FEDERAL COURT OF AUSTRALIA

DRS16 v Minister for Home Affairs [2020] FCA 318

ORDERS

THE COURT ORDERS THAT:

1.    The Appeal be dismissed.

2.    The appellant pay the first respondent’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

FOSTER J:

1    This is an appeal from a judgment of a judge of the Federal Circuit Court of Australia given on 31 October 2018 (DRS16 v Minister for Immigration and Border Protection [2018] FCCA 3092).

2    The primary judge dismissed the appellant’s application to the Circuit Court for judicial review of a decision of the Immigration Assessment Authority (IAA) which is the second respondent in this Appeal. The IAA had affirmed a decision of a delegate of the first respondent (Minister) not to grant a temporary protection visa to the appellant.

Background

3    The appellant is a citizen of Iraq who is of Shia Muslim faith and Arab ethnicity.

4    The appellant arrived in Australia on 21 August 2012 as an irregular maritime arrival. He had travelled by boat from Indonesia. Upon arrival, he was detained on Christmas Island. He was initially interviewed there by an officer of the Department of Immigration and Citizenship on 23 August 2012. He was subsequently interviewed on 9 October 2012 at the Curtin Immigration Detention Centre.

5    On 7 October 2015, the appellant lodged with the Department of Immigration and Border Protection (Department) an application for a Temporary Protection (subclass 785) visa (TPV).

6    On 23 September 2016, a delegate of the Minister refused to grant a TPV to the appellant.

7    On 29 September 2016, the delegate’s decision refusing the appellant’s application for a TPV was referred to the IAA for review by it.

8    On 9 November 2016, the IAA affirmed the delegate’s decision not to grant a TPV to the appellant.

9    On 1 December 2016, the appellant filed his Circuit Court Application for Judicial Review of the IAA’s decision to affirm the delegate’s decision refusing his application for a TPV.

The Appellant’s Claims for Protection

10    As I have already noted, on 23 August 2012 and again on 9 October 2012, shortly after his arrival in Australia, the appellant was interviewed by Departmental officers. A record of each of those interviews was before the IAA and the Circuit Court. In addition to answering the prescribed questions in his TPV Application Form and providing answers to questions in his interviews, the appellant provided to the Department a Statutory Declaration in which he set out his protection claims and some of his personal history.

11    The appellant’s claims and relevant personal history may be summarised as follows:

(a)    He claims that he was born in early 1988 in Al Saadiya (also known as “As Sadiyah”) in Diyala, Iraq. He also says that he lived in Najaf, Iraq from 1988 to January 1993. He returned to Al Saadiya in January 1993 where he stayed until March 2012. Al Saadiya is located approximately 115 km north-east of Baghdad. He is not married. While the appellant’s notified date of birth seems to be correct, I note that the appellant’s place of birth recorded on an Identity Card issued by the Republic of Iraq in April 2012 and on other official Iraqi documents is Al-Hirah-Najaf.

(b)    In 2005, he and one of his older brothers joined the Iraqi Defense Force as infantry soldiers. The appellant continued to be employed in the Defense Force until mid-June 2012. He claimed that he served in ferocious battles against Al Qaeda in partnership with American forces.

(c)    In about July 2010, four men came to the appellant’s family’s home in Al Saadiya. These men threatened the appellant’s father, saying that the appellant and his brother were traitors for having joined the Iraqi Defense Force. These men told the appellant’s father that the appellant and his brother should resign from the army and that, if they did not do so, they would be killed. The appellant was not at home at the time that this incident took place and his father suggested he not return home at that time.

(d)    The appellant and his family believed at the time that the four men who had come to the family home in July 2010 were members of the Al Qaeda terrorist group because the area in Al Saadiya where the appellant and his family lived at that time was under constant threat of attack by Al Qaeda groups. In particular, those groups focussed on persons they believed had collaborated with American forces. He also said that, being a Shia in a majority Sunni area, meant that the appellant and his family were subjected to a greater risk of being killed than might otherwise have been the case.

(e)    On 15 May 2011, an older brother of the appellant was killed in public in Al Saadiya. He was shot in the chest while walking down the street. No-one has ever been apprehended in respect of his killing and the appellant’s family does not know who killed him. The appellant believes that the death of his brother was a targeted killing and was carried out in order to punish the appellant and his other brother who were in the Iraqi Defense Force for having joined that Force. He believes that his brother’s killers were the same people who had previously threatened his father. The brother who was killed was not in the Iraqi Defense Force but was a construction labourer and had not been involved in any political activities or, as far as the appellant knew, had done anything that would have attracted the attention of militia groups.

(f)    At the beginning of 2012, three men dressed in civilian clothing but wearing black balaclavas again came to the appellant’s family home in Al Saadiya. The appellant was at home on this occasion but his older brother in the military was not at home. The appellant was concerned that these men had come to kill him so he ran from the house and hid with neighbours. He later returned to the Cobra base located in Diyala where he was stationed at that time.

