FEDERAL COURT OF AUSTRALIA

DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders dated 15 June 2017 of the Federal Circuit Court of Australia be set aside, save for order 3 in relation to costs incurred below.

3.    The second respondent’s decision dated 21 September 2016 be set aside and the review referral be remitted to it for reconsideration according to law.

4.    The first respondent pay the appellant’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS AND GRIFFITHS JJ:

1    We have had the advantage of reading Logan J’s reasons for judgment in draft. We agree with his Honour’s reasons for granting the appellant leave to raise ground 1(d). We also respectfully agree with his Honour's reasons for dismissing all the grounds in the amended notice of appeal apart from ground 1(d). For the following reasons, we consider that this ground should be upheld.

Ground 1(d)

2    For convenience, ground 1(d) is as follows:

1.    That the primary judge erred in finding that the Immigration Assessment Authority (“ÍAA”) did not commit a jurisdictional error in finding at [38] that the real chance of harm to the applicant on the basis of his father’s profile did not relate to the southern governorates of Muthana, Quadissiya, Missan and Thi-Qar.

Particulars

…

d)    That the IAA failed to consider an integer of the applicant’s claim as contained in his submission at AB205.

3    The reference to AB205 is a reference to part of a post-interview submission dated 11 July 2016, which was prepared by the appellant’s migration agent following the appellant’s interview with the delegate, a copy of which is in the Appeal Book. The stated purpose of the submission, which totalled 19 pages, was to “provide further information in support of [the appellant’s] application and respond to a number of concerns raised during the interview”.

4    The relevant part of the post-interview submission for the purposes of ground 1(d) is as follows (without alteration):

Our client fears that if he is to return to Iraq, he will be targeted by both Shia and Sunni militia. It is important to take in to account the position held by his father as a chairmen of the Independent Media. Given our client absence in the last four years his return in a tribal community such as Iraq will be noticed instantly. As our client stated at the interview, Shia militia, is deeply entrenched in various arms of government and have high levels of intelligence. He therefore fears that irrespective of where he is within Iraq the militia will be able to locate him and kill him.

5    The following features of this passage should be noted:

(1)    there was an express fear of harm from both Shia and Sunni militia if the appellant was returned to Iraq (and not just to Baghdad);

(2)    it was claimed that, because of the appellant’s father’s high profile in the media, although the appellant had been absent from Iraq for four years, his return to Iraq (and not just Baghdad) would be noticed immediately partly because Iraq is a “tribal community”;

(3)    it was stated that Shia militia are deeply entrenched in various arms of government and have high levels of intelligence; and

(4)    in these circumstances, the appellant feared that, no matter where he was in Iraq (whether in Baghdad or elsewhere), the militia would be able to locate him and kill him.

6    The relevant principles guiding the consideration and determination of a contention that there has been a failure to assess the claims of a review applicant under Pt 7 of the Migration Act 1958 (Cth) (the Act) were not disputed by the parties. Nor was there any contest that these principles also apply to the review process under Pt 7AA of the Act. The relevant principles are now well settled and are reflected in the following authorities. In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 (Dranichnikov), a majority of the High Court found that the Refugee Review Tribunal had erred in misdiscribing the scope of the protection visa applicant’s claim to fear harm. This involved a misdescription by the Tribunal of the particular social group which the applicant claimed to be a member of and which provided part of the basis for his claim to fear persecution if he were returned to Russia. The applicant described the relevant class as “businessmen who publicly criticised and sought reform of the law enforcement authorities to compel them to take effective measures to prevent crime in Vladivostok and to protect Russian businessmen who protested”. In contrast, the Tribunal determined the review on the basis that the applicant feared persecution because of his membership of a particular social group which was constituted by “businessmen in Russia”. Justices Gummow and Callinan held at [24] that a failure to respond to each “substantial, clearly articulated argument relying upon established facts” constituted a denial of natural justice (to similar effect, see Kirby J at [88]-[89] and Hayne J at [95]).

