FND17 v Minister for Immigration

[2019] FCCA 531

FEDERAL CIRCUIT COURT OF AUSTRALIA

FND17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 531

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether it was legally unreasonable for the Authority not to invite the applicant to give new information – whether the Authority failed to consider the whole of the applicant’s evidence – whether the adverse findings of the Authority were illogical, irrational or unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA, 473CB, 473DA, 473DB, 473DC, 473GA, 473GB, 476

Applicant: FND17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3903 of 2017

Judgment of: Judge Street

Hearing date: 5 March 2019

Date of Last Submission: 5 March 2019

Delivered at: Sydney

Delivered on: 5 March 2019

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford law

Solicitors for the Respondents: Mr J McGovern
Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 22 February 2019.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 5 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3903 of 2017

FND17

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 the decision of the Immigration Assessment Authority (“the Authority” made under Part 7AA on 30 November 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise Visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 14 March 2013. The applicant claimed to be a Shia Muslim from the Babel province who worked as a mechanic for a particular security company in Baghdad from approximately 2010 until February 2013. The applicant alleged an incident occurred on 14 February 2013 when he was at home and was allegedly shot at when a black BMW containing three masked men pulled up and shot at him. The applicant alleges he fled to Baghdad to stay with his aunt. The applicant alleges the men who tried to kill, or their associates, have harassed his parents on a number of occasions since his departure from Iraq. The applicant believes Al‑Qaeda or Mahdi Army may be responsible because they are both active in the area and the applicant fears harm in Iraq from these groups. The applicant also fears that he may face harm from the Islamic State of Iraq and the Levant (“ISIL”) and that he may be kidnapped if he returns to Iraq by reason of having lived in Australia, a western country, for an extended period.

3. On 16 February 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 21 February 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did not do so.

5. The Authority’s reasons identify the background to the visa application and the Authority had regard to the material given by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims. The Authority accepted the applicant is an Arab Shia Muslim.

6. The Authority referred to the applicant’s claim of fearing harm from an armed group who shot at him in February 2013. The Authority referred to the delegate noting that the applicant did not provide any documentary evidence in support of his claim to have worked for the particular company, being a security company in Baghdad, and that the delegate placed weight on the detailed answers to questions the applicant provided about his work for the particular entity.

7. The Authority found the applicant did provide detailed and credible information about his work as a mechanic or technician responsible for maintaining power generators, and accepted that the applicant was at some point employed in that capacity. The Authority was also willing to accept that the applicant travelled between Baghdad and his home province for his work. The Authority did not find the applicant’s evidence regarding his claimed employer, being a particular entity, to be detailed or credible. The Authority in that regard particularly took into account when considered in the context of the applicant’s claimed two to three years of employment in the company. The Authority reached a different conclusion to that of the delegate in relation to the applicant’s claimed employment by the particular entity.

8. The Authority referred to the applicant’s assertion as to the location of the particular entity. The Authority found the applicant’s inability to describe the location of the officers of the particular entity with more specificity surprising, given particularly that he claims to have worked there for two or three years from 2010 to 2013. The Authority referred to the applicant’s description in his Safe Haven Enterprise visa application of the particular organisation specialising in providing guards to protect high profile Iraqi and international clients. The Authority took into account that the applicant did not know the size of the office and the Authority found the applicant’s answers did not clarify the ownership of the company and referred to the applicant’s assertions that the operations were highly secret. While the Authority considered the applicant’s knowledge of the company’s operations was quite limited and general in nature the Authority took into account that this could be attributable to his role as a mechanic.

9. The Authority expressly referred to the delegate raising with the applicant that he had looked for information about the particular entity on the internet and had found none. The Authority took into account the explanation that this was because the organisation was only available in Arabic. The Authority found it somewhat surprising that a large security organisation that provided security services to high profile foreign nationals in at least two locations in Iraq would not have an internet presence in English and would not be mentioned in any information covered by the internet.