(g)    After this visit at the beginning of 2012, the appellant went to stay with his aunt in Basra. He continued to work at the Cobra base in Diyala but would alternate between staying at his family’s home at Al Saadiya and staying at his aunt’s home in Basra in order to make it difficult for anyone who wished to attack him to know where he would be at any particular time.

(h)    On 12 June 2012, the appellant left the Iraqi Defense Force without being formally discharged. He claims that he could not wait to be formally discharged because it takes a long time and he was afraid for his life.

(i)    The appellant left Iraq on 25 July 2012 and travelled to Indonesia via Dubai from where he embarked in a boat bound for Australia.

(j)    The appellant specified the following matters as the basis for his claimed fear of harm if he returns to Iraq:

(i)    He says he will be fined and gaoled for leaving the Iraqi army without being formally discharged;

(ii)    He fears that he will be killed by the same people who killed his brother;

(iii)    He believes that it was Al Qaeda who killed his brother and threatened his father, his other brother and himself. He believes that the Al Qaeda group will kill him just like they killed his brother;

(iv)    He believes that Al Qaeda will kill him because he worked in the Iraqi army assisting the Americans as an interpreter. Al Qaeda regard any person who assisted the Americans as traitors;

(v)    He believes that the Iraqi authorities cannot protect him from these Al Qaeda groups;

(vi)    He says that Al Qaeda is everywhere in Iraq. He says that they have intelligence networks all through the Iraqi government as well as in the general population. He claims that Al Qaeda groups will find him anywhere he goes. He believes that they will find him because they view him as a traitor;

(vii)    He claims that he will be killed by Al Qaeda or subjected to cruel or inhumane treatment; and

(viii)    He also fears that he will be killed by Jaysh Al-Mahdi (JAM), another terrorist group, if he returns to southern Iraq.

The Delegate’s Decision

12    On 16 March 2016, the appellant was interviewed by the delegate.

13    The delegate accepted that the appellant was a Shia Arab who had resided at Al Saadiya, Diyala, for most of his life.

14    The delegate also accepted that the appellant had served with the Iraqi army from 2005 until mid-2012. However, the delegate did not accept that the appellant had served in any emergency unit or special task force in the Iraqi army as he had claimed.

15    The delegate accepted the appellant’s version of events concerning the visits to his family home by a group of men in July 2010 and again in early 2012 and also accepted that his brother had been murdered for sectarian reasons in May 2011.

16    The delegate noted the fears which the appellant had expressed in relation to what might happen to him should he return to Iraq. The delegate then addressed those fears in turn.

17    The way in which the delegate dealt with the appellant’s claimed fears of persecution was adequately summarised by the primary judge at [36]–[46] of her Reasons for Judgment in the following terms:

In relation to military desertion, the Delegate referred to country information which it found provided no evidence of the Iraqi government prosecuting former Iraqi security forces for desertion. The Delegate did not accept that there was a real chance the applicant would be fined or jailed due to his desertion from the Iraqi security forces.

The Delegate had regard to country information, including the Global Terrorism database, in finding that there was not a real chance that the applicant faced a real chance of serious harm at the hands of Islamic State and Al Qaeda if he were to relocate to Basra or Najaf.

The Delegate had regard to country information when considering that while the applicant served at a time when the Iraqi security forces were engaged in fighting JAM, the applicant himself was not involved in that conflict, and therefore was not of interest to the Shia militias in southern Iraq.

The Delegate also considered whether the applicant would be able to safely travel to Najaf if he returned to Iraq. The Delegate noted that country information indicated that areas that the applicant would need to pass through to return to Najaf from Basra had low levels of insecurity and violence and further that those areas would be under the control of the Iraqi security forces. The Delegate therefore found that the applicant could safely and lawfully access Najaf from Basra.

The Delegate found that the applicant would not face a real chance of serious harm because of his service with the Iraqi security forces, his Shia religion or because he left the Iraqi security forces without being formally discharged.

The Delegate found that there was no evidence before it to consider that the applicant would suffer serious harm for any reason if he were to relocate to Najaf.

The Delegate was not satisfied that the applicant was a refugee as defined by s.5H(1) of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia had protection obligations as outlined in s.36(2)(a) of the Act.

The Delegate noted that as the applicant was not a refugee as defined in s.5H(1) of the Act an assessment in relation to s.5H(2) of the Act was not made.

The Delegate then considered if the applicant met the complementary protection criterion in s.36(2)(aa) of the Act and found that he did not.

The Delegate found that the applicant could live and work in southern Iraq and would not face a real risk of significant harm if he were to do so.

