EHA18 v Minister for Home Affairs

1. The appeal be dismissed.
2. The Appellants pay the First Respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This appeal concerns the efforts of the First Appellant to secure the issue to her and her three children, the Second, Third and Fourth Appellants, of a refugee visa or, more formally, a temporary protection (class XD) (subclass 785) visa. The Appellants are citizens of Iraq and arrived in Australia in 2012 as unauthorised maritime arrivals. The claims made to support their applications for protection were several but each was rejected, first by the Minister's delegate and then on attenuated review by the Immigration Assessment Authority ('the Authority'). The present case concerns a narrow aspect of their claims to which attention may largely be confined. 2 The First Appellant had claimed to have been deported from Iraq to Iran for political reasons in 1985 and then to have gone to the holy city of Qom in Iran (not far from Tehran) where she subsequently married and had children. The Authority accepted this but rejected her contention that she had returned to Iraq as late as 2012 finding instead that she had returned there no later than 2007 (with her husband and children). Her husband had several brothers who lived in Iraq and one of these was the Governor of the Al-Muthanna Province. Al-Muthanna is in Southern Iraq on the border with Saudi Arabia and Kuwait. The Governor was named Mohammed Ali al-Hassani. In August 2007 the Governor was assassinated by a roadside bomb as his convoy passed by. The assassins included a man known as Halim Bashir who was eventually sentenced to death for his role in the assassination. The Authority accepted each of these matters. It is unclear whether the Authority also accepted the next step in her claim which was that whilst the legal process leading to the execution of Halim Bashir was taking its course, the family of the dead Governor (that is to say, the family which included the First Appellant's husband) took their revenge upon the family of Halim Bashir by killing one of his brothers as part of a family vendetta. On the other hand, it is clear that the Authority accepted that in 2012 whilst being escorted from his cell to the scaffold Halim Bashir escaped from prison in Samawah, the capital of Al-Muthanna. 3 The First Appellant next suggested that as a result of her husband's family murdering one of Halim Bashir's brothers, Halim Bashir wished to pursue a family vendetta against the family including her and that he tracked her down to Qom in 2012 where he had harassed her by telling her he would take his revenge upon her before setting fire to her house. She claimed to have fled back to Iraq in response. Further, it was her fear of what Halim Bashir might do which provided her with the immediate impetus to leave Iraq with her three children not long after returning there. This she claimed to have done in August 2012. Whilst, however, the Authority accepted that she had left Iraq in August 2012 it did not accept any other aspect of this contention. In particular, it did not accept that she was even in Qom in 2012 (because, as I have said, it found she had returned to Iraq no later than 2007) and it concluded, based on some independent cultural materials, that Iraqi family feuds are pursued against the men in the opposing family and not the women. Perhaps a little incongruously, the Authority also thought it was unlikely that Halim Bashir would have driven 1,000km from Samawah in Iraq to Qom in Iran just to douse the Appellants' house with petrol. The incongruity arises potentially because the Authority had found the Appellants were not in Qom in 2012 having left not later than 2007 so this counterfactual reasoning may be problematic. However, the Appellants did not pursue such an argument and I mention it only for completeness. 4 The Authority expressed its conclusion in an emphatic fashion which despite its pithy expression of sentiment may not have been altogether consistent with what it had already said. Its conclusion was this: 'I conclude that the entire claim that they were of any interest to Halim Bashir is another fabrication'. If by referring to the 'entire claim' the Authority was intending to include the claims that her husband's brother was the Governor, that the Governor had been assassinated in 2007 by persons including Halim Bashir, or that Halim Bashir had been sentenced to death but had at the last moment escaped the scaffold in 2012, then this could not be literally correct because the Authority had accepted those aspects of her claim. One may accept, of course, that the reference to the Appellants' 'entire claim' must certainly have extended to those parts of the claim which the Authority explicitly rejected, for example, that Halim Bashir was interested in harassing her and, probably, that they had been in Qom in 2012. 5 Part of the present difficulty arises because there were some aspects of the Appellants' claims about Halim Bashir upon which the Authority did not make any findings. One of these has already been mentioned and is their contention that there was in fact a vendetta between the two families. The way in which the Authority reasoned assumed such a feud existed but found it would not extend to the First Appellant (because she is a woman). Consequently, there was no explicit finding that there was or was not a feud unless it is to be found in its omnibus rejection of the 'entire claim'. 