BCH17 v Minister for Immigration and Border Protection

The decision of the IAA 6 The appellant is a citizen of Iraq who arrived in Australia by boat on 7 July 2013. He lodged an application for a visa on 8 September 2016. On 14 December 2016, the first respondent's delegate refused to grant the appellant the visa. The IAA then conducted a review of that decision and gave its decision affirming the delegate's decision on 30 January 2017. 7 The appellant claimed that he had started working at a hotel in a city in southern Iraq and had developed a romantic relationship with the daughter of the hotel owner (whom I will call Mr S). Mr S refused the appellant permission to marry his daughter because the appellant was from a lower social class. Mr S forbade the appellant and his daughter from each other, but they continued their relationship in secret. In April 2013, Mr S caught the appellant and his daughter sitting together in a hotel room. Mr S fired the appellant and said that he would kill him. The appellant went to stay with one of his uncles in a different part of the city. The appellant was informed by his brother that Mr S had gone to the family home with a group of men and threatened to kill the appellant for the shame and dishonour that he had brought upon Mr S's family. 8 In its decision, the IAA accepted the appellant's evidence as to the matters set out above. In particular, it accepted that Mr S had threatened to kill the appellant and that associates or agents of Mr S had gone to the family home looking for him. 9 However, the IAA rejected, on the basis of lack of credibility, the appellant's claims that Mr S was well-connected with a militia group known as the "Mahder Army" and that the associates of Mr S who had visited the appellant's home were members of that militia group. The IAA found that the appellant was not the target of the Mahder Army or any other militia group. 10 The IAA found that there was a real chance that Mr S would carry out his threat should the appellant return to Iraq. The IAA turned then to the question of whether the appellant was a member of "a particular social group" within the meaning of that expression in s 5L of the Migration Act 1958 (Cth) (the Act). The IAA noted that the appellant's lawyer contended that the relevant social group consisted of "Persons that have ignored repressive social norms and [thus] who face a high risk of honour killing". The IAA decided that the appellant was not a member of "a particular social group". 11 The IAA went on to consider whether the appellant was at risk of harm due to his Shia religion or due to him leaving and seeking asylum. The IAA found that there was no real risk to the appellant of significant harm in his home city on either of these bases. 12 For these reasons, the IAA was not satisfied that the appellant met the definition of "refugee" and was not satisfied that he met the criterion for protection under s 36(2) of the Act. 13 The IAA went onto consider whether it was satisfied that the appellant met the criterion for "complementary protection" under s 36(2)(aa) of the Act. The IAA noted again that there was a real chance that if the appellant returned to his home city, he would be killed by Mr S. The IAA also noted that under s 36(2B) of the Act, there is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm. The IAA was satisfied that the appellant's relocation to another area of southern Iraq was reasonable. The IAA found that as an ordinary Shia civilian of no particular interest to militia or armed groups, the appellant was not at a real risk of harm were he to relocate within southern Iraq. 14 The IAA noted that the first respondent's delegate had asked the appellant why he would not be able to relocate to another area of Iraq and that the appellant had responded that he could only live elsewhere for a month or two before Mr S would locate him. The appellant had claimed that Mr S was very well-connected. The IAA found that if Mr S was unable to locate the appellant within their home city itself, there was not a real risk that he would be able to locate and harm the appellant should he relocate to another town or city in southern Iraq. 15 The IAA went on to find that it was satisfied that, as a young Shia male, it was reasonable for the appellant to relocate to another city in the predominately Shia southern governorates of Iraq, and that family ties would assist him in being sponsored to enter (if required) and remain in such areas. The IAA found that there were not grounds for believing that as a necessary and foreseeable consequence of being returned, there was a real risk that the appellant would suffer significant harm. 16 The IAA found that it was not satisfied that the appellant met the requirements of s 36(2)(aa) of the Act. The IAA accordingly affirmed the delegate's decision.