On 23 September 2016, the Delegate refused the applicant’s application for a TPV on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

18    I interpolate at this point that, by August 2012, the appellant’s mother and five of his siblings were residing in Najaf City, Najaf Province, Manarthara District, Iraq, having moved there from Al Saadiya, Diyala, earlier in 2012. It appears that the family had previously lived in Najaf City from 1988 to 1993. Thus, although the appellant had spent most of the period from January 1993 to March 2012 living in Al Saadiya, his family had moved to Najaf shortly before he left Iraq in late July 2012.

The Decision of the IAA

19    At [3]–[5] of its Reasons, the IAA said:

I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act).

On 20 October 2016, the IAA received submission from the applicant’s representative (the IAA submission). The submission addresses the delegate’s concerns. I do not consider this aspect of the submission to be ‘new information’ and I have had regard to these arguments.

The IAA submission also refers to information from musingsoniraq.blogspot.com.au and an article written by David Witty. This information pre-dates the delegate’s decision and purports to support the danger associated with living in Diyala and that the applicant’s army unit was specialised in fighting terrorism. No reasons have been provided to explain why this information could not have been provided to the delegate or why it is credible personal information. The applicant has not satisfied me that s.473DD(b) is met.

20    The primary judge summarised the IAA’s Reasons at [50]–[76] of her Reasons as follows:

The Authority found that the applicant would not face a real chance of harm by reason of imputed support for the military now or in the reasonably foreseeable future.

The Authority was not persuaded that the applicant deserted from the army due to any fear of harm. Rather, the Authority found that the applicant left because he was no longer interested in or committed to being a soldier.

Having found that the applicant was not a conscientious objector, the Authority was not satisfied that the applicant would be required to alter or conceal his beliefs, or otherwise fall within s.5J(3)(c) of the Act.

The Authority accepted that the applicant’s father was threatened in Diyala by Al Qaeda or by a Sunni armed group in 2011 because the applicant and his brother worked as soldiers and because they were Shias.

The Authority accepted, on the basis of a copy of the applicant’s [Brother B’s] death certificate, dated 15 May 2011, that the cause of death in Diyala in May 2011 was cardiac arrest as a result of being shot in the chest cavity. However, the Authority considered it speculative to make findings as to the identity of the killers or the reasons why he was killed.

The Authority questioned the applicant about inconsistencies in his claims in relation to an incident the applicant claimed had taken place in 2012 in his written claims and 2010 at interview.

The Authority accepted that Al Qaeda militants came to applicant’s family home sometime before his brother’s death in May 2011.

The Authority set out country information in respect of the risks to current and former members of the Iraqi security forces in northern and central Iraq, particularly Shias, since 2013. The Authority noted that a Department of Foreign Affairs and Trade (“DFAT”) report indicated that Shia communities were subject to general and targeted violence by Sunni-linked insurgent groups and extremists. The report also identified that Shia who were members of government security services appeared to have been specifically targeted by Daesh. The Authority also noted that Diyala, a traditional Sunni stronghold, remained one of the most violent areas in Iraq.

The Authority accepted that the applicant could face a real chance of harm from Sunni insurgent groups in Diyala for reasons of his past work as a solider and his Shia religion. However, the Authority noted, that pursuant to s.5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the receiving country.

The Authority was not satisfied, on the information before it, that former Iraqi soldiers or Shias faced a real chance of harm from Al Qaeda or other Sunni armed groups throughout Iraq. The Authority considered Sunni insurgent groups, including Al Qaeda, and Daesh only had very limited presence or capacity to carry out attacks against Shias in southern Iraq.

The Authority was not satisfied on the evidence before it that there was a real chance that Al Qaeda or Daesh or other Sunni armed groups would pursue, locate, target or harm the applicant in Najaf.

The Authority noted country information regarding risks of violence in Daesh controlled areas. Country information indicated that insurgent activity was highest in the northern, western and central areas of Iraq. However, the country information also indicated that the violence and casualty rates was much lower in southern Iraq, including Najaf. The country information indicated that Shias in Shia-dominated provinces of southern Iraq were at low risk of generalised violence. Based on that country information, the Authority was not satisfied that the applicant would face a real chance of harm in southern Iraq.

The Authority noted that at the applicant’s TPV interview, the applicant also claimed to fear harm from JAM or other Shia militant groups in the south of Iraq because he had worked with American marines as a soldier.

The Authority accepted that the applicant worked in a special unit of the Iraqi army; that he was involved in fighting terrorism and Sunni insurgents; that he received training in Diyala in 2005 for about 6 months and then served in Fallujah, Al-Anbar for about year, followed by Abu Graib for two years; and that he subsequently served in Diyala for about four years from 2008 to mid-2012. The Authority also accepted that the applicant worked with Americans while serving as a soldier.

The Authority accepted the applicant’s evidence given at the TPV interview that he had not been involved in the most ferocious battles against the Al Qaeda and other terrorist groups.

