FEDERAL COURT OF AUSTRALIA

AXH18 v Minister for Home Affairs [2020] FCA 182

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

INTRODUCTION

1    On 17 October 2016, the appellant applied for a Safe Haven Enterprise visa, which is a protection visa covered by s 36 of Migration Act 1958 (Cth) (the Act). A delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), was not satisfied that the appellant was a person in respect of whom Australia has protection obligations within the meaning of s 36(2)(a) and s 36(2)(aa) of the Act. For that reason, the delegate decided not to grant the visa.

2    The delegate’s decision was referred to the second respondent, the Immigration Assessment Authority (the IAA), for review in accordance with Pt 7AA of the Act. Section 473BA of the Act provides a simplified outline of Pt 7AA, which includes the following:

In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing.

The Immigration Assessment Authority may affirm a referred decision or may remit the decision for reconsideration in accordance with directions.

3    On review, the IAA was of the same view as the delegate, and affirmed the delegate’s decision.

4    The appellant then sought judicial review of the IAA’s decision in the Federal Circuit Court of Australia (the Federal Circuit Court). The Federal Circuit Court was not satisfied that the grounds of review were made out and, on 27 June 2019, dismissed the application.

5    The appellant appeals from the Federal Circuit Court’s judgment.

Background

6    The appellant is a citizen of Iraq. On 14 July 2013, he arrived in Australia as an unauthorised maritime arrival. As I have recorded, on 17 October 2016 he applied for the visa in question. At [16] of its Decision Record, the IAA summarised the appellant’s claims for protection as follows:

•    His father, who was employed in Iraqi embassies overseas, as a commander in a voluntary paramilitary group and in the Karbala Chamber of Commerce, was a long term and important member of the Ba’ath Party.

•    Following the fall of Saddam Hussein’s regime his father lost his employment, the family home was confiscated, the family were dispersed within Iraq and then fled to Syria for some months in about 2004 or 2005 before returning to Iraq.

•    Because of his father’s Ba’athist connections he and his family were subject to prejudice and discrimination; he was kidnapped by a militia in February 2005; his brother was shot in 2006 and at a later date gaoled in Iraqi Kurdistan before being released; and his sister was kidnapped in 2010 and only released following the payment of a US$60,000 ransom.

•    He was technically employed as a police officer in Baghdad from 2007 to 2013, but did very little work and gave his salary to the police commander who gave him the job in exchange for the police identification that granted him protection when travelling.

•    He was warned that a warrant has been issued for his arrest.

•    He fears he will be killed, kidnapped or subject to the death penalty if he were to return to Iraq because of his imputed political opinion as a Ba’athist.

7    As summarised in the Minister’s submissions, the IAA accepted that the appellant’s father was employed in Iraqi embassies abroad, as a commander in a voluntary paramilitary army, and in the Karbala Chamber of Commerce. It found that the appellant’s father was a middle-ranking member of the Ba’ath Party and that, as a result of the “deba’athification” process, may have lost his job and the appellant’s family may have lost their home. The IAA accepted that the appellant himself was not a member of the Ba’ath Party but found that he benefitted as a result of his father’s political connections. The IAA did not accept that the appellant’s father was a high-ranking or active leading member as the appellant had claimed.

8    As also summarised in the Minister’s submissions, the IAA:

(a)    accepted that the appellant was kidnapped in February 2005, and was willing to accept that this kidnapping may have been wholly or partly, related to his father's Ba'athist connections. However, the IAA observed that more than 12 years had passed since this incident, and there had been no further action taken against the appellant by the kidnappers;

(b)    accepted that the appellant's brother was shot in 2006, and was also willing to accept that this shooting may have been wholly or partly, related to his father's Ba'athist connections. However, the IAA observed that more than 10 years had passed since this incident and there was no further action taken against the brother by the shooters, and no ongoing consequences for the appellant;

(c)    accepted that the appellant's sister was kidnapped in late 2010 and released following the payment of a ransom. However, the IAA did not accept that her abduction seven years after the fall of Saddam Hussein was as a result of their father's Ba'athist connections and did not accept that this event was connected to the appellant;

(d)    did not accept that a warrant has been issued for the appellant's arrest;

(e)    did not accept that, apart from his 2005 kidnapping, the appellant was directly threatened or significantly physically mistreated by militia or anyone else in the years prior to his departure from Iraq in May 2013, or that he was subject to continuous death threats as claimed; and

(f)    did not accept that the appellant's subjective perception that, if he returned to Iraq, he was likely to be killed, kidnapped or subject to the death penalty as a result of his Ba'athist connections, was consistent with country information or the appellant's own evidence.