7    Further guidance is to be found in the Full Court’s decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE) at [58], where it is stated that the Refugee Review Tribunal “is required to deal with the case raised by the material or evidence before it” and that this may involve the Tribunal having to determine a case which has not been clearly articulated by an applicant, but arises on the basis of evidence and material before the Tribunal. The Full Court accepted that, in such a case, the unarticulated claim must be raised “squarely” on the material available to the Tribunal and that the Tribunal’s review obligation extends to a claim which is not expressly advanced but is “apparent on the face of the material before the Tribunal”. The Full Court emphasised that such a claim “will not depend for its exposure on constructive or creative activity by the Tribunal”.

8    The Full Court provided further guidance in NABE at [63]:

63    It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ - Applicant WAEE (at [47]). But as the Full Court said in WAEE (at [45]):

‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision.’

…

9    Each case necessarily depends on the particular facts and circumstances in which the issue arises, however, Allsop J (as his Honour then was) provided further helpful general guidance in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15]. In addressing a claim which was not expressly made but arose from the material before the Tribunal, his Honour said in a passage which was subsequently approved by the Full Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; 219 FCR 287 at [70]:

15    … From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

10    The integers of the appellant’s relevant claims are set out at [5] above. It is notable that the claims as articulated in the passage at AB 205 were expressed by reference to the appellant’s return to Iraq generally and the likelihood of his return becoming known to Shia and Sunni militia because of his father’s profile and the political connections of the Shia militia and their high levels of intelligence gathering. Later in the same post-hearing submission, the appellant’s agent submitted that the appellant feared harm if he were returned to Iraq due to the perception that he is an infidel and a person who, because of his work at the Saddam military base, would be perceived to be a supporter of US Forces and be opposed to the Shia militia. The appellant’s agent made the following additional submission, which appears at AB 210:

Baghdad being tribal community (sic), his return will be immediately known in the area. Furthermore the fact that his father is a well-known person in the area will further elevate his risk profile.

11    It may be accepted that this constituted a narrower claim, which appears to have focussed primarily on the possibility of the appellant’s return to Baghdad itself and his father’s profile in that area, as well as other matters. There remained, however, the broader claim articulated earlier at AB 205.

12    In our respectful view, and applying the guiding principles outlined above, the appellant “squarely” raised a claim that he had a risk of harm on account of his father’s media profile and the Shia militia’s intelligence gathering capabilities and connections, no matter where he returned to in Iraq. This was the broader claim which the IAA had to address in order to discharge its statutory review function under Pt 7AA.

13    For the following reasons, we do not consider that this claim, although squarely raised by the appellant, was addressed by the IAA. We have arrived at this view notwithstanding an appreciation of the need to avoid an overzealous review of the IAA’s reasons and with an eye keenly attuned to detecting error (see Minister for Immigration and Ethnic Affairs v Wu Shu Liang [1996] HCA 6; 185 CLR 259).

14    The IAA’s detailed reasons are divided into various sections, one of which occurs under the heading “Applicant’s claims for protection”. In a series of dot-points under that heading on pages 3 and 4 of the IAA’s reasons for decision, the IAA summarises what it considered to be the appellant’s claims. They include a dot-point in which reference is made to the appellant’s father owning car yards and real estate agencies and “is chairman of an independent news media division that falls within the government in Iraq”. In a later dot-point on that page (at [AB 252]), the IAA refers to the appellant’s former work at the military airport, his perceived association with the Americans, that “he is seen by Sunni and Shi (sic) militias as a supporter of the Americans and as an infidel” and that, if he returned to Iraq, he may be forcibly recruited or killed by those militia. Later in that same dot-point, the IAA states:

Shia military groups are entrenched in many arms of the government and will be able to locate and kill him no matter where he lives in Iraq…

15    In the next dot-point, the IAA further summarised its understanding of the appellant’s claims (at [AB 253]):

Baghdad is a tight-knit tribal community and people would become aware of his return if he returned to Baghdad. His father’s status means that news of his return would receive even more attention and this would put his life at serious risk.

16    After setting out its factual findings in [8]-[20], which includes findings that the IAA accepted the appellant’s claims that he was attacked and seriously injured in two separate incidents involving the militia because he was working at the military airport, the IAA set out detailed reasons under the heading “Refugee assessment”. This section comprises the IAA’s assessment of various claims perceived by it to have been raised by the appellant. The IAA’s assessment is set out at [21] to [47] of the IAA’s reasons for decision. The assessment is set out under various headings, namely “Harm as a person perceived to be an infidel and supporter of the U.S. military”; “Harm as a Shia and a result of the security situation in Iraq”; “Harm related to his father’s profile” and “Harm as a failed asylum seeker returning from a western country”.

