CYF19 v Minister for Immigration & Anor [2020] FCCA 612 (17 March 2020)

Last Updated: 16 April 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYF19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 612

Catchwords: MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority made a finding that was legally unreasonable – whether the Authority’s rejection of the applicant’s claim lacked an evident and intelligible justification – no jurisdictional error made out – application dismissed.

Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CB, 476

Applicant:

CYF19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1941 of 2019

Judgment of:

Judge Street

Hearing date:

17 March 2020

Date of Last Submission:

17 March 2020

Delivered at:

Sydney

Delivered on:

17 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Stamford Law Firm

Solicitors for the Respondents:

Mr L Leerdam Mills Oakley

ORDERS

(1) Leave is granted to the applicant to rely upon the amended application annexed to the outline of submissions filed on 11 March 2020 and the Court directs that the amended application be electronically filed on or before 16 April 2020.
(2) The show cause hearing is dispensed with and the Court has proceeded with a final hearing today.
(3) The amended application is dismissed.
(4) The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 17 March 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 1941 of 2019

CYF19

Applicant

And

MINISTER FOR IMMIGRATION, CITZIENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt.7AA of the Act made on 8 July 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Temporary Protection visa (“Protection visa”).
2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country.
3. The applicant arrived in Australia on 7 July 2013 as an Unauthorised Maritime Arrival. On 6 October 2016, the applicant lodged an application for a Protection visa.
4. On 5 June 2019, the Delegate found that the applicant failed to meet the criteria for the Protection visa and refused to grant the applicant the Protection visa.
5. On 12 June 2019, the Authority wrote to the applicant explaining that his application for the Protection visa had been referred to the Authority for review. The letter attached a fact sheet and Practice Direction providing the applicant with an opportunity to put on new information and submissions.
6. The applicant did put on submissions to which the Authority had regard in its reasons.
7. In summary, the applicant claimed to fear harm arising out of having served for five years as a guard in the Prime Minister’s office because of being asked for favours and interventions by friends and relatives.
8. The applicant claimed to believe that his job brought him to the attention of militia groups and that he received pressure and threats.
9. The applicant claimed to fear that he would be harmed by Shia or Sunni militia groups or his extended family if returned to Iraq.
10. The applicant alleged that, in December 2012, he received a threatening telephone call demanding that he either leave his job as a guard or be killed or, alternatively, that he submit to the caller’s demands.
11. The applicant further claimed that, in a second telephone call, the caller threatened to kill the applicant and his brother, “H”, and demanded security contracts and that people be allowed to enter a particular zone to release prisoners.
12. The applicant alleged that he was able to identify the caller as an Asa'ib Ahl al-Haq (“AAH”) leader, “U”.
13. The applicant claimed that some weeks later, in January 2013, the AAH threatened him and H again and that H lodged a complaint with the Court.
14. The applicant alleged that a warning was left at the door of his family home and that, because of the threats, H fled Iraq in May 2013.
15. The applicant alleged that further threats were made to his family and that he fears that he will be harmed by the leader of the AAH and/or Al-Qaeda if he were to return to Iraq.
16. The Authority identified the background to the Protection visa application and had regard to the material provided by the Secretary under s.473CB of the Act.
17. The Authority summarised the applicant’s claims.
18. The Authority referred to the applicant claiming that his father had urged him to accept the leader and AAH’s demands.
19. The Authority referred to the applicant being asked by the Delegate whether he resigned from his role with the Prime Minister’s office before he left and that he stated that he had not. The Authority noted that the Delegate raised why the applicant did not resign and that the applicant had said, “Because it takes a year to resign.” The applicant also referred to his commander having told him that some people had tried to resign, but had been refused.