9    In reaching its view, the IAA had regard to certain country information which it discussed at [51] of its Decision Record:

51.     In November 2016 the UK Home Office reported most high-ranking Ba’athists have either fled the country or already been dealt with by the new regime. While there is still an element of score-settling, random attacks and discriminatory treatment towards former Ba’ath Party members, relatives of former Ba’athists, or those accused of being Ba’athists, such treatment is not systematic and will not, in general, be sufficient to reach a real risk of serious harm or persecution. The report continues that there may be some circumstances in which a person may be at real risk of serious harm or persecution from the state and/or Shia militia because of their Ba’athist links. Risk will depend on what the person (or their relative) has done and how they were brought to the adverse attention of any potential persecutor. The report further states that Shia militia may target alleged or actual Ba’athists, but such targeting is not systematic. They state the individual circumstances likely to influence whether a person is at risk include:

(a)    a person’s [or their relative’s] rank and/or position within the Ba’ath Party;

(b)    whether the person [or their relative] has been involved in any particular activities, or associated with the wider abuses of the Ba’athist regime;

(c)    how those activities or their [relative’s] profile have brought them to the adverse attention of those they fear.

10    At [64]-[66] of its Decision Record, the IAA made these findings:

64.    I accept that the applicant may have felt vulnerable in the years prior to his departure from Iraq because of his 2005 kidnapping, his brother’s 2006 shooting, his sister’s 2010 kidnapping and his family’s loss of status following the regime change, however I do not accept that, apart from his 2005 kidnapping, the applicant was otherwise directly threatened or significantly physically mistreated by militia or anyone else in the years prior to his departure from Iraq in May 2013 or that he was subject to continuous death threats. Compared to the detailed and persuasive evidence he gave in relation to his kidnapping and the discrimination his family faced in the years immediately after Saddam Hussein’s fall, I consider his evidence regarding his treatment in the five years prior to his departure from Iraq was somewhat evasive, vague and unconvincing.

65.    While I accept that the applicant’s concerns are genuinely felt, I do not accept that his subjective perception that if returned to Iraq he is likely to be killed, kidnapped or subject to the death penalty as a result of his Ba’athist connections is consistent with country information or his own evidence. Nor do I accept that the applicant’s capacity to subsist will be threatened if he were to return to Iraq. I note that despite his father’s Ba’athist connections, the applicant was able to study at two different universities over a period of more than five years after the fall of Saddam Hussein, as was his sister. He was able to graduate as a lawyer and join the Iraqi Jurists Union. His evidence was that through his father’s connections he obtained the role as police officer. He also had sufficient money to travel overseas on several occasions and fund a contracting bid in Jordan. Apart from his 2005 kidnapping, he moved between Karbala and Baghdad over many years without incident. His sister was able to obtain work with an international NGO in Iraq.

66.    The applicant’s parents and adult siblings are not currently residing in Iraq, so the applicant would be returning alone to Karbala. However I note the applicant previously lived independently from his immediate family and he has extended relatives in Iraq with whom he’s previously been in contact. In his evidence he refers to obtaining assistance from or communicating with an aunt, an uncle, and grandparents. He also referred to his mother and sister having both lived with relatives.

11    At [67] of its Decision Record, the IAA concluded:

67.     I am not satisfied that there is a real chance now or in the reasonably foreseeable future of any action directed at the applicant as a consequence or in connection with the events that occurred in 2005, 2006 and 2010. Nor am I satisfied that there is a real chance now or in the reasonably foreseeable future that the applicant will suffer harm as a result of an imputed political opinion because his father was a middle ranking member of the Ba’athist Party.

12    At [81]–[86] of its Decision Record, the IAA undertook a complementary protection assessment in respect of the appellant, and concluded at [87]:

87.     There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s 36(2)(aa).

Federal Circuit Court

13    By an amended application filed on 8 June 2019, the appellant raised two grounds of judicial review. The first ground was that the IAA had denied him procedural fairness, and thus fell into jurisdictional error. This ground was particularised as follows:

(i)    The Second Respondent failed to inform the Applicant of the nature of the material before it.

(ii)    The Second Respondent failed to alert the Applicant to any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.

(iii)    The Second Respondent failed to give the Applicant the opportunity to address, orally or in writing, any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.

(iv)    In dealing with the review of the Applicant's claims, on the basis of only one side of the argument, where the Applicant was denied the opportunity to make submissions in his own cause, and the Second Respondent considered itself free to make its decision on whatever material it considered appropriate, without the Applicant being told what that material was, the procedure adopted by the Fourth Respondent, suffered inherently and by definition, from bias.