The Authority found that JAM and other Shia militant groups had a very limited presence, if any, in Sunni strongholds such as Diyala, central or northern Iraq and that the applicant did not have a high profile with either.

The Authority noted that country information indicted JAM was disbanded in 2013 and reformed as the Peace Brigade in 2014. Country information further indicated that the Peace Brigade and other Shia militant groups in the south were working alongside the Iraqi security forces, the Iraqi government, and were indirectly allied with US forces in the fight against Al Qaeda and ISIS.

In light of that country information, the Authority did not accept that, given the applicant’s low profile, he would have come to the attention of JAM or any Shia militant groups.

The Authority did not accept that the applicant is or was of any interest to JAM or other Shia militant groups, or that he faced a real chance of harm from JAM or Shia armed groups for reasons relating to his Shia religion, his past work as a solider, any actual or imputed political opinion or for any other reasons.

The Authority found that the applicant could access Iraq safely via the Basra international airport upon return, and he could then safely access Najaf from Basra by road, given that the southern areas had remained significantly stable and more secure.

The Authority found that a real chance of persecution did not relate to all areas of Iraq and concluded that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and therefore did not meet s36(2)(a) of the Act.

Having found that the applicant would not work as a soldier upon return, the Authority found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq that there was a real risk that the would suffer significant harm on that basis.

However, the Authority found that there was not a real risk that the applicant would suffer significant harm in Iraq because it would be reasonable for him to relocate to Najaf, where there would not be a real risk that he would suffer significant harm.

The Authority found that there was no real risk that the applicant would be caught up in generalised violence in the south, and that he would not face a real risk of any other significant harm if he were to relocate to Najaf.

Having considered the applicant’s particular circumstances, including his education level, skills, experiences and training from his work; and having regard to the security and general situation, his family ties and his particular circumstances, the Authority was satisfied that it was reasonable for the applicant to relocate to Najaf where there would not be a real risk that he would suffer significant harm.

The Authority therefore 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 applicant would suffer significant harm.

Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Authority affirmed the decision under review.

21    That summary is substantially accurate and more than adequate for present purposes.

22    Having addressed the IAA’s Reasons, the primary judge then moved to consider the appellant’s Application for Judicial Review.

The Appellant’s Judicial Review Application in the Circuit Court

23    In the Circuit Court the appellant was represented by Counsel.

24    On the morning of the hearing before the primary judge (which took place on 30 August 2018), the appellant was given leave to amend his Application for Judicial Review so as to raise four specific grounds. The appellant had previously amended his Grounds of Review on 23 August 2018. The primary judge extracted the 30 August 2018 grounds verbatim at [78] of her Reasons. Those grounds were:

GROUND ONE:

The IAA has erred by acting on an invalidly issued certificate issued pursuant to section 473GB of the Migration Act 1958 (Cth) and/or denied the Applicant procedural fairness by failing to inform the Applicant of the Certificate's existence before making a decision.

GROUND TWO:

The IAA has made a decision that is so illogical that no reasonable person would have made it.

Particulars

a.    On 20 October 2016, the Applicant’s Migration Agent forwarded to the IAA submissions to address concerns raised by the delegate.

b.     The submissions included material drawn from the musingsoniraq.blogspot.com.au regarding the security issues in Applicant’s home area and an article by David Witty regarding the combat duties of the Applicant’s brigade.

c.     In dealing with submissions advanced by the Applicant, the Assessor determined that a submission, forwarded to the IAA by the Applicant’s Migration Agent following the delegate’s findings, was not “new information” because it “addresses the delegate’s concerns” and chose to have regard to it.

d.     However, the Assessor regarded material drawn from the blog site and the article as “new information”, despite it also clearly having been led to address the delegate’s concerns.

e.     There is no discernible reason as to why the Assessor dealt with the material, all drawn from the same document and led for the same purpose, in different ways.

GROUND THREE:

The IAA has failed to apply the correct test pursuant to section 473DD of the Migration Act 1958 (Cth).

Particulars

In determining that the new information – namely the article by David Witty and information drawn from the blog site referred to at paragraph 5 of the decision – would not be admitted, the Assessor expressly only had regard to section 473DD(b) of the Act and failed to have regard to whether the material could be regarded as “credible personal information” under section 473DD(b)(ii).

The IAA has therefore failed to apply the reasoning of His Honour White J in BVZ16 v Minister for Home Affairs at [6], narrowly and impermissibly construing section 473DD of the Act.

GROUND FOUR:

The IAA has failed to apply then relocation test to the Applicant’s claim and/or to complete the task of jurisdiction embarked upon.

Particulars

Despite making a finding that the Applicant would “face a real chance of significant or serious harm from Sunni insurgent groups in Diyala”, the Assessor failed to make a finding as to the reasonableness of the Applicant relocating elsewhere in Iraq.

