EWZ18 v Minister for Home Affairs

Federal Court of Australia|2019-11-15|Before: Murphy J

The application to the Federal Circuit Court 13 The appellant then sought judicial review of the IAA decision in the Federal Circuit Court. His amended application made on 23 January 2019 alleged the following three grounds: 1. The Immigration Assessment Authority ("the IAA") considered whether the applicant faced a real chance of serious harm as a Sunni if required to return to his home city of Najaf. The IAA found at [20]-[21] that the applicant did not face a real chance of serious harm. The IAA made two errors in connection with its findings as follows: a) The IAA did not consider the position for the applicant into the reasonably foreseeable future. b) The IAA found at [21] that if the applicant "were to return to Najaf governorate there is a real chance the applicant will experience low level discrimination… because of his Sunni faith". But the country information on which the IAA relied referred to "a high level of societal discrimination. The IAA made a finding of fact ("low level discrimination") on a significant matter which was contrary to the country information relied on by the IAA ("high level of societal discrimination") without an explanation for the variance from the country information. The IAA's finding lacked an evidence and intelligible justification, and was thereby irrational or illogical in a manner which constituted jurisdictional error. 2. The IAA failed to consider the applicant's protection visa claims cumulatively. This was a jurisdictional error. 3. The applicant claimed he drank alcohol and faced a risk of serious harm for this reason if required to return to Iraq. The manner in which the IAA disposed of this claim by the applicant was different to the manner in which the Minister's delegate disposed of the claim. In the circumstances, it was legally unreasonable for the IAA not to exercise its power under s 473DC of the Migration Act 1958 (Cth) to invite the applicant to comment on the different way in which the IAA was considering disposing of the claim. 14 The application was heard on 13 February 2019. The primary judge delivered judgment that day and dismissed the amended application with costs.

THE APPEAL TO THIS COURT 15 On 4 March 2019 the appellant filed a notice of appeal to this Court. The appeal was listed for hearing on 12 August 2019. 16 The notice of appeal alleges two grounds of appeal which essentially reiterate the first and second grounds raised before the primary judge. 17 The appellant was self-represented in the appeal. Notwithstanding orders made on 20 May 2019 requiring him to file an outline of written submissions not later than 10 business days before the hearing, he did not do so. His oral submissions were of little assistance to the Court in terms of identifying any jurisdictional error by the IAA. He said only that the IAA did not assess his case correctly, that his parents got him out of Iraq because he was threatened, and that he could not go back to Iraq because if he did he will be killed. He said that if the Court looks at his case properly it would reach a different view.

Ground 1 18 Ground 1 of the appeal alleges: The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority erred in its decision, as there was no express evaluation of the cumulative assessment of persecution in a manner which constituted jurisdictional error. The Federal Circuit Court erred in dismissing this ground of review. 19 In dealing with the same ground below the primary judge said (at [31]-[34]): In relation to ground 2, Mr Zipser [Counsel for the appellant] took the Court to paragraph 22 of the Authority's reasons and contended that there had been a claim that had to be addressed by the Authority in respect of the cumulative consideration of the applicant's claims. Paragraph 22 referred to the applicant's Safe Haven Enterprise visa interview and the submissions made by the applicant's representative about his personal circumstances, the country information concerning Sunnis being discriminated against in employment, that the chances of employment would be minimal, and that the cumulative effect of the applicant's persecution should be considered. The Authority proceeded to make a finding that there is not a real chance the applicant would be denied the capacity to earn a livelihood such that it would threaten his capacity to subsist. On a fair reading, that was a finding made in the context of a consideration of the applicant's circumstances cumulatively. The Authority on the face of its reasons, made dispositive findings in respect of each of the applicant's individual claims, and made express finding as to the applicant not having any particular profile or being of adverse interest to the Mahdi Army when he departed Iraq in 2013. On a fair reading of the Authority's reasons as a whole under the Refugees Convention, the Authority made dispositive findings of the applicant's claims, including the applicant's concern as to the cumulative effect of the applicant's alleged persecution. The only level of potential harm the Authority accepted was in relation to a low-level discrimination in the nature of verbal abuse. It was found not to rise to the level of serious harm. That was a finding made in the context of the applicant's family continuing to live in Najaf and not having suffered adverse treatment apart from verbal abuse. That the Authority had considered the applicant's claims cumulatively under the Refugees Convention is also supported by paragraph 32 of the Authority's reasons. Given the findings made by the Authority in the circumstances of the present case, there is no requirement for the Authority to make any express finding in respect of the submission concerning the alleged cumulative effect of the applicant's persecution as the findings made by the Authority were dispositive of the applicant's claims. The reference to the applicant not meeting the requirements of the definition of refugee and not meeting the criteria under s 36(2)(a) of the Act, on a fair reading of the Authority's reasons as a whole, were dispositive findings in respect of the applicant's claims. No jurisdictional error as alleged in ground 2 is made out. 20 Obviously, there may be a combination of factors that combine to create the profile of a person who meets the criteria for a protection visa, and (as I said in MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [47]) there can be no real question that the IAA was obliged to assess whether the cumulative effect of each integer of the appellant's claim was such as to create a profile that satisfied either the Convention or the complementary protection criteria in the Act: see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [7] (Spender, Merkel and Allsop JJ). The IAA was required to deal with the whole of the case raised by the material or evidence before it. 21 I consider that, on a fair reading of the IAA's reasons, it did not make its various findings in isolation of one another when arriving at its ultimate decision. The IAA's reasons refer to the appellant's claims cumulatively: (a) (at [6]) by stating that the appellant "fears if he returns to Iraq the Mahdi army will kill him because of his Sunni faith, because he formerly sold popular music, and because he drinks alcohol"; (b) (at [22]) in expressly acknowledging the appellant's submission that the cumulative effect of the claimed persecution should be considered; (c) (at [32]) in concluding that the appellant "does not face a real chance of harm from the Mahdi army because he formerly sold Iraqi popular music, because his niece and an acquaintance were kidnapped; because of violence in the Najaf governorate; because he is an asylum seeker or returnee from a Western country; or in terms of his ability to subsist in Najaf"; and (d) (at [34]) in accepting that "on return to Najaf the appellant may experience low level discriminations, such as verbal abuse, for reason of his religion and consumption of alcohol". 22 I am not persuaded that it is appropriate to infer that the IAA did not consider the appellant's claims cumulatively, and I can see no appealable error in the primary judge's dismissal of this ground of the application below. It is appropriate to dismiss this ground of appeal.

