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BIN18 v Minister for Immigration & Anor [2019] FCCA 2725 (6 November 2019)

Last Updated: 6 November 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIN18 v MINISTER FOR IMMIGRATION & ANOR


Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant not believed – whether the Authority should have considered exercising its power under s.473DC of the Migration Act 1958 (Cth) or erred in applying country information or failed to deal with a particular social group claim considered – no jurisdictional error.


Legislation:

Cases cited:
BGN16 v Minister for Home Affairs [2019] FCA 78
CCQ17 v Minister for Immigration [2018] FCA 1641
DFW16 v Minister for Immigration [2018] FCA 746
DGZ16 v Minister for Immigration [2018] FCAFC 12
DPH17 v Minister for Immigration & Anor [2019] FCCA 2258
DPI17 v Minister for Home Affairs [2019] FCAFC 43
DYK16 v Minister for Immigration [2018] FCAFC 222
FGC17 v Minister for Immigration [2019] FCA 559
FND17 v Minister for Immigration [2019] FCA 1369
Minister for Home Affairs v AYJ17 [2019] FCA 591
Minister for Immigration v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475
Minister for Immigration v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526
Minister for Immigration v SZVFW [2018] HCA 30; (2018) 357 ALR 408
MZZJO v Minister for Immigration [2014] FCAFC 80; (2014) 239 FCR 436
NABE v Minister for Immigration (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
NAHI v Minister for Immigration [2004] FCAFC 10
SZNOE v Minister for Immigration [2012] FCA 96


Applicant:
BIN18

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

Second Respondent:
IMMIGRATION ASSESSMENT AUTHORITY

File Number:
SYG 734 of 2018

Judgment of:
Judge Driver

Hearing date:
25 September 2019

Delivered at:
Sydney

Delivered on:
6 November 2019


REPRESENTATION

Counsel for the Applicant:
Mr N Kulkarni

Solicitors for the Applicant:
Stamford Law

Counsel for the Respondents:
Mr T Reilly

Solicitors for the Respondents:
Minter Ellison


ORDERS

(1) The application as amended by leave granted on 25 September 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 734 of 2018

BIN18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent


REASONS FOR JUDGMENT

Introduction and background

  1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 February 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
  2. The following statement of background facts is derived from the submissions of the parties.
  3. The applicant is a citizen of Iraq who arrived in Australia on 26 November 2012 apparently at Christmas Island, as an unauthorised maritime arrival.[1] On 17 December 2012[2] the applicant participated in an Irregular Maritime Arrival Entry Interview.[3] The interview record states some of the applicant’s claims.[4]
  4. Between November 2012 and March 2014 the applicant was in detention centres, following which he was granted a bridging visa and released onto the Australian mainland.[5]
  5. The Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa. The applicant subsequently applied for a temporary protection (Class XD) visa on 11 January 2017.[6]
  6. The delegate interviewed the applicant on 16 June 2017 and on 23 June 2017 refused to grant the applicant the visa.[7] The matter was referred to the Authority, which on 15 February 2018 affirmed the delegate’s decision.

Applicant's claims

  1. The applicant claimed to fear harm on account of his Sunni religion, from sectarian or generalised violence, as a secularised returnee from a western country and from ISIL[8] because he left Iraq and refused to join them. In support of those claims, the applicant recounted the following events, among other things:[9]
    1. he is perceived to be a spy because he is Sunni;
    2. his father used to drive a taxi in Zubair and was accused of transporting money and people on behalf of Gulf State interests;
    1. his father received two threatening letters in 2006 warning him and his family to leave (they then moved to Mosul for five months but returned to Zubair because they could not assimilate); and
    1. in February 2008 the applicant was abducted and held for seven days by the Mahdi Army who accused him and his father of working for foreign interests.

