GSF18 v Minister for Immigration

[2020] FCCA 2088

FEDERAL CIRCUIT COURT OF AUSTRALIA

GSF18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2088

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2B), 473CC, 473DC,

Part 7AA

Interpretation Act 1901 (Cth), s. 25D

Cases cited:

BA (Returns to Baghdad) Iraq CG [2017] UKUT 00018 (IAC)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] All ER 680

Applicant: GSF18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1316 of 2018

Judgment of: Judge Vasta

Hearing date: 23 July 2020

Date of Last Submission: 23 July 2020

Delivered at: Brisbane

Delivered on: 31 July 2020

REPRESENTATION

Counsel for the Applicant: Ms G. Hartridge

Solicitors for the Applicant: Refugee And Immigration Legal Service Inc

Counsel for the First Respondent: Mr J.D Byrnes

Solicitors for the First Respondent: Minter Ellison Lawyers

ORDERS

1. That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the applications filed 21 December 2018 and amended on 6 September 2019 are dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1316 of 2018

GSF18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 13 December 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, GSF18, a protection Visa.  On 21 December 2018, the Applicant asked this Court to review that decision.

2. The background to the matter is relatively straight forward.  The Applicant is a citizen of Iraq.  He claimed that, from 2009, he was working as an engineer’s assistant for several international companies who were installing telecommunication towers in the southern area of Iraq.

The Claims

1. The Applicant said that, between January and May 2012, he was threatened by unknown persons on four different occasions.  He said that these threats were that if he did not stop installing towers and working for foreign infidels, he would be killed.  He was told that the towers were causing serious health problems for local residents.

2. He said that in May 2012, a colleague, who was an engineer, was killed (murdered).  The Applicant said that he immediately quit his job and stayed at home for the next four months.  He said that during that time he received threatening text messages.

3. The Applicant left Iraq using his own passport and travelled to Indonesia before travelling to Australia by boat. He arrived in Australia on 29 October 2012.  The Applicant claimed that, in early 2013, the Asaib Ahl al-Haq (“the AAH”) visited his mother at the family home and asked her about the Applicant’s whereabouts.  He said that she replied that the Applicant had gone to Australia.  He claims that they told her that if the Applicant returned, they would kill him.

4. The Applicant claimed that after the AAH had left his mother’s house, his mother went to the home of the deceased engineer colleague.  The Applicant said that his family and the family of the engineer had a strong relationship.  He claims that the engineer’s family told his mother that the police had told them that the engineer had been killed by the AAH.  The Applicant claimed that the police told the family to keep it secret because they cannot do anything to help them.  He claimed that the police also told them that a few other engineers had been killed for the same reason.

5. The mother of the Applicant has since died and the Applicant had provided a death certificate.

The IAA assessment – country information

1. Country information, before the IAA, indicated that AAH is a Shia armed group that is operated in Iraq since 2004.  During the American occupation of Iraq, the AAH targeted coalition forces, Iraqi officials and security forces.  Once the last of the coalition forces left Iraq, in late 2011, the AAH became part of the political process and is currently part of the Popular Mobilisation Forces (“the PMF”) under the centralised control of the Iraqi government.  AAH is involved in combating ISIL.

2. Country information also evidences that AAH has committed abuses against civilians, mainly Sunnis from areas that had been under the control of ISIL.  There is also evidence that they have engaged in criminal activities.  However, there is no reference to the AAH targeting fellow Shias.

3. The IAA noted that DFAT reports had assessed the risk of societal discrimination against individuals associated with the international community as being high and the risk of societal violence being moderate.  The deficiency in that assessment is that there was no indication as to who would be targeting such individuals and in what part of the country targeting was likely to occur.  The IAA noted that the DFAT material did not refer to any recent examples of such treatment.

4. The IAA noted that the UK Upper Tribunal, after considering a number of other sources, expressed the opinion that those who worked for non-security related Western or international companies (or people who would be perceived as having collaborated with foreign coalition forces in Iraq), were still likely to be at risk from Sunni insurgent groups in areas which were under ISIL control or where there were high levels of insurgent activity.  Before the coalition withdrawal, such persons were also targeted by Shia militias but since the withdrawal of coalition forces, those militias have focused on combating ISIL.

