Federal Court of Australia

DWX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1688

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to his appeal to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

BEACH J:

1    The appellant, a citizen of Iraq, appeals from a judgment of the Federal Circuit Court given on 6 March 2020 where the primary judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority made on 11 November 2016 that had affirmed a decision of a delegate of the Minister to refuse to grant to the appellant a Safe Haven Enterprise visa (the visa).

2    The appellant contends that the primary judge erred by failing to find that the Authority had applied the wrong legal test or failed to properly consider and assess the appellant’s claims under the complementary protection criterion (s 36(2)(aa) of the Migration Act 1958 (Cth)). No issue has been raised either below or before me concerning the Authority’s rejection of the refugee criterion (s 36(2)(a)) insofar as the appellant sought to invoke it.

3    In relation to the complementary protection criterion, the appellant contends that the Authority failed to consider his claim that if he were required to return to Iraq, he would be at risk of being arbitrarily deprived of his life in a terrorist attack or similar incident of violence (the generalised violence claim). He says that such a claim was considered although rejected by the delegate. Therefore, he says that it was a jurisdictional error for the Authority not to have so considered it.

4    Contrastingly, the Minister contends that the appellant did not make a generalised violence claim whether before the delegate or the Authority. But in any event, the Minister says that in reviewing the delegate’s decision, no obligation arose on the Authority to approach its consideration of the appellant’s claims with reference to the manner in which the delegate had done so. The context of this latter contention will become clearer later.

5    My consideration of the matter is the fourth stage at which the appellant’s visa application has been considered, albeit applying different lenses at each stage. What is now left? No maintainable claim directly concerning the refugee criterion. Nothing indeed concerning any clearly articulated claim relevant to the complementary protection criterion. But rather little more than an argument of a type once fancied by medieval scholastics. Counsel for the appellant, astutely identifying textual imprecision in the delegate’s reasons, has sought to render incarnate an otherwise illusory claim concerning the complementary protection criterion which the Authority is then said to have overlooked. This argument was put as ambitiously as it could have been, but must be rejected.

6    For the reasons that follow, I would dismiss the appeal.

RELEVANT BACKGROUND

7    The appellant is a Shia Arab from Al-Hussaineya in the Karbala province of Iraq. He lodged an application for the visa on 5 August 2015 supported by a statutory declaration.

8    On 3 August 2016, the delegate refused to grant the visa. Let me at this point say something briefly about the delegate’s reasons. I will analyse some of the key passages in more detail later. Given that I am considering whether the Authority made a jurisdictional error, nevertheless and albeit unusually, the appellant’s sole ground of appeal requires me to delve more deeply into the delegate’s reasons.

9    The delegate summarised the appellant’s claims. Relevantly, one of the claims was articulated in the context of there being “a high potential for Islamic State (IS) to attack his home area of Karbala” and further that IS, being a Sunni extremist group, was likely to attack Karbala “because it is an area of religious Shia significance and is home to prominent Shia shrines which attract religious tourists”. The appellant further claimed that as a police officer he would be targeted because he would likely be viewed as a supporter of the West. The appellant claimed that he had worked as a police officer for the Iraqi Minister of Police in Karbala and that he had been requested to work alongside American forces in the Special Weapons and Training (SWAT) team. Further, the appellant claimed that as a consequence of his position as a police officer he had been specifically threatened and his house and car burned by insurgent groups. Moreover, he made a claim based upon his position as potentially a returned asylum seeker.

10    In relation to the complementary protection criterion, the appellant says that he also made a generalised violence claim. I will address that matter later.

11    At this point I will simply say that the delegate rejected the claims made, determined that neither the refugee criterion nor the complementary protection criterion had been made out and refused the visa application.

12    On 5 August 2016, the delegate’s decision was referred to the Authority. I would note that up to this point in time the appellant had not been legally represented.

13    On 22 September 2016, the appellant through his legal representative provided documents to the Authority including submissions and a further statutory declaration.

14    On 11 November 2016, the Authority affirmed the delegate’s decision.

15    The Authority accepted that the appellant was a member of the Iraqi police service since 2002. However, it had doubts about the appellant’s claimed role as a SWAT team member who participated in regular raids, although it accepted that he may have assisted in occasional raids with Coalition forces.

