DWX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Analysis 79 The appellant says that he made a generalised violence claim and that the delegate dealt with it by reference to the complementary protection criterion. 80 The appellant says that whilst his first statutory declaration, which was prepared without legal assistance, lacked the clarity of a pleading, it referred both to the general "security issues" in Karbala province and to the specific risk of a terrorist attack on the nearby Shia holy sites. 81 The appellant says that in characterising the appellant's claims, the delegate commenced by enumerating matters that related only to the general security situation in Iraq, and not to any specific characteristics of the appellant. Then, in addressing the issues raised by the appellant in his first statutory declaration and during his interview, the delegate referred to evidence of activity in Karbala province by non-State actors, in the form of both Sunni and Shia insurgent groups, and to the risk that the large annual religious pilgrimage to the Imam Hussein Holy Shrine would make the area around the shrine an attractive target for Sunni terrorist groups, such as IS. I should note that I did not have a transcript or tape of the interview, but neither party contended that it was necessary for me to procure this. 82 The appellant says that if his claim had been based solely on the refugee criterion, there would have been no need for the delegate to summarise his claims by reference to general security issues that had nothing to do with his personal attributes, nor would the activities of non-State actors have had such immediate and overwhelming relevance to his claim. The appellant says that there would have been no need for the delegate to address the activities of Shia insurgent groups if the appellant's claim to be at risk of dying in a terrorist attack or similar event had been a "refugee" claim based on his Shia ethnicity. I should say now that I think that the appellant is reading too much into the delegate's reasons which was setting out a broader summary of information, but all still as part of considering the refugee criterion; that was the context. The delegate had to consider a broader set of information in order to contextually assess whether Shias or Shia areas were generally or specifically being targeted. 83 The appellant submits that the delegate dealt with the generalised violence claim in two ways. 84 The appellant says that the delegate considered that the appellant's fear of being killed in a terrorist attack on one of the Shia holy sites could be regarded as a claim based on the refugee criterion, in that it could be characterised as a fear of being killed in a terrorist attack aimed at members of the Shia religious group, even though the claim was not expressed in that way. 85 But the appellant says that the delegate also approached the generalised violence claim on the basis that it raised the question of whether there was a real risk that the appellant would be arbitrarily deprived of his life in an incident that had nothing to do with his Shia ethnicity, such as an attack by a Shia non-State insurgent group or a terrorist attack that, although it was directed at a Shia holy site, was intended simply to cause chaos and was indifferent to whether it killed Sunnis, Shiites, and/or members of other religious and ethnic groups. That is, according to the appellant, the delegate correctly dealt with the generalised violence claim as a complementary protection claim to the effect that the appellant was at risk of being killed for no reason other than that he might have the misfortune to be in a particular place at a particular time. 86 As I have already indicated, I do not accept the appellant's analysis or reading of the delegate's reasons to conjure up the identification and then disposal of a generalised violence claim in the context of the complementary protection criterion. 87 Further, the appellant says that in reviewing the primary decision, the Authority was required to review the actual decision made by the delegate. Of course, that proposition is unremarkable. 88 The appellant says that to discharge its obligation to review the primary decision, the Authority was required to review the delegate's rejection of the generalised violence claim and to address it by reference to a correct application of the complementary protection criterion. It says that it did not do so. But as I have said, that proceeds on a false premise that the delegate had analysed and then rejected a generalised violence claim in the context of the complementary protection criterion. 89 The appellant says that the Authority conflated the refugee and complementary protection criteria and asked whether the appellant was at risk of significant harm because of his religion or his membership of two particular social groups. For this reason, the Authority fell into jurisdictional error. But in my view the Authority made no such error. It is unremarkable in light of how the appellant had put his claims and how the appellant had constructed his material that the Authority's consideration of the complementary protection criterion concerning significant harm drew upon forensic material relevant to the refugee criterion. But that does not bespeak error. Further, no generalised violence claim was made. 90 Finally, according to the appellant, the fact that the Authority might have reached the same conclusion if it had properly applied the complementary protection criterion and had regard to s 36(2B) does not affect his arguments. I would note here that the question of materiality was not raised before the primary judge nor raised before me, as I clarified with counsel for the Minister. It would seem that I have been asked to assume materiality if such a claim of generalised violence was made and not considered by the Authority in the context of addressing the complementary protection criterion. I will return to this later. 91 It will be apparent that I do not accept the appellant's case. 92 It may be accepted that the Authority is required to "review" the decision referred to it pursuant to s 473CA, although it is of course broader than a review for correction of error; the correct characterisation is as Besanko J described it in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 at [38]. And in performing its review, the Authority is provided with the materials identified in ss 473CB and 473DB. But the Authority is not obliged to consider the appellant's claims in the precise manner that they were considered by the delegate. But of course the Authority should in substance deal with the claims raised. 