FEDERAL COURT OF AUSTRALIA

AHM18 v Minister for Home Affairs [2019] FCA 409

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant is a citizen of Iraq who arrived in Australia by boat in 2013. In July 2016, he made an application for a temporary protection visa which was refused by a delegate of the Minister in March 2017. The application was then referred to the Immigration Assessment Authority (the Authority) for review as required by s 473CA of the Migration Act 1958 (Cth) (Act). On 22 December 2017, the Authority decided to affirm the decision of the delegate. The appellant sought judicial review of the Authority’s decision in the Federal Circuit Court of Australia in the exercise of the jurisdiction conferred on that Court by s 476 of the Act. On 25 July 2018, the primary judge dismissed the application, as amended. The appellant now appeals the decision of the Federal Circuit Court to this Court on one ground, to which I shall refer below.

Background

2    The appellant was born and spent most of his life in Najaf, in the south of Iraq. The appellant was employed as a military police officer stationed in Baghdad from 2005 to 2009, from where he travelled home to Najaf once per month. The appellant’s claim before the Authority was that in 2009 he resigned his position as a military police officer, and commenced to work at a café between Al Najaf and Al Koofa [sic]. The employment details which the appellant provided in his application for a protection visa stated that he was a wage-earner in Najaf from January 2009 to October 2012.

3    The Authority accepted that the appellant had received some form of threat from a Shia militia group in 2009 while he was employed by the military police. The appellant also claimed that he had received a threat from a Shia militia group in 2012. The Authority did not accept that claim, or that he had received any other relevant threat after he had resigned his employment as a military police officer. The Authority did not accept that at the time the appellant left Iraq he was of any adverse interest to any Shia militia group, or any other armed group, for any reason related to his former employment as a military police officer.

4    The appellant also claimed that he feared harm on the basis that he would be perceived to be a moderate, secularised Shia with an independent mind who is hostile to both radical Sunni Islamists and Shia fundamentalist Islamists and, that as a person who does not comply with conservative religious edicts, is regarded as an enemy of Islam who should be put to death. In relation to these claims, the Authority found that the appellant was a non-practising Shia Muslim who was privately opposed to extremist Shia and Sunni Islam at the time he left Iraq. The Authority did not accept that the appellant was of any specific adverse interest to any Shia militia group, or any other armed group, for any reason, at the time he left Iraq.

5    The Authority found that the appellant had lived in Najaf for most of his life, and was satisfied that the appellant would return to Najaf to live with his family if he returned to Iraq, and that he would be able safely to return to Najaf. The Authority was not satisfied that there was a real chance of harm to the appellant from Shia militia groups in Najaf for any reason, now or in the foreseeable future. In reaching this conclusion the Authority directed itself to the appellant’s circumstances as a former military police officer who worked with US forces, his circumstance as a non-practising Shia Muslim who was privately opposed to extremist Shia and Sunni Islam, and his circumstance as an unsuccessful refugee returning to Iraq.

6    The Authority concluded that the appellant did not meet the criteria in s 36(2)(a) of the Act, that is, it was not satisfied that the appellant was a refugee as defined by s 5H(1) of the Act. For much the same reasons, the Authority concluded that there was not a real risk that the appellant would suffer significant harm for the purposes of the complementary protection provision in s 36(2)(aa) of the Act.

The grounds of appeal

7    The appellant initially advanced two grounds of appeal in this Court which corresponded to the two grounds of review that were argued before the Federal Circuit Court and rejected. However, at the commencement of the hearing counsel abandoned the second ground of appeal and confined argument to the first ground.