Ground 2 23 Ground 2 of the appeal alleges: The appellant contended in the Federal Circuit Court that the IAA erred in not assessing the risk in the near foreseeable future to the applicant, there was no express reference to this issue. The Federal Circuit Court erred in dismissing this ground of review. 24 As I have said, notwithstanding an order requiring him to do so the appellant did not file written submissions. His oral submissions do not particularise the paragraphs of the IAA's reasons upon which he relies for this ground of appeal and he submits only that the IAA said that he did not face a risk of being killed if he returned to Iraq which showed that it did not understand his case. He says that if he goes back he will be killed, and if that had not been the case he would have already gone back to his parents and his family in Iraq. 25 He submits that he had consistently stated that he fled Iraq because he feared being killed or harmed even if he stopped selling music CDs, and that the situation now in Najaf was even worse. He submits that if you do not "walk along with them in their religion they will make lots of problems for you… they will kill you. Especially with religious festivities. That happens every year." He says that when he had the music stall and even after he left it he was being "targeted and followed" by the Mahdi army. 26 The Minister submits, and I accept, that the appellant made no reference to being "targeted and followed" in his statutory declaration or in his submissions to the IAA. The transcript of the SHEV interview does however show the following exchange between the appellant and the delegate: Delegate: Did anything happen during that month [between the applicant closing the stall and leaving Iraq]? Appellant: No but if I would go out they would kill me. They probably didn't know that I was at home because that son of my father's friend as I told you, they tortured him. Delegate: And after you left Iraq, did anything happen with your family? Appellant: No but my niece was kidnapped from the front of our house, from the house. … Delegate: But your brothers? Your father. They weren't approached after you left Iraq? Appellant: They looked for me. They used to come from the area because I went against the laws. Delegate: Where were they looking for you? Appellant: They looked for me in the area but they didn't, they can't see me, I'm not there. Delegate: How do you know they were looking for you? Appellant: My father and brother. Delegate: How does he know they're looking for you? Appellant: They used to ask at the, like, they used to ask about [Appellant's name redacted] when they used to come to the area in a place, it is like a coffee shop where they drink Shisha. 27 The IAA considered that claim (at [17]). On the basis that the Mahdi army had confronted the appellant repeatedly over a lengthy period without physically assaulting him or seizing or destroying his CDs, and had instead repeatedly asked him to pack up his stall, the IAA did not accept that he had been threatened by members of the Mahdi army even if he closed his stall, nor that they had approached him in the month that he remained at home after he closed his business, nor that they had enquired as to his whereabouts after he departed Iraq. 28 In relation to this ground in the hearing below, the primary judge said the following (at [27]-[30]): Mr Zipser submitted that the Authority had focused on the situation of the applicant at the point of time that he returns to Najaf, but had not considered the situation before the applicant in the reasonably foreseeable future. The Authority's reasons are not to be read with a keen eye for error. The Authority's reasons do refer to the future in paragraph 21, referring to "if he were to return to Najaf governorate" and in the reference to "I do not accept he will be forced", all of which are consistent with the Authority applying the correct test as to the reasonably foreseeable future. The Authority in its reasons, correctly identified the relevant law, which was incorporated as an annexure "Applicable Law". The Authority's reasons expressly refer to the reasonably foreseeable future in paragraph 28. I do not accept that the Authority's reasons should be read as if only addressing the applicant's situation at the point of time on return to Najaf. The language of the Authority referring to the future should not be read with a keen eye for error. There was no failure by the Authority to take into account the reasonably foreseeable future. In the adverse findings made ultimately in paragraph 29 of the Authority's reasons under the Refugees Convention, the Authority took into account the findings that had been made relevantly in paragraph 21, the reference made back to paragraph 15 of the Authority's reasons, and the reference to the DFAT Country Information Report supporting a low level of societal discrimination and violence. In the circumstances, the finding in paragraph 21, referring to not being satisfied that such low level discrimination rises to the level of serious harm was a finding that cannot be said to lack an evident and intelligible justification. Mr Zipser in that regard, referred to the finding in paragraph 20, as well as the acceptance in paragraph 21 that there is a chance if the applicant were to return to Najaf governorate, that he will experience low level discrimination. Mr Zipser's submissions in that regard omitted the reference to the Authority's reasons describing low level discrimination as verbal abuse. There is no illogicality or legal unreasonableness in the Authority's finding that discrimination of a low level, such as verbal abuse, does not rise to the level of serious