20. The Authority referred to the Delegate also exploring with the applicant why the leader from the AAH would be interested in him or target him if he returned to Iraq, given that he had stopped working for the Prime Minister’s office long ago, that the Prime Minister had changed since he claimed to have worked for him and given that he had been outside Iraq for six years. The applicant responded, identifying that there are trained gangs and even six or 10 years later they still want vengeance.
21. The Authority referred to submissions on behalf of the applicant alleging that he had been targeted by Sunni extremist groups and that the applicant may be at risk because he did not resign his position with the Prime Minister’s office.
22. The Authority referred to photographs relating to the applicant in his role as a guard of the Prime Minister’s office.
23. The Authority was prepared to accept that the applicant was employed for a number of years as a guard in the Prime Minister’s office located in the Green Zone. The Authority did not find the applicant’s evidence about his role in that regard convincing. The Authority also identified reservations about the authenticity of the material provided by the applicant in relation to his role.
24. The Authority did not accept that, as a result of the TV footage or other images, it is publicly known that the applicant formerly protected Iraq’s Prime Minister or other officials. The Authority identified that there was no television footage before the Authority and no other evidence to indicate that the single photograph that includes the former Prime Minister and the applicant himself was ever published.
25. The Authority accepted that the applicant worked as a Prime Minister’s office guard and that relatives sought favours, which created tension. The Authority referred to the applicant’s evidence that the employment prohibited him from undertaking nepotistic practices or that he managed to fulfil various favours without losing his job over a five year period. The Authority did not accept that the applicant’s family has ‘turned against him’, leaving him open to honour retribution. The Authority referred to the applicant speaking to his family on a weekly or fortnightly basis. The Authority also noted that it is now more than six years since the applicant worked for the Prime Minister’s office and so there is no longer any reason for his relatives to seek assistance. The Authority was not satisfied that there is a real chance that the applicant will suffer harm from family or relatives in connection with his past employment.
26. The Authority referred to the applicant’s evidence in relation to his role being exaggerated, but was prepared to accept that he was a member of a small group of guards in 2010 that clashed with Al-Qaeda members in Baghdad. The Authority was not satisfied that, as a result of the applicant’s wounding one man and participating in the arrests of several others, he was personally identified by Al-Qaeda. The Authority was not satisfied that there was a real chance that the applicant would suffer harm from Al-Qaeda in connection with his former role in the Prime Minister’s office.
27. The Authority then turned to provide reasons why the Authority did not accept that the leader from AAH or AAH more broadly repeatedly threatened the applicant or his brother, H, from late 2012 for a period of around six months, because the applicant would not assist them with their demands concerning the Green Zone. The Authority also did not accept that the applicant made a complaint resulting in the arrest of the leader, that the AAH leader was released and continued to threaten the brothers or that the AAH leader pressured the applicant’s family after the applicant and his brother departed Iraq in mid-2013. The Authority identified the applicant’s claims to be both implausible and inconsistent with country information.
28. The Authority referred to particular country information and identified that it seems highly improbable that an AAH leader or AAH members would have warned the applicant and his brother multiple times over five to six months without taking any physical action against them if they wished to harm them, particularly if they knew where his brother worked and where the family’s home was, as the applicant claimed. The Authority also identified that the claimed seemed inherently unbelievable in a number of ways. The Authority identified inconsistency, on the one hand, of the applicant, having such good contacts with intelligence and police, that he could locate and have the leader, U, arrested, but, on the other hand, he was unable to find any protection for himself or his brother despite those contacts.