The judgment of the Federal Circuit Court 17 Before the Federal Circuit Court, the appellant was represented by a lawyer. The appellant submitted that the IAA had taken into account an irrelevant consideration, namely criminal charges pending against him, and that he had been denied procedural fairness. Those submissions were rejected by the primary judge. It is unnecessary to say anything more about those grounds as they are not raised again in this appeal. 18 The appellant also submitted that the IAA had failed to consider his evidence concerning Mr S' connections with the militia. However, the primary judge found that the IAA had referred to, and taken into account, the appellant's submissions and evidence in this respect. Further, his Honour found that the IAA's adverse findings in relation to the appellant's credibility were logical and rational and did not lack an evident and intelligible justification. 19 The primary judge noted that the appellant sought to refer to country information supporting a proposition that the Mahder Army had access to and control of all Shia areas in Iraq. His Honour considered that this was an invitation to the Court to engage in impermissible merits review. 20 The primary judge found that no jurisdictional error had been demonstrated and dismissed the application.

The legislation 21 Under Sch 1 of the Migration Regulations 1994 (Cth), there is a class of visas called "Safe Haven Enterprise Visas". Clause 790.221(2) of Sch 2 provides that a criterion to be met at the time of the decision is that the Minister is satisfied that s 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant. 22 Section 36 of the Act provides, relevantly: 36 Protection visas - criteria provided for by this Act … (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or … (2A) A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or (b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. … 23 Section 5H of the Act provides, relevantly: 5H Meaning of refugee (1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person: (a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or (b) in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it. ... 24 Section 5J of the Act provides, relevantly: 5J Meaning of well-founded fear of persecution (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. … (4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a): (a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and (b) the persecution must involve serious harm to the person; and (c) the persecution must involve systematic and discriminatory conduct. (5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. … 25 Section 5L of the Act provides: 5L Membership of a particular social group other than family For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person's family) if: (a) a characteristic is shared by each member of the group; and (b) the person shares, or is perceived as sharing, the characteristic; and (c) any of the following apply: (i) the characteristic is an innate or immutable characteristic; (ii) the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it; (iii) the characteristic distinguishes the group from society; and (d) the characteristic is not a fear of persecution.

The proposed amended grounds of appeal 26 The appellant seeks to amend the notice of appeal so that the grounds of appeal read as follows: 1. The Federal Circuit Court erred by failing to find in its consideration of Ground 2 (alternatively Ground 4) that the second respondent made a jurisdictional error, as follows: In considering whether it would be reasonable for the appellant to relocate to an area of the country where there would not be a real risk that the appellant will suffer significant harm under s 36(2B) of the Act, the second respondent failed to consider the appellant's claim that he would suffer significant harm wherever he relocated in Iraq by reason of his fiancee's father's contact with and influence over militia groups that operate in southern Iraq. 2. The Federal Circuit Court erred by failing to find in its consideration of Ground 4 that the decision of the second respondent in respect of its findings that it would be reasonable for the appellant to relocate from [the appellant's home city] to southern Iraq was illogical, irrational and unreasonable, in that the second respondent implicitly treated significant harm as the only level or kind of harm which could affect the reasonableness of relocation, and it therefore failed to consider: (a) whether the appellant would be at risk of harm through generalised violence; and (b) the practical and realistic ability of the appellant to live in southern Iraq. 3. In the alternative to Appeal Ground 2 above, the second respondent made a jurisdictional error by implicitly proceeding on the basis that significant harm was the only level or kind of harm which could affect the reasonableness of relocation, and it therefore failed to consider: (a) whether the appellant would be at risk of harm through generalised violence; and (b) the practical and realistic ability of the appellant to live in southern Iraq. 4. The second respondent made a jurisdictional error by finding that the particular social group to which the appellant said he belonged, namely: • "Individuals in Iraq that are the target of honour killing due to having acted or perceived to having acted in contravention or strict religious laws, tribal laws, societal laws and norms that do not allow romantic or sexual relations between men and women outside marriage", alternatively • "Persons in Iraq that have ignored repressive social norms and thus who face a high risk of honour killing" was not a particular social group for the purposes of s 5L of the Act. (References to the IAA decision and the Appeal Book omitted.) 27 I do not understand the appellant to contend that any of these grounds were raised before the Federal Circuit Court.