25    At [79] of her Reasons, the primary judge noted that the appellant withdrew reliance on ground 1. She then moved to address grounds 2 and 3 together.

26    The primary judge rejected grounds 2 and 3 and explained her reasons for doing so at [80]–[112] of her Reasons.

27    The primary judge noted that the information which was said to be “new information” for the purposes of grounds 2 and 3 was the information provided in the appellant’s submission to the IAA dated 20 October 2016 identified by the primary judge as follows:

http://www.brookings.edu/wp-content/uploads/2016/06/David-Witty-Paper_Final_Web.pdf (“the David Witty Paper”)

http://musingsoniraq.blogspot.com.au/2015/02/iraqs-diyala-province-insurgent.html (“the BlogSpot Information”)

28    In that submission, the appellant’s representative argued that the David Witty Paper made clear that the appellant’s brigade and unit were specialised in fighting terrorism. This was contrary to the delegate’s finding that the appellant’s unit was not an emergency unit. The appellant’s representative also submitted to the IAA that the BlogSpot Information had also confirmed that the appellant’s unit was relevantly an emergency unit.

29    Having referred to the David Witty Paper and the BlogSpot Information, the primary judge said that the submission of 20 October 2016 otherwise merely identified and, to some extent, addressed, findings made by the delegate.

30    As the primary judge noted (at [80]), grounds 2 and 3 of the appellant’s Application for Judicial Review in the Circuit Court concerned the manner in which the IAA had dealt with its obligations under s 473DC and s 473DD of the Migration Act 1958 (Cth) (the Act).

31    By reference to the contents of a letter written to the appellant by the IAA on 29 September 2016 and a Practice Direction of the IAA concerning those statutory provisions, the primary judge noted that the IAA can only consider “new information” in limited circumstances and that, in addition, it must be satisfied that there are exceptional circumstances to justify considering the new information sought to be relied upon.

32    The primary judge noted (at [95]), by reference to Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 (CLV16) that a submission which only addresses information already made available for consideration by the IAA and which contains no additional facts or information is not “new information” for the purposes of s 473DC of the Act. In CLV16, the Court held that the term “information” in that section did not include a submission.

33    At [96]–[109] of her Reasons, the primary judge said:

Section 473DC and s.473DD place a constraint on the Authority’s ability to get or consider further information. The Court in CLV16 concluded that a submission provided in response to the Practice Direction was a submission that could be made and would be considered.

In considering whether it should have regard to “new information”, the Authority must be satisfied that there are exceptional circumstances to justify considering the new information and be satisfied that the new information was not and could not have been provided to the Minister before the Delegate’s decision; is credible personal information which was not previously known; and, had it been known may have affected the consideration of the applicant’s claims (see s.43DD of the Act).

Section 473DC enables the Authority to obtain information that was not before the Minister when the Delegate made its decision and which the Authority considers may be relevant.

Counsel for the applicant contended that the Authority did not properly consider all aspects of s.473DD(b) of the Act in that the Authority did not provide reasons as to why the information was not credible personal information; whether it was not previously known; and, if it had been known, whether it may have affected the consideration of the applicant’s claims.

As is clear from the passages from the Authority’s decision quoted above, the Authority was of the view that the information in the David Witty Paper and the BlogSpot Information pre-dated the Delegate’s decision. It also noted that the information purported to support the danger associated with living in Diyala and that the applicant’s army unit was specialised in fighting terrorism.

The Authority accepted that the applicant worked in a special unit; was involved in fighting terrorism and fighting Sunni insurgents; received training in Diyala in 2005 for about 6 months; served in Fallujah, Al-Anbar for about a year; served in Abu Ghraib for 2 years; and, then served in Diyala in 4 years between 2008 to mid-2012.

The Authority also accepted that the applicant had worked with Americans while serving as a soldier. However, as stated above, in the applicant’s own evidence, the Authority found that the applicant had not served in the “most ferocious battles against the Al Qaeda group and any other terrorist group”.

In relation to the applicant’s complaint that the Authority did not consider whether the information was credible personal information, the Authority stated that no reasons had been provided by the applicant to explain why the information could not have been provided to the Delegate or why it was credible personal information and therefore did not satisfy s.473DD(b) of the Act.

Counsel for the applicant also contended that the information contained in the BlogSpot Information was personal information about the applicant as it related to Diyala, which was the applicant’s home town.

However, Gageler, Keane and Nettle JJ made clear and plain in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [33] – [34] that in order to be credible personal information, the information must be credible information about an identified individual or an individual who is reasonably identifiable.

Counsel for the applicant referred the Court to CQW17 v Minister for Immigration & Anor [2017] FCCA 2378 at [51] – [52] in support of the contention that the Authority is obliged to consider all relevant circumstances in considering whether exceptional circumstances exist and that the nature and cogency of the material must not be peripheral, too vague or insufficiently cogent to be rationally probative of the Authority’s reasoning.

