FEDERAL COURT OF AUSTRALIA

EFP17 v Minister for Immigration and Border Protection [2019] FCA 690

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    The appellant appeals from orders of the Federal Circuit Court of Australia made on 4 December 2018: EFP17 v Minister for Immigration [2018] FCCA 3907. The Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of the delegate of the Minister to refuse to grant the appellant a protection visa.

2    The appellant seeks orders setting aside the decisions of the Federal Circuit Court and the Authority and a writ of mandamus requiring the Authority to determine the appellant’s application according to law.

BACKGROUND

3    The appellant is a citizen of Iraq. He arrived in Australia by boat on 3 April 2013. He lodged an application for a safe haven enterprise visa on 7 June 2016.

4    The background facts and the appellant’s claims are set out in the Authority’s reasons at [5]:

The applicant’s claims can be summarised as follows:

•    The applicant was born in Najaf, Iraq, in 1981.

•    In 1991, he was involved in a protest in Najaf, Iraq, against the Iraqi government. The government at that time (Saddam Hussein’s government) took pictures of him and his brother when they were protesting. For this reason, his family left Iraq and moved to Iran for their protection. He knew that if he stayed in Iraq, he would be targeted and killed by the government.

•    In 2004, he and his family returned to Iraq for about a week to 10 days. Upon arriving Iraq, they discovered that their home was taken over by the Jaish al-Mahdi (JAM) and they could not retrieve it as JAM used it as a station for their works.

•    His father asked the JAM to return his house, but they refused and harmed his father. They returned to Iran soon after this incident.

•    He is not able to return to Iran as he is not a national of Iran and he has no rights in Iran. Also, in 2001, he was detained for one day because he participated in a demonstration in Iran against the Iranian government. The demonstration concerned the sinking of a refugee boat which was headed to Australia and filled with Iraqi refugees. Such an event justifies the fact that Iraqi people are discriminated against in Iran and are not afforded the same rights as Persian people. For these reasons, he could no longer stay in Iran.

•    On 12 February 2013, he left for Australia.

•    Generally, the family home is passed down to the males of each family. Because JAM had taken over their property, it is difficult for him to return to Iraq as he has no home or life there. He moved to Iran when he was quite young and went through most of his schooling in Iran. As such, although he faced discrimination in both Iran and Iraq, he knew he will be unable to forge a life in Iraq because he is unfamiliar with Iraq now.

•    In Iraq, there is widespread discrimination and a lack of services available to him. Also, he is often discriminated against in Iraq and questioned by those who he came into contact with because he has a ‘Persian’ appearance. This makes it difficult for him to integrate with people in Iraq.

•    He is unable to live a safe life due to ongoing instability in Iraq and the threat of terrorism. He cannot relocate to another area because he is a Shia Muslim and there are a lot of Sunni areas in Iraq. Also, the current threat from Daesh is real and that due to his Shia name, he fears being targeted and killed.

The AUTHORITY

5    The Authority did not accept that the appellant would face a real chance of harm on the basis of the claims made. Of relevance to this appeal, the appellant claimed in his written statement that upon arrival in Iraq in 2004 his family’s house had been taken over by the Jaish al-Mahdi (JAM). The appellant had claimed that his father had asked the militia to return the family property and in response he was brutally bashed, resulting in hospitalisation.

6    At the appellant’s protection visa interview he stated that his father had attempted to reclaim the house on two occasions. On the first occasion, the militia refused to return the house. On the second occasion, his father was shot twice causing damage to his kidneys.

7    The Authority concluded at [16] to [20] (footnotes omitted):

16.    I accept that the applicant’s family home in Najaf was taken by JAM, a key Shia militant group that operated in Shia dominant areas in the south, including Najaf. I accept that his father was not able to reclaim their house and was injured as claimed.

17.    At the SHEV interview, when asked what might happen to him if he returns to Iraq, the applicant responded that he will definitely get killed. When asked why they might do this, the applicant replied ‘... the house was taken over ... I cannot really say ... not doing anything towards this house’, ‘I cannot see these people who forcibly took over this house and I cannot do anything about it ... squatters ...’

18.    It has now been some 13 years since the applicant’s father tried to reclaim the house in 2004. The applicant has not done anything about his father’s property being forcibly taken. He has not travelled to Najaf after 2004, or attempted to regain the house, or made any inquiries or sought to take any other actions against the squatters. This is despite his evidence that his Iranian documents allowed him to travel to Iraq once a year. In my view, even if the applicant did not wish to confront JAM directly, there is nothing to prevent him from taking other actions, such as making inquiries with the Iraqi authorities about the situation. There is also nothing to indicate that the applicant’s older brother or his other family members attempted take any other actions. I consider that if the applicant had any genuine desire to do anything about his father’s house, he would have at least attempted to do so. In addition, this was his father’s house and his father passed away in 2009. According to the applicant, his family did not take the title documents of this house with them when they left Iraq in 1991 and they have no proper proof of ownership. I consider that in these circumstances, the applicant would have at least tried to make inquiries about obtaining some form of proof of ownership before his father’s death, if he wished to regain the property or take any other actions against JAM.