harm. No jurisdictional error as alleged in ground 1 is made out. 29 It is unnecessary to recite the IAA's statements with regard to the risk the appellant might face on return to Iraq. It is though noteworthy that (at [15]) the IAA discussed the relevant country information that broadly concerned the risk of harm to Sunnis in Iraq, and the nature of and geographical location of that harm. The IAA referred to a report by the UK Home Office which concluded that they did not appear to be a consistent or systematic risk of human rights abuses to Sunnis at the hands of Shia militia in the southern governorates of Iraq. In general, the UK Home Office concluded that Sunnis in the southern governorates are not subject to treatment which would be persecutory or cause serious harm, although depending on their particular profile some Sunnis may be at risk. The IAA also referred to a report by the Department of Foreign Affairs and Trade ("DFAT"), which it described as high level and general in nature, that provided a less favourable assessment concerning the situation for Sunnis. Overall, DFAT assessed that official and societal discrimination and violence towards Sunnis was increasing and tolerance for Sunnis in non-Sunni areas had declined. It assessed that Sunnis located in non-Sunni areas such as Shia areas of the south face a high level of societal discrimination and violence. 30 The IAA acknowledged the tension between two items of country information that provided different assessments of the risk and reconciled them in the manner it identified. It concluded that the DFAT report offered an overall assessment of the level of violence feared by Sunni Iraqis generally in Shia areas, while the UK Home Office report recognised that Sunnis in the south of Iraq "may face a real chance of harm depending on their individual circumstances". The choice of and the weight to be given to the different parts of country information is a matter for the decision-maker, not the Court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin and Lander JJ). 31 At [20] the IAA turned to consider whether the appellant would be more generally at risk of harm as a Sunni living in Najaf. By reference to country information it concluded that southern Iraq has been and remains more secure than other parts of the country; that while there are isolated attacks in the southern governorates the country information does not suggest that those attacks are aimed at Sunnis; the country information does not support that Shia militias are systematically attacking Sunnis in the southern provinces; and that as a consequence of being one of Iraq's holiest Shia cities, security is particularly tight in Najaf and it has suffered very little violence in recent times. The IAA concluded that there was a lower risk of harm in the Najaf governorate from both sectarian or general violence and said that having regard to the nature and frequency of incidents, the level of risk was not such that the IAA was satisfied that it constituted a real chance. 32 At [21] the IAA accepted that if the appellant were to return to Najaf there is a real chance he will experience low level discrimination such as verbal abuse because of his Sunni faith, but it was not satisfied that such low level discrimination rose to the level of serious harm. The IAA noted that the appellant did not claim that his family who have continued to live in Najaf had suffered any adverse treatment apart from verbal abuse. 33 While the IAA did not, in terms, refer (at [15], [20] and [21]) to any risk of harm the appellant faced in the reasonably foreseeable future if he returns to Iraq, on a fair reading of its reasons I would not infer that it restricted its consideration to the appellant's situation at the point of time of any such return rather than looking to the reasonably foreseeable future. First, its findings in those paragraphs are consistent with it having considered the risk by reference to the reasonably foreseeable future. Second, it referred to the correct test at [28] in the context of considering the risk of harm he faced as an asylum seeker and returnee from a Western country. 34 On a fair reading of the IAA's reasons as a whole, it is appropriate to infer that it approached the question of the risk the appellant would face on the basis that the risk in the reasonably foreseeable future could be predicted by reference to what had happened to him in the past, by reference to country information concerning the situation in Iraq, and by reference to the fact that his family who continued to live in Najaf had not suffered any adverse treatment apart from verbal abuse. That is an orthodox approach which was open to it: see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1990) 191 CLR 559 at 574-575. 35 The appellant did not establish that the IAA fell into jurisdictional error in the manner alleged, and I can discern no appealable error in the primary judge's approach. It is appropriate to dismiss this ground of appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

MURPHY J: 1 In this proceeding the appellant, a male citizen of Iraq of Sunni Muslim faith, appeals the judgment of the Federal Circuit Court delivered 13 February 2019 (EWZ18 v Minister for Home Affairs & Anor [2019] FCCA 321). The primary judge dismissed his application for judicial review of the decision of the Immigration Assessment Authority (the IAA) made 23 August 2018 to affirm a decision of the delegate of the first respondent, the Minister for Home Affairs, not to grant the appellant a Safe Haven Enterprise visa. 2 For the reasons I explain it is appropriate to dismiss the appeal.

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