17    It is desirable to set out [36]-[38] of the IAA’s reasons, which appear under the third of those headings (unamended and footnotes omitted):

Harm related to his father’s profile

36.    I have accepted that the applicant’s father has a profile in Baghdad as a wealthy individual who has links to the media and government. I have also accepted that his brother was kidnapped for ransom as a result of his father’s wealth and media-related position. The applicant has not provided any evidence regarding the identity or motivations of his brother’s kidnappers. As indicated above, Sunni and Shia militias in Iraq are reported to be commonly involved in violent criminal acts including kidnapping, and their actions may have a mixture of religious and criminal motivations.

37.    Although there is no evidence before me to suggest that the applicant has personally been subject to any previous threats or harm related to his father’s profile, having regard to the country information discussed above and the past kidnap of the applicant’s brother, I cannot rule out that the applicant could face similar harm in Baghdad where the applicant’s father’s profile may be known. I consider the chance that the applicant would be harmed on this basis to be small, but nevertheless real. On this basis, I am satisfied that the there is a real chance that the applicant would be harmed on this basis in Baghdad.

38.    Pursuant to s.5J(1)(c), in order for the applicant to be found to have a well-founded fear of persecution, the real chance of harm must relate to all areas of Iraq. The chance of harm to the applicant on this basis is related to his father’s profile in Baghdad. I do not accept that his father’s wealth and media role would be known outside of Baghdad and there is no evidence before me to suggest this would be the case. I am satisfied that the real chance of harm to the applicant on this basis does not relate to the southern governorates of Muthanna, Quadissiya, Missan and Thi-Qar.

18    Under the fourth hearing (i.e. “Harm as a failed asylum seeker returning from a western country”), the following paragraphs appear (unamended and footnotes omitted):

42.    I am not satisfied that there is a real chance that the applicant would be harmed on the basis that he is a failed asylum seeker who has lived in Australia, or as a result of his 'western' behaviour.

43.    I have considered whether the applicant, as a Shia from Baghdad who worked on a military base, is the son of a wealthy father who holds a media-related position connected to the government, has a western lifestyle and would be returning as a failed asylum seeker, faces a real chance of serious harm. I am not satisfied that any combination of the applicant’s circumstances, including the chance of harm due to his Shia faith and the chance of harm due to general violence in Iraq would combine to expose the applicant to a real chance of harm outside of Baghdad.

44.    The applicant has pointed to the involvement of the Shia militia in many arms of the government. He fears that when he registers his residence with local officials in a new area of Iraq, the officials will share his details with both Sunni and Shia militia. As a result, the applicant would therefore not be safe anywhere in Iraq. There is evidence that the Shia militia have been integrated into to the Iraqi (ISF) and the political process. However, it does not follow from this that all Shia militia have access to all Iraqi government information, or even if this was the case, that Iraqi government information in all locations would include readily accessible or consolidated information about the applicant’s life in Baghdad, including his former employment or his father’s wealth.

45.    I do not accept that knowledge of the applicant’s employment seven years ago, his father’s profile and his return from the west as a failed asylum seeker would be readily available and combined outside of Baghdad. I am satisfied that the real chance of harm to the applicant on this basis does not relate to the southern governorates of Muthanna, Quadissiya, Missan and Thi-Qar.

46.    I am not satisfied that the applicant has a well-founded fear of persecution on under s.5(1) of the Act.

19    Significantly, the IAA never accurately describes the integers of claim made by the appellant’s agent which appear in the passage set out at AB 205 (see [4] above). The IAA’s analysis of the appellant’s father’s profile in [36]-[38] of its reasons for decision do not engage with the claim made at AB 205 that, because of the intelligence and contacts of the Shia militia in Baghdad and the father’s high profile, news would get out if the appellant returned anywhere in Iraq. This claim did not turn on the father having a high profile outside Baghdad or the appellant returning only to Baghdad. Rather, it turned on the claims regarding the father’s notoriety in Baghdad, his son’s association with him, together with the Shia militia’s intelligence and the activities of the militia in southern Iraq, against the background of the two past serious incidents involving the appellant and militia groups in which he was injured.