Authority decision

  1. The Authority accepted the applicant was a Sunni Muslim, but rejected the remainder of his claims on account of deficiencies in his evidence over time. In particular, the Authority made the following key findings:
    1. it was not satisfied that Sunnis generally, or the applicant or his father particularly, were believed to be working as spies or for the Gulf States or other foreign interests;[10]
    2. it was not satisfied the applicant's father received threats or that the applicant and his family moved to Mosul for a period in 2006;[11]
    1. having regard to country information and inconsistencies in the applicant's evidence,[12] it did not accept that he had been kidnapped or tortured by the Mahdi Army or any other group or person;[13]
    1. it did not accept the applicant was of any adverse interest to any Shia militia group or other armed group at the time of his departure from Iraq;[14]
    2. it did not accept the applicant would be of adverse interest to any militia group or Iraqi authorities on the basis he had sought asylum in, and lived in, a western country;[15] and
    3. it found the applicant did not experience any form of mistreatment, including harassment or discriminatory treatment, on account of his Sunni faith prior to leaving Iraq.[16]
  2. For those reasons, and having regard to country information and the applicant's profile, the Authority did not accept that the applicant met the requirements of the definition of “refugee” in s.5H(1) of the Migration Act on account of his Sunni religion,[17] the increasing power of the Shia militia,[18] as a failed asylum seeker who had been living in Australia for several years,[19] from armed Sunni groups,[20] on account of tribal violence or crime[21] or generalised violence.[22]
  3. As a result, the Authority rejected the applicant's claims and found he did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act.[23] For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion in s.36(2)(aa) of the Migration Act.[24]

The current proceedings

  1. These proceedings began with a show cause application filed on 20 March 2018. At the trial on 25 September 2019, I gave the applicant leave to rely upon an amended application filed on 30 August 2019. There are three grounds in that application:
  2. The only evidence I have before me is the court book filed on 16 April 2018. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial. I have been assisted by those submissions.

Consideration

Ground 1 – did the Authority err by failing to exercise (or consider exercising) its power under s.473DC?

Applicant’s submissions

  1. A central feature of the applicant’s claims was that in 2008 the applicant was kidnapped by persons who claimed to be from the Mahdi Army, held for seven days and beaten and tortured.[25] The Minister’s delegate accepted this claim with a finding at CB 144 that “I accept that the applicant was kidnapped by persons who claimed to be from the Mahdi Army.”
  2. Another central feature of the applicant’s claims as understood by the delegate was that the applicant’s father received two threat letters telling him and his family to leave Basra, following which the family moved to Mosul for a few months.[26] The delegate accepted this claim with a finding at CB 144 that “I accept that the applicant’s father received letters stating that his family should leave Basra because they are Sunni” and “after the second letter ... the family moved to Mosul”.
  3. In contrast to the delegate’s findings, the Authority did not accept these claims. The Authority found at [19] and [26]:
  4. Section 473DC of the Migration Act provides:
  5. The applicant’s complaint is that in circumstances where:
    1. the Minister’s delegate made a finding favourable to the applicant concerning a significant matter; and
    2. the Authority is considering making an adverse finding concerning the matter because of concerns it has,

it may be legally unreasonable for the Authority not to exercise, or consider exercising, its power under s.473DC(3) of the Migration Act to invite the applicant to comment on its concerns, and the Authority’s conduct in this regard in the present matter was legally unreasonable.