10. The applicant’s representative suggested that the organisation might have been a subcontractor providing services to other security companies in Baghdad. The delegate asked the applicant whether that was the case and the applicant suggested it probably was the case, but he did not have the information about that given the secretive nature of the work of the company. The delegate raised with the applicant that it would be useful if the applicant could provide further information to show that the particular entity is active and operating. The Authority expressly noted that no information about the particular entity was provided by the applicant or his representative.

11. The Authority referred to the delegate exploring with the applicant whether he had any papers or cards relating to his employment by the particular entity. The Authority found it somewhat surprising that in the context of employment in a highly fortified and secure organisation which hosted meetings between various high profile Iraqi and foreign nationals, the applicant did not carry any accreditation. The Authority noted that the applicant had not provided any other information about the entity, such as media or other reports referring to the organisation, photographs of himself at work, or any photographs of the interior or the exterior of the compound.

12. The Authority found these issues lead the Authority to question the veracity of the aspects of the applicant’s claim that he worked for a security company of the particular name. When taken together, the Authority concluded that the applicant was not in fact employed by a particular entity providing security services to high profile Iraqi and foreign nationals from 2010 to 2013 as claimed. The Authority expressly referred to the lack of documentary evidence regarding the applicant’s employment by the particular entity, the lack of independent information to confirm the existence of the particular entity, and the applicant’s inability to describe the location of the organisation with specificity that one would expect after a person had even been briefly employed there, leading to the conclusion that the applicant never worked there and to doubt the organisation exists. The Authority did not accept the applicant was employed by the particular entity or any other security company, or that he was of any adverse interests to any armed Shia or Sunni group, or any other group or person, for any reason related to his past employment at the time he left Iraq.

13. The Authority also referred to the delegate having accepted the applicant was shot at by unknown masked men while sitting outside his home in February 2013. The Authority referred to the applicant claiming that the day after the shooting the men came to his family home looking for him and assaulted his father. The applicant alleges the men referred to the applicant’s employment by ‘foreigners’ and the applicant claimed that the shooting was motivated by his employment for the particular entity. The Authority took into account that the applicant did not claim to have been threatened or harmed for any other reason. The Authority did not accept the applicant was employed by the particular entity and did not, therefore, accept that he was shot at for any reason relating to that employment.

14. The Authority referred to photographs and documents provided by the applicant in relation to the alleged shooting incident. The Authority referred to the claim that the applicant’s father was visited by the militia group who asked where the applicant was, referred to the applicant’s employment by foreigners and assaulted the applicant’s father, hitting him with their weapons. The applicant alleged that his father went to the police station the following day. The Authority referred to the delegate raising with the applicant concerns in respect to the father’s statement. The Authority found the applicant’s response to the delegate were confusing and that he appeared to indicate that although his father had reported the assault on him by the militia the day after the shooting attack on the applicant, as well as the attack on the applicant, the reports were recorded separately and the police had not been able to locate the report of the attack on the applicant’s father. The Authority found the explanation unconvincing. The Authority noted that when asked why the applicant did not have a record of his own statement to the police about the shooting, the applicant said that as he was not present in his home location he was not able to access the report.

15. The Authority identified having reservations about the authenticity of the documents and found that even if the documents were to be accepted as genuine the Authority would place little weight on the evidence.

16. The Authority took into account that the applicant claimed he did not know who shot him. The Authority noted the delegate sought to explore with the applicant why working as a mechanic for a security company the applicant would be targeted for an attack, and the applicant suggested that he was an easy target. The Authority noted that firing from a car does not appear to be consistent with seeking to extract information from the applicant. The Authority also noted that the applicant in his role would have limited access to information about the company’s operations. The Authority did not accept that the applicant was employed by the particular entity or that he was targeted in a shooting for that reason.

17. The Authority considered whether the applicant was targeted for some other reason and found, taking into account country information, that the applicant did not hold any relevant profile. The Authority noted that it did not accept the applicant was employed by a security company that provided services to foreign nationals and did not accept the applicant was targeted in a shooting for that reason, and did not accept that the applicant was of adverse interest to any group or person for any reason related to his past employment.

18. The Authority referred to the evidence before the Authority, including the country information about attacks, and did not accept the applicant was shot at as claimed, or that any member of his family was assaulted or threatened by any Shia or Sunni armed group or any other group or person, including following his departure from Iraq. The Authority did not accept the applicant was of any particular interest to any Shia or Sunni armed group for any reason at the time he left Iraq.

