FMS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 293
•11 March 2020
FEDERAL COURT OF AUSTRALIA
FMS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 293
Appeal from: FMS17 v Minister for Immigration & Anor [2019] FCCA 1701 File number: NSD 1409 of 2019 Judge: YATES J Date of judgment: 11 March 2020 Catchwords: MIGRATION – appeal from judgment of Federal Circuit Court - review of Immigration Assessment Authority decision – no jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), s36(2)(aa), 473DD Cases cited: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Date of hearing: 10 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellant: The Appellant appeared in person, with the aid of an interpreter Counsel for the Respondents: Ms N Laing Solicitor for the Respondents: Australian Government Solicitor ORDERS
NSD 1409 of 2019 BETWEEN: FMS17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
11 MARCH 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
INTRODUCTION
The appellant applied for a Safe Haven Enterprise visa (the visa). A delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), decided that the application should be refused because the delegate was not satisfied that the appellant was a “refugee” as defined by s 5H(1) of the Migration Act 1958 (Cth) (the Act) and, therefore, not a person in respect of whom Australia has protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act.
The decision was referred to the second respondent, the Immigration Assessment Authority (the IAA), for review. On 30 November 2017, the IAA affirmed the delegate’s decision.
The appellant sought judicial review of the IAA’s decision in the Federal Circuit Court of Australia (the Federal Circuit Court). The Federal Circuit Court dismissed the application for judicial review. The appellant now appeals to this Court against that judgment.
BACKGROUND
The appellant is a national of Iraq who arrived in Australia as an unauthorised maritime arrival on 28 March 2013. He is a Shia Muslim. He claimed that, should he return to Iraq, he will face harm from the Mahdi Army due to his previous work with the International Committee of the Red Cross (the ICRC) and because of his, or his brother’s, association with western organisations. He also claimed to fear harm from powerful Sunni militia groups such as Daesh and Al Qaeda.
The primary judge summarised the IAA’s findings as follows:
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.
13.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.
14.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.
15.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)(a) or s.36(2)(aa) of the Migration Act. Accordingly, it affirmed the delegate's decision.
THE FEDERAL CIRCUIT COURT
The appellant’s amended application for judicial review in the Federal Circuit Court was based on three grounds.
The first ground was that the IAA erred in its application of s 473DD of the Act by basing its decision on a false factual foundation. The second ground was that the IAA overlooked the appellant’s claim to fear forced recruitment. The third was that the IAA erred in dealing with the appellant’s claim concerning his work with the ICRC, specifically whether, if he returned to Iraq, he would continue to work with the ICRC.
The first ground of review was explained in the amended application as follows:
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 437DD 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.
To put this ground in context, it is necessary to refer to some additional facts. The appellant’s representative provided a submission to the IAA on 29 June 2017. This submission restated some of the claims the appellant had previously made and addressed the delegate’s decision. It also attached additional information, including three arrest warrants purportedly in respect of the appellant or with which he was concerned (dated 15 March 2016, 1 February 2017 and 4 February 2017); a medical report dated 29 January 2017 concerning the appellant’s son; and three undated photographs of a young child—two showing a small wound, blood, bruising and abrasions around one eye, and one showing the same child with a bandaged temple.
At [8] of its Decision Record, the IAA said:
8. While I am mindful that the applicant was not represented by a migration practitioner at the time of his SHEV interview, I note that during that interview the delegate went to some trouble to explain to the applicant the importance of raising all his claims for protection at that time because after that interview he may not have an opportunity to provide those claims again. I also note that the delegate stressed to the applicant the importance that he tell the truth and provide accurate protection claims as soon as possible. The delegate also invited the applicant to tell him in as much detail as he wished about the problems that caused him to leave Iraq and explicitly asked the applicant whether there was anything he would like to add or change in relation to his SHEV application, to which the applicant responded there was not. I further note the delegate gave the applicant seven working days after the SHEV interview if there was something else he wished to tell him, however the applicant did not take up that opportunity.
With respect to the additional documents which I have identified, the IAA said (at [10] of its Decision Record):
10. 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.