20    Only some of these claims were addressed by the IAA in [36]-[38] of its reasons. Significantly, the IAA made no reference there to the appellant’s claims, which were to the effect that, if he returned to Iraq, his return would be noticed instantly, particularly because Iraq was a “tribal community” (i.e. the sectarianism of the Shia and Sunni religious groups and associated militia) and that because of his father’s profile and the connections and intelligence gathering capabilities of the Shia militia, word would spread about his return and, no matter where he was in Iraq, the militia, particularly the Shia militia, would be able to locate him and kill him.

21    Nor do we consider that the appellant’s claims at AB 205 were addressed by the IAA in [42]-[46] of its reasons for decision (or elsewhere in those reasons). The focus of the IAA’s analysis in these particular paragraphs is on the appellant’s claim that his return to Iraq would be leaked by authorities to the militia when he registered his residential address with the authorities, as he would be required to do. This is a different point to the claims squarely raised at AB 205.

22    In sum, we consider that the IAA did not deal with the claims which were squarely raised on the appellant’s behalf and which are recorded at AB 205. It should be noted that ground 1(d) was not advanced before the primary judge, but the appellant obtained this Court’s leave to raise the ground. Although the Minister opposed the grant of leave, it was not contended that there was any prejudice to him as long as he had an opportunity to file supplementary submissions on the matter, which he did.

Conclusion

23    For these reasons, we would allow the appeal and order the Minister to pay the appellant’s costs of and incidental to the appeal. The orders of the Court below should be set aside, save for the order as to costs because the only ground on which the appellant has succeeded on the appeal is a ground which was not run below. The IAA’s decision dated 21 September 2016 should be set aside, and the review referral remitted to the IAA for reconsideration according to law.

Associate:

Dated:    17 April 2018

REASONS FOR JUDGMENT

LOGAN J:

24    The appellant is a citizen of Iraq. On 29 June 2016, he applied under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a Safe Haven Enterprise (Subclass 790) Visa (SHEV). That application was refused by a delegate of the Minister for Immigration and Border Protection (Minister) on 5 August 2016. In turn, that decision came to be reviewed by the Immigration Assessment Authority (Authority). On 21 September 2016, the Authority decided to affirm the Minister’s delegate’s decision.

25    The appellant then sought the judicial review of the Authority’s decision by the Federal Circuit Court. On 15 June 2017, that court dismissed with costs the appellant’s judicial review application. It is from that order of dismissal that the appellant has appealed to this Court. The Minister is the only active party respondent to the appeal. Quite properly, the Authority has filed a submitting appearance.

26    The grounds of appeal, as amended, are as follows:

1.    That the primary judge erred in finding that the Immigration Assessment Authority [Authority] did not commit a jurisdictional error in finding at [38] that the real chance of harm to the applicant on the basis of his father's profile did not relate to the southern governorates of Muthana, Quadissiya, Missan and Thi-Qar.

Particulars

a)    The primary judge erred in finding that the country information that the Authority referred to supported its finding at [38].

b)    The finding was made in the absence of evidence and/or was not supported by some probative material or logical grounds.

c)    The Authority failed to consider whether modern communication and the effects of information sharing through social media and the internet meant that the father's profile could be known throughout Iraq.

c)    The Authority failed to consider an integer of the appellant’s claim as contained in his submissions at Appeal Book page 205 [amendment formulated in the course of the appellant’s oral submissions].

2.    The primary judge erred in finding that when the Authority did not commit a jurisdictional error when it was considering whether it was reasonable for the applicant to relocate pursuant to s36(2B) in failing to ask itself the correct question namely, whether , acting reasonably, the applicant would in fact relocate.

3.    The primary judge erred in finding that the Authority did not commit a jurisdictional error when in considering whether it was reasonable for the applicant to relocate pursuant to s36(2B) in that his Honour failed to consider the question of whether the applicant could reasonably be expected to remain in those areas of Southern Iraq identified by the Authority.

4.    The primary judge erred in finding that when the Authority did not commit a jurisdictional error in considering whether it was reasonable for the applicant to relocate pursuant to s36(2B) the Authority in that his Honour failed to take into account relevant evidence and/or relevant considerations.

