FMF17 v Minister for Immigration

[2018] FCCA 1300

FEDERAL CIRCUIT COURT OF AUSTRALIA

FMF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1300

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider the applicant’s evidence – whether the Authority erred in applying s 5 of the Act – whether the Authority failed to consider whether it was safe for the applicant to return to his home country – no arguable case of jurisdictional error made out – application dismissed under r.44.12 of the Rules.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CB, 473DE, 476

Applicant: FMF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3888 of 2017

Judgment of: Judge Street

Hearing date: 22 May 2018

Date of Last Submission: 22 May 2018

Delivered at: Sydney

Delivered on: 22 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms C Saunders
DLA Piper

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3888 of 2017

FMF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant, who is a Shia Muslim and a Bidoon, was found by the Authority to be a citizen of Iraq and his claims were assessed against that country. The applicant claimed that he is a Stateless Bidoon from Kuwait and that he will be discriminated against and unable to find employment if returned to Iraq.

3. The applicant arrived in Australia on 24 March 2013 as an unauthorised maritime arrival. On 15 June 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. On 20 June 2017, the Authority wrote to the applicant explaining that the application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter explained there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions that were considered by the Authority. The first were submissions dated 30 July 2017, to which the Authority referred and was satisfied that that addressed the delegate’s reasons and had regard to the same. The Authority also referred a 10 page post-interview submission dated 22 May 2017, which the Authority found was not new information.

2. The Authority also took into account a recent Department of Foreign Affairs and Trade (“DFAT”) country information report of Iraq dated 26 June 2017, consistent with s 473DE(3)(a) of the Act. The Authority identified the background to the applicant’s visa application and had regard to the information referred under s 473CB of the Act and dealt with the applicant’s submissions. The Authority summarised the applicant’s claims and set out the relevant law as one that is incorporating an annexure of the statutory provisions, including the provisions in s 5 of the Act and relevantly the definition of degrading treatment or punishment.

Before this Court

1. The matter was fixed today for a show cause hearing under r 44.12 of the Federal Circuit Rules 2001 (Cth) (“the Rules”). At the commencement of the hearing the Court explained the nature of the hearing to the applicant and the applicant confirmed that he understood the explanation given by the Court.

The applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that he was a Stateless Bidoon from Kuwait and that the citizenship documents were obtained by bribes and were not genuine. The applicant maintained that he would be at risk of discrimination on return to Iraq and would not be able to stay in any safe area. The applicant also alleged that he would be identified as a Bidoon and that he was in need of medical treatment, having had a heart attack.

2. The Authority in its reasons, expressly addressed the applicant’s claim to be a Stateless Bidoon and rejected the applicant’s assertion that the citizenship certificate from Iraq was false. The Authority was not satisfied on the evidence that the use of connections and bribes was necessary because he would not otherwise have been entitled to obtain the document. The Authority referred to country information in relation to payments or bribes being routinely expected for government services. The Authority also took into account the biodata interview and the housing card provided by the applicant and that the applicant did not have any difficulties in renewing or obtaining the subsequent documents. It was in those circumstances that the Authority found the applicant was an Iraqi national.

3. The applicant’s disagreement with the adverse findings by the Authority do not identify any arguable case of jurisdictional error. It was open to the Authority to find that the applicant was an Iraqi national for the reasons given by the Authority and those reasons cannot be said to be illogical or irrational. The material identified by the Authority supported its adverse finding. The adverse finding cannot be said to lack an evident and intelligible justification. No arguable jurisdictional error is identified by the applicant’s disagreement with the Authority’s finding in relation to the applicant being a citizen of Iraq.

4. In relation to the applicant’s claims concerning the difficulties he would face as a Bidoon and whether he would be recognised, the Authority expressly did not accept that the applicant was readily identifiable as a Bidoon as a result of wearing traditional dress. The Authority did not accept that the applicant’s children had no choice but to leave school because of verbal insults. The Authority did not accept that the applicant or his family had suffered physical violence as a result of being a Bidoon.

5. The Authority referred to the issue of employment in southern Iraq and was satisfied that the chance is remote now and in the reasonably foreseeable future that the applicant will be denied the capacity to earn a livelihood, such that it would threaten his capacity to subsist. The Authority took into account the fact that the applicant had managed to work in a number of different roles over several decades apparently through both relatives and friends in the open market. The Authority also took into account the applicant’s social ties in Iraq with his wife, adult children and siblings being in particular areas. The Authority accepted that the applicant may suffer some minor discrimination in the form of verbal insults from time to time on return to the particular government, but was not satisfied that such ill treatment rises to a level of serious harm. Those adverse findings were open to the Authority for the reasons given by the Authority and cannot be said to lack an evident and intelligible justification.