  1. There have now been a number of Federal Court decisions which have considered an applicant’s complaint that the Authority’s failure to exercise, or consider exercising, its power under s.473DC to invite an applicant to comment was legally unreasonable.[27]
  2. The applicant submits that, subject to the qualification that “legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence”,[28] a case with some similarities on the facts to the present matter is DPI17.
  3. In DPI17 at [46] the Full Federal Court stated:
  4. The applicant submits that, on application of this approach, it is necessary to consider the basis on which the Authority made its findings at [19] that the father was not threatened by any group, and the finding at [26] not accepting that the applicant was kidnapped and tortured by the Mahdi Army.
  5. The applicant submits that, in relation to the Authority’s finding at [19] that the father was not threatened by any group:
    1. the Authority at [17] noted the applicant’s evidence that “his father was rumoured to have transported people and money for Gulf State interests”, but expressed concern that “the applicant did not indicate why his father may have been perceived to have engaged in these activities”. In reply, if the Authority had exercised its power under s.473DC to put its concern to the applicant, the applicant would have explained why his father may have been perceived to have engaged in these activities;
    2. the Authority at [18] expressed concern that “the applicant’s evidence as to the content of the threats to his father and their motivation is somewhat unclear”. In reply, if the Authority had exercised its power under s.473DC to put its concern to the applicant, the applicant would have clarified his evidence for the Authority; and
    1. the Authority at [19] found “it difficult to accept that if the applicant’s family left Basra out of fear due to his father’s receipt of a threat or threats, they would return to their home in Zubair in Basra only five months later”.
  6. The applicant further contends that, in relation to the Authority’s finding at [26] not accepting that the applicant was kidnapped and tortured by the Mahdi Army:
    1. the Authority at [23] found “it difficult to accept that if the applicant had been kidnapped, tortured and beaten by the Mahdi Army for a period of seven days in 2008, he would not have mentioned this when asked about his reasons for leaving Iraq during the entry interview”. However, as explained in MZZJO v Minister for Immigration[29] at [56]:
      • ... some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling“. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile;
    2. the Authority at [24] was concerned by “several differences in the applicant’s accounts of his kidnap in his TPV application and the TPV interview”. However, as counsel for the applicant developed in oral submissions, the differences were minor.
  7. In the present matter, the Authority is said to have failed to consider whether to exercise its power under s.473DC to invite the applicant to comment on its concerns. In the circumstances, the Authority’s failure is said to have been legally unreasonable.
  8. The Authority’s failure to invite the applicant to comment on its concerns is said to have been material. If the Authority had invited the applicant to comment on its concerns, the applicant may have provided further information which would have allayed the Authority’s concerns.

Minister’s submissions

  1. It is well established that the Authority reasoning in a way that is different from that of the delegate is not in itself sufficient to give rise to an obligation on it to exercise its s.473DC(3) power given the scheme of Part 7AA and in particular s.473DB(1).[30] Furthermore, as held in DYK16 at [74] the Authority was not obliged to invite the applicant to an interview simply because his credibility was in issue. Consistently with DGZ16 and DYK16, the Authority did not act unreasonably by not considering the exercise of its powers under s.473DC(3) to invite the applicant to an interview simply because it proposed to come to different factual findings to the delegate.
  2. The applicant relies in particular on DPI17. However, the Minister contends that, as pointed out by Griffith J in FND17 v Minister for Immigration[31] at [36]-[37], DPI17 turned on the fact that the delegate had assessed the applicant as credible based on his demeanour and had told the applicant she considered the inconsistencies in his evidence to be minor. In this case by contrast the Authority is said simply to have taken a different view of facts to the delegate, and explicitly stated at [25] that unlike the delegate it did not consider his evidence concerning the kidnap to have been consistent. As in FND17 at [39]-[43] the applicant’s complaint is essentially that it was unreasonable for the Authority to make different findings to that of the delegate without considering the exercise of its s.473DC(3) power, but this is said to be insufficient to establish legal unreasonableness following DGZ16.