14    The second ground was that the IAA had asked itself the wrong question when applying the term “systematic” as used in s 5J(4)(c) of the Act to its analysis of the facts of the case, and thus fell into jurisdictional error.

15    To explain this latter ground, s 36 of the Act establishes the criteria for a protection visa by reference to a person’s status as a “refugee”. The meaning of “refugee” is considered in s 5H of the Act by reference to the notion of a “well-founded fear of persecution”. In that regard, s 5J(1) of the Act provides:

(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.

16    This provision is qualified by s 5J(4) of the Act, which provides:

(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.

17    The appellant particularised his second ground of review, as follows:

(i)    The Second Respondent determined that the acts of persecution, which it found were relevant to the Applicant's situation, were not ' systematic' because the persecutors in question did not set about, on a regular and ongoing basis, to persecute him.

(ii)    The Second Respondent thus misinterpreted the concept of systematic persecution, which is established if the Applicant can show only that the conduct of the persecutors in question was deliberate or premeditated, that is motivated.

(iii)    The Second Respondent asked itself the wrong question by failing to understand that systematic persecution does not require the Applicant to show that he suffered persecution on a number of occasions, or that there were a series of co-ordinated acts directed at him.

18    The primary judge dismissed both grounds.

19    The appellant’s case on the first ground is captured by the following summary provided by the primary judge:

32.    In support of ground 1, Mr Kline of counsel on behalf of the applicant submitted that s 473DA of the Act did not exclude the applicant’s right to be heard in relation to matters adverse to him. Mr Kline also submitted that the steps taken by the Authority in the sending of the letter inviting the applicant to put on submissions and new information did not provide the applicant with procedural fairness in the conduct of the review. Mr Kline also submitted that procedural fairness is not a unitary concept but a single right.

33.    Mr Kline submitted that the applicant was not excluded by the provisions of Part 7AA of the Act from having a right to respond in writing to potentially adverse information. Mr Kline also submitted that the provisions of the Act had not excluded, as a matter of fairness, the applicant being given the opportunity to engage with what the Authority considers or thinks may be important to the review. Mr Kline submitted that Part 7AA of the Act should be construed as permitting the applicant to make written response to concerns that the Authority may have in relation to the applicant’s case. Mr Kline also submitted that it cannot have been the intention of parliament to exclude the applicant’s right to make submissions in that regard.

34.     Mr Kline submitted that, on proper construction of Part 7AA of the Act, the applicant was entitled to the opportunity to make submissions on the potentially adverse issues identified by the Authority. Mr Kline also submitted that, in the circumstances of the present case, the Authority has failed to do so, whereby there was a jurisdictional error.

20    The primary judge rejected the contention that the IAA was obliged to give the appellant an opportunity to put on further submissions in respect of any potentially adverse findings it might make. In arriving at that conclusion, the primary judge correctly noted that he was bound by the decision of the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 where, at [72], the Full Court said:

72    In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond.

21    With respect to the second ground of review, the appellant referred to [51] of the IAA’s Decision Record, which I have quoted above. The argument he made is, with respect, somewhat difficult to understand. As the Minister submitted, and as the primary judge accepted, the IAA found that there was no real chance of any action being directed to the appellant arising from the events of 2005, 2006 and 2010. On that finding, the further question of whether the appellant faced “systematic and discriminatory conduct” was simply not engaged. As the primary judge put it:

45.    The Court accepts the first respondent’s submission that this is not a case where the Authority found the applicant faced a future risk of harm, see paragraph 67. The Court also accepts the first respondent’s submission that the Authority found there was no real chance of any action being directed to the applicant and arising from the events of 2005, 2006 and 2010. The Court also accepts that these findings mean that the issue of systematic conduct did not arise, and that there was simply no conduct, systematic, selectively discriminatory or otherwise, such that the Authority can be said to have misapplied or misconstrued the question of systematic conduct in this context. The reference to “systematic” in paragraph 51 was a reference to the content of what was in Report.

46.    The Authority’s use of the term “systematic” in paragraph 51 reflects a factual analysis engaged in by reference to country information, and is consistent with the requirements of s 5J of the Act as identified by the Authority in paragraph 18 of its reasons. No submission was advanced by the applicant that the Authority had misconstrued or misidentified the relevant law in paragraph 18. Accordingly, the Court finds no jurisdictional error is made out in relation to ground 2.

