GNJ18 v Minister for Home Affairs

[2024] FedCFamC2G 1290

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GNJ18 v Minister for Home Affairs [2024] FedCFamC2G 1290   

File number:

SYG 3534 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

27 November 2024

Catchwords:

 MIGRATION – Administrative Appeals Tribunal - Safe Haven Enterprise Visa (class XE) (subclass 790) – whether the Authority was required to exercise the power in s 473DC -whether the Authority assessed the applicant’s risk of harm – whether the Authority’s finding was unreasonable – no merit – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5H(1), 5J, 5J(4)(c), 36(2)(a), 36(2)(aa), 473CB, 473DB, 473DB(1)(a), 473DC, 473DD, 473DD(b)(ii).

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510 ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347

NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.

Division:

Division 2 General Federal Law

Number of paragraphs:

68

Date of hearing:

19 November 2024

Place:

Parramatta

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Mr Hillyard (Sparke Helmore)

Solicitor for the Second Respondent:

Submitting appearance,save as to costs

ORDERS

SYG 3534 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GNJ18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	27 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.

2.The application is dismissed.

3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,000.00.

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 D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision made by the Immigration Assessment Authority (“Authority”) on 13 November 2018. The Authority affirmed the decision of a delegate of the Minister (“delegate”) on 30 August 2018 to refuse to grant the applicant a Safe Haven Enterprise Visa (class XE) (subclass 790) (“SHEV”).

2. For the reasons outlined below, the application must be dismissed.  

   BACKGROUND

3. The applicant is a male citizen from Iraq. On 17 October 2012, he arrived in Australian as an unauthorised maritime arrival.

4. The applicant is in a relationship with his partner who is an Australian citizen. They now have three children who were born in Australia. His partner is pregnant with their fourth child. All the children are Australian citizens.

5. The applicant was invited to apply for a Temporary Protection (subclass 785) visa or a SHEV in a letter dated 21 November 2016.

6. On 21 June 2017, the applicant applied for the SHEV with the assistance of a solicitor who was also a registered Migration Agent. On 26 June 2017, a delegate requested further information and documents from the applicant. On 25 June 2018, the applicant was invited to attend an interview in July 2018.  The applicant attended the interview and provided post-interview submissions with the assistance of his representative.

7. On 30 August 2018 a delegate refused the application for the SHEV.

8. The matter was referred to the Authority on 4 September 2018. The applicant engaged a different solicitor who was also a registered Migration Agent to provide submissions and supporting information to the Authority on 25 and 27 September 2018.

9. The Authority affirmed the decision on 13 November 2018 to not grant the applicant a SHEV.

10. The applicant applied to review the decision in this Court on 14 December 2018.

11. On 24 January 2019 Registrar Cho made Orders by consent which required the applicant to file and serve an amended application and any affidavit containing additional evidence by 9 May 2019. No amended application was filed.

12. On 9 May 2019, the applicant who was represented at the time, filed an application in a case and a supporting affidavit seeking, in effect, that this Court grant him the SHEV on the basis of evidence contained in the affidavit. This application was dismissed by Judge Manousaridis in Orders on 29 May 2019.

13. On 2 August 2024, Registrar Cummings made Orders allowing the applicant to file and serve any further amended application and written submissions and any additional evidence by 23 September 2024.

    THE IMMIGRATION ASSESSMENT AUTHORITY DECISION

14. The Authority had regard to material provided by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”).

15. The Authority was satisfied that exceptional circumstances existed to justify consideration of a video provided by the applicant of footage of an undated interview on Iraqi TV in which the applicant’s brother, “M”, speaks as a member of the Iraqi army.

16. The Authority was not satisfied that exceptional circumstances existed to justify consideration of a translated threat letter addressed to the applicant dated 2006.

17. The Authority was not satisfied as to the matters in s 473DD(b) of the Act to consider a January 2018 UK Home Office report referred to by the applicant.

18. The Authority was satisfied that exceptional circumstances existed to justify consideration of the 2018 Department of Foreign Affairs and Trade (DFAT) report on Iraq and information on ranks and insignia for soldiers in the Iraqi army.

19. The applicant’s claims for protection were summarised at [11] as follows:

    •He is a Sunni Muslim from Al-Kahra or the “Cairo” district, Baghdad, a Shia dominated area. He was harassed by police on a day to day basis.

    •In 2003, his area came under the control of the Mahdi Army and he started working for Western clients.

    •In 2006 he received a threatening letter from the Mahdi Army. He relocated to another area in Baghdad for his safety.

    •In 2006 he was detained by US forces for about two years on suspicion of involvement in a bomb blast and physically and psychologically tortured.

    •In 2009 he travelled to Malaysia where he remained until 2012 when he decided to travel to Australia after hearing things had not improved in Iraq.