5. The IAA also noted the country information provided by the Applicant.  These included media articles concerning incidents in November 2013 where disruptions to oil production at Southern oilfields occurred; an August 2017 article about shots being fired on a Chinese operated electricity distribution facility in the region; and, a January 2018 article concerning tribal feuds in Basra.

IAA assessment - the Claims of the Applicant

1. The IAA had some doubts about the genuineness of some of the documents that the Applicant relied upon to show that he was working for Nokia or Motorola.  The IAA noted that the Applicant was not academically qualified in either engineering or telecommunications.  The Applicant himself said that he was working under the direction of others on telecommunication towers.

2. The IAA noted that there was no independent information that indicated that engineering or telecommunications professionals were being targeted by either Shia or Sunni armed groups in 2012.

3. The IAA did not accept that the Applicant ever worked directly for Western companies but was willing to accept that the Applicant was employed in a relatively low level technical role for several companies that provided services to international companies constructing telecommunication towers.  The IAA was prepared to accept that this work may have extended into 2012.

4. The IAA accepted that it was plausible that, in the course of carrying out this work, the Applicant and his engineer colleague were, on a number of occasions in the first half of 2012, stopped and questioned by unknown persons representing local residents affected by the construction of the towers.  The IAA was prepared to accept that those persons may have objected to the work being done by the Applicant and his colleagues, and may even have demanded they stop construction.

5. However, the IAA was not persuaded that the people who confronted the Applicant were from the AAH or that they threatened to kill the Applicant or his colleague, either because of fears about the health impacts of the towers or because of their association with western companies.  The IAA noted that the Applicant himself said that these persons did not identify themselves, he did not know who they were, some of them wore masks, on each occasion different people stopped them, and that the incidents happened in varying locations.

6. The IAA did not accept that the Applicant’s colleague, who was an engineer, was killed in May 2012 by the AAH, or anyone else, because of either his work constructing telecommunication towers or his association with an international company or a combination of both reasons.  The IAA noted that, even though he claimed that the families had a strong connection, the Applicant was able to provide a death certificate for his mother but no documentary evidence confirming the death of the engineer.

7. The IAA reiterated that there was no independent evidence that persons associated with the international community were being targeted in southern Iraq by Shia armed forces, which includes the AAH.

8. The IAA accepted that the Applicant stopped working in June 2012 but not because of the death of his colleague.  The IAA did not accept that the Applicant was hiding at home for the months prior to his departure from Iraq or that he received threatening text messages during that time.

9. The IAA did not accept that the AAH visited his mother in early 2003, nor that there was any threat made to kill the Applicant if he came back from Iraq.  The IAA noted that the Applicant had not indicated that he would be seeking employment in the telecommunications industry or with an international company if he were to return to Iraq.

10. The IAA was not satisfied that there was a real chance that the Applicant would suffer harm from the AAH or anyone else because of his previous work in southern Iraq.

IAA assessment - return to Iraq

1. The IAA then looked at what would occur if the Applicant were to return to Iraq.  The IAA noted that the country information was that Shia Muslims face little or no official discrimination.  Anti-Shia violence has reduced since the defeat of ISIL.  However, there were still isolated incidents of violence in Shia areas and violence occurring between opposing Shia militias.  Such violence is often linked to other criminal activities including robbery and kidnapping.

2. The IAA accepted that the Applicant is a Shia Muslim from Basra governorate but that he does not practice his religion.  The IAA did not accept that the security situation in Iraq has worsened in the six years that the Applicant has been absent from the country.  Country information was that violence was at its lowest level in over a decade.  The IAA noted that the Applicant did not claim that his sisters, who have continued to live in Basra for the past six years, have suffered difficulties practising their faith.

3. Whilst the IAA accepted that there is some risk of harm in the Basra area, they were not satisfied that the level of harm was such that it rises to a “real chance”.  The IAA was not satisfied that there was a real chance that the Applicant would suffer harm because he is a Shia or because of security conditions in Basra.

4. The IAA considered whether the Applicant was at risk of harm as an asylum seeker and a returnee from a western country.  Country information was that the practice of seeking asylum and then returning to Iraq once conditions permit, is well accepted amongst Iraqis.  There are large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq.  There is limited evidence to suggest that voluntary returnees face difficulties in assimilating back into the communities.