Resolution

  1. The first ground claims that the Authority should have considered exercising its power under s.473DC(3) of the Migration Act to invite the applicant to comment on its concerns about his evidence that led it to not accept that his father was threatened or that the Mahdi Army had kidnapped and beaten the applicant,[32] whereas the delegate accepted these claims.[33]
  2. It is uncontroversial that there will be circumstances in which it would be unreasonable for the Authority not to exercise, or consider exercising, its power to invite new information from an applicant either orally or in writing. Examples of such circumstances are where the review before the Authority takes a substantially different course to the decision of the delegate which the applicant could not have anticipated.[34] Another example is where the Authority makes adverse credibility findings in circumstances where the delegate accepted evidence with the advantage of direct observation of the demeanour of an applicant.[35] The question to resolve in the present case is whether the case is sufficiently similar to such circumstances or conversely whether it is more akin to the circumstances in cases such as FND17.
  3. In my view, the present case has more in common with FND17 than the authorities relied upon by the applicant. This was not a “demeanor case”. The Authority reasoned as follows at [24]-[25]:
  4. The simple fact that the Authority found inconsistencies in evidence when the delegate did not carries no obligation to consider the exercise of the discretion conferred by s.473DC(3). The Authority did not create those inconsistencies. The applicant did. An applicant cannot complain about the non exercise of power under s.473DC(3) because the Authority pays closer attention to the detail of evidence previously given than the delegate did.
  5. This ground fails.

Ground 2 – did the Authority err in assessing country information?

Applicant’s submissions

  1. The applicant was a Sunni Muslim from Basra province in the south of Iraq.[36]
  2. An issue for the Authority was whether the applicant faced a real chance of harm as a Sunni Muslim on return to the south of Iraq which is predominantly Shia. The Authority had before it a June 2017 UK Home Office report and a June 2017 DFAT[37] report. The Authority stated at [40] in relation to the UK Home Office report:
  3. The Authority stated at [41] in relation to the DFAT report:
  4. The Authority then stated at [42]:
  5. The applicant’s complaint is that the Authority purported to reconcile the reports by accepting the assessment in the UK Home Office report, which assessment was less favourable to the applicant. Specifically, the outcome of the Authority’s “reconciliation” was the conclusion that “some Sunnis, depending on their profile, may face a real chance of harm in the south of Iraq”. However, this conclusion is said to have been merely an acceptance of the conclusion in the UK Home Office report. For the Authority to choose the report with a less favourable assessment for the applicant is said not to be a “reconciliation”. The applicant contends that the Authority’s approach involved jurisdictional error.

Minister’s submissions

  1. The second ground claims the Authority erred in assessing country information. The argument is apparently that the Authority at [42] did not “reconcile” the DFAT and UK Home Office reports as it claimed because it appeared to follow the UK Home Office report. As the Authority there states, it did so because that report explicitly concerned Sunnis in the southern provinces of Iraq, whereas the DFAT report concerned Sunnis in all Shia areas of Iraq.[38] The Authority’s assessment of country information was a factual matter for it.[39] .

Resolution

  1. I dealt with a similar argument recently in DPH17 v Minister for Immigration & Anor[40] where I stated at [83]-[85]:
  2. I reach the same conclusion here. This ground fails.

Ground 3 – did the Authority fail to deal with a claim?

