FMS17 v Minister for Immigration
[2019] FCCA 1701
•16 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FMS17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1701 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant’s claims substantially accepted but his fears of harm found not to be well-founded – whether the Authority erred in its application of s.473DD, or overlooked a claim or failed to properly address an issue considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473DD, 473FB |
| Cases cited: AXE17 v Minister for Immigration [2019] FCA 695 Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | FMS17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3893 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms F J McNeil |
| Solicitors for the Applicant: | Stamford Law Pty Ltd |
| Counsel for the Respondents: | Ms N Laing |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended by leave granted on 20 June 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3893 of 2017
| FMS17 |
Applicant
And
| M MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 30 November 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is an Iraqi national who arrived in Australia at Christmas Island on 28 March 2013.[1]
[1] Court Book (CB) 45, 110
On 8 and 13 May 2013 the applicant participated in an entry interview.[2] The entry interview record contains some of the applicant’s claims.[3]
[2] CB 1-18
[3] at CB 13
Between March and May 2013 the applicant was in detention centres, following which he was granted a bridging visa and released.[4]
[4] CB 49, 51
On 13 July 2016,[5] following the lifting of a statutory bar by the Minister notified to the applicant in January 2016,[6] the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).[7] The application included a typed statement by the applicant setting out his claims.[8]
[5] CB 87
[6] CB 19
[7] CB 25-86
[8] CB 62-66
The applicant claimed to face harm from the Mahdi Army due to his previous work with the International Committee of the Red Cross (ICRC) and because of his and/or his brother’s association with western organisations. The applicant also claimed to fear harm from powerful Sunni militia groups such as Daesh and Al Qaeda.[9]
[9] CB 158 [14]
On 6 June 2017, the delegate refused the application.[10]
[10] CB 110-123
On 30 November 2017, the Authority affirmed the delegate’s decision.[11]
[11] CB 154-171
Authority’s decision
The Authority had regard to the material referred by the Secretary. It found that updated Department of Foreign Affairs and Trade (DFAT) country information ought to be considered, as it met the criteria in s.473DD of the Migration Act 1958 (Cth) (Migration Act).[12]
[12] [4], [13]
The Authority observed that it had received a submission from the applicant. In relation to this, the following new information was identified:
a)that the applicant’s wife was well known in the local area and identifiable due to her role as a teacher. The Authority considered that the applicant would have mentioned this during the Departmental interview if it was significant. The Authority was not satisfied that this was credible personal information, that it could not have been provided to the delegate prior to their decision, or that exceptional circumstances justified its consideration;[13]
b)three purported arrest warrants in respect of the applicant, as well as:
i)photographs;
ii)a medical report; and
iii)reports from the applicant’s wife and a family friend regarding an alleged attack by the Mahdi Army in January 2017.
The Authority observed that the underlying information in this regard pre-dated the SHEV interview. The information, said to have been acquired on account of the 2017 attack, also contradicted the applicant’s evidence at interview that his wife and child had not experienced difficulties since the 2015 incident. The Authority was not satisfied that this was credible personal information, that it could not have been provided to the delegate prior to their decision or that exceptional circumstances justified its consideration;[14]
c)hyperlinks to an undated New York Times topic list on the Mahdi Army and a hyperlink to a Reuters media article dated 21 July 2011. This information was provided in a manner contrary to the Authority’s Practice Direction, which indicated that hyperlinks were not an acceptable method of provision of information. The Authority observed that the applicant was represented by a migration agent and had been sent a copy of the Practice Direction. The Authority declined to accept the hyperlinks provided;[15] and
d)the 2012 UNHCR Eligibility Guidelines. This was found not to be credible personal information. It pre-dated the delegate’s decision. The Authority considered that it was not apparent why the information could not have been provided earlier, nor was it apparent that any exceptional circumstances justified its consideration.[16]
[13] [9]
[14] [10]-[11]
[15] [7]
[16] [12]
The Authority accepted that the applicant had worked for the ICRC between 2009 and January 2013 and had been threatened on about three occasions in late 2012 or early 2013 by the Mahdi Army. However, the Authority did not accept that there was a real chance that the applicant would face harm on this basis. The Authority observed that the threats had been connected to his role with the ICRC. The applicant was no longer employed with the ICRC and had not indicated that he would have the opportunity to work for them in the future. More than four years had passed and country information did not indicate that former employees of such organisations faced harm years after leaving their employment. The Authority was satisfied that the applicant would no longer be of interest to the Mahdi Army.[17]
[17] [21]-[36]
The Authority accepted that the applicant’s brother may have worked for the USA armed forces and the Red Cross in Iraq, and subsequently settled in the USA. However, the Authority did not accept that the Mahdi Army members who threatened the applicant in late 2012 were familiar with the brother’s employment history or had been monitoring the brother for years. This was considered “speculative and implausible”. The Authority was satisfied that the chance would be remote that the applicant would suffer harm because of his brother’s previous employment.[18]
[18] [19]-[20]