5. The IAA accepted that it may be suspected that the Applicant sought asylum overseas and that he had been absent from Iraq for some years.  However, the IAA noted that the Applicant would be returning to his home area where his sisters have continued to live whilst he has been away.

6. The IAA did not accept that the Applicant was of interest to the AAH or anyone else at the time he departed Iraq and therefore the IAA was not satisfied that there was a real chance that the Applicant would suffer any harm as an asylum seeker and a returnee from a western country.

7. For those reasons, the IAA was not satisfied that the Applicant met the refugee requirements.

Complementary protection

1. The IAA then turned to the question of whether the Applicant met the complementary protection criteria.  Using the conclusions that the IAA had already made, the IAA concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iraq, there was a real risk that the Applicant would suffer significant harm.

2. For those reasons, the IAA was not satisfied that the Applicant met the complementary protection criteria.

3. Having come to those conclusions, the IAA affirmed the decision not to grant the Applicant a protection Visa.

The Current application

1. The Applicant filed an amended application on 6 September 2019 containing four grounds which in turn have a number of sub-grounds.  I will deal with each ground seriatim, notwithstanding that many of the grounds overlap each other.

Ground One

1. Ground one is set out below:

   “The Immigration Authority (IAA) fell into jurisdictional error, as follows:

   1) The Second Respondent failed to conduct a review in accordance with Part 7 AA of the Migration Act 1958 (the Act), particularly section 473CC, and section 25D of the Acts Interpretation Act 1901, in that it:

   a) failed to give real consideration to, or properly engage with the evidence and claims of the Applicant for eligibility for the visa, and refer to the evidence upon which its adverse findings were based

2. This sub-ground is rather convoluted.  Under the heading of this sub- ground the Applicant has submitted that the IAA did not engage with the claims made by the Applicant because there was no reference to certain material.

3. The first complaint is that the IAA was not convinced that the Applicant was directly employed by Nokia or Motorola.  The Applicant submitted that he had been consistent from his arrival interview all the way through to the interview with the Delegate.  He complains that this consistency should have been taken into account.

4. Whilst inconsistency is often used when looking at claims of credibility, consistency can also be used in much the same way.  However, just because a claim has some inconsistencies does not necessarily mean that it should be rejected; conversely, just because a claim has been consistent does not necessarily mean that it should be accepted.

5. In this matter, the IAA had the material before it and made a finding that they had doubt as to the genuineness of the “independent contractor agreement”.  That was open to the IAA on the evidence before it.  In any event, it is not a material fact because the IAA accepted that the Applicant was performing the work he claimed he was performing.  Whether his employer was a multinational or whether the employer was a subcontractor, makes no discernible difference.

6. Under this sub-ground, the Applicant also argued that the IAA spoke of what occurs to Shia Muslims in the home area of the Applicant.  As the Applicant was not a regularly practising Shia, the Applicant claimed that the IAA should have assessed whether there was a risk because of his “non-regularity of practice”.

7. There was no specific claim advanced on this basis and it is not a claim that naturally arises from the material before the IAA.

8. The Applicant also argues that the IAA made an adverse finding based upon a misreading of the claim of the Applicant.  In effect, the Applicant claims that the IAA have assessed the threat against him as if his claim were that he had been threatened by the AAH.  The Applicant submits that he had never known who it was that threatened him (or who killed his engineer colleague), but that he was later given information that it was the AAH.

9. If one looks at the reasons of the IAA, it is clear that the IAA have never lost sight of the fact that the Applicant did not “know” who it was that was threatening him.  However, it was clear that the Applicant was attempting to infer that the AAH were behind both the threats and the killing of his colleague.

10. At paragraph 21 of the IAA’s reasons, the IAA have accepted that the Applicant was accosted by local residents but did not accept that these people were from the AAH.  At paragraph 22, the IAA did not accept that the engineer colleague was killed by the AAH or anyone else. 

11. At paragraph 23, the IAA has not accepted that the threats, described by the Applicant as having been made by the persons who accosted him, were threats made by the AAH.  The IAA has not accepted that the engineer colleague was killed.  Having made those findings, the IAA did not find credible that the Applicant was hiding at home for the next few months or that he received threatening text messages during that time.

