ELD19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1863

1. This is an Application for judicial review of a decision of the Immigration Assessment Authority (the Authority) dated 8 October 2019, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Safe Haven Enterprise visa (SHEV) (the visa).
2. For the reasons set out below, the Application must be dismissed.

1. The applicant is a citizen of Iraq. He arrived in Australia as an unauthorised maritime arrival on 8 May 2013.
2. On 29 August 2016, the Minister 'lifted the bar' pursuant to s 46a of the Migration Act 1958 (Cth) (the Act) and invited the applicant to apply for a protection visa.
3. On 30 December 2016, the applicant lodged an application for a SHEV.
4. On 24 July 2019, the applicant attended an interview with a delegate of the first respondent (SHEV interview).
5. On 26 August 2019, the delegate refused to grant the applicant the SHEV on the basis that the applicant did not satisfy s 36(2) of the Act.
6. On 29 August 2019, the delegate's decision was referred to the Authority for merits review.
7. On 8 October 2019, the Authority affirmed the decision not to grant the applicant the visa.

1. At [2] of the decision, the Authority considered the material before it, given by the Secretary under s 473CB of the Act.
2. The applicant's claims for protection are summarised at [3] as follows:
   • He is from Amarah, Maysan Province of Southern Iraq. He is a Sunni Muslim. He was born in 1989.
   • He faced intimidation from the Shia group and the government. He was interrogated by members of the Mahdi army on one occasion about his affiliations with other groups and on another occasion he was arrested by the government authorities who accused him of working against the government.
   • One of his brothers 'W' was killed by unknown organisations who accused him of working against the government and the Shia religious affiliates, and swearing at the Shia religious clerics.
   • Another brother, 'Q', was a police officer, who was also kidnapped, beaten and terrorised and threatened with death.
   • His family were accused of being supporters of Sunni organisations (such as Daesh), and accused of hiding bombs in the backyard.
   • His brother 'A' also left Iraq and went to Russia due to fear of sectarian violence.
   • His family in Iraq relocated to a different area in about early 2019 due to the intimidation they faced.
   • He fears harm from the government and Shia organisations, such as Mahdi army, because of his Sunni religion.
   • He will be accused of being a spy to the West and harmed because of his western mentality for having tattoos and time living in Australia.
3. At [4], the Authority accepted that the applicant was a Sunni Muslim and a citizen of Iraq. The Authority accepted that the applicant's family were still living in Amarah, Maysan, and that he would be returning to a Shia majority area in southern Iraq.
4. The Authority accepted that the applicant may have been interrogated by the Mahdi Army at a random checkpoint, noting that this was consistent with country information. However, it found that the incident was isolated and that the applicant did not experience any further problems with the Mahdi Army after that incident [8].
5. The Authority did not accept the applicant's claim that he was arrested [9]. The Authority noted that his account of the arrest was confusing. The Authority did not accept that the applicant had been accused of hiding weapons or explosives at the family home.
6. The Authority considered and was willing to accept the applicant's claim that his brother "W" was killed in 2012 and that he was a victim of sectarian violence [11].
7. The Authority did not accept that the applicant's brother "Q" had been arrested, detained or tortured, or that he had faced discrimination at work [17]. The Authority noted inconsistencies and implausibility in the applicant's account and the fact that Q continued to work as a police officer, despite the applicant stating that Q was being isolated at work [15]. The Authority found the applicant's evidence of his brother's kidnapping and interrogation to be "quite vague" [15].
8. The Authority was not satisfied that the applicant's family was accused of hiding bombs, or that they were targeted and threatened on account of their Sunni religion, noting that the applicant's evidence was vague and limited [19].
9. The Authority stated at [25], that it did not "accept that the applicant or his other family members were otherwise targeted, arrested or subject to threats or intimidations, or his brother Q faces ongoing isolation treatment at workplace".
10. At [21], the Authority accepted that the applicant's brother, "A", went to Russia, but it was not satisfied that he had experienced harm before his departure.
11. The Authority at [30] had regard to the applicant's claims that he would face intimidation and pressure because of his tattoos and that his westernised mentality would be questioned. The Authority accepted that the applicant obtained tattoos, but did not accept that he would be harmed due to those tattoos or on account of having returned from the West.
12. The Authority noted that country information from DFAT, UNHCR, and the European Asylum Support Office, as well as other sources referred to in the delegate's decision, indicated that Sunnis or Sunni males from formerly IS controlled areas could be perceived to have affiliations with the Islamic State (IS) [27].
13. The Authority found that the applicant was not from a former IS controlled area, and that DFAT country information suggested that outside of areas recently controlled by IS, Sunnis have faced harassment and discrimination in the form of more intrusive inspections at checkpoints, but otherwise faced a "low risk" of societal violence based on their religion [27] - [28].
14. The Authority did not accept the applicant's assertion that sectarian violence was still prevalent in Amarah or Maysan (in the south) but was not reported, and found the applicant lacked the profile of having affiliations with IS.
15. The Authority concluded that the applicant did not meet the requirements of the definition of refugee in s 5H(1) or s 36(2)(a) of the Act.
16. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iraq, there was a real risk that the applicant would suffer significant harm [34] - [36]. Therefore, the Authority found that the applicant did not meet s 36(2)(aa) [37].
17. Accordingly, the Authority affirmed the decision not to grant the applicant a protection visa.