The Authority accepted that the applicant’s wife and son may have been accosted in 2015 and that an attempt was made to kidnap the son. However, the Authority was not satisfied that this attack was perpetrated by the Mahdi Army because the applicant had refused to join them or provide them with information two years previously. The Authority did not accept that the applicant faced a real chance of harm on this basis.[19]
[19] [37]-[40]
After considering available country information, the Authority was not satisfied that the applicant would face a real chance of harm from Daesh or Al Qaeda, as a Shia Muslim or as a returnee from the West. Although the Authority accepted that people in the applicant’s local area may be aware he has returned from a western country, available information did not support a finding that he would face a real chance of harm on this basis. Ultimately, the Authority was not satisfied that the applicant met the criteria in s.36(2)(aa) or s.36(2)(aa) of the Migration Act. Accordingly, it affirmed the delegate’s decision.[20]
[20] [41]-[56]
The present proceedings
These proceedings began with a show cause application filed on 15 December 2017. On 22 January 2018, I made orders by consent which listed the matter for a final hearing on 20 June 2019. That involved a lead time of about 18 months for procedural steps to be taken, although the orders anticipated the applicant would file and serve any amended application or affidavit evidence by 23 April 2018. An amended application was filed on 3 June 2019 and the applicant sought leave to rely upon it. The granting of that leave was opposed by the Minister. By his affidavit made on 19 June 2019, the applicant’s solicitor sought to explain the circumstances of the delay in the production of the amended application. While those circumstances are not in themselves a sufficient justification for the delay, the solicitor is disarmingly frank and honest in his affidavit. I granted the leave sought, taking into account the long lead time between the consent orders and the trial, the fact that the Minister had prepared to argue the grounds raised in the amended application (as had the applicant), there was no prejudice to the Minister, there was a serious question to be tried and there was no suggestion of any tactical ploy to either ambush the Minister or achieve further delay.
There are three grounds in the amended application:
1.On 29 June 2017 the applicant’s agent provided a submission and documents to the Immigration Assessment Authority (“the IAA”). The documents included an arrest warrant directed to the applicant dated 15 March 2016. The IAA, on application of s 473DD of the Migration Act, stated at [10] that it was not satisfied that the warrant was credible personal information and it was not satisfied there are exceptional circumstances to justify concerning the warrant. A basis for these findings was that the arrest warrant “contradicts the evidence the applicant gave during the SHEV interview that his wife and child had not experienced any difficulties since the 2015 incident”. However, the arrest warrant did not contradict evidence as claimed by the IAA. The IAA’s finding that the arrest warrant contradicted specified evidence when it did not do so indicates that the IAA misunderstood the evidence before it in exercising its discretion under s 473DD. This tainted the exercise of discretion in a manner which constituted jurisdictional error.
2.A claim by the applicant which arose on the materials before the IAA was whether the applicant would experience forced recruitment by the Mahdi Army or any other Shia militias if he were to return to southern Iraq. The IAA did not deal with this claim. Where the IAA fails to deal with a claim before it, this is a jurisdictional error.
3.The applicant worked as a security guard for the ICRC for a number of years before he left Iraq in 2013. A question is whether the applicant would continue to work for the ICRC if required to return to Iraq. The IAA failed to properly address this issue. This was a jurisdictional error.
The only evidence I have before me is the court book filed on 27 February 2018.
Both the applicant and the Minister filed pre-hearing written submissions and also made helpful oral submissions through their counsel at the trial.
Consideration
Ground 1 – did the Authority err in its application of s.473DD of the Migration Act by basing its decision on a false factual foundation?
The Authority made several findings in relation to new information at [6] and [8]-[13] of its reasons.[21] It is also noteworthy that at [7][22] the Authority made a decision in the exercise of discretion under s.473FB(5) which the applicant has not sought to impugn. Indeed, the applicant’s quarrel with the Authority’s reasoning under s.473DD is limited to one of three purported arrest warrants provided to the Authority. The particular arrest warrant in issue is reproduced at CB 136. The applicant’s point is that this particular arrest warrant concerned the applicant rather than his wife or children and so could not be dealt with on the basis that the applicant had not previously suggested that his wife or children had been the subject of any harm since 2015. In particular, the applicant impugns the Authority’s reasoning at [10] where the Authority stated:
In relation to the three arrest warrants, the applicant's wife's report, the medical report and the three photographs, all of this information that is dated pre-dates both the May SHEV interview and the delegate's decision of 6 June 2017 by at least three months and also contradicts the evidence the applicant gave during the SHEV interview that his wife and child had not experienced any difficulties since the 2015 incident. Neither the applicant nor his representative has explained this apparent contradiction or why this information could not have been provided earlier, prior to the delegate's decision. I consider that that the information was in existence earlier but not provided casts doubt on the genuineness of this information. The applicant has not satisfied me that the information could not have been provided to the Minister before the decision was made or that it is credible personal information. Having regard to the entirety of the circumstances I am also not satisfied that there are exceptional circumstances to justify considering this information.