12. None of that reasoning has proceeded upon a misreading of the Applicant’s claim.  The conclusion that the IAA was not satisfied that the Applicant was hiding at home or receiving threatening text messages, is not predicated upon the IAA believing that the Applicants claim was that the AAH was behind such actions.

13. Also under this subheading, the Applicant contends that the IAA did not consider the arrival interview of the Applicant.  The rationale for such a claim is that the IAA did not refer to the arrival interview in its reasons.

14. However, the IAA said, at paragraph 3 of their reasons, that they have had regard to the material given to them by the Secretary.  That material included the arrival interview which is reproduced at CB 1.  When one looks at that document, there is nothing in it that further advances the case for the Applicant as put to the delegate (and the IAA).  The Applicant himself has not identified anything in the arrival interview, other than the general consistency of the claims of the Applicant, which advances his case.  In those circumstances, it is hardly surprising that there is no other reference to this interview in the reasons of the IAA.

15. It seems to me that the IAA has conducted a proper hearing and has engaged with all of the aspects of the claim of the Applicant.  This sub-ground does not illustrate any jurisdictional error.

16. The next sub-ground is:-

    b) failed to consider an integer of the Applicant's claim, being the claim by the Applicant made at the interview on 16 May 2018 that the threats from the unknown group, may have occurred after the murder of the engineer, as the members of the group feared that the Applicant could testify against them and identify them as having been persons who previously threatened the engineer when the Applicant was with him

17. The basis of this sub-ground is a response made by the Applicant to a question that was asked in the interview with the Delegate.  The question and answer given was:-

    Q: but given that you had stopped working on these communication towers, why would this group still be threatening you?

    A: maybe they feared that I had witnessed their threats when they were stopping us threatening us me and my colleague so after he got killed maybe they feared that I could testify against them or that I can identify them as the responsible group for his death or for his killing.  Because after this engineer got killed and the police were investigating they had detained some members of this group and some of them were released because they were supported by some powerful figures so the rest were detained so maybe they didn’t… maybe they were concerned that I might testify against them if I witness what happened when they had been threatening us and the integrity association was investigating these matters.

18. The Applicant argues that this was a claim that was raised on the material and the IAA has not even referred to it in their decision.  The Applicant argues that the IAA did not include this matter in its summary of the Applicant’s claims for protection and have generally not engaged with this claim.

1. Unlike the Applicant, I am not convinced that the statement made is actually a claim.  The objective facts, as reported by the Applicant, are that he was threatened in a series of text messages after the killing of his engineer colleague.  The Delegate asked him why he thought that these threats were still occurring.  He did give an answer.  But this answer is pure speculation.

2. There is no evidence that this was the reason for the text messages.  The Applicant did not say that the text messages themselves warned him about his giving evidence as a witness.  The Applicant did not say that anyone else told him that this was the reason for the text messages.  His answer began with the word “maybe”.

3. It would be “illogical” for the IAA to rely upon speculation elicited from the Applicant in answer to a question posed to him by the Delegate as if it had the same status as a factual claim.

4. In any event, the IAA had already made a finding that the Applicant had not been sent any text messages of a threatening nature.  Having made that finding, it was totally unnecessary to engage in a claim that the text messages were sent because he may have been seen to be a witness.

5. This sub-ground does not illustrate any jurisdictional error.

6. The next sub- ground is as follows:

   c) misapplied section 36(2)(a) and section 36(2)(aa) of the Act having regard to the evidence and the facts apparently accepted by the Second Respondent.

7. The complaint of the Applicant under this sub-ground is essentially part of the same complaint under the first sub-ground.  The Applicant claims that the IAA did not assess the Applicant as a “non-practising Shia Muslim”.  As said previously, there was no such claim.

8. The Applicant had claimed to be a Shia and so the IAA assessed the risk to the Applicant based on this factual claim.  This sub-ground illustrates no jurisdictional error.

