

    CONCLUSION

30. Having regard to the above, the application must be dismissed.

31. I will hear from the parties in relation to costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Deputy Associate:

Dated:       1 November 2023