[21] CB 155-158
[22] CB 156
I accept the Minister’s submission that the Authority’s reasoning needs to be seen in its proper context.
The Authority was not considering the content of the 2016 arrest warrant divorced from the context in which it was provided or from the other information that was provided with it. The warrants were said to have been discovered by the applicant’s wife only when she contacted the authorities to report the 2017 raid of her home by the Mahdi Army.[23] The “three arrest warrants, the applicant’s wife report, the medical report and the three photographs” were all said to have been acquired because of the 2017 raid. The 2017 raid, and therefore the provenance of these documents, was inconsistent with the applicant’s evidence at interview that his wife and child had faced no further difficulties since 2015. The Authority did not err in considering that this was so.
[23] CB 128
The applicant also bears the onus in this case in seeking to establish materiality.[24] It is not realistic to suggest, as the applicant does, that the Authority’s assessment may have been different had the Authority not considered the inconsistency. The applicant’s possession of these documents, by reason of their alleged provenance, was still inconsistent with the applicant’s evidence that his family had faced no further issues since 2015. The Authority observed the late provision of the documents had also caused it to doubt their genuineness.
[24] Minister for Immigration v SZMTA [2019] HCA 3 at [3]-[4]
I find that Ground 1 does not establish jurisdictional error.
Ground 2 – did the Authority overlook the applicant’s claim to fear forced recruitment?
The applicant had made an extremely general claim of a fear of forced recruitment at [15] of his written claims reproduced at CB 64. This appears to have been further explored at the applicant’s interview with the delegate because the delegate dealt with the claim specifically in his reasons.[25]
[25] see CB 115-116
In its reasons, the Authority did not deal with the claim in the same way as the delegate, and I accept that the claim needed to be dealt with, but in my view, on a fair reading, the claim was dealt with in the Authority’s reasons.
The Authority comprehensively dealt with and disposed of the applicant’s claims to fear harm from the Mahdi Army at [19]-[40] of its decision. Although the Authority accepted that the Mahdi Army may have had some interest in the applicant years ago, when he was working for the ICRC, it rejected the proposition that they would have any ongoing interest (of any kind) in the applicant.
At [36], the Authority rejected the claim that the applicant would have received threats “from militia groups” who required men to “join them or fight them”, even if he was not working with the ICRC.In this regard, the Authority observed that country information indicated that the risk of being caught up in intra-Shia violence was predominately borne by those actively involved in the militia or tribal groups rather than ordinary citizens. It also observed, notably, that country information indicated that “Shia militia comprise volunteers, particularly from lower socio-economic classes”.
At [44]-[47], the Authority considered more generally whether country information indicated that the applicant may face any type of harm as a Shia Muslim from Najaf. It concluded that he would not do so.
Accordingly, to the extent the applicant claimed to face harm from militias (including forced recruitment), this was disposed of in the above findings of the Authority.
Ground 3 – did the Authority err in dealing with the applicant’s claim concerning his work at the ICRC?
There is no suggestion that the Authority failed to deal with the applicant’s claim of having worked with the ICRC in Iraq in the past. The question is whether the Authority needed to consider whether the applicant would work again for the ICRC should he return to Iraq. By this ground the applicant asserts that the Authority failed to “properly address” that issue. The short answer to this claim is that the Authority did not have to make the applicant’s case for him and did not have to consider a claim not put and not squarely arising on the material. The Authority does not need rebutting evidence to reject a claim and it was entitled to rest upon the absence of any claim by the applicant that he would seek out future employment with the ICRC or would have an opportunity to work again with it.
In his written submissions, the applicant suggests that the Authority was required to make a positive finding that he would not want to work for the ICRC, that there was no position available, or that it would be reasonable for him not to work there despite wanting to do so.
The Authority was not bound to make any such finding. There is longstanding judicial authority to the effect that a decision maker is not obliged to accept the claims or evidence proffered by an applicant and is not required to possess “rebutting evidence” in order to reject them.[26]
[26] AXE17 v Minister for Immigration [2019] FCA 695 at [33]; CQG15 v Minister for Immigration [2016] FCAFC 146 at [65]; Selvadurai v Minister for Immigration [1994] FCA 1105; (1994) 34 ALD 347 at [7]
As it was, the Authority observed at [35] that the applicant had not indicated that he would have the opportunity to work for the ICRC on his return to Najaf. It is apparent that the Authority was not satisfied that he would be able to do so. Had the applicant wished to advance a contrary position, it was for him to provide the requisite evidence and submissions to support that position.
I reject Ground 3.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 16 August 2019
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