The fourth proposed ground 28 It is convenient to start by considering the fourth ground of the proposed amended notice of appeal. The fourth ground asserts that the IAA erred by finding that the appellant was not a member of "a particular social group" within the meaning of that expression in s 5L of the Act. 29 The IAA noted that under s 5L of the Act a person cannot be treated as a member of a particular social group if the characteristic shared by the group is fear of persecution. The IAA found that the shared characteristic identified by the appellant was one that involved a shared fear of persecution and, on that basis, decided that the appellant was not a refugee. 30 Under s 36(2)(a) of the Act, the criterion that must be satisfied is that the non-citizen is a person in respect of whom the Minister is satisfied Australia has protection obligations because "the person is a refugee". 31 Section 5H(1) of the Act defines "refugee", relevantly, as a person who "is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country". 32 Section 5J of the Act then defines a "well-founded fear of persecution" as requiring that a number of criteria be met, including that the person fears being persecuted "for reasons of race, religion, nationality, membership of a particular social group or political opinion". 33 Section 5L of the Act sets out four requirements that must be satisfied if a person is to be treated as "a member of a particular social group". The requirements in s 5L derive largely from the judgments of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 242, 263-264, 286 and Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36], [63]-[68], [98]. However, while one of the requirements described in those cases was that a shared characteristic must distinguish the group from society at large, s 5L(c) establishes two alternatives to that requirement. Accordingly, s 5L expands the basis upon which a person can be a member of a particular social group. 34 The first three requirements in s 5L of the Act are positive requirements. The first is that there must be a characteristic that is shared by each member of the group. The second is that the person shares or is perceived as sharing that characteristic. The third is that either: the characteristic is an innate or immutable characteristic; or the characteristic is so fundamental to a member's identity or conscience that the member should not be forced to renounce it; or the characteristic distinguishes the group from society. The fourth is a negative requirement, that the shared characteristic must not be a fear of persecution. 35 The fourth requirement applies where the only characteristic identified by the applicant as being shared by each member of the group is fear of persecution. It is necessarily satisfied where the applicant identifies a different characteristic that is found to meet the first three requirements. 36 In this case, the appellant's lawyer contended before the IAA that the relevant social group consisted of "Persons that have ignored repressive social norms and thus who face a high risk of honour killing". This contention involved two characteristics said to be shared by members of the group. The first was that they had "ignored repressive social norms". The second was a consequence of the first, that because the members of the group had ignored such social norms, they "face a high risk of honour killing". 37 In concluding that the appellant failed to satisfy the fourth requirement, the IAA found that the shared characteristic identified by the appellant was one that involved a shared fear of persecution, so that s 5L of the Act was not satisfied. The IAA must have reached this conclusion by reference to the second claimed characteristic, that members of the group "face a high risk of honour killing". However, the IAA failed to consider the first claimed characteristic, that the members of the group were people who had "ignored repressive social norms". 38 It was a question of fact for the IAA as to whether the requirements of s 5L were satisfied, but the IAA was required to make that assessment in respect of each "particular social group" relied on by the appellant. The Tribunal failed to consider a social group that the appellant claimed to belong to, and that was a jurisdictional error: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [27]; Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]-[49]. 39 However, the respondent submits that even if the IAA erred in failing to consider a claim made by the appellant for the purposes of s 5L of the Act, the error made no difference to the outcome of the application. The respondent argues that as the IAA found that it was reasonable for the appellant to relocate within Iraq, the application would have failed regardless of the error. 40 At this stage, it is convenient to return to the first three grounds of the proposed amended notice of appeal since they allege jurisdictional errors in respect of the IAA's findings concerning relocation within Iraq.

The first proposed ground 41 The first proposed ground can be dealt with shortly. It alleges that in considering whether it would be reasonable for the appellant to relocate, the IAA failed to consider the appellant's claim that he would suffer significant harm wherever he relocated in Iraq by reason of his fiancée's father's contact with and influence over militia groups that operate in southern Iraq. However, in its reasons, the IAA said at [28]: 28. At the PV interview the delegate asked the applicant why he would not be able to relocate to another area of Iraq. The applicant responded that he would only be able to live elsewhere for a month or two before Mr [S] would have located him and his life would be at risk. Mr [S] was very well-connected. As Mr [S] was unable to locate the applicant within Karbala itself, I am satisfied that there is not a real risk that Mr [S] would be able to locate and harm him, should he relocate to another town/city in southern Iraq. 42 In the context of the IAA's reasons as a whole, the reference to Mr S being "very well-connected" was a reference to his alleged connections with militia groups. Contrary to the appellant's submission, the IAA did consider the appellant's claim that he would suffer significant harm wherever he relocated in Iraq because Mr S would use his connections with the militia to harm him. The first proposed ground cannot succeed.