The appeal

22    The appellant’s notice of appeal contains two grounds which, in essence, allege that the primary judge erred in rejecting the two grounds of judicial review raised before him. There is no articulation of the alleged error beyond the assertion that there was error.

23    By orders made on 24 July 2019, the appellant was required to file and serve a written outline of his submissions no later than 10 business days before the hearing of this appeal. He has not done so. At the hearing, I invited the appellant to address me on each ground. I drew his attention to the need for him to identify error in the judgment appealed from.

24    The appellant’s submissions were directed to both the IAA’s acceptance of the country information discussed in [51] of its Decision Record and the primary judge’s rejection of the second ground of judicial review.

25    The appellant disputed the accuracy of the country information. In support, he sought to tender three documents which purported to be translations from Arabic into English of:

(a)    a “Travel Ban Order” described as issued by the “Travel Prevention Division” of the Republic of Iraq. The document is dated 14 March 2019 and appears to name the appellant;

(b)    a “Travel Ban Order” described as issued by the “Ministry of the Interior, Administrative and Financial Affairs; Directorate General of Personal Status, Passports and Residency, Passport Office, Travel Ban Division” of the Republic of Iraq. The document is dated 28 March 2019 and appears to name the appellant. Curiously, the document is also headed “Confidential and secretive”; and

(c)    a document described as issued by the “Ministry of Justice, Executive Unit, Karbalaa Office” of the Republic of Iraq. The document is dated 14 March 2019 and also appears to name the appellant.

26    I do not propose to admit these documents into evidence on this appeal. They post-date the IAA’s decision and could not have played any part in it. The documents pre-date the hearing in the Federal Circuit Court at which the appellant was legally represented. There was no attempt to rely on them at that time and, obviously, they played no part in the judgment below.

27    The appellant submitted that the primary judge did not consider the “systematic case” and did not provide “enough reasons” or “convincing reasons”. The appellant did not address his first ground of appeal, which was directed to the question whether the IAA denied him procedural fairness.

Consideration

28    The primary judge did not err in dismissing each ground of judicial review before him.

29    The matters referred to in the appellant’s particulars to the first ground of judicial review in the Federal Circuit Court (which were repeated in his notice of appeal) do not constitute a denial of procedural fairness by the IAA. A review under Pt 7AA of the Act is different to a review carried out under Pt 7 or Pt 5 of the Act. There is no procedural fairness obligation to put dispositive matters to a visa applicant or to alert the applicant to the possibility that a matter might be decided differently or on a different basis to how the matter was determined by the Minister’s delegate.

30    The second ground of judicial review before the primary judge was based on a misconception of the IAA’s findings and, for that reason, simply could not have succeeded. A similar misconception arose in SZLEW v Minister for Immigration and Citizenship [2008] FCA 1460 which dealt with substantially the same argument (as advanced here) in the context of the former s 91R of the Act:

15.    The first ground addressed in the oral submissions of the appellant concerned the Tribunal's alleged misconstruction or misunderstanding of the word “systematic” in s 91R(1)(c), which was said to be apparent from the passage in the Tribunal's decision when it referred to the prejudice arising from the conduct of Hindu extremist groups was not “systematic”. In my opinion, the Federal Magistrate was correct in indicating that the real question was whether the Tribunal misapprehended the nature of the legal test that had to be applied having regard to the terms of s 91R and that that is best assessed by the reasoning adopted by the Tribunal rather than the way in which the Tribunal may have used a word appearing in the section, in a sentence in what is demonstrably a finding of fact. Indeed it is a finding of fact based on (and repeating) material in independent country information. I also agree with the Federal Magistrate that the Tribunal's reasons, read without an eye attuned to error, disclosed that it concluded that there was no real chance the appellant would suffer harm on his return to Nepal by reason of his religion. That finding meant that the occasion did not arise for the Tribunal to determine whether harm, which might otherwise constitute persecution, was persecution as that concept is illuminated by s 91R, which raises for consideration whether the conduct is systematic and discriminatory. The first ground of the appeal is not made out.

31    I reject the appellant’s submission that the primary judge did not consider the second ground of review before the Federal Circuit Court. I also reject his submissions that the primary judge did not provide “enough reasons” or “convincing reasons”. The primary judge’s reasons were sufficient to reject the ground of review in question, and do not reveal error.

32    It follows that both grounds of appeal have not been made out with the consequence that the appeal should be dismissed.

Disposition

33    The appeal will be dismissed. The appellant is to pay the Minister’s costs.

Associate:

Dated:    26 February 2020