As the Authority’s reasons make clear, the Authority accepted that the applicant would face a real chance of harm from Sunni insurgent groups in Diyala for reasons of his past work as a soldier and his Shia religion. However, as stated above, based on the applicant’s own evidence, the Authority did not accept that the applicant had fought in the “most ferocious battles”.

In the absence of any submission by the applicant as to why the information in the David Witty Paper and the BlogSpot Information satisfies s.473DD of the Act, and in circumstances where the applicant was specifically directed to the need to address those matters in the Practice Direction, there is nothing apparent on the face of the information to suggest that the information is credible personal information about the applicant. In those circumstances, s.473DD(1)(b)of the Act is not met.

I do not accept the applicant’s contention in this case that those matters should also be considered in a context of considering exceptional circumstances in this case, where no submissions were put to that effect.

34    The primary judge then noted that the IAA had identified and considered in detail UNHCR and DFAT information which it found to be independent and comprehensive. The IAA gave more weight to that material than it accorded to the appellant’s claims for protection and his representative’s submissions, as it was entitled to do.

35    The primary judge’s ultimate conclusions in respect of grounds 2 and 3 are found at [111]–[113] where her Honour said:

The Authority was not satisfied that former Iraqi soldiers or Shias face a real chance of harm from Al Qaeda or other Sunni armed groups throughout Iraq and ultimately was satisfied that the applicant would face only a remote chance of harm in southern Iraq. The Authority concluded as follows:

“74. For the above reasons, I do not accept that the applicant is or was of any Interest to JAM or other Shia militant groups, or that he. faces a real chance of harm from JAM or Shia armed groups for reasons relating to his Shia religion; his past work as a soldier, any actual or imputed political opinion or for any other reasons.

75. In addition, as noted by the delegate, I consider that the applicant can access Iraq safely via the Basra International airport upon return, and he can then safely access Najaf from Basra by road, given that the southern areas have remained significantly stable and more secure.

76. For the reasons set out above, I find that the real chance of persecution does not relate to all areas of Iraq.

Refugee: conclusion

77. The applicant does not meet the requirements of the definition of refugee in s.5H(1). He does not meet s.36(2)(a).”

However, even if there was some error in the manner in which the Authority considered s.473DD(1) of the Act, in light of the Authority’s broad acceptance of the applicant’s claims, there is nothing to suggest that the applicant has experienced any practical injustice or detriment and the applicant does not assert otherwise (see AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 (“AVO15”) at [91] per Barker J; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (“WZARH”) at [57] per Gageler and Gordon JJ).

Accordingly Ground 2 and Ground 3 are not made out.

36    The primary judge then turned to address ground 4.

37    At [114], her Honour noted that the appellant’s Counsel acknowledged that ground 4 had evolved into a contention that, in considering s 5J(1)(c) of the Act, the IAA had failed to give consideration to any risk of harm to the appellant as identified in that section, other than death. This was said to amount to jurisdictional error. Counsel submitted that the IAA had not dealt with all aspects of serious harm as defined in the Act and that a well-founded fear of persecution had squarely arisen on the information and material before the IAA. The primary judge was of the opinion that the IAA had not constrained its consideration of the matters raised by s 5J of the Act in the manner for which the appellant contended.

38    At [119]–[128], the primary judge addressed the question of complementary protection and concluded that the IAA had committed no error in the manner in which it had considered the issue of relocation under the new regime identified in the IAA’s Reasons.

39    At [129]–[136], the primary judge stated her conclusions in the following terms:

A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant had regard to all material provided in support. The Authority identified with particularity independent country information to which it had regard.

The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including in the conduct of its review.

The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

As stated above, even if there was an error in the Authority’s application of s.473DD of the Act, no practical injustice resulted to the applicant and to grant the relief sought by the applicant would serve no utility. The David Witty Paper and the BlogSpot Information would not assist the applicant in addressing the Tribunal’s finding that he personally had not engaged in “ferocious battles” as that finding was based on the applicant’s own evidence.

In the circumstances, the new information disclosed in the David Witty Paper and the BlogSpot Information do not take the applicant’s claims any further.

Accordingly, in the exercise of the Court’s discretion, even if the decision of the Authority is affected by jurisdictional error in its consideration of s.473DD of the Act, relief should not be granted to the applicant.

The proceeding before this Court should be dismissed with costs.

The Appeal in this Court

The Appellant’s Grounds of Appeal and his Contentions in Support

40    The appellant’s Appeal in this Court was commenced by the filing of a Notice of Appeal on 21 November 2018. In that document, the appellant specified two grounds of appeal in the following terms:

Grounds of appeal

1.    The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (“the IAA”) erred in not exercising its power under s 473DC and 473DD.