1. The applicant advances two grounds of judicial review contained in an Amended Application filed with the Court on 3 October 2025. They are as follows:

The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that:

1. The Authority failed to consider an express integer of a claim for protection from return to Iraq and ignored important country information.
   1. The applicant claimed to fear persecution from the Iraqi Government authorities and Shi'ite organisation like the Mahdi Army because they would wrongly impute him to be a supporter of DAESH/ISIS (ie Islamic State (IS)) because he was a young Sunni male.
   2. The Authority did not address an express integer of this claim, made in his Protection visa application, that his profile as a young Sunni male put him at a higher risk of being imputed to be an IS supporter: "most young men my age and my religious affiliation... have this stigma of assumption that al (sic) of us are DAESH supporters just for the fact that we were not Shiite."
   3. The Authority did not address or cite this integer of the applicant's claims to fear harm as a Sunni, either in its recital of the applicant's claims at IAA [3] or elsewhere in its decision, including at IAA [26].
   4. The Authority avoided consideration of this integer by limiting its consideration of the profile of those who would be considered to have affiliations with IS exclusively to 'Sunni males' from the formerly IS controlled areas, and without differentiation as to age.
   5. In doing so the Authority ignored important contemporaneous country information from the UNHCR, cited by the delegate, of the profile of persons at risk of persecution being wrongly perceived to be IS affiliates or supporters. This profile included Sunni Arabs who had not lived in an area under IS control.

f. The UNHCR report cited country information thus:

"However, observers note that the ISF, affiliated forces and Kurdish security forces regularly impute an ISIS affiliation to individuals on the basis of broad and discriminatory, often overlapping criteria, including:

• Religious and ethic background (Sunni Arab or Turkmen);
• Sex and age (men and boys of fighting age);
• Family and tribal background, including place of origin; and/or
• Residency in a formerly ISIS-held area at the time of ISIS control. (footnotes omitted)

  1. The Authority's findings did not otherwise subsume the claimed integer of increased risk to the applicant as a young Sunni man, including because the Authority's conception of a profile of having affiliations with IS was limited to Sunnis or Sunni males from the formerly IS controlled areas.

  2. Nor did the authority address the claimed integer in accumulation with his other claims of his own experience of the Mahdi Army.

1. The applicant abandons Ground 1 of the Application filed on 11 November 2019.

1. Ground one, inclusive of its particulars, alleges the decision of the Authority was affected by jurisdictional error in that it failed to consider an express integer of a claim for protection from return to Iraq and ignored important country information.
2. This ground of review raises two issues for determination. Issue One is whether the Authority considered and rejected the applicant's claim to fear persecution from Iraqi Government authorities and Shi'ite organisations, like the Mahdi Army, because it wrongly assumed him to be a supporter of DAESH/IS based on the applicant being a Sunni male. Issue Two is a question of whether it was open to the Authority to rely on country information of its choosing.
3. The first issue in Ground One claims that the Authority failed to consider an express integer of a claim for protection. The applicant claimed to fear persecution from the Iraqi Government authorities and Shi'ite organisations like the Mahdi Army because they would wrongly impute him to be a supporter of DAESH/IS because he was a young Sunni male.
4. The Authority did not address an express integer of this claim, made in his SHEV application, that his profile as a young (emphasis added) Sunni male put him at a higher risk of being imputed to be an IS supporter.
5. The applicant raised issue with the Authority's decision as it did not address or cite this integer of the applicant's claims to fear harm as a Sunni, either in its recital of the applicant's claims at paragraph [3] or elsewhere in its decision.
6. The Authority avoided consideration of this integer by limiting its consideration of the profile of those who would be considered to have affiliations with IS exclusively to 'Sunni males' from the formerly IS controlled areas, and without differentiation as to age. This is evident at paragraph [27] of its decision, in which the Authority identifies the risk to Sunni males from the formerly IS controlled areas but concludes its assessment of the risk of imputation of having affiliations with IS by observing that the applicant was not from a former IS controlled area, as if this were an exclusive criterion for the risk. Paragraph [27] of the Authority's decision is as follows:

Recent country information from DFAT (2018), the UNHCR (2019) and the European Asylum Support Office (EASO) (2019) and other sources as referred in the delegate's decision indicates that Sunnis or Sunni males from the formerly Islamic State (IS) controlled areas could be perceived to have affiliations with this group. The applicant is not from a former IS controlled area. DFAT states that outside areas recently controlled by IS, Sunnis have faced harassment and discrimination in the form of more intrusive inspections at checkpoints, although it also assesses that in these areas Sunnis face a 'low risk' (means that 'DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern') of societal violence on the basis of their religion. As noted below, the activities of extremist Sunni groups such as IS in the south is now minimal and it has lost its battle in the north for nearly two years. I do not accept that applicant's assertion that sectarian violence is still prevalent in in Amarah or Maysan but are not reported.