6 The relevance of that observation is not to raise an issue calling for direct resolution but instead to set the scene for the point the Appellants now seek to make. As events should transpire, there may have been a little more to the First Appellant's claims about Halim Bashir than merely that he a bore a grudge against the Appellants' family and had escaped prison. When the First Appellant made her initial application for the protection visa it had been accompanied by a signed statement by her which included the information that Halim Bashir belonged to a militia known, with a number of variant spellings, as Asa'ib Ahl al-Haq. But this statement neither suggested that anything flowed from Halim Bashir's membership of this militia nor indeed threw much light on its nature. Other materials before the Authority suggested that Asa'ib Ahl al-Haq was backed by Iran and had connections with Hezbollah from which one may, I think, infer that it was a Shiite militia. I note this because the First Appellant is a Shiite. 7 The bare statement by the First Appellant that Halim Bashir was a member of Asa'ib Ahl al-Haq could have been relevant to more than one case. For example, perhaps an argument could have been advanced that Halim Bashir, having at his disposal his connections with Asa'ib Ahl al-Haq, could more effectively have pursued his vendetta against the First Appellant. Perhaps it could have been said that for some reason a Shiite militia might choose to harass as Shiite on the basis of some doctrinal difference within Shia Islam. Perhaps, bearing in mind the Appellants' claim to have been in Qom until 2012, it might have been said that as an Iranian backed militia Asa'ib Ahl al-Haq would be more influential in Qom and hence more useful to Halim Bashir in the pursuit of his vendetta. None of these arguments, however, can be discerned from the First Appellant's written statement. 8 As part of the process of making the initial decision as to whether the Appellants should be granted protection visas, the First Appellant was interviewed by the delegate. Shortly after that interview, a migration agent acting on her behalf submitted to the delegate a detailed submission about the Appellants' various claims. Under the heading 'Imputed Political Opinion' it was now said: Our clients fear retribution from the Asa'ib Ahl al-Haq, the militant group that Halim Bashir was part of. We submit that the Asa'ib Ahl al-Haq has strong ties to the Iraqi government and has developed a strong network throughout Iraq. We submit that [if] our clients were forcibly returned to Iraq, they would be persecuted by the Asa'ib Ahl al-Haq (AAH) due to their imputed political opinion. 9 Earlier in a summary part of the submission it was said that Halim Bashir and Asa'ib Ahl al-Haq would seek to persecute 'the rest of the family who are imputed to be supporters of the government'. 10 In its reasons, the Authority referred to the fact that Halim Bashir was a member of Asa'ib Ahl al-Haq when it was reciting the Appellants' claims but did not record any sort of contention as to what the significance of that fact was. The Appellants now submit that they had raised Halim Bashir's membership of Asa'ib Ahl al-Haq as part of their claims and that the Authority had failed to deal with that ancillary claim, thus leading it into jurisdictional error. The ground of appeal advanced in this Court also included that the primary judge's conclusion of a similarly articulated ground had led the Court below into error. 11 The two arguments which could potentially have arisen from the claim that Halim Bashir was a member of Asa'ib Ahl al-Haq were only these: (a) Halim Bashir was motivated by his vendetta against the family of the First Appellant's husband to harm the Appellants and Asa'ib Ahl al-Haq, for some unarticulated reason, would assist him in this; and (b) Asa'ib Ahl al-Haq would seek to persecute government supporters and the Appellants, as family members of the Governor who was assassinated, would be regarded by Asa'ib Ahl al-Haq as a government supporter. 12 Accepting that the Authority was obliged to consider any substantial clearly articulated argument relying on established facts or any claim which clearly emerged on the materials before it (AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 ('AYY17') at 509 [18]) I do not think either argument meets that standard. Argument (a) fails to do so because there was no articulation in the Appellants' claims of why Asa'ib Ahl al-Haq would assist Halim Bashir in the pursuit of his family vendetta. Even if such an argument had been clearly articulated, the fact that the Authority had concluded that the family vendetta would only be pursued against men has the consequence that even if it had been raised, the Authority would have rejected it. 13 As to argument (b), there was missing in the articulation of the claim any explanation of why Asa'ib Ahl al-Haq would persecute government supporters or why the Appellants would be regarded as government supporters. On the other hand, given the ambiguity of what the Authority meant when it said that it rejected the Appellants' 'entire claim' relating to Halim Bashir, if I had accepted that the second argument had actually been advanced I would not have concluded that it had been dealt with by that statement. 14 It is not necessary in that circumstance to form a concluded view on the Respondents' alternate arguments that even if the claim or claims based on Asa'ib Ahl al-Haq were substantial clearly articulated ones they did not rely on 'established facts' and did not engage AYY17. 15 It follows that the sole ground of appeal advanced by the Appellants is not made good. A second ground of appeal contained in the notice of appeal was not pursued at the hearing and does not call for consideration. The appeal must be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.