9. Ground one therefore fails.

Ground Two

1. Ground two is set out as follows:

   2) The Second Respondent asked and addressed the wrong questions in making its determination as to the application of sections 36(2)(a) and 36(2)(aa) of the Act in that the Second Respondent:

   a) considered the current risks to the Applicant's sisters of living in Iraq apparently without evidence of the Applicant's sisters' particular circumstances or differences between the sisters’ circumstances and the Applicants and drew illogical consequential conclusions that the risks to the Applicant on his return to Iraq would be the same as that of his sisters…

2. The complaint made by the Applicant, under this particular sub-ground, revolves around the mention, by the IAA, of the sisters of the Applicant when assessing whether the Applicant would face harm in his home region because of the fact that he was a Shia Muslim.

3. In paragraph 26 of the IAA’s reasons, the IAA have said “I also note the applicant does not claim that his sisters who have continued to live in Basra governorate for the past six years during his absence from Iraq have suffered difficulties practising their faith”.  At paragraph 30, the IAA, when looking at the Applicants return to Iraq, noted “however I note he will be returning to his home governorate where his sisters have continued to live while he has been in Australia…”

4. The Applicant claims that his situation is quite different to that of his sisters.  The Applicant does not practice his religion much but claims that the IAA assumed that the sisters did practice their religion.  The Applicant said, in his interview, that his sisters live with their husbands and children.  The Applicant is a single male and has had an association with western companies.  The Applicant claimed that he was also the subject of threats.

5. The Applicant claims that it was “illogical” to draw any comfort by comparing the situation of his sisters to himself.

6. To say that a conclusion of the IAA was “illogical” means, realistically, that such a conclusion was simply not open on the evidence.  What the IAA have done was to look at the situation that would obtain if the Applicant were to return to his home region. 

7. The IAA had already rejected any claim that the Applicant had been threatened by anyone after he had stopped working on communication towers.  This meant that the IAA were looking at whether the Applicant, who has identified as a Shia Muslim, would face harm on return to Iraq.  Given that the Applicant has sisters who are still living in the area, it was certainly open to the IAA to look at whether there was any evidence that those persons had suffered, either presently or, during the time that the Applicant had been absent from Iraq.

8. Such an undertaking by the IAA was not “illogical”, but rather, was in keeping with the responsibilities that must be discharged by the IAA.  This sub-ground illustrates no jurisdictional error.

9. The next sub-ground is as follows:

   b) incorrectly focused on the nature of the contractual relations between the Applicant and his employer, that his employer was a subcontractor to the western telecommunications company, and as to whether or not he was an assistant engineer...

10. The claim of the Applicant, under this sub-ground, is that the IAA did not look at whether the Applicant would have been perceived to be associated with the construction of the telecommunication towers, and therefore, western companies.  The Applicant claims that it is this perceived association with western companies that should have been the focus of the IAA rather than what was the precise nature of the contractual employment situation.

11. There can really be no criticism of the IAA for looking at the independent contractor agreement.  This was a proper matter for the IAA to look at, and it could hardly be said to have been an irrelevant consideration.  Just because the IAA did look at this aspect of the claim, does not mean that the IAA has not looked at the gravamen of the claim.

12. At paragraph 23 of the IAA’s reasons, the IAA noted that the Applicant had not indicated that he intended to seek employment, or would have the opportunity to obtain employment, in the telecommunications industry or with the company was international associations.  The IAA said that they were not satisfied that there was a real chance that the Applicant would suffer harm from anyone because of the fact that he worked for companies with indirect links to foreigners that installed telecommunication towers over six years ago.

13. When regard is had to what the IAA have concluded, it cannot be said that any “focus” on the employment arrangements caused the IAA to be delinquent in its duty to look at whether there was a real risk that the Applicant would suffer harm because of these perceived links.  It is clear that the IAA did undertake this task.

14. Ground two therefore fails.

Ground Three

1. Ground three is as follows:

   3) The Second Respondent misapplied section 36(2)(aa) of the Act in considering whether there was a real risk that the Applicant would suffer significant harn1 if returned to Iraq, and did not consider and make any finding as to the application of section 36(2B) of the Act in the circumstances of the Applicant's case.

2. This ground has no sub-grounds.  The claim is that the IAA failed to properly consider the complementary protection criteria.  It is trite to say that before the actual criteria are assessed, a determination needs to be made as to where it is that the Applicant would be returning.  The Applicant claims that no such determination was made.

