FEDERAL COURT OF AUSTRALIA

DUX16 v Minister for Immigration and Border Protection [2018] FCA 1529

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the Appellant to rely upon the argument that the Authority failed to consider the risk of harm to him in the reasonably foreseeable future in respect of his second claim.

2.    The Appellant be directed to file and serve an appropriately Amended Notice of Appeal within seven (7) days.

3.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

PERRAM J:

1.    Introduction

1    This is an appeal from the Federal Circuit Court. It concluded that the Appellant’s application for orders quashing an earlier decision of the Immigration Assessment Authority (‘Authority’) should be dismissed with costs. The Authority had affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection not to grant him a protection visa. The basis upon which the Appellant argued that the Authority’s decision should be set aside was that it had made a jurisdictional error. In a carefully considered and thorough set of reasons the Federal Circuit Court concluded that no such error had been demonstrated in the reasoning of the Authority: DUX16 v Minister for Immigration [2017] FCCA 2161.

2    On appeal the Appellant does not take issue with any aspect of the Federal Circuit Court’s reasoning and seeks to advance a different, although related, argument to that which was advanced in the Court below. In both that Court and on the hearing of this appeal, the Appellant was legally represented. Counsel for the Minister objected to the fresh argument being entertained by this Court, particularly in light of that fact. Both sides agreed that before the fresh argument can be entertained, the Appellant must first obtain leave: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at 342-348 [63]-[83].

3    Grounds 1 and 2 of the Notice of Appeal were not pressed. The ground now pursued is set out in Ground 3. It is in these terms:

‘His Honour erred by failing to deal with the Appellant’s Ground 7 below and concluding that the Second Respondent [the Authority] had engaged in questionable analysis, but the matter could simply be determined by stating that "the interpretation of country information is a factual issue for the Authority”.’

4    Counsel for the Appellant accepted that this was not well-drafted but pointed out that the Appellant did not have a solicitor on the record at the time he filed the notice of appeal. Counsel urged the Court to take a benevolent approach to its construction. Ground 7 in the Court below involved a contention that the Authority had made a jurisdictional error in the making of two findings. The first of these was that the Appellant did not face a real chance of persecution which was said to be inconsistent with certain country information. The second was the Authority’s apparent acceptance that he did face a risk of harm but its determination that the risk was ‘remote’. The arguments now presented on the Appellant’s behalf relate to these topics but are put in a different manner.

5    There is no point in deciding whether the current form of Ground 3 of the Notice of Appeal in fact extends to the arguments which are now put. Given that it is accepted that these arguments were not put below and that leave is necessary to raise them in this Court, it is inevitable that any application to amend the Notice of Appeal would stand or fall with the application for leave to raise the fresh argument. If leave to pursue the fresh argument is granted, however, the Notice of Appeal will need to be amended.

2.    Factual background

6    Because the factors which are relevant to the issue of whether leave should be granted include the merits of the argument it is necessary set out in some detail the background to the matter and the factual issue which arises.

7    The Appellant was born in Al Rifai in Dhi Qar province in Iraq in 1974. Al Rifai is about 300km south of Baghdad. The Appellant is a member of the Al Badri tribe which is religiously diverse and includes both Sunni and Shia Muslims although Shias form the majority. His immediate family is, however, all Sunni. Whilst he was a boy his immediate family had a falling out with the rest of the family due to differing religious beliefs. In 2005 his family moved to Najaf, where there are no members of the Al Badri tribe, and which is also in southern Iraq. In Najaf the Appellant operated a modest stall from which he sold cigarettes, sweets and some groceries.

8    Najaf is a significant Shia centre. It has the Imam Ali Mosque which is the burial site of Ali, who was the son-in-law of the Prophet and is regarded by Shia Muslims as the rightful successor to the Prophet. The Mosque is a primary symbol behind the Sunni-Shia divide in Iraq. Followers of news and current affairs will also recall the ferocious Battle of Najaf in which Iraqi forces (assisted by the United States) fought against messianic Shia insurgents in January 2007.