6. The applicant’s submissions in relation to his concerns in respect of the risk of discrimination and his ability to obtain employment in substance invite this Court to engage in impermissible merits review and do not identify any arguable jurisdictional error.

7. The applicant also referred to his heart attack and the Authority’s decision in that regard identified that it occurred in September 2013. The Authority found on the evidence available that the applicant would not be unable to access medical treatment for his heart condition in Iraq. The Authority found that there is no suggested discrimination in health care, or that the applicant would be denied treatment, or restricted in his ability to obtain treatment for any of the reasons identified in s 5J(1)(a) of the Act. The Authority was not satisfied that now or in the reasonably foreseeable future there was a real chance the applicant would be denied access to basic services where the denial threatens his capacity subsist.

8. The Authority took into account the applicant’s religion and took into account that there are isolated attacks in the particular government and also took into account that a lower risk of harm in an area does not necessarily preclude there being a real chance of harm in that area. This reflects the Authority taking into account an objective assessment of the real chance test, rather than a relativistic approach. The Authority was not satisfied that there is a real chance of serious harm. The Authority found that the level of harm is such that the chance of harm does not rise to a real chance. The Authority found the chance remote, that now or in the reasonably foreseeable future the applicant will suffer harm as a result of his Shia religion or for the security situation in his government.

9. The Authority also took into account the applicant being a failed asylum-seeker returning from the West. The Authority was not satisfied that there is a real chance now or in the reasonably foreseeable future that the applicant will suffer harm as a failed asylum seeker and as a returnee from a western country. The Authority found the applicant did not meet the requirements of the definition of a “refugee” in s 5H(1) of the Act, and that the applicant did not meet the criteria under s 36(2)(a) of the Act.

10. The Authority then turned to the issue of complementary protection and again, took into account the applicant’s medical condition and was not satisfied that the applicant would be unable to access treatment for any medical condition or that any restriction in his ability to access treatment would constitute significant harm. The applicant’s submissions in relation to his medical treatment were clearly the subject of consideration and adverse findings by the Authority. Those findings were open to the Authority, for the reasons given by the Authority. Those findings cannot be said to be illogical or irrational, and cannot be said to lack an evident and intelligible justification.

11. The Authority was not satisfied that any limitations in services available would amount to cruel or inhumane treatment or punishment, or degrading treatment or punishment, or torture. The Authority was not satisfied that such limitations reflect the requisite intention to cause pain or suffering, severe pain or suffering, or extreme humiliation. The Authority was not satisfied on the evidence that if the applicant returned to Iraq, the applicant would be at real risk of being subject to significant harm. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria or under s 36(2)(aa) of the Act and affirmed the decision under review.

12. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   Ground 1

   The Authority did not take into consideration the evidence about paying bribes to the officials in order to get the nationality ID’s, the Authority erred in applying the country information in this regard, the country information supports the idea that forgery and nepotism is prevalent which makes it difficult to distinguish the correct from the false ID’s, the Authority was not sure about the process of getting ID’s in IRAQ, the Authority did not apply “what if I am wrong” test as provided in Rajalingam v Minister for Immigration and Border Protection and Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 (12 November 2001)

   Ground 2

   The Authority erred in applying section 5 in relation to the extreme humiliation that I suffered.

   Ground 3

   The Authority did not mention the details of how will I return to me home area (CID15 v Minister for Immigration) at [50].

Ground 1

1. In relation to ground 1, this concerns the applicant’s claim in respect of being a Stateless Bidoon and the certificate of citizenship that was obtained by bribery. That was expressly considered and rejected by the Authority as addressed above. The Authority was entitled to take into account the country information and there is no finding by the Authority that reflected any question of doubt that required the Authority to take into account a “what if I am wrong” test. No arguable case of jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Authority expressly referred to the statutory provisions, including the definition of “degrading treatment or punishment”, under s 36(2A) of the Act in respect of complementary protection. The Authority expressly referred to not being satisfied that the applicant met the statutory provisions and expressly referred to extreme humiliation. There is nothing to suggest that the Authority erred in its identification or application of the relevant law in considering whether the applicant met the criteria for complementary protection. No arguable case of jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the applicant alleged that the Authority should have considered whether it was reasonably safe for him to return to his home area. No such claim was raised before the Authority and the Authority is not required to address a claim that does not reasonably arise on the material before the Authority. Nor was the Authority required to engage in any such consideration in the circumstances of the present case as this is not a relocation matter where the Authority was required to consider the reasonableness of relocation. For the reasons already given, to the extent that ground 3 refers the “real chance test”, the Authority’s reasons reflects the application of the correct test and an objective assessment. No arguable case of jurisdictional error is made out by ground 3 of the application.

Conclusion

1. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  17 July 2018