93 Further, the Authority is required to consider claims that are either the subject of a substantial and clearly articulated argument or clearly emerge from the materials or the Authority's own findings. So the question is whether on the materials before the Authority including the delegate's reasons a generalised violence claim was sufficiently made. 94 Further, understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum or indeed statically. Consideration should be given to the way an applicant's claims may have evolved at each particular stage of any consideration of the visa application. 95 Applying these principles, in my view there was no claim squarely raised or that clearly emerges on the material before the Authority that the appellant would suffer a risk of generalised violence in the sense that the appellant would be the subject of indiscriminate or random violence. 96 Further, to the extent the appellant says the claim arose from his first statutory declaration, that claim was framed in the context of IS attacking his home area "because it is an area of religious Shia significance and is home to prominent Shia shrines which attract religious tourists". So, this was not a claim of indiscriminate violence. 97 Now I accept that where an applicant is legally unrepresented, a Court may be more willing to draw the line in his favour in terms of determining what claims were made. But even so, no generalised violence claim was made before the delegate or clearly emerges from the material. In any event, this does not assist the appellant concerning the Authority's review. At that stage the appellant was legally represented. It becomes a little problematic for the appellant to say that the generalised violence claim clearly emerges from the material when the appellant's legal representatives never said anything about it. Now the appellant might say that they didn't have to if the delegate discussed it and rejected it. But as I have said, that premise is flimsy at best for the appellant. The more likely inference is that the appellant's legal representatives and the second statutory declaration never drew attention to it because it was not being put. 98 Let me turn to one other aspect of the Authority's reasons, part of which I have already set out (at [68]). I should also set out [27], [28] and [30] which provide: Shia communities are subject to both general and targeted violence by Sunni-linked insurgent groups and extremists. The violence is largely aimed at destabilising the government and communities, rather than being targeted at individuals. However, Shia who are also members of government security services, detainees or ethnic minorities also appear to have been specifically targeted by [IS]. While senior political or government leadership may also be targets, the state provides extensive security for them. Since early 2013, Sunni extremist groups have increased attacks on a range of targets particularly those associated with the government. Insurgents have attacked Iraqi civilians and government personnel (mainly the Iraq Security Forces and the police) and facilities, including checkpoints and police stations. Insurgent activity is highest in cities and provinces with a mixed ethnic or religious composition (the northern, western and central provinces, especially Ninewa, Diyala, Salah al-Din, Anbar and Baghdad). Levels of violence in the southern provinces (a majority Shia area) are much lower. Sunni groups have attacked locations in southern provinces, but the casualty rate is much lower than elsewhere in Iraq. … The applicant will be returning to Karbala, a southern governorate of Iraq and one which is Shia dominated. DFAT assesses that the Shia-dominated provinces have experienced fewer violent attacks and that Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence, whereas Shias in Baghdad province face a moderate risk of generalised violence. 99 I agree with the Minister that it is necessary to understand what meaning the Authority gave to the term "generalised violence". 100 When the Authority referred to "generalised violence" by Sunni linked insurgent groups and extremists, it was in the context of Shia communities being the target of the violence and "largely aimed at destabilising the government and communities rather than being targeted at individuals". 101 But the Authority's reference to "targeted violence" refers to "individuals" who were the target, in particular, Shias who are "members of government security services, detainees, or ethnic minorities" who the Authority found "also appear to have been targeted specifically by [IS]"; see also, the Authority's findings at [30] to [33]. 102 Given that the Authority's findings focused on the appellant's profile as a Shia and "generalised violence" being linked to the appellant having such a profile, there was no need for the Authority to consider whether the appellant suffered a real risk of significant harm on the basis of indiscriminate violence. 103 More generally, no claim of indiscriminate violence otherwise arose on the material before the Authority or was pressed before the Authority. Further, nothing in the delegate's reasons required the Authority to address or consider the appellant's claims in a fashion differently from the way it in fact did. 104 Accordingly, I reject the appellant's case. No generalised violence claim was made or clearly arose from the materials or any findings of fact. Therefore, none had to be considered by the Authority in the context of the complementary protection criterion. 105 Moreover, even if the delegate had dealt with but rejected a generalised violence claim in the context of the complementary protection criterion, I would nevertheless have held that the Authority did not make a jurisdictional error by not expressly discussing such a claim. Given the nature of the review before the Authority, it was bound to consider in the context of the delegate's reasons, how the claims, which had been rejected by the delegate, were being put to the Authority, but taking into account the further material before the Authority including the submissions made to it and the second statutory declaration. This gave the Authority some scope to deal with and address the claims then emphasised by the appellant before the Authority in such fashion as the Authority thought appropriate. I can detect no error in the Authority's approach or its emphasis in the then light of how the appellant was putting his case. 106 Further, in any event I would have had significant doubts as to whether any failure to consider such a claim, if made, would have been material in light of the Authority's other findings; further, s 36(2B)(c) may also have been a potential hurdle for the appellant. 107 For these reasons, no jurisdictional error has been established, and the primary judge was not in error. The appeal must be dismissed with costs. I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach.

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