9    The Appellant, as a Sunni, therefore found his family and himself in a deeply Shia area in a country with a history of Shia-Sunni sectarian violence. Why does this matter? There are, as it happens, observable differences between the prayer habits of the Sunni and the Shia. At hearing, Counsel for the Minister dismissed these as insignificant but I do not share his lack of curiosity. Perhaps the most obvious observable difference is that whilst in prostration during prayer the Sunni place their heads directly upon the prayer mat or the floor whereas the Shia rest their heads on a piece of naturally-occurring material such as a plank of wood or a hard clay tablet.

10    The Appellant claimed that the different way he and his family prayed made the fact that they were Sunni immediately obvious to the Shia in Najaf. The consequence of this difference was, so he said, that he suffered a number of indignities at the hands of the Shia: they verbally abused him at his stall; they threw rotten vegetables at him; the owner of his stall charged him a higher rent than the Shia were charged; and his son was refused entry to a local kindergarten. More alarming probably was the practice of the families of Shia insurgents who had been killed in action visiting his family to tell them they would be killed in reprisal. Eventually he had to abandon his stall. He worked for a while in a water bottling factory but was sacked when the Shia manager saw him praying and realised he was a Sunni. After that he collected garbage for the Najaf council but was paid only half his wages, again, because he was Sunni.

11    The Appellant left Iraq on 9 August 2012 and flew to Malaysia. From Malaysia he was taken by people smugglers to Indonesia and thence Australia. He arrived in Australian waters in October 2012. The trip from Malaysia to Australia cost him US$9,000 which is a great deal of money for a garbage collector from Najaf on half wages. At some point, which the evidence does not disclose, he was released from immigration detention.

12    As an unauthorised maritime arrival the Appellant was not permitted to apply for a protection visa unless the Minister determined that he could. Three years after his arrival – on 18 May 2015 – the Minister did so. On 8 December 2015 the Appellant applied for a Temporary Protection Visa. On 12 September 2016 he was interviewed by a delegate of the Minister. A few weeks later the application was refused. On 2 December 2016 the Authority affirmed that conclusion.

13    The Authority accepted much of the Appellant’s account of his experience in Najaf. It was satisfied that he might well experience societal discrimination: in being paid less than the Shia and in being on the receiving end of what it referred to as low level abuse (i.e. vandalisation of property, having rotten vegetables thrown at one and verbal abuse). It did not accept that this was ‘serious harm’ which is the kind of harm required by s 5J(4)(b) of the Migration Act 1958 (Cth) in cases such as these. In relation to the proposition that he might be subjected to assaults, threats or attacks the Authority relied upon a report prepared for the United Kingdom Home Office which concluded that, in general, a Sunni would not face a real risk of persecution or serious harm in the southern provinces of Iraq.

3.    First Proposed Argument

14    The proposed ground of appeal relates to a well-known principle of refugee law. This is that in assessing whether an applicant has a well-founded fear of persecution for a Convention reason the decision-maker must assess the applicant’s situation not only in the present but also into the reasonably foreseeable future: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 279. Thus even though there may be no immediate risk of harm to an applicant for a Convention reason if returned to the country of origin, nevertheless changes in circumstances may in some cases be readily foreseeable and this may, in turn, justify the conclusion that there is a well-founded fear of persecution for a Convention reason. The circumstances before the Full Court in Minister for Immigration and Multicultural Affairs v Jama [1999] FCA 1680 (‘Jama’) are instructive. That case concerned the fluid situation then existing in Somalia after the initial phases of its long-running civil war. In addressing the submission that the Tribunal should have considered the fluid nature of the situation in Somalia, Branson and Sackville JJ said this:

‘28    The Tribunal recorded the substance of this submission, but did not address it. The reasons of the Tribunal demonstrate that it considered the evidence touching on the extent and purpose of the fighting between clans in north-west Somalia at and before the date of the decision. But there is nothing to show that the Tribunal directed its attention to the circumstances likely to prevail in north-west Somalia (the self-declared Republic of Somaliland) in the foreseeable future.

