CJH17 v Minister for Immigration and Border Protection

THE AUTHORITY'S DECISION 5 The appellant's claim for protection was set out in a statutory declaration made by him on 22 June 2015. A more detailed account of the appellant's claims appears in the Authority's reasons for decision. 6 The appellant claimed to be a Shia Muslim who lived in Najaf from 2000 until 2012 when he departed Iraq. He claimed to have been a member of the Iraqi Army from 2006 until his departure and to fear harm in Iraq from the Mehdi Army who had threatened him in the past. He claimed that he had reason to fear harm because he worked with the American forces, arresting terrorists and militia members (including members of the Mehdi Army) as part of his job with the Iraqi Army. 7 The Authority accepted that the appellant was a Shai Muslim and citizen of Iraq. It also accepted that he served in the lower ranks of the Iraqi Army from 2006 onwards as a non-commissioned officer of a rank equal to Corporal in the Iraqi Army. The Authority accepted as plausible the appellant's account of his army service and that this involved working with US troops that included commando type duties conducting joint raids with US troops on (inter alia) the Mehdi Army. However, the Authority did not accept the appellant's claims that he had been targeted by the Mehdi Army. Rather, it concluded that the appellant was of no interest to the Mehdi Army and that, as a result, he did not face a real chance of persecution by it. 8 The appellant had claimed that in 2009, he was driving in his car with a friend who was a supporter of the Mehdi Army. He claimed that his friend took a USB from the appellant's car that contained photos and videos of the appellant assisting the American forces. He claimed that a few days later, the appellant's mother was questioned by members of the Medhi Army who subsequently threatened his life and the life of his family, unless he stopped working with the American forces. He also claimed that the Mehdi Army killed his brother in 2009. 9 The Authority did not accept the appellant's claim to have been targeted by the Mehdi Army in 2009. The Authority found that the appellant's account of how the Mehdi Army obtained the aforementioned photos and video files "lack[ed] credibility" because no mention was made of this incident during the appellant's entry interview, where the appellant stated that the source of threats to his safety were from unknown persons who ordered him to cease activity with US troops. Further, the Authority found that the appellant remained in Iraq and engaged in his normal activities for a further three years after the alleged threats were made. 10 The Authority did find that the appellant had deserted the Iraqi Army in 2012 and accepted that "as a matter of law" the death penalty may be a possible punishment for desertion of the Iraqi Army. However, on the basis of country information, it found that there was no real chance of this punishment being imposed and that the appellant faced no real chance of persecution due to his status as an Iraqi Army deserter. The Authority was also not satisfied that the appellant would face serious harm from militant groups on return to his home areas. 11 In the result, the Authority was not satisfied the appellant met the criterion specified in either s 36(2)(a) or (aa) of the Act.