1. In its decision, the Authority's only consideration of an increased risk to the applicant because of his age as a "young Sunni male" as opposed to "old people" was at paragraph [20] of its decision in relation to the claim of the special targeting in 2010/2011 of young Sunni males by Shias going about the neighbourhood to collect donations for Shia religious ceremonies.
2. Had the Authority recognised and dealt with the young Sunni male integer, there was a realistic possibility that its decision could have been different, including if it had regard to the UNHCR country information in particular.
3. The second issue in Ground One alleges that the Authority ignored important country information.
4. At [20] of its written submissions, the applicant contends that although the delegate did cite country information relevant to his claim's integer, from a comprehensive and recent report by UNHCR, it did not recite the integer of his Sunni claims that he would face harm as a perceived supporter of IS because of his young age.
5. The Authority ignored country information from the UNHCR of the profile of persons at risk of persecution for being wrongly perceived to be IS affiliates or supporters, including Sunni Arabs who had not lived in an area under IS control, like the applicant.
6. The applicant accepts that the absence of an express reference to evidence in the Authority's reasons does not necessarily mean that the evidence was not considered.
7. The applicant accepts that it is not necessary for the Authority to refer to every piece of evidence presented to it, but rather "the fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error". The applicant suggests the UNHCR information was important because it directly addressed the claimed integer outside the profile parameters used by the Authority.
8. The Authority's consideration of risk turned to the areas outside IS control, such as the applicants', but it did not include an assessment of risk of being perceived to be an IS supporter.
9. Subsequently, the applicant makes the submission that the Authority's findings did not otherwise subsume the claimed integer of increased risk to the applicant as a young Sunni man, including because the Authority's conception of a profile of having affiliations with IS was limited to Sunnis or Sunni males from the formerly IS controlled areas.
10. The Authority's citation of DFAT country information at paragraph [27] of its decision, that Sunnis in areas outside IS control "face a low risk of societal violence on the basis of their religion" did not address the increased risk of false imputation of IS support that the applicant claimed he would face as a young Sunni male. The DFAT report did not address this claim of increased risk. Thus, the claimed integer of increased or particular risk was not subsumed in the Authority's finding at paragraph [27] of the Authority's decision, where it did not accept that unreported sectarian violence was still prevalent in Amarah or Maysan.
11. The Authority found that the applicant lacked a profile of having affiliations with IS. The applicant contends that this finding could only subsume the integer had the Authority identified and assessed the claimed integer. The applicant claims that, instead, the Authority's assessment of the profile did not extend beyond persons who were from formerly IS controlled areas and thereby ignored the UNHCR country information cited by the delegate, which was not so limited.
12. Ground Two is a mere statement that the applicant abandons Ground One of the originating application filed on 11 November 2019.
13. This ground does not raise a jurisdictional error.

1. On the first issue in Ground One, the first respondent submits the Authority considered and rejected the applicant's claim for the reasons that follow.
2. With reference to paragraph [3] of the Authority's Decision, it is clear the Authority did consider the applicant's claims, stating "[h]is family were accused of being supporters of Sunni organisations (such as Daesh)". On a fair and plain reading, it is apparent the Authority considered the applicant's claim that his family were accused of being IS supporters due to their Sunni religion.
3. It was open to the Authority to make the finding it did, on the country information before it, at paragraph [27], where it stated:

Recent country information from DFAT (2018), the UNHCR (2019) and the European Asylum Support Office (EASO) (2019) and other sources as referred in the delegate's decision indicates that Sunnis or Sunni males from the formerly Islamic State (IS) controlled areas could be perceived to have affiliations with this group. The applicant is not from a former IS controlled area...