29    In particular, the Tribunal did not consider whether the fluid situation it described (even if relatively stable by Somali standards), might change so as to expose Ms Jama to a real chance that she would suffer serious harm by reason of her clan membership. As evidence cited by the Tribunal itself showed, the Republic of Somaliland in 1997 had rejected the so-called Sodere agreement which called for the reunification of Somalia. It was under pressure from other Somali factions to renounce its bid for secession. In these circumstances, bearing in mind that the relative stability in north-west Somalia involved “continuing skirmishes” between clan fighters, it might have been thought that the prevailing conditions were not guaranteed to continue unchanged. And if they changed for the worse, Ms Jama might have been thought to be at risk of serious harm inflicted by reason of her membership of her sub-clan.’

15    The Authority referred to two pieces of country information. The first was a report prepared by the Department of Foreign Affairs and Trade (‘DFAT’) in February 2015. It reported that Shia militias has been executing Sunni males in, inter alia, the southern provinces of Iraq. The second was the UK Home Office report referred to above which was dated August 2016. The Authority said this about the two reports:

‘53    DFAT’s assessment in 2015 was that Sunnis in Shia-dominated provinces faced a high risk of violence from Shia armed opposition groups As discussed, the UK Home Office report on Sunni Arabs in Iraq, published in August 2016, assessed that, in general, a Sunni will not face real risk of persecution or serious harm in the southern provinces.

54    I have carefully considered the applicant’s individual circumstances, including his minority status in his area of Najaf, and the range of information before me. In assessing the different perspectives offered by the information before me, and in particular by DFAT and the UK Home Office, I have had regard to the fact that the UK Home Office report was published approximately 18 months after the DFAT report and addresses the particular issue of the chance of harm to Sunni Arabs in Iraq as a result of persecution on the basis of their faith. I therefore place weight on that report and while I accept that it may be possible the applicant will be harmed on the basis of his Sunni faith in Najaf, I find the chance that the applicant would be harmed to be remote and less than the real chance of persecution required to meet s.5J(1)(b).’

(footnotes omitted)

16    The Appellant’s proposed point is that paragraphs [53] and [54] do not reveal that the Authority considered the plainly fluid nature of the situation or, consequently, whether there might be a risk of harm in the reasonably foreseeable future. It was submitted on the Appellant’s behalf that just such a submission had been made in the interview with the delegate who made the original decision. However, whilst a submission that ‘things change overnight between the Shias and Sunnis’ was made orally it was a submission made in relation to the position in Baghdad and Al Medain but not Najaf.

4.    Leave should be granted to raise the first argument

17    The Minister’s response to the Appellant’s argument was, that although the Authority had not expressly asked itself the question, the Appellant’s reading was not a fair construction of the its reasons. In this regard, the Minister drew attention to the fact that elsewhere in its reasons the Authority had asked itself this very question so that the absence of any reference to it in [54] should be seen as an merely the absence of a particular catchphrase.

18    To understand this submission it is necessary to know that the Appellant had claimed to have a well-founded fear of persecution for three reasons: first, on the basis that he would be exposed to societal discrimination because he was a Sunni; secondly, that he would be assaulted, threatened or attacked because he was a Sunni; and, thirdly, that he would be harmed by armed Sunni extremists (such as Daesh) who, apparently, have been violent towards moderate Sunnis. In relation to both the first and third claims the Authority expressly considered the risk of harm both now and in the reasonably foreseeable future. This it did with an identical sentence at both [45] and [62] (‘I am not satisfied that there is a real chance now, or in the foreseeable future, that the applicant would be harmed on this basis.’). It did not make such an express finding in relation to the second claim. One reading of [54] suggests, and the Appellant now submits, that the Authority did not ask itself that question in relation to his second claim.

19    The Minister did not accept this. He submitted that [54] ‘is obviously considering the future situation’. But this does not necessarily entail, just as it did not entail in Jama, that the Authority had turned its mind to the consequences of the fluidity of the situation. I return to this shortly after considering the scope of the Authority’s obligation to set out its reasons.