8    The first ground of appeal is in the following terms –

The primary judge erred by not finding that the Immigration Assessment Authority (IAA) made a jurisdictional error in that it misapplied s 36(2)(aa) and s 36(2B)(a) of the Migration Act 1958 (Cth) (Act). The primary judge ought to have found that the IAA misapplied those sections in circumstances where:

a.    the appellant claimed to fear persecution in Iraq;

b.    the IAA found that there was not a real chance that the appellant would face harm in the city of Najaf; [49], [50];

c.    based on that finding, the IAA found that appellant did not meet the criterion in s 36(2)(aa);

d.    in so holding, the IAA proceeded on the expectation that the appellant would return to, and remain in Najaf, without considering whether that expectation was reasonable. Sections 36(2)(aa) and s 26(2B)(a) required the IAA to consider whether the expectation was reasonable.

9    In support of this ground of appeal counsel for the appellant submitted that there were parallels between this case, and the decision of the High Court in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317, to which it will be necessary to refer. In SZSCA, the applicant for a protection visa had lived in Kabul in Afghanistan, and earned his livelihood by driving a truck between Kabul, and other areas of Afghanistan. In that capacity, he came to the attention of the Taliban as a person who was alleged to be assisting the government with the transportation of logistical and construction materials as a result of which he decided to leave Afghanistan. The Refugee Review Tribunal accepted that if the applicant was again intercepted by the Taliban on the roads on which he usually travelled, he would face a real chance of serious harm and even death for a reason specified in the Refugees Convention, namely the political opinion imputed to him. However, the Tribunal was not satisfied that the applicant would face a real chance of persecution if he remained in Kabul, and avoided the roads on which he had been travelling outside Kabul. For that reason, the Tribunal held that the applicant did not satisfy the criterion for the grant of a protection visa in s 36(2)(a) of the Act. However, the High Court held that the Tribunal’s decision was in error, because the Tribunal had not applied, by analogy, the internal relocation principle, which required that attention be directed to the question whether it was reasonable for the applicant to remain in Kabul. In the present case, counsel for the appellant relied on paragraph [29] of the reasons of the majority (French CJ, Hayne, Kiefel and Keane JJ) in SZCSA –

The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.

10    Counsel for the appellant submitted that the Authority’s findings in the present case concerning the risk to the appellant were limited to the risk he would face in the city of Najaf, and that such a limited finding was insufficient to support the conclusion that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Act. Counsel submitted that the complementary protection criterion in s 36(2)(aa) is addressed to the question of risk to a person in their receiving country, and may be contrasted with the term “well-founded fear of persecution” defined in s 5J(1)(c) of the Act, which requires that a real chance of persecution relate to all areas of a receiving country. Counsel submitted that a finding that a risk of harm does not exist in a particular location within the receiving country is insufficient to support a finding that the criterion in s 36(2)(aa) has not been satisfied. Counsel submitted that such a finding can only be supported if the decision-maker also has regard to the relocation principle in s 36(2B)(a), and considers whether it is reasonable for the person to relocate to that particular location.

11    In the present case, the city of Najaf was the location where the Authority considered that the applicant had lived most of his life, and where it was likely he would return. Counsel for the appellant submitted that the Authority erred because it did not make any finding that it was reasonable for the applicant to return to Najaf, or remain within that city.

12    Counsel for the appellant submitted that one important feature of the appellant’s case which put him squarely within the framework in SZSCA was the fact that the evidence of his employment history showed that he had worked in places other than Najaf in the past, namely in Baghdad as a military police officer, but the Authority assumed that he would not do so in the future, and did not consider whether this assumption was reasonable. Therefore, the High Court’s reasoning about the reasonableness of remaining in a particular location applied and the Authority was required to consider the reasonableness of the appellant remaining in Najaf.

13    Counsel submitted that the primary judge was in error to conclude at [22] that s 36(2B)(a) of the Act and the principles of relocation were “not applicable, as the Authority did not find the applicant could ‘relocate’ to Najaf.” Counsel submitted that the Authority committed the same error as that identified in SZSCA, and that the primary judge erred in finding otherwise.

Consideration

14    The relevant provisions of the Act are s 36(2)(aa) and s 36(2B) –

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

…

(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.