Particulars

a)    The actual persecution that the applicant had suffered and the feared persecution, noting that the Authority had accepted key claims made by the applicant about past persecution and instances of serious harm;

b)    The trauma of the actual and feared persecution; and

c)    The fact he had a partner and a child who were Australian citizens.

27    Save in one respect, these grounds are substantially similar to the grounds of review pressed, unsuccessfully, by the appellant before the primary judge. To the extent that they are not (Ground 1 (d)), the Minister is not subject to any relevant prejudice. In the circumstances of this case, not the least of which are the claimed and administratively accepted, successive, traumatic injuries sustained by the appellant in Iraq, the interests of justice, in my view, dictated that he be granted leave to amend his notice of appeal.

28    The Parliament has been active in recent years in its prescription of the criteria for the grant of a visa to those who would seek asylum in Australia on the basis of a claim for refugee status. It is now necessary to give primacy to that statutory prescription, as opposed to the text of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967.

29    Materially, one such form of statutory prescription is the provision for a SHEV. Such visas are a particular class of temporary protection visa: s 35A(3A) of the Act. Their purpose is “both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia”: s 35A(3B) of the Act. They are one of a number of classes of protection visa for which the Act now provides: s 35A(1). The criteria for the grant of any class of protection visa include those set out in s 36: s 35A(6)(a) of the Act. Materially, the Act provides:

By s 36 –

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

By s 5J –

Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:    For membership of a particular social group, see sections 5K and 5L.

(2)    A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:    For effective protection measures, see section 5LA.

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person's identity or conscience; or

(b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

(iv)    conceal a physical, psychological or intellectual disability;

(v)    enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)    alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)    the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)    Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person's life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person's capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

(6)    In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

By s 473DB(1) –

Immigration Assessment Authority to review decisions on the papers

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

Ground 2

30    It is convenient first to deal with Ground 2. That is because it was pleaded and, before us, pressed by way of a formal submission solely so as to preserve a position.

31    Ground 2 takes up a view expressed by Kirby J in SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 (SZFTV), at [31] that the High Court’s earlier judgement in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 that it was impermissible to consider in the abstract what it might be reasonable for an individual to do if returned to the country of nationality to the exclusion of considering how the particular individual might be treated if returned. In context, it was submitted for the appellant that this meant that it was, “impermissible to superimpose on a person an obligation to act reasonably by relocating within their country, rather than asking whether, acting reasonably, the person would in fact relocate”.

32    The view expressed by Kirby J in SZFTV is at variance with that expressed by Gummow, Hayne and Crennan JJ at [14] in their joint judgement in that case. Their Honours stated, in relation to the notion of relocation as a step in concluding that a visa applicant’s claim of persecution was not well-founded, that “as a general proposition to be applied to the circumstances of the particular case”, it was open to consider whether, “it may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”. In SZFTV, Gummow, Hayne and Crennan JJ took up a conclusion earlier reached by them in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV) at [32] that what was necessary was “consideration of what might reasonably be expected of the appellant with respect to his ‘relocation’” if returned to his country of nationality. The remaining member of the Court in SZFTV, Callinan J, did not express agreement with the view of Kirby J.

33    The appellant criticised the primary judge for not engaging “sufficiently” with the equivalent proposition in a ground of review that the question which the Authority ought to have asked was, whether, acting reasonably, the appellant would in fact relocate? The primary judge had dismissed this on the basis that it was contrary to the text of s 36(2B)(a) of the Act (set out above). So it is. Further, the view of Kirby J is contrary to that of Gummow, Hayne and Crennan JJ who, in each of SZATV and SZFTV, comprised the majority of the court. The appellant acknowledged as much in the course of oral submissions; hence his disposition to press the point solely to preserve a position. Given that the underlying proposition had never commanded majority support in the High Court and was contrary to Parliament’s prescription in s 36(2B)(a) of the Act, it was sufficient for the primary judge to have dismissed it just on the basis that it was contrary to statute. His Honour might have noted that what the statute enshrined was in harmony with the views of Gummow, Hayne and Crennan JJ but he was not obliged to do this.