29. The Authority next referred to it not seeming credible that the leader, U, of the AAH would approach the applicant in the first place for assistance to gaining access to the Green Zone, given country information indicating that AAH had infiltrated the police and army and had positive connections with the Prime Minister. The Authority noted that the applicant did not hold any position of authority in the Prime Minister’s office that was likely to make him attractive to the AAH. The authority did not find the applicant’s explanation as to the AAH leader coming from the same governorate as the applicant as being persuasive.
30. The Authority also took into account that the applicant provided no independent evidence as to the existence of the purported AAH leader, who the applicant claims targeted him, his brother and his family. The Authority placed no weight on the unsourced and untranslated videos. The Authority noted that, at his Protection visa interview, the applicant confirmed that there was no mention of the AAH leader in the videos and the Authority was therefore satisfied that they did not establish any connection between the feared individual and the applicant.
31. The Authority referred to evidence concerning the applicant’s brother’s complaint to the Court and considered whether such evidence corroborated the applicant’s claims in relation to the applicant and his brother being threatened. The Authority found that it did not corroborate those claims and, further, gave rise to concerns as to the implausibility of the applicant’s claims in this regard and their inconsistency with country information, particularly in the context of country information indicating the availability of fraudulent documents in Iraq.
32. The Authority found it is now over six years since the applicant was employed as a guard in the Prime Minister’s office and that the applicant has not indicated an intention to return to his former employment. The Authority did not accept that the applicant was threatened by the alleged leader, U, or the AAH in late 2012/early 2013. The Authority did not accept the applicant’s claim that U and the AAH will want vengeance against him years after he ceased to be employed as a Prime Minister’s office guard. The Authority found that the country information did not suggest that interpreters who have returned from the USA to Iraq after many years have been killed.
33. The Authority was not satisfied, overall, that there is a real chance that the applicant will suffer harm from the alleged leader, U, the AAH, other Shia militias, Al-Qaeda, other Sunni armed groups or anyone else because of his former employment as a guard in the Prime Minister’s office.
34. The Authority also turned to the issue of whether the applicant resigned from his position and was not satisfied that the applicant did not resign from his position prior to his departure from Iraq as claimed at his Protection visa interview. The Authority was also not satisfied that there was a real chance that the applicant will be prosecuted or otherwise harmed in connection with his former employment. The Authority noted that the applicant had not claimed that authorities had approached his family in the six years since he has been absent to inquire about his whereabouts. The Authority also added that there had been no such approach in relation to serving them with documents, charging the applicant with any offence relating to his failure to report to work.
35. The Authority also took into account that there has been provided no country information indicating that Iraqi authorities punish persons who fail to resign from security positions and country information does not suggest that to be the case. The Authority also took into account the applicant’s own evidence about this matter at his Protection visa interview, where the applicant asserted that he did not resign because the process takes a year, and that this contradicts the applicant’s claim in his submission accompanying the Protection visa application that he had resigned from his Prime Minister’s office guard role.
36. The Authority found that the applicant was a moderate Shia from southern Iraq. The Authority was not satisfied, in relation to Shias and the security situation, that the applicant faces a real chance of serious harm.
37. The Authority was not satisfied that there was a real chance that the applicant would suffer harm either as a result of his religion or in returning to his home region now or in the reasonably foreseeable future.
38. The Authority was not satisfied that there was a real chance that the applicant would suffer harm because of the time he has spent in Australia.
39. The Authority found that the applicant does not meet the requirements of the definition of “refugee” in s.5H(1) of the Act. The authority found that the applicant does not meet the criteria in s.36(2)(a) of the Act.
40. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iraq from Australia, there is a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s.36(2)(aa) of the Act.
41. Accordingly, the Authority affirmed the decision under review.