19.    Having considered the applicant’s particular circumstances, all the information before me and for the reasons given above, I am not persuaded that the applicant would in fact do anything about his father’s house upon return. I find that upon return, the applicant would not, as a matter of fact, try to reclaim the house or otherwise seek to do anything about the house being taken by JAM not due to fear of harm, but because he lacks a genuine desire to do so.

20.    The applicant stated at the SHEV interview that between the above incident and when his family left Iraq in 2004, nothing else happened to him or his family in Iraq. The applicant has not experienced past harm from JAM. This, to me, indicates that JAM had no intention to carry out any threats or to harm the applicant or his family unless they seek to regain the property. I have not accepted above that the applicant will proactively seek to reclaim his father’s house or take any other actions regarding his father’s house if he returns to Iraq. There is no other evidence to indicate that the applicant is of current interest to JAM for any reasons. As such, I am not satisfied that the applicant will face a real chance of harm for reasons relating to the 2004 incident or his father’s house being taken, now or in the reasonably foreseeable future.

8    The Authority, after considering all of the appellant’s claims including the one relating to the family home, found that the appellant did not have a well-founded fear of persecution if he returned to Najaf and did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth).

9    The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the appellant would suffer significant harm.

The FEDERAL CIRCUIT COURT

10    The appellant raised one ground before the Federal Circuit Court as follows:

1.    The decision of the Authority was legally unreasonable

Particulars

The applicant claimed to fear persecution in Iraq from the Al Mahadi Army Militia (Militia) as they had commandeered his former family home and were using it as a headquarters. When his father tried to reoccupy the house they shot him twice. This occurred in a 7 to 10 day period while the applicant’s family were visiting Iraq from their then place of habitual residence Iran. The applicant claimed that if he tried to reoccupy the family house then the threat to him from the Militia would be even greater. The Tribunal did not accept that he would try and reoccupy the house by reason of this fear or otherwise. The Tribunal reasoned that the militia had no intention of harming the applicant if he did not try and reoccupy the property. This conclusion was based upon the fact that the applicant had not been harmed previously. However, there was no evidence that the militia had ever had an opportunity to harm the applicant and had not done so. The inference that they had no intention to harm him in the future was not based on any probative evidence

11    The primary judge identified, at J[15], three bases for the Authority’s conclusion that “JAM had no intention to carry out any threats or to harm the [appellant] or his family unless they [sought] to regain the property” (A[20]):

First, as I have said, one of the critical bases of the Authority’s reasons was the fact that the father himself was only harmed when he went to reclaim the property for the second time; thus, there was only one basis for the fear of harm in the first place. Secondly, that the applicant would not seek to reclaim the property upon return to Iraq. The third basis, although I accept that this basis is not nearly as strong, was that there was nothing further that occurred to the applicant or his family in Iraq in 2014 after the injury to his father.

12    The primary judge dismissed the application. The three matters identified by his Honour provided a sufficient basis for the Authority’s conclusion at A[20] such that it could not be said that decision was illogical or irrational.

13    At J[18], the primary judge recorded the appellant’s submission that the militia did not know that the appellant did not wish to regain the family home. His Honour stated at J[19]:

19.    That might well be an argument that, if accepted, would convince a decision-maker to come to a different conclusion. However, on the basis of the way in which the applicant actually made his claims, and the evidence in respect of those claims that was before the Authority and which was accepted, it does not change my view that there was a logical connection between that material and evidence and its anterior findings and the conclusion that the militia had no intention to carry out any threats to harm the applicant or his family unless they seek to regain the property.

THe APPEAL

14    The appellant’s notice of appeal to this Court, filed on 19 December 2018, raised the following grounds of appeal:

Grounds of Appeal

1.    The primary Judge erred in concluding that the decision of the Immigration Assessment Authority was not affected by legal unreasonableness as there was a logical connection between the fact that the militia did not harm the applicant when he was in Najaf in 2004 and the Authority’s conclusion that the militia had no intention of harming the appellant.

2.     The primary judge should have found that there was legal unreasonableness as there was no probative basis for the finding of the Authority that the militia had no intention of harming the appellant.

15    The test for legal unreasonableness was recently summarised by the Full Court in Singh v Minister for Home Affairs [2019] FCAFC 3 (Reeves, O’Callaghan and Thawley JJ) in the following way:

61.    The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it:

(1)    is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);

(2)     “lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);

(3)    is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).

16    As to what might constitute irrationality or illogicality sufficient to give rise to jurisdictional error, the Full Court in MZZGE v Minister for Home Affairs [2019] FCAFC 72 (Besanko, Farrell and Thawley JJ) at [22] stated:

A decision might be shown to be affected by jurisdictional error if:

(1)    no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);

(2)    there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);

(3)    there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].