1. This country information provides a direct and rational answer to the applicant's claims. The Authority had regard to and considered the UNHCR Report titled "Persons Wrongly Suspected of Supporting ISIS", the European Asylum Support Office report titled "Sunni Perceived to be ISIL collaborators or sympathisers", and the DFAT Country Information Report for Iraq titled "Sunnis". There would have been no need for the Authority to have engaged with this country information if it were not considering the applicant's claim to be at risk due to being an imputed IS supporter on account of being a young Sunni male.
2. The Authority did not limit its analysis to Sunni males from formerly IS controlled areas, contrary to the applicant's submissions at [27] stating "that the Authority "avoided consideration of this integer by limiting its consideration of the profile of those who would be considered to have affiliations with IS exclusively to 'Sunni males' from the formerly IS controlled areas, and without differentiation as to age".
3. The Authority made findings based on country information which disposed of the applicant's claim and did not fall into jurisdictional error by doing so.
4. On the second issue in Ground One, the first respondent opposes the applicant's contention that the Authority "ignored contemporaneous country information from the UNHCR, cited by the delegate, of the profile of persons at risk of persecution for being wrongly perceived to be IS affiliates or supporters. This profile included Sunni Arabs who had not lived in an area under IS control, like the applicant". Rather, the Authority did consider the UNHCR report and Authority refers to it at several points in its reasons.
5. On the issue of assessment and weight given to the Authority's choice of country information, this was a matter for the Authority and its preference for DFAT's country information was open to it.
6. The extent the applicant relies on the delegate's views regarding country information is irrelevant, given the High Court decision in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 (DVO16). In DVO16 at [22], it was made clear that the Authority is "to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met". As such, the Authority is to undertake a de novo consideration of the merits of the decision referred to it, and what the delegate made of country information has no bearing on what the Authority makes of that information.
7. The Authority's findings at [27] of its decision did not limit its analysis to areas formerly controlled by IS and does dispose of the applicant's claim that sectarian violence was not prevalent in the applicant's home area. The first respondent contends this is a direct rejection of such claim.
8. Ground Two is not raised in the first respondent's written submissions. However, as stated above, this ground is a mere statement that the applicant abandons Ground 1 of the originating application filed on 11 November 2019.
9. This ground does not raise any jurisdictional error in the Authority's decision.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:

... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451.
2. Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
3. It is well settled that the country information and the weight given to that information is a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
4. Reasons of a tribunal or the Authority are not to be scrutinised "with an eye finely attuned to error". It is plainly not necessary for the Tribunal or Authority to refer to every piece of evidence and every contention made by an applicant in its written reasons. Nor is it necessarily required to provide reasons of the kind that might be expected of a Court of law: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FR 593 at [46]. Further at [47], the Court said as follows:

The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

1. Ground One consists of two discrete claims. The first is that the Authority did not consider the claim that the applicant was at a particular risk due to his sex and age, that being a man of fighting age. This risk factor was mentioned in the UNHCR report of May 2019, "International Protection Considerations with regard to People Fleeing the Republic of Iraq" at page 59.
2. Firstly, it is to be noted that the UNHCR report was specifically considered by the Authority at [27], [29], and [31] of its decision, along with a DFAT Report from 2018 and a European Asylum Support Office Report of 2019.
3. At [27], the Authority found, based on the totality of the country information available, that the relevant risk factors related more to Sunni males from formerly IS controlled areas, those being in the north of Iraq. Sunnis from outside these areas faced some harassment and discrimination in the form of more intrusive inspections at checkpoints, but these were considered 'low risk'. The applicant comes from an area in southern Iraq that was never under IS control.
4. At [3], the Authority specifically referred to a generalised claim that the applicant's "family were accused of being supporters of Sunni organisations (such as DEASH)", but ultimately rejected that claim.
5. Whilst it is true that the Authority made no specific reference to the applicant being at a particular risk based on being a Sunni male of fighting age, I do not accept that this particular integer was overlooked. Rather, I accept the respondent's submission that this integer was subsumed into the findings of greater generality, that neither the applicant nor his family were at risk of harm due to being imputed as IS or DAESH supporters on the basis of their Sunni religion.
6. Whilst I accept that there is specific mention in the UNHCR report of a risk factor to male Sunnis of fighting age, I am satisfied that the Authority considered a variety of country information from three different sources. That risk factor was one of four factors identified in the UNHCR report, the others included family and tribal background and residency in formerly IS held areas. The applicant did not meet all of those criteria.
7. As set out above, the choice of country information and the weight to be given to it were matters for the Authority. I am not satisfied that the Authority ignored the UNHCR report, rather, it extracted relevant information from it and balanced it against the other two sources of country information. It was in the context of a particular risk that the applicant might face in his geographical area, which was of greater importance than a general risk factor of being a Sunni male of fighting age. In this regard, I note that prior to coming to Australia, the applicant had only faced one instance where he had been subject to a greater degree of interrogation at a Mahdi Army checkpoint, but was able to proceed without further issues.
8. I am satisfied that the conclusion arrived at by the Authority, that the applicant lacked a profile, even if he was a Sunni male of fighting age, was open to it based on the totality of the information before it and for the reasons it gave.
9. The sole ground of judicial review does not have any merit.

1. In these circumstances, the Application must be dismissed.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.