16    Further, the Authority did not accept the appellant’s claims to have been threatened in 2012 and that he had had his house and car burned on the basis of being a police officer.

17    Further, the Authority observed, relying on DFAT country information, that Shia communities were subject to both general and targeted violence by Sunni-linked insurgent groups and extremists. The violence was largely aimed at destabilising the government and communities, rather than being targeted at individuals. Further, insurgent activity was highest in cities and provinces with a mixed ethnic or religious composition. But levels of violence in the southern provinces, a majority Shia area, were much lower. Further, whilst Sunni groups had attacked locations in the southern provinces, the casualty rate was much lower than elsewhere in Iraq. Further, the Authority recited that DFAT assessed that working for particular areas of government could increase vulnerability to deliberate killing by mainly Sunni insurgents. But other government officials were subject to a low risk of violence.

18    The Authority observed that the appellant would be returning to Karbala, a southern governorate of Iraq and one which is Shia dominated. It noted that Karbala was the appellant’s home area where his family continue to reside, and noted that he would be returning as a Shia Muslim and former police officer. It further noted that DFAT assessed that the Shia-dominated provinces had experienced fewer violent attacks and that Shias in Shia-dominated provinces of southern Iraq were at a low risk of generalised violence.

19    The Authority noted that contained in the appellant’s submissions were excerpts of two articles. Relevantly, the first article was published by Al Jazeera on 29 August 2016 and reported on a bombing in Karbala killing 17 people (the Al Jazeera report). The Authority noted that the articles were not before the delegate at the time of the delegate’s decision, but treated their contents as new information that it could consider. It noted that it was evident that there had been IS attacks in Karbala as recently as August 2016. It noted that the reporting indicated that IS’s objective was to target religious holy sites in Karbala.

20    The Authority was not satisfied that there was a real chance that the appellant would be targeted on the basis of being a former police officer.

21    Further, the Authority found that on the evidence before it there was no real chance that someone with the appellant’s profile would be harmed by any terrorist organisations, and further that whilst there had been reports of IS attacks in Karbala, the attacks were targeting Shia religious sites.

22    Further, the Authority noted that country information indicated that Karbala, given its religious relevance, had maintained tight security and had experienced low levels of security incidents.

23    Further, in considering the complementary protection criterion, the Authority found that the appellant would be returning to Karbala as a Shia Muslim and noted its earlier finding that the appellant would not face a real chance of harm on that basis. It was satisfied that the appellant would not face a real risk of significant harm.

24    In summary, the Authority found that neither the refugee criterion nor the complementary protection criterion had been made good. Accordingly, it affirmed the delegate’s decision.

25    The appellant then sought judicial review in the Federal Circuit Court. The challenge before the primary judge turned on whether the appellant had made a generalised violence claim, which was relevant to the Authority’s treatment and assessment of the complementary protection criterion.

26    Before the primary judge, the appellant submitted that the Authority had fallen into jurisdictional error by applying the wrong legal test in relation to the complementary protection criterion and taking into account an irrelevant consideration. Further, it was asserted that the Authority failed to properly consider the appellant’s generalised violence claim. In particular, the appellant submitted that the Authority had considered the generalised violence claim by reference to the refugee criterion, rather than by properly applying the complementary protection criterion. In response, the Minister submitted that there was no claim squarely raised either by the appellant or on the material before the Authority that the appellant would suffer a risk of generalised violence in the sense that the appellant would be the subject of indiscriminate or random violence.

27    The primary judge found that no claim was squarely raised on the material before the Authority that the appellant would suffer a risk of generalised violence. The primary judge therefore held that the Authority had not fallen into jurisdictional error by failing to properly consider the generalised violence claim by reference to the complementary protection criterion. Let me elaborate on some aspects of his reasons.

28    The primary judge considered that the Al Jazeera report had been raised in relation to the appellant having a profile of interest and being at risk as a result of such a profile, rather than as a result of random or indiscriminate violence.

29    The primary judge found that the Authority considered the claims as framed by the appellant, but that he had not made a claim that he faced a real risk of significant harm on the basis of indiscriminate violence.