Before the Court

42. The Court granted leave to Mr Zipser, counsel for the applicant, to rely upon an amended application annexed to the applicant’s submissions filed on 11 March 2020.
43. The Court, in granting leave to Mr Zipser to rely upon the amended application, was satisfied, at an impressionistic level, that there was a sufficiently arguable case to dispense with the show-cause hearing.

The grounds

44. The two grounds in the amended application are as follows:
    1. The applicant claimed, and the Immigration Assessment Authority ("the IAA") accepted, that the applicant "was employed for a number of years as a guard in the [Prime Minister's Office] located in the Baghdad Green Zone": at [20]. One of the applicant's claims was that at the time he fled Iraq he did not resign from his role with the PMO before he left Iraq and, as a consequence, he faced a real chance of harm from the authorities by way of prosecution for wrongfully leaving his job in breach of his contract of employment. The IAA at [28] found that it was not satisfied that the applicant did not resign from his role with the PMO. The IAA fell into jurisdictional error in making this finding because the reasons in support of the finding lacked an evident and intelligible justification and the finding was thereby legally unreasonable.
    2. The applicant claimed the AAH repeatedly threatened the applicant and his brother H from late 2012 for a period of around six months because the applicant would not assist them with their demands concerning the Green Zone. The IAA at [24] rejected this claim for the principal reason that it was not credible that "the AAH would approach the applicant in the first place for assistance gaining access to the Green Zone given country information indicating that the AAH had infiltrated the police and army and had positive connections with then Prime Minister al-Maliki". Even if country information before the IAA indicated that "the AAH had infiltrated the police and army and had positive connections with then Prime Minister al-Maliki", this is not a rational reason for why the AAH would not approach the applicant for assistance gaining access to the Green Zone. In the circumstances, the IAA's rejection of the applicant's claim that the AAH approached him for assistance gaining access to the Green Zone "lacks an evident and intelligible justification". This is a jurisdictional error.

Ground 1

45. In relation to ground 1, Mr Zipser took the Court to the Authority’s reasons in relation to not being satisfied that the applicant did not resign from his role in the Prime Minister’s office. Mr Zipser took the Court to the applicant’s related statement of claims in support of his Protection visa as well as the submissions that were provided and the submissions provided both to the Delegate and to the Authority.
46. Mr Zipser contended that the reasons identified by the Authority were problematic, referring, firstly, to the proposition that the authorities knew that the applicant had departed from Iraq, because the applicant had departed illegally and, therefore, there would have been no need to make inquiries of the applicant and, accordingly, no utility for them to serve family members with documents.
47. Mr Zipser also submitted that the other reason, referring to the applicant’s inconsistent assertions in relation to having resigned, did not take into account the acknowledgement that the applicant had made before the Delegate that he had earlier provided information that was unreliable.
48. The applicant’s claim that he was not allowed to resign gave rise to a logical and rational proposition that the authority focused upon in relation to pursuit of the applicant having left his work when he had not resigned. It was a rational and logical matter for the Authority to take into account. It was also rational and logical for the Authority to take into account the absence of country information indicating that persons who failed to resign are punished.
49. Further, the Authority identified an inconsistency in relation to whether the applicant resigned and his positive assertion that he had resigned, which was a further logical and rational basis to support the adverse finding that the applicant did, in fact, resign his position prior to leaving Iraq. That adverse finding was open to the Authority for the reasons given by the Authority.
50. No jurisdictional error, as alleged in ground 1, is made out.

Ground 2

51. In relation to ground 2, Mr Zipser properly acknowledged that his argument of error was focused upon only one of a number of reasons given by the Authority in relation to its adverse finding, rejecting that the AAH approached the applicant for assistance in gaining access to the Green Zone.
52. The Authority’s reasons in relation to AAH approaching the applicant to gain access to the Green Zone was one of the matters taken into account by the Authority in relation to implausibility in rejecting the applicant’s assertions of repeated threats against the applicant and his brother from late 2012. A proposition identified by the Authority that it was not credible that AAH would approach the applicant was an adverse finding that was open to the Authority and, in substance, ground 2 is an invitation to engage in merits review.
53. The Authority provided logical and rational reasons in support of its adverse finding in respect of the applicant’s claimed threats to himself and his brother. The reference to the lack of credibility in relation to the applicant’s claim concerning the leader of AAH approaching the applicant for assistance to access the Green Zone was a rational, logical and reasonable matter for the Authority to take into account in its adverse findings.
54. No jurisdictional error as alleged in ground 2 is made out.
55. Accordingly, as the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the transcript of the published oral reasons for judgement of Judge Street delivered in open Court on 17 March 2020 and the parties were provided sealed copies of the Court’s orders

Associate:

Date: 14 April 2020