The IAA’s reference to “the 2015 incident” is to the appellant’s claim that, in 2015, there was an attempted abduction of his young son in retaliation for the appellant’s refusal to assist the Mahdi Army in early 2013. The appellant’s claim about this incident, was summarised by the IAA at [37] of its Decision Record:
37. The applicant's claims are in 2015 his wife was attacked when she was taking their baby to the doctor to receive vaccinations. Men tried to take their baby from his wife's arms, but she started to scream and people began to gather around so the men moved away. During this attack, their baby was hurt and had to be taken to hospital. His wife went to the police about this, but they believe the police are corrupt and working with the Mahdi Army. They asked her for her address and she did not feel comfortable giving this to the police. The applicant told his wife to withdraw the complaint as he did not want the police to obtain her address. After this incident the applicant told his wife not to leave the house unless it was for something necessary and important, so fortunately she has not been attacked again. The men who used to threaten him did not threaten his wife after he left Iraq as they did not know her address and she hardly left the house, so they could not track her. The Mahdi Army are still very powerful in Iraq today, and particularly in Najaf. He believes they have many connections with the police and the Government. He knows this because his wife tells him what is happening there. He talks to his wife almost every day and also hears updates on the news.
The IAA was prepared to accept that, in 2015, the appellant’s wife and son may have been accosted in public, and that a criminal attempt may have been made to abduct the appellant’s son while he was being taken to have vaccinations. However, the IAA was not satisfied that this attack was perpetrated by the Mahdi Army because the appellant refused to join them or provide them with information two years prior to the incident. In this connection, the IAA was not satisfied that the appellant was of adverse interest to the Mahdi Army once he had left his role with the ICRC in January 2013. It did not consider it plausible that the Mahdi Army would be interested in, or able to locate, the appellant’s wife and son some two years later.
A further fact to note is the appellant’s claim that the arrest warrant dated 15 March 2016 had been discovered by his wife when she contacted the authorities to report a raid on her home purportedly by the Mahdi Army in 2017.
As will be apparent from the way in which the appellant particularised his first ground of review, his allegation of jurisdictional error focuses on the arrest warrant dated 15 March 2016 and the IAA’s findings at [10] of its Decision Record. The appellant’s complaint is that these findings show that the IAA misunderstood the significance of this evidence.
The primary judge was not satisfied that there was any misunderstanding on the IAA’s part, when its reasons, particularly [10] of the Decision Record, were seen in context. The primary judge held (at [22]):
22. 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. 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.
The primary judge was not satisfied, therefore, that this ground of asserted jurisdictional error was established.
The second ground of review concerned the appellant’s claim that he feared forcible recruitment into the Mahdi Army or a Shia militia group, should he return to Iraq. The Minister’s delegate considered and rejected that claim, which was advanced in the appellant’s statement he prepared prior to the delegate’s decision, in which he said:
15.Even if I wasn’t working with the ICRC, I think I would have received threats from militia groups such as the Mahdi Army as they are dominant in the area I was living and we either had to join them or fight them.
In his application for judicial review, the appellant contended that the IAA did not deal with his claim to fear harm by forced recruitment by the Mahdi Army or any other Shia militia group should he return to (southern) Iraq.
While the primary judge accepted that this was a claim which the IAA was required to deal with, he was satisfied that the IAA had dealt with it. His Honour found that, at [19] – [40] of its Decision Record, the IAA had comprehensively dealt with and disposed of the appellant’s claims to fear harm from the Mahdi Army. In particular, the IAA rejected the proposition that the Mahdi Army would have any ongoing interest of any kind in the appellant. His Honour noted further that, at [36] of its Decision Record, the IAA had made the following finding of fact:
36. I do not accept the applicant's claim that even if he wasn't working with the ICRC he thinks he would have received threats from militia groups as they are dominant in the area he was living and men either had to join them or fight them. I find this claim speculative and inconsistent with country information that the risk of being caught up in intra-Shia violence is predominantly borne by those who are actively involved in the militia or tribal group, rather than ordinary civilians who may be perceived to be part of a militia or tribal group's constituency and that Shia militia comprise volunteers, particularly from lower socio-economic classes.
The primary judge further noted that, at [44]–[47] of its Decision Record, the IAA had considered more generally whether country information indicated that the appellant may face harm of any type as a Shia Muslim from Najaf. The IAA had concluded that the appellant would not suffer any harm. The primary judge found that, to the extent that the appellant claimed to fear harm from militias, including forced recruitment, this claim was disposed of in the IAA’s findings.
The third ground of review was that the IAA failed to consider whether the appellant would continue to work for the ICRC if he returned to Iraq. The primary judge rejected this ground on the basis that the prospect of the appellant working for the ICRC in the future was not an issue which he (the appellant) had raised. As the primary judge put it at [31]:
31.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.