30    The primary judge referred (at [48]) to the Authority’s finding that the appellant would be returning to Karbala and made reference to DFAT country information which assessed that Karbala was a Shia-dominated province and that such provinces had experienced fewer violent attacks. The primary judge quoted the Authority, which had said that:

Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence, whereas Shias in Baghdad province face a moderate risk of generalised violence.

31    The primary judge concluded (at [49]):

In my view the Authority considered the claims made by the Applicant in relation to complementary protection on the basis of the claim as framed by the Applicant. The Applicant did not make claims that he had a real risk of significant harm on the basis of indiscriminate violence.

32    And in these circumstances, the primary judge said that the Authority was not required to consider the applicability of s 36(2B)(c).

33    The primary judge accordingly dismissed the judicial review application.

THE PRESENT APPEAL

34    The sole ground of appeal before me has been expressed as follows:

The Federal Circuit Court fell into error by failing to find that the Immigration Assessment Authority applied the wrong test and/or took into account an irrelevant consideration in assessing the appellant’s claims under the ‘complementary protection’ criterion.

35    The appellant makes two main points in support of this ground. First, the appellant says that the generalised violence claim was squarely raised by the appellant. Second, the appellant says that the delegate expressly assessed the generalised violence claim under the complementary protection criterion and rejected it. In that context, the appellant says that the Authority was obliged by s 473CC to conduct a “true review” of the delegate’s decision. And to discharge this statutory duty, the Authority had to consider each claim that was addressed by the delegate and decide for itself whether the delegate was right to reject that claim. The appellant says that the Authority failed to do this and the primary judge was in error for not so finding.

36    Before directly addressing the principal issues raised, it is necessary to descend into more detail as to how the appellant’s claims were raised and put at various stages.

37    The primary document relied on by the appellant in support of his visa application was his first statutory declaration. But in my view the first statutory declaration did not make or disclose any generalised violence claim which warranted consideration under the complementary protection criterion.

38    In that declaration, the appellant stated that he was from Karbala province in Iraq, that he was of the Shia Muslim faith, and that he had worked as a police officer since 2002 and performed counter-terrorism operations with US forces in Iraq between late 2007 or early 2008 and 2012. He claimed that if he was required to return to Iraq, he would be targeted for reprisal by terrorist organisations.

39    Now the appellant also submits that in his first statutory declaration he made a generalised violence claim. I do not think so. In [38] to [46] he stated:

Fears on return

My close family is in Al Husseiniya, in Iraq, and I am concerned for their safety. My home town is in the north of the Karbala province, which is closer to Baghdad than the south. There are more security issues here than the south of the province. Because we are between Anbar province, which is now under IS control, and Baghdad, it is a very unsafe area and I am concerned it will only get more unsafe.

I know that the future of Iraq is uncertain. The security situation is very unstable now and dangers will likely increase in the near future. This is particularly so in the part of Karbala that I am from, which is near the capital of Baghdad. I think there is a high potential for IS to attack my home area. This is because it is a Shia area, and there are two prominent Shia religious places in my area - Al Imam Alhusseineya (“Shrine of Hussein ibn Ali”) and Al Imam Abbas (on Wikipedia as “Abbas ibn Ali”) - and I am concerned that IS will want to attack these places in particular. People come from all over the world to these places as religious tourists, so there is a direct risk that IS will seek to attack this area for this reason. I think it will work to strengthen, and defeat the Iraqi army that currently controls this area, and come and take it over. They have taken control of the neighbouring province of Anbar, and I think their aim is to control Karbala.

I am concerned that if I returned to Iraq, I would be personally targeted because of the police work that I did, and because it suggests that I support the West and do not support the terrorists. The people we raided didn’t have a name before, but now, the groups we knew as “terrorists” are called ISIS, or IS. They control everything, they have informants everywhere. They have previously targeted Iraqi police stations in other places in Iraq. Further, while officially Jaish Al Mahdi have been resolved, to my knowledge they are still very active, and seeking revenge against their opponents.