    •His brother is a Brigadier General in the Iraqi Army and was the subject of a terrorist attack in 2013.

    •He will have a mental breakdown if questioned given his past mistreatment in Iraq, he will be exposed to a risk of harm on roads, he will become destitute and face difficulties re-establishing himself in Iraq, he will be questioned for returning on an invalid passport and will suffer emotional distress from being separated from his family in Australia. He will be a failed asylum seeker from a Western country.

20. At [12] the Authority had regard to the evidence before it and considered the applicant to be Shia. It did not accept he converted to Sunni Islam in 2001.

21. The Authority accepted at [13] that the applicant was from Baghdad, his area was policed by the Mahdi Army during conflict and that he completed primary and secondary schooling as well as some tertiary education in Iraq. The Authority also accepted the applicant completed some tertiary education in Malaysia and worked in various capacities including in construction, retail trade and administration in Iraq, Malaysia and Australia.

22. At [17] the Authority accepted the applicant worked for a family in Iraq from 2003 to 2006 in an administrative role, which may have also required him to perform certain low level security guard type duties. The Authority considered the claims that the applicant drove around in “American” vehicles, was trained to use and had a gun and was involved with Western clients which was well known by those in the area, to be an exaggeration and was not accepted.

23. The Authority considered at [19] the applicant was given more than one opportunity to at least briefly mention receiving the threat letter in the arrival interview. It cited as an example, the applicant’s mention of the Mahdi Army in the arrival interview, when asked if there were any armed groups operating in his area, but he did not mention receiving a threatening letter from them. The Authority also noted the applicant stated in his SHEV application and interview that he had left his job and went to live at a Medical Clinic in another part of Baghdad after receiving the letter. However, at his arrival interview, he said he remained in his hometown in Baghdad until leaving for Syria in 2008. In view of these factors, including country information, the belated raising of the claim, the inconsistencies and the lack of detail, the Authority did not accept the applicant received a threatening letter from the Mahdi Army in 2006 or that he was wanted by them or any militia at that time.

24. At [21] the Authority found the applicant had opportunity to mention the claim in the arrival interview that he was in detention for two years and endured severe physical and psychological mistreatment by US forces. It also considered some of his responses were inconsistent with the claim. It did not accept the applicant did not mention this claim for the reasons he provided. It also did not accept a security guard said the words claimed by the applicant.

25. The Authority did not accept at [22] the claim of sexual assault whilst in detention under US Forces on account of the very late raising, serious lack of detail and consistent representation from the same Migration Agents since lodging his SHEV application. The Authority observed these findings were made notwithstanding the sensitivities surrounding the issue of sexual assault, which may make it more difficult for an applicant to proffer this information.

26. At [23] the Authority found in light of their previous determinations, including the belated raising of the claim, the applicant’s inability to provide further details when questioned by the delegate, and the inconsistencies, it did not accept the applicant was detained by the US military for about two years on suspicion of involvement in a bomb blast or otherwise.

27. Given the consistency of the claim, and his documentary evidence, the Authority accepted various aspects of the applicant’s travel history at [24]. It did not accept the applicant was wanted by the US forces, the Iraqi Army or government or any militia groups when he left Iraq for Malaysia in 2009.

28. In light of its observations and the prevalence of document fraud in Iraq, the Authority did not accept at [25] the report issued by the Iraqi Army and photos of a car that had been bombed which he claimed to belong to the applicant’s brother M, as genuine. No weight was placed on the report. The Authority accepted the man in the video provided was the applicant’s brother M and observed the video depicted M in an Iraqi army uniform with insignia on his lapels indicating he is a Brigadier General. The Authority therefore accepted the claim that M was a Brigadier General.

29. The Authority accepted at [26] the applicant will be identifiable as someone who has attempted to seek asylum in a Western country.

30. The Authority considered the application of s 5H(1) as part of a refugee assessment and the meaning of a ‘well-founded fear of persecution’ under s 5J of the Act.

31. With regard to country information, the Authority did not accept at [32] the applicant faces a real chance of harm on account of his profile, including on the basis of the local area he comes from, his work for a particular Iraqi family some 12 years ago and his brother’s role as a Brigadier General in the Iraqi army.

32. The Authority did not accept at [33] the applicant was mistreated whilst in Iraq and noted he has not claimed to have suffered from any psychological conditions or provided any supporting information in this regard.

33. The Authority accepted at [33] the applicant is likely to suffer distress if he returns to Iraq without his partner and children, but did not accept this would be systematic and discriminatory conduct within the meaning of s 5J(4)(c) of the Act. It also accepted at [34] that whilst the application may have difficulties assimilating, if not returning to his home area, it did not accept this would amount to ‘serious harm’.