19. The Authority found that there was a real chance of the applicant facing serious harm in his own region and turned to the issue of whether the applicant had a well‑founded fear of persecution in respect to all areas of Iraq, pursuant to s 5J(1)(c) of the Act. The Authority took into account that the applicant did not claim to be wealthy or associated with tribal violence or involvement with militia groups, other the claim which the Authority had rejected.

20. The Authority referred to country information and referred to the delegate raising with the applicant whether the applicant could move to Karbala, where the applicant’s sister lived and but the applicant understood that that area was under the control of the Mahdi Army and the applicant claimed his brother‑in‑law had been kidnapped for three months prior to the Safe Haven Enterprise visa interview and released after a huge ransom was paid. The applicant alleged that his sister and brother‑in‑law were now seeking to leave Iraq and the option of living with them in Karbala would not be open to him.

21. The Authority took into account that the applicant did not advance any other evidence about his brother‑in‑law’s claimed kidnap or his sister and brother‑in‑law’s planned departure from Iraq. The Authority took into account the timing of the first mention of these matters at a late point during the Safe Haven Enterprise visa interview, after the question of relocation was raised by the delegate, which led the Authority to question the veracity of the applicant’s evidence in relation to these matters. The Authority also took into account that the applicant did not raise this issue when asked at the beginning of the interview whether he wished to make any change to his evidence in his application.

22. The Authority took into account considering whether or not the applicant may not have provided this information until the after the matter of relocation was raised by the delegate during the Safe Haven Enterprise visa interview because he did not understand the potential relevance of the incident to his claims prior to that point.

23. The Authority also took into account the fact that the applicant was represented and assisted by his representative in relation to completing the Safe Haven Enterprise visa application. The Authority considered that the applicant would have been aware before the Safe Haven Enterprise visa interview that the matter of potential relocation to another part of Iraq, including the reasons he might not be able to relocate to another part of Iraq, were relevant to his claims. The Authority found the applicant did not provide any further information about the brother‑in‑law’s claimed abduction or his sister and brother‑in‑law’s planned departure from Iraq following the Safe Haven Enterprise visa interview. It was in these circumstances that the Authority was not satisfied the applicant’s brother‑in‑law was kidnapped.

24. The Authority, considering the evidence before the Authority, was not satisfied that there is a real chance of harm to the applicant in Karbala, now or in the foreseeable future, for any reason related to his past employment, on the basis on his Shia faith, as a person who would be returning to Iraq having unsuccessfully sought asylum and lived in Australia, a western country, for more than four years, as a result of the security situation, including the incidents of crime in Karbala, or as a result of any combination of these matters.

25. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and found the applicant did not meet the criteria in s 36(2)(a) of the Act.

26. The Authority referred to complimentary protection and turned to the requirements of s 36(2B) of the Act and took into account that the Authority had not accepted that the applicant’s brother‑in‑law was kidnapped in 2016 and did not accept that the applicant’s sister and brother‑in‑law planned to leave Iraq because of the claimed abduction. The Authority expressly referred to the applicant not providing further information about his sister and brother‑in‑law’s plans to leave Iraq following the Safe Haven Enterprise visa interview. The Authority found in the absence of evidence that the applicant’s sister and brother‑in‑law had left Iraq, the Authority found they continue to reside in Karbala. The Authority was satisfied that the applicant’s sister would, if required, act as a sponsor and provide assistance and support to the applicant in Karbala, if required, on his return to Iraq.

27. The Authority took into account the personal circumstances of the applicant and his skills as a mechanic and his ability to find work in the past and was satisfied the applicant would be able to find suitable employment in Karbala province, notwithstanding the high level of unemployment in Iraq.

28. The Authority, having regard to the applicant’s particular circumstances and to the information before the Authority regarding the situation in Karbala, including the general security situation, was satisfied that it would be reasonable for the applicant to relocate to, and remain in Karbala, where the Authority found the applicant does not face a real risk that he will suffer significant harm.

29. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iraq from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision on the review.