I have heard about people like me who had worked as police members in Iraq and then fled the country and then returned, being killed. This is because they are coming from the West, and are seen as opponents of the terrorists’ cause. They may also be viewed as being spies for the West. It is clear that the Iraqi authorities cannot protect people like me in that country, because they are being killed. I fear if I return I will be killed like those people, because I will be coming from the West, because they will see me as a spy for the West, and because of my work history raiding the terrorists.

It is impossible for me to relocate to any other part of Iraq because I will be targeted wherever l go. Because there were threatening SMSes sent to my phone and my house and car were burnt down, it is clear that they know my identity, and can easily find me and target me. I am concerned that if I return I will either be killed, because people will think I have been trained as a spy for Western forces (because of where I am coming from and my work history), or forced to join armed militant groups because of my police experience.

I do not want to fight with other armed groups, because I don’t want to hurt anyone. When I started work with the police, I took an oath to protect the country and not kill anyone.

I left my [children when …]. It is not easy to do, but I left because I did not want to get killed, and I want to remain alive for them.

In Iraq, it is hard to move to a new area. People will view me with suspicion, and will ask questions about me. This will increase the likelihood of being targeted by terrorists in the area. If I do the work that I previously did, there is also a definite risk that I will be killed.

For these above reasons, I seek protection in Australia.

40    Now it is apparent that [38] is generalised. But [39] to [46] reasonably construed are directed to the appellant’s profile. Moreover, in terms of what is said in [39] concerning Karbala, the reference to “for this reason” in the phrase “there is a direct risk that IS will seek to attack this area for this reason” is not generalised as such but a reference back to the fact that his “home area” is a “Shia area, and there are two prominent Shia religious places in my area …”. Reasonably construed, this paragraph was not raising a generalised violence claim, but rather was referable to the Shia question. In my view a generalised violence claim was not clearly articulated and does not clearly emerge from the first statutory declaration.

41    Let me turn then to the delegate’s reasons. When one considers the structure and content of the delegate’s reasons, it does not seem to me that the delegate recited and then analysed a generalised violence claim.

42    Now the delegate purported to summarise the appellant’s written claims in a series of 12 “dot points”, which were expressed as follows:

•    The future of Iraq is very uncertain. The security situation in Iraq is very unstable and dangers will likely increase in the near future.

•    There is a high potential for Islamic State (IS) to attack his home area of Karbala.

•    IS is likely to attack Karbala because it is an area of religious Shia significance and is home to prominent Shia shrines which attract religious tourists.

•    The neighbouring province of Anbar is now under [IS] control.

•    As a police officer he will be targeted because he will be viewed as a supporter of the West. The terrorists he conducted raids (while working as a SWAT team member) on are now called IS or ISIS. These people control everything and have informants everywhere.

•    Although Jaish Al Mahdi (JAM) has been officially resolved they are still very active and are seeking revenge against their opponents.

•    He will be killed as a police officer returning from a Western country.

•    He will be viewed as a spy for the West on his return to Iraq.

•    In 2012 he received threatening SMS messages on his mobile phone telling him to stop working for the police force.

•    In 2012 he was identified by unknown terrorists in Iraq who burnt his house and car.

•    He is concerned he will be forced to join armed militant groups because of his police experience.

•    He is unable to move to another area of Iraq as people will view him with suspicion and ask questions about him. This will increase the likelihood of being targeted and killed by terrorists.

43    The appellant says that it was not until the fifth dot point that the delegate referred to any personal characteristics of the appellant that might give rise to a claim for refugee status based on race, religion or membership of a particular social group.

44    Therefore, it was said by the appellant that in the first four dot points the delegate was somehow appreciating and summarising a generalised violence claim. I do not think so. The flow of the dot points is just consistent with the flow of summarising what was said in [39] and [40] of the first statutory declaration which as I have said is not reasonably to be construed as making a generalised violence claim.

45    Let me say something further about later aspects of the delegate’s reasons.

46    The delegate referred to country information about the range of insurgent groups that were active in and around Karbala at the time of the primary decision. These included the Shia groups known as the “Popular Mobilisation Unit”, the “Peace Brigades”, “Asaib Ahl al-Haq”, and “Jaish Al Mahdi”, as well as the Sunni group known variously as “IS”, “ISIS”, “ISIL” and “Daesh”.