34    Ground 2 must fail.

Ground 3

35    While the appellant did not abandon Ground 3, the emphasis in his oral submissions was on Grounds 1 and 4. That makes it convenient also to consider and dispose of Ground 3 before turning to what became the principal grounds upon which the appellant relied.

36    Consideration of Ground 3 requires some elaboration of the Authority’s conclusions and then of the way in which the primary judge dealt with the equivalent judicial review ground.

37    Based on country information, the Authority concluded that the southern governorates of Iraq “are significantly safer for Shia Iraqis than other areas of Iraq … [such that] … relocation to the southern governorates of Iraq would generally not be inconsistent with protection obligations” (Reasons, para 34, AB, p 258). The Authority accepted that the appellant faced a real chance of serious harm in Baghdad “on the basis of his Shia faith, or in the form of kidnap or other ill treatment due to his father’s wealth and status” (Reasons, para 51, AB, p 261). The Authority then made explicit reference to s 36(2B) of the Act (Reasons, para 52, AB, p 261). Having so done, the Authority reiterated a finding earlier made by it that the appellant would not face a real chance of serious harm in the southern governorates “for reason of his Shia faith, his father’s wealth and status, his former employment and his return as a failed asylum seeker from the West” (Reasons, para 52, AB, p 261). The Authority made explicit reference to the existence of an international airport in Basra which provided access to the south of Iraq (Reasons, para 58, AB, p 262). Having made reference to further country information and to the appellant’s employment and travel history, as well as to his claim that he had never lived outside Baghdad or lived with his family inside Iraq and would face economic hardship if he relocated to the south of Iraq, the Authority concluded (Reasons, para 61 and 62, AB, p 262):

61.    The evidence suggests that the applicant is a self-sufficient and resourceful individual with a number of skills, who has been able to successfully make his way in different countries over a number of years. He has a range of portable skills that will enable him to compete for employment opportunities in a new location. If he was unable to find employment, I am satisfied that his father would be able and willing to support him financially as he has done in the past. As a man in his thirties who has lived alone and in different countries over a number of years, I am satisfied that the applicant is capable of making a life for himself in a new location without a family or social network.

62.    I accept that life in the identified southern governorates of Iraq may be in many respects less comfortable than his former life in Baghdad. However, having considered the totality of the applicants individual circumstances in the context of the information before the delegate regarding conditions in Iraq, I am satisfied that it would be reasonable for the applicant to relocate to the southern governorates ... I am therefore not satisfied that there is a real risk that he will suffer significant harm in Iraq.

38    In dismissing the equivalent judicial review ground (Ground 4), the primary judge stated:

41.    In relation to Ground 4, [the appellant] submitted that the Authority should have expressly made a finding as to whether or not the [appellant] could remain in southern Iraq in relation to the issue of complementary protection. On the face of the Authority’s reasons the Authority correctly identified the relevant law in respect of complementary protection and relocation and correctly applied the relevant law and took into account the [appellant’s] personal circumstances. There was no obligation on the Authority to make an express finding using language referring to the applicant's ability to remain.

42.    The language used by the Authority reflects a proper consideration of the applicant's personal circumstances in determining whether it was reasonable for the applicant to relocate under s. 36(2B). No jurisdictional error is made out by Ground 4.

39    Against this background, the appellant contended that, given the appellant's family connections in Baghdad, his claim that he had never lived without his family in Baghdad, as well as his concerns about economic hardship, the Authority ought to have considered whether it was reasonable for the appellant to have “remained confined” to those parts of southern Iraq that the Authority had identified.

40    But the appellant, who had the benefit of representation by a migration agent in developing his claim for a SHEV before the Minister’s delegate, had never, even as an alternative, put that, even if contrary to his primary position, that it was not reasonable for him at all to relocate to southern Iraq, that any such relocation could only ever be temporary or transient such that his fear of persecution ought to be regarded as extending to the whole of Iraq. In these circumstances, the Minister’s reliance on the following observation made by the Full Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [123] –[124] (SZMCD) is apposite and offers a complete answer to this ground of appeal:

123.    The Tribunal considered relocation in a framework dictated by the evidence and claims advanced to it by the appellant. It was not obliged to consider all theoretical possibilities.