34. Overall, the Authority at [35] was not satisfied the applicant faces a real chance of persecution because of the local area he is from, his work for a particular Iraqi family, his brother who is a Brigadier General in the Iraqi Army, or that he sought asylum in a Western country and has a family in Australia.

35. The Authority was not satisfied the applicant has a well-founded fear of persecution at [36]. The applicant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act and did not meet s 36(2)(a).

36. The Authority also considered the complementary protection criteria and found at [43] that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant therefore did not meet s 36(2)(aa).

    GROUNDS OF JUDICIAL REVIEW

37. The grounds of judicial review are contained in the Originating Application filed on 14 December 2018. They are reproduced as follows:

    1.The authority did not assess the risk that I will be subjected to if I go back to Iraq due to my brother’s role in the Iraqi army , I have provided the authority with evidence about the attack that was implemented against my brother, however the authority did not assess the risk that I will have due to this aspect .

    2.The authority did not accept that I converted to Sunni Islam , while the delegate accepted that , the authority acted unreasonably , by not exercising its power under section 473DC.

    THE APPLICANT’S SUBMISSIONS

38. The applicant appeared before the Court unrepresented.  He was not assisted by an interpreter.  The Court was satisfied that the applicant had more than sufficient English language skills to participate in the hearing.

39. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been provided to him.  The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.

40. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

41. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court that the Authority misjudged him, and he was not sure why. He presented all the evidence he had, and he was not believed. He was not sure what he could have done to convince the Authority. He reiterated that he had converted his religion and could not understand why he was disbelieved.

42. At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply.  He answered “No”.

    THE FIRST RESPONDENT’S SUBMISSIONS

43. The first respondent surmised that ground one consists of two components where the Authority purportedly failed to consider: (i) the applicant’s claims about M’s role in the Iraqi army; and (ii) the evidence regarding the claimed attack against M. The first respondent submitted both of these contentions are misconceived in light of the findings made be the Authority.

44. The Authority accepted that M was a Brigadier General in the Iraqi Army, but based on country information, did not accept that the applicant would be harmed on this basis. In particular, it had regard to reporting by DFAT, that there was no evidence that the families of government officials were targeted by armed groups (CB 228, [31]). This informed the Authority’s ultimate finding that it was not satisfied the applicant faced a real chance of persecution as a result of M’s role as a Brigadier General (CB 229, [32]). That finding was open to the Authority, for the reasons it gave.

45. Contrary to the applicant’s assertion, the Authority considered the evidence provided about the claimed terrorist attack against M at [25] of its reasons. However, the Authority found the applicant’s evidence in this regard “implausible”, particularly in light of the incongruence between the applicant not having claimed that M was injured in the attack and photos showing the scale of damage caused to the car. Further, the Authority referred to the absence of anything linking the photos to M, the belated raising of the claim, and the prevalence of document fraud in Iraq, as additional reasons that it did not accept that M was subject to a terrorist attack in 2013 (CB 227, [25]). Again, these findings were open to the Authority for the reasons it gave.

46. The first respondent submitted for the reasons given above, it was open to the Authority not to accept the applicant’s claims. Ground one should be rejected as an invitation to engage in impermissible merits review.

47. Whilst not pleaded in the application for judicial review, the Minister raised as a model litigant the Authority’s compliance with s 473DD of the Act in respect of the threat letter for the benefit of the self-represented applicant. In this regard, when considering the threat letter against the criteria in s 473DD of the Act, the Authority did not make explicit reference to s 473DD(b)(ii) of the Act (CB 221, [8]): cf. AUS17 v Minister for Immigration & Border Protection (2020) 269 CLR 494 at [11]. However, the Minister submits that read fairly and as a whole, it is tolerably clear from the findings of the Authority that it did turn its mind to the consideration in s 473DD(b)(ii).

48. The first respondent stated ground two is a contention that the Authority acted unreasonably in not considering exercising its power under s 473DC of the Act to invite the applicant to attend an interview in circumstances where the delegate had accepted the applicant’s conversion to Sunni Islam (CB 179) but the Authority did not accept that claim (CB 222, [12]).

49. The starting point is that under s 473DB, and subject to the other provisions of that Part of the Act, the Authority must review a fast track reviewable decision without interviewing the referred applicant. Section 473DC then relevantly confers on the Authority a discretionary power to invite a person to an interview.

50. The first respondent submitted in this context, ground two alleges an error of the sort considered by the High Court in ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 (“ABT17”).