The second and third proposed grounds 43 The second and third grounds can be dealt with together. They raise essentially the same argument, namely that the IAA erred by regarding harm amounting to "significant harm" as the only type of harm relevant to the question under s 36(2B) of the Act of whether it would be "reasonable" for the person to relocate. 44 The issue of relocation arises in two different ways when considering protection visas. It arises under s 5J of the Act when considering the "refugee" criterion. It arises again under s 36(2B) when considering the "complementary protection" criterion. There is inconsistency between those provisions which is capable of creating confusion. 45 The inconsistency arises because the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Amending Act) removed the references in s 36(2)(a) of the Migration Act to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Refugees Convention), replacing those references with the words "because the person is a refugee". The Amending Act also added ss 5H to 5LA, which provide a self-contained definition of "refugee". Those amendments commenced on 18 April 2015. 46 Following the amendments, in order to satisfy the "refugee" criterion, the person must have a "well-founded fear of persecution", which, under s 5J(1)(c) of the Act, requires that the real chance of persecution "relates to all areas of a receiving country". Section 5J(1)(c) represents a significant narrowing of the "internal relocation" principle. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [22], [78]-[81], the High Court held that a person would be excluded from refugee status under the Refugees' Convention if, under all the circumstances, it would be reasonable to expect the person to seek refuge in another part of his or her country. The High Court held at [24] that what was "reasonable" depended upon the particular circumstances of the person and the impact upon that person of relocation within the country of nationality. Section 5J(1)(c) does not leave any room for consideration of the reasonableness of internal relocation. Under that provision, a person is not a "refugee" if there is some area of the receiving country where there is no real chance of the person being persecuted for reason of race, religion, nationality, membership of a particular social group or religion. 47 However, the Amending Act did not amend the "complementary protection" criterion under s 36(2)(aa) of the Act. That criterion, taken with s 36(2B), requires that it must not "be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm" (emphasis added). Accordingly, a person who is not a "refugee" because there is an area within the receiving country where there is no real chance of serious harm, may still be eligible for "complementary protection" on the basis that it is not reasonable for the person to relocate to that area. 48 In this case, the IAA, having found that the appellant was not a member of a particular social group did not go on to consider, under s 5J(1)(c) of the Act, whether any real chance of persecution related to all areas of Iraq. However, the Tribunal did examine the reasonableness of relocation in the context of considering complementary protection under s 36(2B) of the Act. 49 The IAA was satisfied that the appellant would be at real risk of significant harm at the hands of Mr S if the appellant returned to his home city. The IAA also found the appellant faced a real risk of significant harm in areas of the north, west and centre of Iraq because of the activities of Sunni extremist groups. However, the IAA was satisfied that it was reasonable for the appellant to relocate to a different area of southern Iraq. In this respect, the IAA found that while it might be difficult for Sunnis or other minorities to relocate in southern Iraq, the situation was different for Shias. In the same context, the IAA went on to consider what it described as the appellant's "personal circumstances". 50 The appellant's proposed second ground relies upon the judgment in MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191. In that case, Dodds-Streeton J noted that a person is not a "refugee" within the Refugees Convention, if it is reasonable, in the sense of practicable, for the person to relocate within his or her country. Her Honour, considering the then s 91R(1)(b) of the Act, held that the Independent Merits Reviewer had made an error by implicitly treating "serious harm" as the only level or kind of harm which could affect the reasonableness of relocation. 