2.     The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority failed to consider s.5 J(1)(C).

41    I take the view that, by these grounds, the appellant seeks to re-agitate grounds 2, 3 and 4 of the grounds of judicial review which he had raised in the Circuit Court. He seems to contend that the primary judge erred by not accepting the arguments which his Counsel advanced in support of his Judicial Review Application in that Court. However, he did not bring forward any arguments or submissions to support that ultimate proposition.

42    At the hearing of his Appeal before me, the appellant appeared in person with the aid of an interpreter. The commencement of the hearing was delayed by approximately 15 minutes in order to enable the interpreter to translate to the appellant the Written Submissions which had been filed by the Minister. That task had commenced five minutes before the time at which the hearing was due to commence. The appellant had requested the assistance of an interpreter who was fluent in the Arabic language although I note that he obviously has some capacity to both speak and understand English as he had acted as an interpreter for American troops while serving in the Iraqi Defense Force in Iraq.

43    The appellant did not file any Written Submissions in support of his Appeal. He did however make brief oral submissions. He said:

(a)    The David Witty Paper supported his contention that it was not safe for him to return to Iraq (including to Najaf) given that he had been a soldier in the Iraqi army who had assisted American troops;

(b)    Returning to Najaf will not eliminate the risk of his coming to serious harm;

(c)    There is killing and destruction on the streets in Iraq and the Australian army has troops there who could corroborate that observation; and

(d)    The primary judge was wrong in her decision. She made a judgment based only on the papers. She has not lived his life or been through his circumstances.

Decision

44    The Minister filed and served a Written Submission dated 27 February 2020 in which he set out his arguments in detail. Counsel who appeared for the Minister at the hearing of the Appeal supplemented that Written Submission very briefly with a short oral submission.

45    I have carefully considered the Minister’s submissions. I think that they are correct and I accept them. It follows that the Appeal must be dismissed with costs.

46    I will now provide my reasons for coming to the decision to which I have come. Those reasons are, in large part, based upon the Minister’s arguments and contentions.

Ground 1

47    This ground raises the true interpretation of s 473DC and s 473DD of the Act. At all relevant times in 2016, those sections were in the following terms:

473DC    Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD    Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

48    In the Circuit Court, the appellant argued that the IAA committed jurisdictional error in the way that it dealt with certain “new information” under s 473DC and s 473DD of the Act. Two particular errors were relied upon:

(a)    The first particular error involved the IAA’s consideration of the 20 October 2016 submissions made to it by the appellant’s representative. It was said that the IAA’s treatment of two aspects of those submissions was irrational. The appellant’s argument was that the IAA had treated the David Witty Paper and the BlogSpot Information as “new information” within the meaning of that term in s 473DC and s 473DD of the Act but had treated the balance of the material in those submissions as “submissions” when, in truth, there was no discernible reason why those two types of matter were treated differently; and

(b)    The second particular error which was alleged in the Circuit Court and, therefore, intended to be picked up as a ground of appeal in this Court, was the appellant’s contention that, in any event, the IAA failed to consider whether the “new information” furnished to it by the appellant’s representative on 20 October 2016 was “credible personal information” as required by s 473DD(b)(ii) of the Act.

49    At [81]–[93] of her Reasons, the primary judge reviewed the relevant reasons of the delegate and the IAA as well as the appellant’s evidence as to his role in the army to which the IAA had referred.

50    Against that background, at [94] of her Reasons, the primary judge turned to the first particular error relied upon by the appellant in the Circuit Court viz irrationality.

51    The distinction between “submissions”, on the one hand, and “new information”, on the other hand, as discussed by the Full Court in CLV16 is a distinction which flows from the provisions of the Act itself, particularly s 473DC and s 473DD. Her Honour took the view that it cannot be irrational or unreasonable for the IAA to have proceeded as it was obliged to do by the Act. Of particular importance in this context were the constraints under which the IAA must proceed in dealing with “new information” (as to which, see also Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (Plaintiff M174) at 228 [24] per Gageler, Keane and Nettle JJ).

52    At 228 [24]–[25] in Plaintiff M174, Gageler, Keane and Nettle JJ explained the essence of s 473DC, 473DD and 473DE in the following way:

The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

There is no inherent dichotomy between new information which meets the two conditions set out in s 473DC(1)(a) and (b) and review material which the Secretary is required to give the Authority under s 473CB. That is because review material is not limited to information that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa.

53    In my view, the primary judge did not err in the approach which she took to this first aspect of ground 2 relied upon in the Circuit Court. Her rejection of the appellant’s contention that the IAA’s approach disclosed irrationality was correct.

54    The primary judge then considered the second alleged particular error, namely the IAA’s alleged failure to consider whether the “new information” was “credible personal information”.