The grounds

1. The grounds in the amended application are as follows:

   1. A central feature of the applicant's claims is that in Iraq he was employed by a security company called X, and on 14 February 2013 he was shot at by unknown masked militia. The Minister's delegate accepted these claims. In contrast, the IAA did not accept these claims. In the circumstances of the case, where the Minister's delegate made a finding favourable to the applicant concerning these central matters and the IAA was considering making an adverse finding concerning the matter because of concerns it had, it was legally unreasonable for the IAA not to exercise its power under s 473DC(3) of the Migration Act 1958 (Cth) to invite the applicant to comment on its concerns.

   2. A central claim of the applicant was that on 14 February 2013 he was shot at by unknown masked militia. The IAA at [26] did not accept that the shooting incident occurred. The IAA, in arriving at this finding, did not consider, or did not properly consider, the applicant's evidence, given at various stages of the protection visa application process, concerning the shooting incident. In the circumstances, this was a jurisdictional error.

   3. In circumstances where the IAA found that the applicant faced a real chance of serious harm if he returned to Babel province (at [31]), a question relevant to the assessment of the applicant's claims for a protection visa under s 36(2)(a) and 36(2)(aa) of the Migration Act was whether he could relocate to Karbala. The IAA found that the applicant could relocate to Karbala. Part of the evidence the applicant gave to the Department relating to relocation to Karbala was that his sister and brother in law lived in Karbala, that he had considered relocating to Karbala but decided not to relocate to Karbala for a few reasons, including that his brother-in-law had been kidnapped, and his sister and brother-in-law were considering leaving Karbala ("the Karbala Evidence"). The IAA fell into jurisdictional error in the manner in which it dealt with this evidence in the context of it finding that the applicant could relocate to Karbala. Specifically:

   a) The Minister's delegate made a finding concerning a matter important to the applicant's claims (that the brother in law was kidnapped in Karbala) favourable to the applicant. The IAA was considering making an adverse finding concerning the matter based on concerns it had about some matters. It was legally unreasonable for the IAA not to exercise its power under s 473DC(3) to invite the applicant to comment on its concerns.

   b) The IAA accepted some of the Karbala Evidence and rejected other parts of the Karbala Evidence. There was no logical or rational reason for the IAA to accept some of the evidence, and reject the rest of the evidence, and the IAA gave no reason. In the circumstances, the IAA' s reasoning process was illogical or irrational in a manner which constituted jurisdictional error.

   c) The IAA's reasons for not accepting some of the Karbala Evidence were illogical or irrational in a manner which constituted jurisdictional error.

Ground 1

1. In relation to ground 1, Mr Zipser of counsel on behalf of the applicant took the Court to the finding of the delegate, where the delegate had accepted that the applicant was shot at and to the different finding made by the Authority to that of the delegate, in which the Authority had rejected the applicant’s claim that he was shot at. Mr Zipser contended that it was legally unreasonable for the Authority, in those circumstances, not to consider exercising the power under s 473DC(3) of the Act.

2. The provisions concerning the review to be conducted by the Authority in part are found in Part 7AA of the Act, including a requirement under s 473CA of the Act that the Authority must review the decision as soon as practicable after the decision is made. In s 473DB of the Act there is what has been described as a primary rule, that the review is to be conducted without accepting or requesting new information and without interviewing the referred applicant, subject to the provisions of Division 3. Section 473DA of the Act also excludes the natural justice hearing, given the exhaustive nature of the division, together with s 473GA and s 473GB of the Act. The Authority in the present case gave reasons in support of departing from the delegate’s finding, both in relation to the particular company that employed the applicant and in relation to the assertion that the applicant was shot.

3. Mr Zipser relied on the departure from the delegate’s finding, both in relation to the employment of the particular entity and in relation to the applicant being shot, as engaging an obligation upon the Authority to give consideration to exercising its powers under s 473DC(3) of the Act.

4. The Authority is not bound by the adverse findings made by the delegate. The Authority provided logical and rational reasons for departing from the delegate’s findings and the Authority expressly acknowledged, in that regard, the departure from the delegate’s findings. Those reasons, as summarised above, were logical and rational. In those circumstances it cannot be said that the absence of express consideration by the Authority lacks an evident and intelligible justification.