51 The appellant submits that in this case, the IAA only focussed on whether he could avoid "significant harm" by relocating to southern Iraq and failed to consider whether generalised violence in southern Iraq would make it unreasonable for him to relocate there. The appellant also submits that the IAA failed to consider his "practical and realistic ability" to live in southern Iraq. In this regard, the appellant relied upon MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [50]-[51]. In that case, Mortimer J held at [55] that a broad brush approach would not satisfy the requirements of the task to be performed, and that a decision maker is required to consider what will face the particular applicant and how he or she will cope. 52 The appellant's legal representative had made submissions to the IAA concerning the issue of relocation. The legal representative submitted that the appellant was at risk from generalised violence. Contrary to the appellant's present argument, the IAA did consider the risk of harm from generalised violence, saying at [17]: In relation to whether the applicant is at real risk of harm from generalised violence or Shia militias, the referred material indicates that Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence. I am not satisfied on the evidence before me that the applicant faces a real chance of harm from Shia militias or armed groups due simply to being a Shia. (Footnotes omitted.) 53 The IAA found at [27] that relocation was reasonable based on the appellant's "personal circumstances". The personal circumstances discussed by the IAA were that the appellant was an ordinary Shia civilian of no particular interest to militia or armed groups, that there was no real risk that he would suffer harm at the hands of Mr S if he relocated, that he had family members in two cities in southern Iraq and that those family members would assist him by sponsoring him to enter (if required) and remain in such areas. 54 The IAA's findings that the appellant was not of interest to militia or armed groups and that there was no real risk of harm by Mr S are referable to consideration of the instances of "significant harm" described in s 36(2B) of the Act. However, the IAA also found that the appellant was a young man who had family members who could assist him by sponsoring him to enter and remain in these areas. These findings indicate that the IAA also considered reasonableness of relocation by reference to matters not rising to the level of "significant harm". The IAA did not make the error identified in MZYQU v Minister for Immigration and Citizenship. The IAA did not regard only "significant harm" as defined in s 36(2B) of the Act as being relevant to the question of reasonableness of relocation. 55 The IAA considered all of the matters that had been submitted by the appellant's legal representative to be relevant to the reasonableness of his relocation in southern Iraq. There was no failure by the IAA to consider the "practical and realistic ability" of the appellant to live in southern Iraq. 56 For these reasons, the second and third proposed grounds of appeal cannot succeed.

Whether relief should be granted 57 As I have noted, the first respondent submits that even if the fourth ground is successful, the appeal should be dismissed as the appellant has not demonstrated error in the IAA's findings that there are areas of southern Iraq where he would not be at real risk of significant harm. 58 The appellant submits that even if his first three grounds failed, his success upon the fourth ground should result in the IAA's decision being set aside. The appellant argues that the IAA's error meant that it did not consider the risk of persecution in all areas of Iraq by reason of the appellant's membership of a particular social group consisting of people who had ignored repressive social norms. The appellant argues that if the IAA had done so, there might have been a different outcome. 59 I accept the appellant's submission. Section 5J(1)(c) of the Act provides that there cannot be a well-founded fear of persecution unless the real chance of persecution relates to all areas of a receiving country. Section 36(2B) requires that it must not be reasonable for the person to relocate to an area where there would not be a real risk of significant harm to the person. If it had considered the issue, it is possible that the IAA may have found, or may find upon remittal, that there is a real chance of serious harm or a real risk of significant harm throughout southern Iraq to a Shia man belonging to a social group of people who had ignored repressive social norms. I cannot conclude that the Tribunal's finding that there would be no real risk of significant harm to the appellant elsewhere in southern Iraq would inevitably have been the same if his claim to be a member of the social group he identified had been considered by the IAA: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4], [58], [80], [104], [131]-[132], [211]. 60 Given the merits of the fourth ground and the absence of any real prejudice to the first respondent, the appellant should be given leave to amend his notice of appeal. The amended notice of appeal will be taken to have been filed on the day of the hearing, 13 February 2018. 61 The appeal will be allowed and the orders of the Federal Circuit Court will be set aside. 62 The decision of the IAA will be quashed and the IAA will be ordered to review the reference made to the IAA made under s 473CA of the Act according to law. 63 The first respondent should pay the appellant's costs of the appeal. There will be no order as to the costs of the application to the Federal Circuit Court since the argument that has succeeded here was not run at first instance. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.