3. As is apparent from the reasons of the IAA, the IAA determined (in paragraph 30) that the Applicant would be returning to his “home governorate”. This is where the Applicant had come from and it is the area that needs to be assessed firstly. If the IAA is of the view that an Applicant cannot return to his/her home region, then the IAA must look at whether the provisions of s.36(2B) apply; that is, in effect, can the Applicant reasonably relocate to another area of the country.

4. In this case, the IAA came to a conclusion that the Applicant would not suffer significant harm in his home region.  The IAA did not accept the claim that the Applicant was of any continuing interest to anyone, including the AAH. It follows that if the Applicant were not employed by a multinational or in the telecommunication industry, there would be no reason that any persons would approach him as happened in the first part of 2012.

5. The IAA then looked at what risk of significant harm was the Applicant at if returning to his home region.  The IAA found that there was no risk of significant harm to the Applicant.  The Applicant made no claim that it would not be safe for him in his home region, except for the claim as to persons threatening him by text message and what he said his mother told him.  As this claim was rejected, there was no other claim made by the Applicant that his home region was unsafe.

6. Because the IAA found that there was no risk to the Applicant in his home region, the IAA was not required to assess the matters in s.36(2B) of the Act. There is no jurisdictional error illustrated.

7. This ground fails.

Ground Four

1. Ground Four is as follows:

   4) The decision was legally unreasonable in that:

   a) there are inconsistent findings of fact within the decision itself…

2. For the decision of the IAA to be “legally unreasonable”, it must be shown that the conclusions, made by the IAA, were simply not open on the evidence.  In this sub-ground, the Applicant points to country information relied upon in paragraphs 19, 21 and 27 of the reasons.

3. In paragraph 19, the IAA noted country information that assessed that the risk of societal discrimination against persons who are associated with the international community was high and that the risk of societal violence against that same class of persons was moderate.  In paragraph 27, the IAA accepted that there had been some deterioration in law and order in the home region of the Applicant and that Shias had been subject to isolated attacks there.  In paragraph 21, the IAA said that country information did not support the notion that Shia militias were targeting those perceived to be working with the international community at that time.

4. The Applicant submits that these “findings” are inconsistent.  It seems to me that such a submission cannot be sustained.  One has to look at the issue being discussed by the IAA in each of those paragraphs.  The IAA was firstly looking at assessing the claims of the Applicant.  The country information (in paragraph 19) allowed the IAA to be satisfied that the Applicant was approached by groups of people on four separate occasions.  The country information (in paragraphs 18 and 19 and summarised in paragraph 21) in part, allowed the IAA to be satisfied that the AAH was not responsible for those groups of people.

5. There is nothing inconsistent with these findings.

6. At paragraph 27, the IAA was looking at the risk to the Applicant of returning to his home region.  The country information was speaking of general matters which did not include the category of “persons associated with foreign interests”.  For that reason, the country information relied upon here was not inconsistent with that relied upon earlier.

7. The Applicant also claims that there is an inconsistency in that the IAA described the link to foreigners as being indirect but accepted that the Applicant was employed by companies that provided services to international companies.  I can see no inconsistency that arises from this circumstance.

8. The Applicant also claims that there is an inconsistency in the finding that the Applicant worked in a “relatively low level technical role” and that he worked as an engineer’s assistant.  An engineer’s assistant can be a relatively low level technical role and there is no inconsistency in these findings.

9. There is no jurisdictional error illustrated in this sub-ground.

10. The next sub- ground is as follows:

    b) the Second Respondent incorrectly applied the decision of a UK tribunal in BA (Returns to Baghdad) [2017] UKUT 00018 (IAC)( the UK tribunal decision).

11. In this sub-ground, the Applicant takes issue with the manner in which the IAA has used country information.  At paragraph 19, the IAA refers to the opinion expressed by the UK Upper Tribunal and noted that it considered evidence from a number of sources.

12. The Applicant claims that the whole of the decision ought to have been borne in mind by the IAA.  The Applicant points to the facts in that Tribunal decision and makes the submission that reliance on this decision is misplaced in that the IAA considered the decision as evidence of there not being a significant risk at the end of 2011.