20    Section 473EA(1)(b) of the Act requires the Authority to set out the reasons for its decision in writing. Section 25D of the Acts Interpretation Act 1901 (Cth) provides that where, as here, an Act requires a tribunal or body to give written reasons (howsoever expressed) then ‘the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based’. In circumstances where the reasons of a tribunal do not refer to a particular fact, provisions like s 473EA have been held to entitle a judicial review court to draw the inference that the tribunal did not regard the fact as material: see, e.g., Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at 346 [69]. A judicial review court is, of course, not bound to draw that inference.

21    I do not think that s 25D or Yusuf assist in this case because the matter to which the Authority did not refer was not a fact but rather a legal question which it was required to answer. If the question of harm in the reasonably foreseeable future was a fact to which s 25D applied then the outcome of applying authorities such as Yusuf would be the drawing of an inference that the Authority had concluded that an assessment of the risk of harm to the Appellant in the reasonably foreseeable future was not a material matter. This seems an unlikely outcome when the Authority applied precisely that test to the Appellant’s two other claims. This suggests that the question is not itself a fact to which s 25D can apply. Alternatively, if I be wrong about that, then I would decline to draw the inference that Yusuf would permit, that is, the inference that the Authority did not regard the question as material. I would do so because the Authority expressly asked itself the question in other parts of its reasons which shows that it considered that the question was material.

22    A more fruitful way of approaching the matter may be to observe that the question of harm in the reasonably foreseeable future is a mandatory relevant consideration for the Authority. The failure of the Authority expressly to refer to the issue can therefore be indicative of one of three scenarios:

(a)    the Authority failed to take into account a mandatory relevant consideration;

(b)    the Authority, in fact, took the consideration into account as it was obliged to do but, by an oversight, failed to mention the matter in its reasons; or

(c)    read fairly the Authority’s reasons should not be construed as having failed to pose and to answer the question.

23    The Minister essentially contended for proposition (c) (and possibly (b)) and reminded the Court of the principle in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 287 that the reasons of an administrative tribunal are not to be ‘construed minutely and finely with an eye keenly attuned to the perception of error’. In support of the argument the Minister pointed out (as I have already noted) that the Authority was aware of the existence of the question. In disposing of the two other claims made by the Appellant it had both asked the question and answered that the Appellant did not, in relation to those topics, face a risk of harm in the reasonably foreseeable future. From this one could infer, and I would infer, that the Authority knew of the need to pose and answer the question of whether the Appellant faced a risk of harm for a Convention reason in the reasonably foreseeable future.

24    It is necessary now to say something of the two reports referred to by the Authority on the issue of Sunni safety in southern Iraq. The first was the DFAT report of February 2015. According to it, Shia militias were claimed to have targeted young, mainly Sunni males in execution style killings since mid-2013, primarily in central Iraq but with instances in southern Iraq. DFAT also reported that over 20 young Sunni men were killed in Basra. Their bodies had attached to them notes saying they had been killed in retaliation for bombings in Basra (a port city in southern Iraq). This was said to have occurred in late 2013. The other report was prepared by the British Home Office and was released in August 2016. It was a report into the position of Sunni Arabs in Iraq. The report concluded that, in general, a Sunni would not face a real risk of persecution or serious harm in the southern provinces.

25    Paragraph [54] of the Authority’s reasons may be understood as concluding that the UK Home Office Report trumped the DFAT Report because it was more recent or possibly because it was more focussed on southern Iraq. It did not suggest that the DFAT Report was otherwise unreliable. That may in turn suggest that the Authority did not perceive that the close contemporaneity of the reports gave rise not just to the question of which report most accurately described the current situation facing Sunnis in southern Iraq but also whether between them they suggested a fluid situation inherently susceptible to change. On the other hand, the Authority made no finding that the situation was fluid, which may suggest that it did not consider that the fluidity of the situation in southern Iraq disclosed by the reports, if at all, was material. This is an important difference to the Tribunal decision considered in Jama.