51. In ABT17, the High Court made clear that whilst the power in s 473DC of the Act must be exercised (or not exercised) reasonably, not all situations where the Authority proposes to reject a finding that was accepted by the delegate require the Authority to consider exercising the power in s 473DC of the Act: ABT17 at [22]. At [25] of its reasons, the High Court then identified a particular circumstance in which unreasonableness will be established: the Authority would act unreasonably where “without good reason”, it does not invite a referred applicant to an interview to gauge his or her demeanour for itself in circumstances where it rejects an account given by an applicant in an audio recorded interview, which account was accepted by the delegate, on the basis “wholly or substantially” of the Authority’s own assessment of the manner in which the account was given.

1. In the present case, unlike in ABT17, the Authority’s rejection of the applicant’s account of his conversion to Sunni Islam did not rely “wholly”, “substantially” or indeed in any material way, on the applicant’s demeanour or the manner in which the claims were presented by the applicant.

2. The brief observation cited by the applicant did not form a whole or substantial part of the Authority’s reasoning for rejecting the claim. Rather, it was on the basis of the content of the evidence given by the applicant as described by the Authority at [22] (CB 222), that the Authority rejected the applicant’s claimed conversion.

3. The first respondent therefore submitted ground two should be rejected.  

   CONSIDERATION

4. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

   … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister.  The Court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

5. It is well established the Authority is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.

6. Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348

7. It is well settled that the country information and the weight it gives to that information is a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

8. It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].

   Ground one

9. Ground one is a claim that the Authority did not assess the risk that the applicant will be subjected to if he returns to Iraq, due to his brother’s role in the Iraqi army. Whilst the Authority was prepared to accept that the applicant’s brother M, was indeed a high-ranking officer in the Iraqi army, at [33] the Authority found that DFAT country information reports indicated “there is no evidence to suggest armed groups regularly target families of government officials”. The Authority did not accept the claim that the applicant’s brother M, was the target of an assassination attempt, finding that this claim was “implausible” at [25]. It further found that the applicant would not be of risk because his profile more generally at [31] – [32]. The Court is satisfied that this finding was open to the Authority, based on the evidence that was before it and for the reasons it gave. Ground one merely expresses vehement disagreement with the factual findings of the Authority and as submitted by the respondent, is an invitation to the Court to undertake impermissible merits review.

10. The Court notes the submission of the Minister, made properly and in accordance with the model litigant guidelines as regards the Authority’s compliance with the requirements of s 473DD. The Court is satisfied that whilst there was no specific reference to s 473DD(b)(ii) in relation to the Authority’s consideration of whether or not to receive the “threat letter”. The Court is satisfied the Authority had already made a finding in respect of s 473DD(b)(i) and the reference in the third last sentence of [8] which notes that the letter does not mention that the applicant is Sunni or works with Western clients, can and should be interpreted as a reference to s 473DD(b)(ii), in that the information is credible personal information which had not been previously known. No jurisdictional error arises in this regard. Ground one has no merit.

    Ground two

11. Ground two is an assertion that the Authority acted unreasonably in finding the applicant had not converted to Sunni Islam, in circumstances where the delegate accepted the conversion. The applicant contends that the Authority should have exercised its power under s 473DC, and it acted unreasonably by not exercising that power.

12. This was a fast-track reviewable decision under Part 7AA of the Act. Section 473DB of the Act exhorts the Authority to conduct its review without accepting or requesting new information (s 473DB(1)(a)) and without interviewing the referred applicant (s 473DB(1)((b)). The power to obtain new information under s 473DC is discretionary and is subject to the limitations set out in s 473DD.

13. The Court is satisfied that the decision of the Authority not to interview the applicant was reasonable as, the circumstances found by the High Court in ABT17 which would warrant such an invitation being given, do not exist in this matter. This matter did not pivot on an assessment about the applicant’s demeanour whilst giving evidence in either an arrival or departmental interview and there is no informational gap such that there was a requirement to interview the applicant. Ground two has no merit.

    DETERMINATION

14. As neither of the grounds of judicial review have merit, the matter must be dismissed.

    OTHER MATTERS

15. A review of the information contained within the Court Book, does not indicate any information which is adverse to the applicant in terms of his conduct whilst in Australia since arrival in 2012. Since that time, he has apparently supported himself, in gainful employment in the construction industry, formed a long-term relationship with an Australian citizen and is the father of three young children who are also Australian citizens. Further, the Court notes that the applicant’s partner is pregnant with their fourth child. The applicant told the Court that she is apparently unwell and in need of his support.

16. The Court has no reason not to accept this information. If true, it is highly likely that the applicant would be entitled to a partner visa. However, it is highly likely the applicant would be required to apply to this visa whilst offshore, with considerable time delays involved. This would impact on the health and well-being of his partner and their children, who are all Australian citizens.

17. In the absence of any information adverse to the applicant, and unknown to the Court, the Court is of the view that this matter might well be suitable for Ministerial intervention.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       27 November 2024