124.    The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship [2007) HCA 40; (2007) 233 CLR 18 at [24); and SZFDV v Minister for Immigration and Citizenship [2007) HCA 41; (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa [1994) FCA 1253; 52 FCR 437 at 442-443, especially at 443C-D.

“Remaining confined” was never part of the “framework” set by the appellant. Ground 3 therefore fails.

Ground 4

41    In terms of principle, Ground 4 was a variant of Ground 3. That makes it convenient next to consider and dispose of Ground 4.

42    Though three particulars are given under Ground 4, it was the last of these (particular (c)) which was afforded emphasis in the appellant’s submissions, especially that the appellant had a child who was an Australian citizen. The appellant submitted, “the fact that the appellant had a child who had lived in Australia its entire life was relevant to the question of how reasonable it is for the appellant to relocate to a southern region in Iraq”. Viewed in the abstract, there may be much to recommend this submission. But that is neither how the appellant formulated his claim nor developed it at interview prior to the Minister’s delegate’s decision. This subject, too, did not feature in the “framework” against which the Authority was obliged to assess the reasonableness of relocation. The “framework” did include the actual persecution and trauma accepted to have been experienced by the appellant. But these were expressly considered by the Authority. Thus, the observation made in SZMCD, quoted above, is likewise fatal to Ground 4.

Ground 1

43    It became increasingly clear, as Ground 1, as originally pleaded, was developed in the course of the appellant’s oral submissions, that the appellant’s real complaint was that the Authority had failed to address an asserted real chance of harm on the basis that the appellant’s father's profile related not just to Baghdad but to the whole of Iraq, including the southern governorates. Put another way and in language which has gained acceptance in earlier authorities, the Authority had failed to consider an integer of the appellant’s claim for protection.

44    Given the late introduction of this further ground of appeal, procedural fairness dictated that the Minister and the appellant be afforded time after close of oral submissions to make supplementary written submissions in relation to Ground 1(d).

45    Ground 1(d) is imprecisely worded. As developed in the appellant’s oral and written submissions and by related reference to the appeal book (AB, p 205), I understood the ground to be that one integer of the appellant’s claim was that his fear of persecution arose from his being the son of a person, his father, who occupied a particular, senior position in government such that, if returned to Iraq, there was a real risk that he would suffer significant harm by both Sunni and Shia militia, irrespective of where he was in Iraq, such was his father’s position and profile, the tribal nature of the community in Iraq and the deep entrenchment in various arms of government of the Shia militia and its related ability to access “high levels of intelligence”. In my view, circumspection is necessary in relation to the position in government occupied by the appellant’s father, lest greater precision afford an informative part of a factual matrix which might serve to reveal the appellant’s identity.

46    The principle sought to be invoked by the appellant is clear enough. A failure to respond to a substantial, clearly articulated basis of claim for a protection visa amounts to a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov). In this particular regard, there is no relevant distinction to be drawn between the review jurisdiction consigned by the Act to the Authority and that consigned in other types of case to the Administrative Appeals Tribunal. As Dranichnikov itself illustrates, the application of that principle in the circumstances of a given case does not always admit of a ready consensus as to whether a claim as made does or does not include a particular integer. The precise identification of the basis of a claim may be rendered more difficult by the fact that, for many asylum seekers, their first language is not English, if indeed they have any command of English at all. Even so, before the Authority can embark on a consideration of whether it is satisfied on the material before it that the criteria in s 36 of the Act are met, it must correctly identify the basis upon which an applicant claims that they are met.

47    The appellant made a detailed statement in support of his application for a SHEV. In that he stated (Appeal Book, p 174):

41.    Baghdad is very tribal and tight community. If I am to return after such a long time people will definitely know of my return. My father holding such a significant position the news of my return will receive even more attention which would put my life at serious risk. [sic]

This aspect of his claim was developed by the appellant’s migration agent in a detailed submission made to the Minister’s delegate after the appellant had been interviewed. In that submission, it was stated (Appeal Book, p 205):

Our client fears that if he is to return to Iraq, he will be targeted by both Shia and Sunni militia. It is important to take into account the position held by his father ... . Given our client absence in the last four years his return in a tribal community such as Iraq will be noticed instantly. As our client stated at the interview, Shia militia, is deeply entrenched in various arms of government and have high levels of intelligence. He therefore fears that irrespective of where he is within Iraq the militia will be able to locate him and kill him.