  1. The applicant claimed in a submission to the Minister’s Department dated 12 December 2016 that he faced a real chance of harm as a member of a particular social group comprising:[42]
    1. Sunnis who have fled from Shia persecutory retribution; or
    2. Sunnis who have fled from Shia persecutory retribution and are imputed to have become more secularised by staying in Australia.
  2. A question is whether the Authority dealt with this claim, or otherwise made a finding which disposed of the claim.
  3. The Authority did not expressly deal with the claim to the extent that it involved a claim concerning a particular social group. For example, there is no finding by the Authority which considers whether the applicant was a member of one of the claimed particular social groups.
  4. The Authority did not expressly deal with the claim to the extent that it involved a claim that the applicant faced a real chance of harm as a Sunni who had fled from Shia persecutory retribution.
  5. The Authority expressly dealt with the claim that the applicant faced a risk of harm because he “will be perceived to be secularised due to the time he has spent in Australia”.[43] The Authority concluded at [47]:
  6. However, the applicant submits that if he claimed to be a member of a particular social group, it was incumbent on the decision-maker to determine whether he was a member of such a social group in order to determine whether “there is anything about his profile that increases the risk that he will be targeted by Shia militia groups”. The Authority’s finding at [47] is said not to subsume the applicant’s claim concerning membership of a particular social group, since the Authority would have needed to consider the particular social group claim before making the finding.
  7. For the above reasons, the applicant contends that the Authority did not deal with his claim concerning membership of a particular social group. Where a decision-maker does not deal with a claim made by an applicant, this is a jurisdictional error.[44]
  8. I prefer the Minister’s submissions in relation to this ground.
  9. The third ground claims that the Authority failed to deal with the applicant’s claim that he faced persecution as a member of an alleged social group of Sunnis who have fled from Shia retribution and are imputed to have become more secularised in Australia.[45] The Authority acknowledged at [45] that the applicant claimed to fear harm from Shia militias who will see him as opposed to them, and because he will be perceived as secularised due to his time in Australia. However, it found at [46]-[47] there was no credible evidence that he would face harm because of his time in Australia, and at [48] found that, based on its findings that he had not personally experienced any mistreatment due to his Sunni faith in Basra before he left Iraq, there was no greater chance of such harm in future. Having found that the applicant’s fears of Shia groups was not well founded the Authority did not need to address the hypothetical question as to whether the alleged social group existed.[46] This ground fails.

Conclusion

  1. The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
  2. I will hear the parties as to costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 6 November 2019

[1] Court Book (CB) 56, 62 and 142
[2] CB 1
[3] CB 1-16
[4] CB 10
[5] CB 103
[6] CB 22-90
[7] CB 139-152
[8] Islamic State of Iraq and the Levant
[9] The Authority summarises the applicant’s claims at CB 179 [8]
[10] at [17]
[11] at [19]
[12] at [20]–[25]
[13] at [26]
[14] at [26]
[15] at [47]
[16] at [30]
[17] at [48]
[18] at [44]
[19] at [45]–[47]
[20] at [49]–[50]
[21] at [53]
[22] at [56]
[23] at [57]
[24] at [60]
[25] see applicant’s statement at CB 74.9-75.4 and at the Authority’s decision at [8] (5th dot point)
[26] see applicant’s statement at CB 74, the delegate’s decision at CB 144 and the Authority’s decision at [8] (4th dot point)
[27] such as Minister for Immigration v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475; DGZ16 v Minister for Immigration [2018] FCAFC 12; DYK16 v Minister for Immigration [2018] FCAFC 222; DFW16 v Minister for Immigration [2018] FCA 746 (Barker J); Minister for Immigration v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526; CCQ17 v Minister for Immigration [2018] FCA 1641 (Thawley J); DPI17 v Minister for Home Affairs [2019] FCAFC 43; FGC17 v Minister for Immigration [2019] FCA 559 (Steward J); Minister for Home Affairs v AYJ17 [2019] FCA 591 (Moshinsky J)
[28] Minister for Immigration v SZVFW [2018] HCA 30; (2018) 357 ALR 408 (High Court) at [84]; DPI17 at [37]
[29] [2014] FCAFC 80; (2014) 239 FCR 436
[30] see DGZ16 at [68]-[78]; DYK16 at [68]-[71]
[31] [2019] FCA 1369
[32] [19], [26]
[33] CB 144
[34] see for example CRY16
[35] see for example DPI17
[36] at [10]-[11]
[37] Department of Foreign Affairs and Trade
[38] see also [51]
[39] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]- [13]
[40] [2019] FCCA 2258
[41] [2016] FCA 721
[42] CB 23.10
[43] at [45]
[44] see NABE v Minister for Immigration (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
[45] CB 23
[46] SZNOE v Minister for Immigration [2012] FCA 96 (Greenwood J) at [78]; BGN16 v Minister for Home Affairs [2019] FCA 78 (Griffiths J) at [28]-[31]

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