15    The starting point is that the Authority made a finding, which is not the subject of any challenge, that upon the appellant’s return to Iraq, he would return to Najaf to live with his family. On the basis of that finding, the Authority concluded for the purposes of s 36(2)(aa) of the Act that there was no real risk of significant harm to the appellant should he be removed from Australia to Iraq.

16    The primary judge rejected the appellant’s arguments for the following reasons –

22.    Section 36(2B)(a) of the Act was not applicable, as the Authority did not find the applicant could “relocate” to Najaf. Najaf was the applicant’s home city, where he had spent most of his life with his mother and siblings, and where the Authority found he would return. I accept the proposition that “relocate” carries its ordinary meaning, “to move to a different place” and that this would be consistent with the relocation principle under the Refugees Convention.

23.    I accept the first respondent’s submission that s 36(2B)(a) of the Act cannot sensibly be said to apply to an applicant who will return to their home city where they have spent most of their life and that the applicant was not found to be a person who would “relocate”. Consistent with CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [47] it is only if the place the applicant is likely to return to, is a place where there is a well-founded fear of persecution or a real risk of significant harm that the decision maker need consider new or unfamiliar places in the country of nationality.

17    In my opinion, there was no error in the primary judge’s reasons.

18    The “internal relocation principle”, to which the High Court referred in SZSCA, arose in that case in the context of the definition of “refugee” in article 1A(2) of the Convention and Protocol relating to the Status of Refugees. The majority in SZSCA referred at [23] to Januzi v Home Secretary [2006] 2 AC 426 at [7], where Lord Bingham stated –

The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. …

19    Lord Bingham then explained that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.

20    At the time SZSCA was decided, the Convention definition of “refugee” was drawn into s 36(2) of the Act and, although article 1A(2) of the Convention does not make express reference to relocation, it was accepted that such a restriction on the Convention’s protection arose from the causative condition expressed in the definition of “refugee”, so that by analogy with the internal relocation principle, the question arose whether it could reasonably be expected that the claimant remain in Kabul and not travel outside it: SZSCA at [23], [25].

21    As a result of amendments made to the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Act 2014 (Cth), “refugee” is now defined by s 5H of the Act. The amendments apply to the appellant’s application for a protection visa because the application was made after the day item 28 of Schedule 5 of the amending Act commenced, which was 16 December 2014. As defined by s 5H, a “refugee” must be unable to return to a country owing to a “well-founded fear of persecution”. And as defined by s 5J of the Act, a “well-founded fear of persecution” must relate to all areas of a receiving country. In this case, the appellant did not rely on the internal relocation principle as being relevant to a consideration of the appellant’s refugee status, but relied on the complementary protection criterion in s 36(2)(aa) of the Act, and submitted that the reasoning in SZSCA applied by analogy.

22    Cases such as SZSCA and the present case are fact-dependent. The appellant’s claim for protection on the ground that he was a “refugee” rested on a premise which the Authority rejected, namely threats to the appellant in 2012 while he resided in Najaf. Relocation was not material to that assessment. In the present case, unlike SZSCA, there was nothing in the circumstances which called for consideration of the reasonableness of the appellant relocating to Najaf for the purposes of the appellant’s claim to be a refugee.

23    As to the Authority’s consideration of the complementary protection criterion, the Authority proceeded on the basis of its finding that the appellant would return to Najaf. In my view, no relocation by the appellant was involved, and therefore no consideration of the reasonableness of any relocation was required. Although the appellant had worked in Baghdad from 2005 to 2009, he had lived in Najaf and worked in a café for a period of years from 2009 to 2012. The appellant had grown up in Najaf, and his family lived there. On the facts presented in this case, a return by the appellant to Najaf following his removal from Australia would not involve relocation such as to engage s 36(2B) of the Act. Given this, nothing in s 36(2)(aa) or (2B) of the Act required the Tribunal to consider the reasonableness of the appellant being removed from Australia to return to Najaf.

Conclusion

24    The appeal will be dismissed with costs.

Associate:

Dated:    26 March 2019