17    On appeal, the appellant submitted that:

(1)    the finding at A[20] that “JAM had no intention to carry out any threats or to harm the [appellant] or his family unless they [sought] to regain the property” was made without probative evidence;

(2)    “critical to this finding [was] its reliance upon the fact that the applicant was not harmed in the 2 days he remained in Najaf after his father was shot”; and

(3)    “the assumption made by the Authority [was] that if the militia intended to harm the [appellant] then they would have done so in the 2 day period before he returned to Iran”.

18    The appellant relied upon the second proposition set out in MZZGE at [22], set out above, submitting that there was a lack of logical connection between the evidence and the conclusion at A[20] that “JAM had no intention to carry out any threats or to harm the [appellant] or his family unless they [sought] to regain the property”. This lack of logical connection, it was submitted, gave rise to a decision was relevantly unreasonable.

19    The Authority’s conclusion at A[20], however, was not based solely on the fact that there had been no further harm to the appellant’s father or family in the relevant two day period. Its conclusion was based on the whole of the material before it, including the three matters identified by the primary judge at J[15], extracted above. The context in which A[20] must be read is that the harm which had befallen the appellant’s father only arose because of a second attempt by him to reclaim the family property. There was no suggestion that the appellant’s father, or the appellant, had ever otherwise experienced harm from JAM.

20    The Authority stated that “there is no other evidence to indicate that the [appellant] is of current interest to JAM for any reasons”: A[20]. The fact that “nothing else happened to [the appellant] or his family in Iraq”, and that “the [appellant] has not experienced past harm from JAM”, supports the conclusion that the appellant and his family would not face a real risk of harm if they did not attempt to reclaim the property as the appellant’s father had in 2004.

21    The primary judge concluded that the fact that nothing else happened to the appellant or his family in the period between the attack on the appellant’s father and when the family left Iraq again 2 days later was not particularly strong evidence that JAM did not have any intention of harming the appellant or his family absent an attempt to reclaim the property, but that it could nonetheless be considered probative by a decision-maker acting reasonably and rationally: J[15], [16]. That conclusion was correct.

22    The Authority’s use of the fact that there had been no further harm carried out by JAM on any member of the appellant’s family in the two days after the attack on his father was capable (in the sense of not being irrational or illogical) of supporting the Authority’s conclusion that “JAM had no intention to carry out any threats or to harm the [appellant] or his family unless they [sought] to regain the property”, even if that fact would not have been used in that way by another decision-maker – see: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]-[135]. A different decision-maker may well not have regarded this fact as particularly significant or significant at all. However, that is not the legal issue. It was not unreasonable or irrational such as to constitute jurisdictional error to use that fact as one reason for the ultimate conclusion that the appellant did not face a real chance of harm.

23    It was open to the Authority to reach the conclusions it did given that the 2004 incident was the only occasion where a member of the appellant’s family had been harmed by JAM and that the incident occurred on the second occasion that the appellant’s father sought to reclaim the property.

24    The appellant contended, as he did before the Federal Circuit Court, that although the Authority found that the appellant had no genuine intention of trying to reclaim the property (A[18] and [19]), “there was no finding that the militia knew this and there was no apparent reason why they would know”. The appellant submitted that his father is now dead and he is a male heir; the militia do not know if he will try and reclaim possession of the property. That fact does not make the Authority’s reasoning legally unreasonable or illogical. The Authority’s reasoning was that absent an actual attempt to reclaim the property the appellant would not be harmed. The Authority did not conclude that the mere presence of the appellant in Iraq would expose him to the possibility of harm, even absent an attempt to reclaim the property, for example because JAM might consider the appellant intended to reclaim the property.

25    When regard is had to the way in which the claims were made, there was no jurisdictional error in the absence from the Authority’s reasons of a finding that the militia did not know the appellant had no intention of trying to regain the property. Harm only befell the appellant’s father when he sought to reclaim the property. The appellant did not claim that he would suffer harm simply by virtue of coming to the attention of the militia on his return should they still be in possession of the property or for some other reason. His claim was made in this way in his statement:

12.    Generally, the family home is passed down to the males of each family …

33.    I also believe that the threat from the militia if I attempt to reclaim my family land will grow in severity if I return ...

26    As noted earlier, the Authority concluded that the appellant did not in fact have any genuine desire to reclaim the property and, accordingly, would not attempt to do so: A[18] and [19]. Those findings were not challenged on appeal.

CONCLUSION

27    There was a sufficient basis for the Authority’s conclusion at A[20] that “JAM had no intention to carry out any threats or to harm the [appellant] or his family unless they [sought] to regain the property”. There was a logical connection between the available evidence and the conclusion. The conclusion was not legally unreasonable.

28    The appeal must be dismissed with costs.

Associate:

Dated:    17 May 2019