13. I do not feel that it is necessary to go through the decision from this Tribunal.  It is trite to say that the question of what country information the IAA relies upon and what country information it does not, is totally a matter for the IAA. 

14. The IAA used that information as part of a conclusion that country information did not support any notion that Shia militias were targeting those perceived to be working with the international community at that time.  That was a matter totally within the purview of the IAA.  There may have been other matters in that report, but for this Court to traverse these matters would amount to conducting an impermissible merits review.

15. For that reason, this sub-ground does not illustrate any jurisdictional error.

16. The next sub- ground is as follows:

    c) the Second Respondent unreasonably failed to exercise or consider exercising its power under section 473DC(3) of the Act, to invite the Applicant to respond to or provide documents in response to the dispositive conclusions it was proposing to draw, in some cases which were contrary to earlier findings of the Minister’s delegate.

17. The Applicant has nominated eight separate “conclusions” made by the IAA. He identifies issues he has with the “findings” that were made and submits that the IAA should have considered using the power that they had, pursuant to s.473DC to have sought more information or invited the Applicant to another interview.

18. Before I embark upon these eight “conclusions”, it must be borne in mind that the Applicant has the onus of proving his contentions before both the Delegate and the IAA.  If the Applicant fails to satisfy the IAA of his contentions, there is no obligation upon the IAA to, in effect, give a provisional decision and ask the Applicant to provide evidence to fill any gaps.  While I refer to these matters as “conclusions”, I do so to be consistent in the language used by the Applicant in the sub-ground.

19. The first conclusion is about the genuineness of the independent contractor agreement.  As I have said earlier in these reasons, this was not a particularly important matter.  The IAA said that they doubted the genuineness of the document.  In other words, the Applicant had not satisfied the IAA that the document was genuine.

20. The Applicant complains that this “conclusion” is different to what was said by the Delegate.  The Delegate had indicated that there was no evidence that any of the documents was a bogus document.  These statements are actually not incompatible with each other.  The IAA, obviously, did not find any evidence that the documents were bogus, however, was still not satisfied as to the genuineness of the document.

21. It is trite to say that the purpose of an IAA review is for a fresh set of eyes to look upon the material that the Delegate had used to come to their decision.  It is incumbent upon the IAA to not be confined by any findings made by the Delegate.

22. The essence of the submission of the Applicant was that in any case where the IAA makes a finding different to that of the Delegate, and such a finding may be seen as detrimental to the Applicant, then the IAA must at least consider using the powers under s.473DC; in other words, it is not open to the IAA to make a finding different to that of the Delegate, which is detrimental to the Applicant, unless there has been a consideration of whether to use the powers under s.473DC.

23. I cannot agree with such a submission. If this submission were correct, it would undermine the very reason for having the IAA. The power under s.473DC is one to be used properly to ensure justice is done.

24. To suggest that such powers should have been utilised to assist in determining the genuineness of a document, which is of very little moment, has scant merit.  But to then submit that the IAA acted unreasonably, because they did not do that, has no merit at all.

25. The second conclusion revolves around the actual job title of the Applicant.  The Applicant had said that he was an assistant to an engineer and the IAA accepted that he was employed in a relatively low level technical role.  I cannot see that anything actually turns on this point, mainly because there is very little moment in the point.  The fact is that the Applicant was in a subordinate role in relation to the installation of the communication towers.

26. The Applicant complains because the IAA did not follow the Delegate who had accepted that the Applicant “worked on various telecommunication towers in southern Iraq has claimed”. The Applicant submits that the IAA should have considered using the powers under s.473DC to help resolve this point.

27. The same reasoning that applied with regard to the “first conclusion” applies here.  A submission that the IAA acted unreasonably has no merit.

28. The third conclusion was that the IAA found that the Applicant did not stop working in 2012 for the reasons that he claimed.  The Applicant criticises the IAA because the Applicant claims there is no reasoning for this finding.  The reasoning is that the IAA were not satisfied and that was a conclusion that was open to them on this evidence.

29. The Applicant claims that the Delegate accepted that the engineer was killed and that the Applicant received threats from unknown militia groups which is why he ceased work as requested.  The Applicant claims that “it would have been reasonable to obtain any further information available from the Applicant as to the reasons he stopped working” if such matter were relevant to findings on credibility or the ultimate question.