The primary judge observed, in any event, that, at [35] of its Decision Record, the IAA had noted that, not only was the appellant no longer employed by the ICRC, but also that he had not established that he would have the opportunity to work for the ICRC if he were to return to Iraq.
As the primary judge remarked, had the appellant wished to advance a contrary position, he needed to have done so by evidence and submissions.
THE APPEAL
The appellant’s notice of appeal contains two grounds, which I will discuss below. An order was made on 24 September 2019 requiring him to file a written outline of submissions in support of his grounds. He did not do so. At the hearing, the appellant appeared in person assisted by an interpreter. He also wanted a close friend (not a lawyer) to speak on his behalf. I was not persuaded that this would be of assistance. I wished to hear what the appellant, himself, wanted to say in support of his grounds of appeal. In that connection, I informed the appellant that he would need to establish error in the Federal Circuit Court’s judgment.
The appellant commenced his submissions by saying that he understood that the IAA had determined that it was “safe for him to return” to Iraq. He said that a couple of days ago people were killed where he lived and that it was not safe for him to return; he was at risk. I explained that this Court does not have jurisdiction to make findings of fact in relation to the appellant’s claims. I directed attention to the two grounds of appeal that had been raised and invited the appellant to address me on those grounds, to which I now turn.
The appellant’s first ground of appeal is expressed as follows:
1. The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority ("the IAA") erred in its finding that the 2016 Arrest Warrant contradicted specified evidence when it did not in fact contradict specified evidence indicates that the IAA misunderstood the evidence before it in exercising its discretion under s 473DD. The primary judge erred in concluding that "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 contended that his argument was about the authority understanding of the evidence, whether this evidence was inconsistent with the applicant's statement, it was not about whether the IAA considered the inconsistency or not.
This ground picks up a subsidiary observation by the primary judge which he made after having found that the IAA had not erred:
23.The applicant also bears the onus in this case in seeking to establish materiality. 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.
This finding was a “subsidiary” observation because the question whether an error is sufficiently material to constitute a jurisdictional error only arises if, in fact, error is found: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [3] – [4]. Here, the primary judge found that there was no error on the part of the IAA, as the appellant had alleged. The first ground of appeal appears to contend that, by making the subsidiary observation, the primary judge did not understand the ground of review, while at the same time continuing to allege that the IAA misunderstood the evidence.
In addressing this ground the appellant said that, initially, he was not aware that he had to support his claim that he was at risk of harm if he returned to Iraq. He said that his claim was rejected because “it wasn’t strong enough”. When his attention was directed to the terms in which the first ground of appeal was expressed, he argued that the IAA must have misunderstood the evidence because it had concluded that it was safe for him to return to Iraq.
I have discussed the first ground of review advanced by the appellant in the Federal Circuit Court at [7] – [17] above. The appellant’s first ground of appeal proceeds from the misunderstanding that the primary judge identified when rejecting the corresponding ground of review. The appellant has not demonstrated error in the primary judge’s conclusion. The first ground of appeal is not established.
The second ground of appeal is expressed as follows:
2. The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority ("the IAA"), erred by not assessing [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 primary judge erred by merely referring to [44]-[47] of the IAA decision without cross examining the reasoning of the authority.
It should be noted at the outset that, when rejecting the second ground of review, the primary judge did not “merely refer” to [44] – [47] of the IAA’s Decision Record without examining its reasoning. To the contrary, the primary judge did examine the IAA’s reasons and found that it had dealt with the appellant’s claim comprehensively.
In relation to this ground of appeal, the appellant argued that the Mahdi Army would force him to work as a spy if he returned to Iraq. I explained to the appellant that I understood his claim. His ground of appeal, however, was that the primary judge erred in rejecting his case that the IAA had not considered the claim. When I drew this to the appellant’s attention and asked why he said the primary judge had erred, he said that the IAA was “not aware of the extent of the risk of the current situation in Iraq” and that the IAA “should have looked at the whole picture of the situation and consider[ed] that”. Later, the appellant argued that the IAA had accepted that there was a risk of forced recruitment but had not given that risk sufficient weight in coming to its decision.
As will be apparent from my summary of the IAA’s findings on this question (see [20] above), the IAA did not accept that there was a risk that the appellant would be forcibly recruited if he returned to Iraq. As I have said, the primary judge was satisfied that the IAA had dealt with the appellant’s claim comprehensively. The appellant has not shown error in the primary judge’s conclusion. The second ground of appeal is not established.
DISPOSITION
The appeal should be dismissed. The appellant is to pay the Minister’s costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 11 March 2020
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