26    The difficulty for the Appellant in the current matter is that the Authority made no finding that the situation in Najaf or Southern Iraq was fluid. Further, neither report is before this Court so it is not possible to say that the report presented a plain situation of fluidity which needed to be addressed. In that situation, I see no reason not to read [54] as being addressed to the reasonably foreseeable future. In the context of the findings made by the Authority this is how I would read the phrase ‘would be harmed’ as directed to both the present and the reasonably foreseeable future.

27    I propose to grant the Appellant leave to raise this argument but dismiss the ground.

5.    The Appellant’s Second Argument: leave should not be granted

28    I turn then to the Appellant’s second argument. Like the first, it was an attack upon the Authority’s determination at [54] that the risk of harm to the Appellant, were he to be returned to Najaf, was remote. It was submitted on the Appellant’s behalf that there were two particular circumstances pertaining to him that called for the Authority’s attention in assessing whether he faced a real risk of harm if returned to Najaf. The first was that the Appellant was a practising Sunni and the Shia in Najaf would be aware of this. The different prayer style to which I have referred above was said to be an example of his identification as a Sunni. Secondly, the Appellant was unlikely to have any support if returned to Najaf because his family had left there some time ago.

29    It was then submitted that the Authority had not referred to these matters so that it could be inferred that it had not dealt with them either. I do not accept that the Authority failed in this way. It knew that he was a Sunni (the contrary is not remotely plausible and was not submitted) and the Authority was clearly aware of his argument that the way he prayed made him more vulnerable. At [29] it said this:

‘The applicant claims that he cannot practice his religion in Shia areas of Iraq and he was often warned that he will be killed if he was seen praying in the Sunni way.’

30    A similar point was made at [5] where this was said:

‘People became aware that he was a Sunni because they saw him praying in a way that is distinctly Sunni.’

31    There is no substance at all, therefore, in this contention. As to the suggestion that the Authority had not taken account of the departure of his family from Najaf, the Authority expressly referred to that matter (also at [5]):

‘•    His wife and children left Najaf in June 2016 because there were incidents, there was civil conflict, people were being killed, and members of the PMU threatened them and attacked their home. His wife and children moved to Al Ghazaliya in Baghdad with his wife’s mother in approximately June 2016. His wife’s mother supports his wife and children financially. His mother and three sisters also live in Baghdad, in different areas.

•    All of his six brothers moved to Sweden approximately three months ago to seek protection because of the conflict, and threats and pressure from the PMU. He has lost contact with them.

•    The family born in Najaf that was owned by his father and the house in which his wife and children were living were both damaged in attacks by the PMU. The family home in Najaf is empty.’

32    The argument is, therefore, of no merit. I would not grant leave to the Appellant to pursue it.

6.    The Appellant’s Third Argument: leave should be refused

33    I would also decline to grant leave for the Appellant’s proposed third argument. This was that the Authority had accepted that the Appellant’s family was the only Sunni family in his neighbourhood in Najaf. The submission was, as I understood it, that as the only Sunni family in his neighbourhood there was a greater risk of Shia reprisal attacks since there was no other Sunni families for the Shia to attack (the opposite, in effect, to the safety of the herd). Many things are wrong with this argument not the least of which is the Appellant’s own contention that his family does not live in Najaf any longer. Even putting that quibble aside, the question is not whether the Appellant’s family might be attacked in Najaf (if it did not happen that the family were actually living in Baghdad and Sweden) but whether the Appellant himself might be attacked. That argument, which is easy to articulate, has nothing to do with families. Leave to pursue it should not be granted.

7.    Relief

34    In those circumstances I will order that:

1.    Leave be granted to the Appellant to rely upon the argument that the Authority failed to consider the risk of harm to him in the reasonably foreseeable future in respect of his second claim.

2.    The Appellant be directed to file and serve an appropriately Amended Notice of Appeal within seven (7) days.

3.    The appeal be dismissed with costs.

Associate:

Dated:    12 October 2018