5. Given the statutory regime and the logical and rational findings made by the Authority that were open to the Authority in respect of the alleged claims, the Court does not accept that it was legally unreasonable for the Authority not to expressly consider exercising the power in s 473DC(3) of the Act. There was no new issue of a kind raised that would warrant exercise of the powers under s 473DC(3) of the Act in the circumstances of the present case. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Zipser submitted that there was further information in the record of the interview, at the time of the making of the Safe Haven Enterprise visa interview, that the Court should infer was not taken into account in the Authority concluding that the shooting did not occur and that the Authority had thereby made a jurisdictional error.

2. Mr Zipser took the Court to an extract of the interview and the details the applicant had provided in relation to the vehicle, persons in the vehicle and a plan or diagram that was prepared in the course of the interview. The Authority is not required to refer to every piece of evidence. It is apparent from the Authority’s summary of the claims that the Authority considered the applicant’s claims in regards to the nature of the vehicle, being a BMW, its colour, the number of masked men allegedly inside the vehicle and the applicant’s assertion in relation to escaping by hiding behind a concrete barrier and that this incident was linked to the applicant’s claims in respect of what occurred the following day, in respect of his father.

3. There is no proper basis to infer that the Authority failed to take into account the whole of the Safe Haven Enterprise visa interview. Further, there is no proper basis to find that there was other than a genuine real engagement with the applicant’s claims, evidence and submissions, given the reasoning of the Authority. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Zipser referred to the finding by the Authority, that was different to that of the delegate, in relation to the kidnapping of the brother‑in‑law, in the context of the reasonableness for relocation to Kabbalah. Mr Zipser submitted first that there should have been no adverse finding in relation to the reasonableness of relocation without the Authority expressly considering the exercise of the power under s 473DC(3) of the Act concerning the alleged kidnapping of the brother‑in‑law.

2. The Authority was not bound by the findings of the delegate. The Authority provided logical and rational reasons in support of the rejection of the applicant’s claims concerning the abduction of his brother‑in‑law, as summarised above. In those circumstances, the absence of express consideration by the Authority of whether to exercise the powers under s 473DC(3) of the Act cannot be said to lack an evident and intelligible justification.

3. The Court takes into account the statutory provisions referred to earlier, in relation to Part 7AA of the Act. It is not legally unreasonable for the Authority not to expressly consider exercising the power under s 473DC(3) of the Act in the circumstances of the present case, in respect to the applicant’s claims concerning the kidnapping of his brother‑in‑law, in the context of relocation. No jurisdictional error as alleged in ground 3(a) is made out.

4. Mr Zipser submitted that there was an illogicality or irrationality in the Authority accepting some of the applicant’s evidence, in respect of the sister and brother‑in‑law, and rejecting other evidence. There is no substance in this contention. The Authority made findings in relation to the sister and brother‑in‑law and rejected the applicant’s claim concerning the kidnapping and that they did not remain in Karbala. It was open to the Authority to do so.

5. The Authority’s reasons for not accepting whether the brother‑in‑law had been kidnapped identified the timing of the issue raised by the applicant, the representation of the applicant, and the questioning of the applicant at the commencement of the interview, as summarised above. The Authority’s reasons were not irrational, illogical or legally unreasonable. The reasons given by the Authority for rejecting the applicant’s claims in respect of the brother-in-law cannot be said to lack an evident and intelligible justification.

6. Mr Zipser’s submissions in relation to ground 3(b), in substance is an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by ground 3(b).

7. In relation to ground 3(c), Mr Zipser sought to take issue with the reasoning of the Authority in rejecting the evidence concerning the brother‑in‑law because of the delay in the providing of the information and by reason of the absence of the provision of further information about the brother‑in‑law and sister’s planned departure from Iraq.

8. The adverse findings by the Authority were, for the reasons already given, open to the Authority and cannot be said to illogical or irrational. Ground 3(c) is again, in substance, an invitation to this Court to engage in impermissible merits review. No jurisdictional error as alleged in ground 3(c) is made out.

9. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 April 2019