55    As submitted by the Minister, the primary judge:

(a)    Noted the factual issues to which the “new information” related (namely, the danger associated with living in Diyala and the appellant’s army unit being specialised in fighting terrorism) (Reasons at [100]);

(b)    Recounted the IAA’s acceptance of many of the appellant’s claims concerning his army service, including his claims to have worked with American troops (Reasons at [101]–[102]), its finding based upon the appellant’s evidence that he had not served in the most ferocious battles against Al Qaeda (Reasons at [102] and at [107]) and its conclusion that the appellant faced a real chance of harm from insurgent groups in Diyala for reasons of his past work as a soldier and his religion (Reasons at [107]);

(c)    Directed herself to Plaintiff M174 (at 230–231 [33]–[34]) as applicable High Court authority on the meaning of the expression “credible personal information” (Reasons at [105]); and

(d)    Concluded that the appellant had not provided any explanation or submission as to why s 473DD was satisfied in the present case and went on to hold that there was “nothing apparent on the face of the information to suggest that the information is credible personal information about the [appellant]” (Reasons at [108]).

56    The reasoning of her Honour to which I have referred at [55] above is also free from error. Her Honour’s reasoning is consistent with the High Court’s decision in Plaintiff M174 and reflects the proper characterisation of the “new information” brought forward in this case.

57    For all of the above reasons, the appellant has failed to make good ground 1 of his Notice of Appeal.

58    I note that her Honour was also of the view that, even if the Tribunal had made an error in its approach to s 473DC and s 473DD, relief would have been refused as a matter of discretion.

Ground 2

59    I approach ground 2 upon the basis that it corresponds to ground 4 raised in the appellant’s Application for Judicial Review in the Circuit Court which was ultimately addressed by the primary judge upon the basis that it had evolved into an allegation that “in considering s.5J(1)(c) of the Act, the [IAA] had failed to give consideration to any risk of harm to the [appellant] as identified in that section, other than death” (see Reasons at [114]). The appellant’s argument was that the IAA did not expressly advert to and thus failed to deal with all aspects of serious harm postulated in s 5J(4) and s 5J(5) of the Act.

60    At all relevant times, s 5J of the Act provided:

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.

61    At [115] of her Reasons, the primary judge set out the text of s 5J. Relevantly, subs 1(c) of s 5J requires that “the real chance of persecution [referred to earlier in the section] relates to all areas of a receiving country”. Subsections (4) and (5) of s 5J require that the postulated “persecution” must involve “serious harm to the person” and, without limitation, the Act specifies “instances of serious harm”.

62    The primary judge concluded that the IAA had properly directed itself as to the applicable law relevant to ground 4 and therefore rejected the allegation of jurisdictional error (Reasons at [116]). At [118] of her Reasons, the primary judge held that the appellant’s claims of having a well-founded fear of persecution were specific and clear in respect of the particular harm or harms that he feared. In the primary judge’s view, the IAA had taken into account the various claims of likely harm which the appellant had advanced in respect of the prospect of living in Diyala although it had concluded that he did not face the same risks were he to return to Najaf in southern Iraq. For this reason, the primary judge made no error when she rejected the ground of review based upon the IAA’s alleged failure to apply s 5J(1)(c) correctly.

63    The primary judge then turned to address the IAA’s decision concerning the likely harm which the appellant would face were he to return to Najaf. Her Honour addressed this matter in the context of the complementary protection criteria in s 36(2)(aa) of the Act.

64    At [119]–[124], her Honour set out the IAA’s statement of the applicable provisions and its findings on the issue concerning the likely harm which the appellant would face upon his return to Najaf. Her Honour held that, based upon country information, the IAA had considered the appellant’s particular circumstances and was satisfied that it would be reasonable for the appellant to return to Najaf having regard to the security and general situation there, the appellant’s family ties (given that many members of his family were living in Najaf) and his particular circumstances. Her Honour then concluded that there was no error in the way in which the IAA had considered the question of the appellant’s return to Najaf in the context of its consideration of s 36(2)(aa) of the Act.

65    As submitted by the Minister, the primary judge was also correct to hold that the IAA had properly applied the law with respect to relocation in the complementary protection context. The IAA asked itself whether it would be reasonable for the appellant, in his particular circumstances, to live in Najaf (as opposed to living in Al Saadiya) where there was no appreciable risk of the occurrence of the harm which he feared. In the context of alleged relocation, this is the correct question (see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at 26 [22], 27 [24] and 29 [32] per Gummow, Hayne and Crennan JJ; and Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at 326–327 [23] per French CJ, Hayne, Kiefel and Keane JJ). Although the primary judge did not cite the above authorities in support of the conclusion which she had reached, it was not necessary that she do so. She understood and correctly applied the relevant principles.

66    For all of the above reasons, the appellant has failed to establish ground 2 of his Notice of Appeal.

Conclusions

67    The appellant has failed to make out either of the grounds relied upon by him in his Notice of Appeal. It follows that his appeal must be dismissed with costs. There will be orders accordingly.

Associate:

Dated:    11 March 2020