30. Whilst the Applicant may be correct that it would have been reasonable to do so, that does not translate that it was unreasonable not to do so.  It was a matter solely within the discretion of the IAA and the IAA have chosen to make conclusions on the state of the evidence before them.  This was a course that was well and truly open to the IAA and it was not unreasonable.

31. The fourth conclusion is that the Applicant did not hide at home for months before his departure.  The actual conclusion of the IAA was that they were not satisfied that the Applicant hid at home.  The Applicant claims that the Delegate appeared to accept that the Applicant did hide at home before he departed Iraq.

32. The Applicant submits that no evidence or reasoning was provided for this finding.  As explained previously, there is no obligation on the IAA to explain a “non-finding” or a lack of satisfaction.  Again for the same reasons, it was not unreasonable for the IAA not to consider obtaining new information.

33. The fifth conclusion is that the engineer was not killed.  The actual conclusion of the IAA was that they were not satisfied that the engineer had been killed.  The IAA referred to the fact that the Applicant did not provide any documentary evidence confirming the death of the engineer.

34. There is no question that the Applicant was told on a number of occasions by the Delegate that it was his responsibility to provide evidence in support of his claims.  The Delegate had even asked the Applicant whether the death of the engineer had been reported in the media.

35. It is very difficult to see how the IAA has acted unreasonably when it is the Applicant, himself, knowing his responsibility to provide evidence, who does not provide any corroborative material.  To suggest that the IAA has acted unreasonably in not considering obtaining new information, when the Applicant had been asked to provide such information previously, cannot be taken seriously.

1. The sixth conclusion was that the IAA found that the AAH did not locate the Applicant’s family home in 2013 and threaten to kill him by making a threat to the mother of the Applicant.  Again, the IAA did not make that finding; they simply said that they were not satisfied of this claim.

2. Again there is criticism as to the IAA giving no reason why it was not considered possible or probable that the AAH did what the Applicant had said.  This misapprehension of the role of the IAA is again evident in this complaint.

3. As has been said previously, it was for the Applicant to make his case.  He failed to do so.  It is not unreasonable for the IAA not to consider obtaining any new material for the same reasons I have earlier given.

4. The seventh conclusion was that there had been no harm occasioned to the sisters of the Applicant who were living in the home region of the Applicant since the Applicant left Iraq.  The complaint that is made is very much a rehashing of the complaint that had already been made in the first sub-ground of ground two.

5. For the same reasons that I had given in ground two, and for the reasons I have given in relation to this sub-ground, I do not find that it was unreasonable of the IAA not to consider obtaining new evidence.

6. The eighth conclusion was that the IAA identified the unknown group of persons, who had accosted the Applicant, as being from the AAH.  As I have previously outlined, the IAA did not identify the persons as being affiliated with the AAH.  The IAA acknowledged that the Applicant did not know who these persons were, but, in telling the tale of what he had been told by his mother, was attempting to infer that these persons were affiliated with the AAH.

7. The basis for any complaint regarding this conclusion has not been made out.

8. I have noted the submissions for the First Respondent regarding this sub-ground.  The First Respondent has very helpfully made submissions on the legal principles regarding obtaining new information.  I accept those submissions.  For all of those reasons, this sub-ground illustrates no jurisdictional error.

9. The final sub- ground is as follows:

   d) the decision was legally unreasonable in the sense referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] All ER 680.

10. There is still some debate as to whether “Wednesbury unreasonableness” actually applies in a matter such as this.  Counsel for the Applicant conceded that her submission was, in reality, a submission that upon the evidence that was before the IAA, a conclusion that the Applicant was not owed protection obligations by Australia, was not open.

11. The Applicant ended up not pursuing this as a separate sub-ground because the gist of what the Applicant wanted to submit, in relation to this sub-ground, had been covered by all of the other sub-grounds.

12. Because of what I have said in relation to the previous sub-grounds, it follows that this sub-ground, and the whole of ground four, fails.

Conclusion

1. Having looked thoroughly at the reasons of the IAA and having the benefit of submissions from the Applicant and the First Respondent, I have found no jurisdictional error. 

2. I dismiss the application with costs in the sum of $7,467.00.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:     31 July 2020