[Emphasis added]

48    Other features of the material before the Authority were:

    A reference to the appellant’s father being [the head of a national organisation] as well as conducting a business in Baghdad (invalid protection visa (PV) application Appeal Book, p 25).

    A repeat of the reference to the appellant’s father being [the head of a national organisation] (invalid PV Application, Appeal Book p 36).

    “Why I cannot relocate”: inter alia, “our family has been in Baghdad for generations”, with no mention of the appellant’s father’s profile (invalid PV application, Appeal Book, p 82).

    In the appellant’s SHEV application, at [34]-[37]: father’s profile and related associated risks - no geographic indicators (Appeal Book, p 174).

    Also in the appellant’s SHEV application (at [47]), “As a person from Baghdad I cannot live outside Baghdad”.

    Also in that submission and with reference to the appellant, “Baghdad being tribal community, his return will be immediately known in the area. Furthermore the fact that his father is a well-known person in the area will further elevate his risk profile”; a claim directed at Baghdad expressly (Appeal Book, p 210).

49    In the aftermath of Dranichnikov, in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58], the Full Court observed that there was an obligation to respond not only to an expressly made claim but also to one “squarely” raised on the material and continued:

58.    The use of the adverb “squarely” … indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

50    With respect, this observation is useful for its reminders that an integer of a claim may arise by necessary implication, even though not expressly stated and that necessary implication is not to be found in attributing to an applicant a claim which does not so arise but which the Tribunal or, as the case may be, Authority, would have raised if acting for that applicant. The same may be said of a similar observation made by Allsop J (as his Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, at [15]:

15.    A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytic exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

Useful though these reminders are, what remains is a task of English comprehension in the circumstances of the way in which a particular claim is cast.

51    In the circumstances of the present case, it is by no means an easy task to identify the metes and bounds of the appellant’s claim, insofar as it rested on his father’s profile. However, having considered the descriptions of the claim progressively made by or on behalf of the appellant, especially as revealed in the passages to which I have referred above, my view is that this particular integer of the claim was based on an asserted profile which the appellant’s father had in Baghdad but, related to that, a claim that, such was the infiltration by the Shia militia of the government and their related high levels of intelligence, that profile was such that, irrespective of where the appellant was located in Iraq, his presence would be known and he would be targeted. In context, that is how I read the words which I have emphasised in the passage quoted above from p 205 of the Appeal Book.

52    In my view, that is how the Authority understood and then addressed this aspect of the appellant’s claim, as is revealed by the following passage in the Authority’s reasons (at paras 44 and 45:

44.    The applicant has pointed to the involvement of the Shia militia in many arms of the government. He fears that when he registers his residence with local officials in a new area of Iraq, the officials will share his details with both Sunni and Shia militia. As a result, the applicant would therefore not be safe anywhere in Iraq. There is evidence that the issue here militia have been integrated into the Iraqi (ISF) and the political process. However, it does not follow from this that all Shia militia have access to all Iraqi government information, or even if this was the case, that Iraqi government information in all locations would include readily accessible or consolidated information about the applicant's life in Baghdad, including his former employment or his father's wealth.

45.    I do not accept that knowledge of the applicant's employment seven years ago, his father's profile and his return from the West as a failed asylum seeker would be readily available and combined outside of Baghdad. I am satisfied that the real chance of harm to the applicant on this basis does not relate to the southern governorates … .

53    It follows that the Authority did not constructively fail to exercise the review jurisdiction consigned to it. Ground 1(d) is not made out, in my view.

54    Ground 1(c) seems to me to have been premised on just such an understanding of the appellant’s father’s profile. I regard it as premised on the basis that, though the father had a high profile in Baghdad, modern communications were such that this profile would be known throughout Iraq. However this may be, the contention based on modern communications has its foundation in the ingenuity of counsel, not in the material before the Authority. For that reason, it was not necessary for the Authority to address it.

55    Further, in my view, the conclusions to which the Authority came in addressing this aspect of the appellant’s claim were logically and rationally expressed and reasonably open on the material which was before it.

56    For these reasons, I would dismiss the appeal.

Associate:

Dated:    17 April 2018