THE PRIMARY JUDGE'S DECISION 12 The first ground of review asserted that the Authority failed to consider a claim by the appellant to the effect that there was a real risk he would suffer significant harm in Iraq, because he had been involved in raids on Sunni militia groups while in the Iraqi Army and there were "low levels of violence" in his home areas, satisfying the real chance threshold. 13 The first ground of review, as set out in the primary judge's reasons, was as follows: 1. The Immigration Assessment Authority ("the IAA"), in its decision at [25]-[27], considered whether the applicant faced a real chance of harm "from Sunni groups because he is a Shia and a former soldier who supported military action". The IAA concluded that "the applicant would not face a real chance of serious harm from militant groups including Daesh and other Sunni militia groups on return to Najaf". The IAA fell into jurisdictional error in making this finding for the following reasons: (a) The IAA accepted (at [13]) that the applicant had been involved in raids on Sunni militia groups while in the Iraqi Army. The fact that the applicant was involved in such raids raises his profile in relation to attacks by Sunni militia groups should he return to Iraq. The IAA did not, in its decision at [25]-[27], have regard to this aspect of the applicant's profile. The IAA thereby overlooked an integer of the applicant's claims. (b) The IAA accepted country information that there were "low levels of violence" in the southern governorates. A "low level of violence" satisfies the "real chance" threshold. In light of the country information, the IAA misapplied the law in finding that the applicant would not face a real chance of serious harm. 14 The primary judge considered the relevant authorities dealing with the decision-maker's obligation to consider not only claims expressly made by the appellant for a protection visa but also those that clearly arise on the materials before the decision-maker. In this regard, his Honour referred to the Full Federal Court decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 ("NABE"). As to the submission that the Authority misapplied the law in finding that the appellant would not face a real chance of serious harm, the primary judge referred to Chan v Minister for Immigration (1989) 169 CLR 379 ("Chan"). His Honour also referred to the decision in Minister for Immigration v Guo (1997) 191 CLR 559 in which six members of the High Court considered the effect of the decision in Chan. 15 In deciding whether the Authority was required to consider what was said by the appellant to constitute a claim arising out of the material before it, the primary judge applied the decision in NABE. The primary judge said at [52] that there was no ambiguity in the Authority's conclusions concerning the appellant's claims and the Authority's conclusion specifically dealt with the appellant's risk of harm from Sunni militant groups. 16 As to the submission that the Authority misapplied the real chance test, the primary judge said at [53]: The Authority at [26] specifically noted independent country information that the risk of hostile militant attacks within Najaf was negligible. There was, in my view, no misapplication of the real chance test in this case. 17 The second ground of review pressed by the appellant asserted that the Authority, in making an intermediate finding, overlooked the appellant's evidence given at the protection visa interview that, while he worked at the army bases, the militants "would not have been able to kill him". The appellant asserted that this evidence, if accepted by the Authority, would provide a satisfactory explanation as to how the appellant could go about his ordinary activities between 2009 and 2012 while being of interest to the Mehdi Army at the same time. 18 The second ground of review, as set out in the primary judge's reasons, was as follows: 2. The IAA found in it decision at [15] that "the applicant has not been threatened by the Mehdi Army as he claims and that a USB storage device … containing images of the applicant conducting raids against militant groups was not taken from him by a Mehdi Army supporter". One reason the IAA made this finding was because of its intermediate finding at [15] that "the fact that the applicant went about his ordinary activities between 2009 and 2012 is strong evidence that he has not been threatened by and is not of active interest to a Shia militia like the Mehdi Army". The IAA, in making this intermediate finding, overlooked the applicant's evidence given at the protection visa interview that, while he worked at the army bases, the militants "would not have been able to kill him": see CB 137 [70]. To overlook significant evidence is a jurisdictional error. 19 The primary judge considered the relevant authorities dealing with the decision-maker's obligation to consider important evidence concerning a material issue. In this regard, his Honour referred to the Full Federal Court decisions in VAAD v Minister for Immigration [2005] FCAFC 117 and WAFP v Minister for Immigration [2003] FCAFC 319 as examples of where a decision-maker's failure to consider important evidence concerning a material issue amounted to jurisdictional error. His Honour also considered Robertson J's decision in Minister for Immigration v SZRKT (2003) 212 FCR 99. 20 In deciding whether the Authority overlooked important evidence concerning a material issue, being the evidence the appellant gave at the temporary protection visa interview, the primary judge said at [54] it was open to the Authority to conclude that the militants feared by the appellant had ample opportunity to harm him while he was off the base, and had not done so.

GROUNDS OF APPEAL 21 The question in this appeal is whether the primary judge's conclusions on these issues were affected by error. The appellant did not identify any particular errors with the primary judge's reasons but appealed against the whole of the primary judge's judgment. The notice of appeal pleaded the following grounds: 1. The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority ("IAA"), in a finding in its decision, misapplied real chance test in s 5J(3) of the Migration Act 1958 (Cth) ("the Act") in a manner which constituted jurisdictional error. The Federal Circuit Court erred in dismissing this ground of review. 2. The appellant contended in the Federal Circuit Court that the IAA overlooked evidence in relation to the evidence that the militias had against the appellant. 22 With respect to the first ground of appeal, the Minister submitted that the primary judge was correct in finding that there was no misapplication of the real chance test because the country information before his Honour indicated that the capacity for militants to carry out attacks in Najaf was "negligible". As such, the Minister considered that it was open to the Authority to find that the appellant would not face a real chance of harm from militant groups on return to Najaf. 23 With respect to the second ground of appeal, the Minister submitted that the point sought to be raised in the notice of appeal was not the same point that was argued by the appellant below. However, on its face, ground two seems to me to be picking up the very point that was raised below and dealt with by the primary judge namely, that in finding that the appellant was of no interest to Mehdi Army, the authority overlooked the evidence given by the appellant in his arrival interview which indicated that the Mehdi Army would not have been able to harm him while he was at the army base.

CONSIDERATION 24 As to the first of the appellant's grounds of appeal, in my view the primary judge was correct in holding that the Authority made no error when applying the "real chance" test. As his Honour observed, the Authority specifically noted independent country information that the risk of hostile militant attacks within Najaf was "negligible". 25 With regard to ground 2, the primary judge was also correct to reject the appellant's contention that the Authority overlooked evidence given at the entry interview. His Honour said at [54]: In relation to Ground 2, the applicant's circumstances on and off the military base were recounted by the delegate in his decision at [68]-[70]. It is plain that the applicant's fears of harm related to time he spent off the military base and that he claimed he was at risk of harm outside the base. In my view, the Authority's consideration of the applicant's claim should be considered in that context and that his "normal activities" should be seen as those conducted off the military base. It was open to the Authority to conclude, as it apparently did, that the militants feared by the applicant had ample opportunity to harm him while he was off the base, and had not done so. (footnote omitted) 26 I agree with the primary judge that, if regard is had to the context in which the appellant's claim was considered, the Authority's reference to "normal activities" may be fairly understood as referring to those in which the appellant engaged away from the army base. 27 In the result, I consider the primary judge was correct in dismissing the appellant's application for the reasons his Honour gave. 28 The appellant should pay the first respondent's costs of the appeal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.