47    The delegate stated that “[r]eports from 2015 indicate that several insurgent groups are active in Karbala; however, they do not state whether these groups are actively targeting particular people within Karbala city or province” and that “[t]he most recent 2016 April reporting by the Institute for the Study of War reflects that [IS] have made successful strikes north of and in Baghdad”.

48    With respect to the specific risk of a terrorist attack on one of the Shia shrines in Karbala, the delegate stated that:

The Imam Hussein Holy Shrine is the destination of a major Shi’a pilgrimage that takes place every year for the annual commemoration of Arbaeen, during which the shrine and the surrounding city of Karbala attract tens of millions of visitors. The pilgrimage has frequently been the target of attacks from Sunni insurgent groups. For the pilgrimage in 2015, security forces deployed 20,000 security personnel in the city of Karbala. Al Monitor reports that the government typically uses massive security resources to protect crowds in Karbala for religious pilgrimages, securing roads and conducting intelligence activities.

49    The delegate considered the appellant’s claim to be at risk of dying in a terrorist attack on one of the Shia holy sites in Karbala which was said to give rise to a refugee criterion claim based on his Shia ethnicity. But the delegate rejected that claim.

50    Now the appellant pointed to various passages of the delegate’s reasons to suggest that somehow the delegate was considering a generalised violence claim. But in my view in these passages all the delegate was doing was summarising the relevant material as part of the consideration dealing with the refugee criterion. The relevant discussion was all under the general heading “Is the fear of persecution well-founded?”

51    Ultimately, the delegate went on to consider in Part 4 of the delegate’s reasons the complementary protection criterion. In the second section of Part 4 under the heading “Real risk of significant harm” the delegate said, inter-alia:

For the reasons stated under “Findings of Fact” I am not satisfied that the terrorist or militia groups any other group or person, have previously held, or continue to hold, an adverse interest in the applicant. For the reasons stated under “Is the Fear Well Founded?” I am not satisfied that there is a real chance these same groups will seriously harm the applicant on the basis of his previous compulsory service as a police officer, his Shia faith or his status as a failed asylum seeker returning from a Western country. Based on the same reasoning, and with regard to the threshold for real risk being equal to that of real chance, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the noncitizen (the applicant) will suffer significant harm in Iraq.

The applicant has raised [that] the security situation in Iraq is very unstable and dangers will likely increase in the near future. Furthermore he has claimed there is a high potential for Islamic State (IS) to attack his home area of Karbala and that the neighbouring province of Anbar is now under [IS] control.

As discussed earlier Karbala, although unstable, is still under the control of the Iraq government, has a considerable security presence, and is considered one of the safer areas of Iraq. The most recent 2016 April reporting by the Institute for the Study of War reflects that [IS] have made successful strikes north of and in Baghdad. However while demonstrations have taken place in Karbala no attacks have been reported in the applicant’s home region.

I also note the applicant’s entire family has continued to reside, work and study in Karbala. Based on the same reasoning expressed earlier, and with regard to the threshold for real risk being equal to that of real chance, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the non-citizen (the applicant) will suffer significant harm in Iraq.

The applicant has not expressly raised any other claims to fear significant harm for non-subsection 5J(1)(a) reasons if he were to return to Iraq and I am satisfied that no such claims are implicit based on the information before me.

52    The appellant says that the delegate considered the generalised violence claim at this point, although ultimately rejected it. But in my view there are difficulties with this contention.

53    Under Part 4, the first section headed “Significant harm” makes no reference to any generalised violence claim. It states:

Evidence and reasons

The applicant stated that he fears that, if he returns to Iraq, he will be killed by terrorist groups because of his role as a police officer. Whilst there is no definition for ‘arbitrary deprivation of life’ under the Migration Act, the department’s Complementary Protection Guidelines provide the term ‘arbitrary deprivation of life’ contains elements of unlawfulness and injustice, as well as capriciousness, lack of predictability, unreasonableness, or a lack of proportionality. I am satisfied that the applicant’s claims that he will be killed for the reasons above contains these elements and therefore, I find the harm feared by the applicant amounts to the arbitrary deprivation of life.

As discussed previously, whilst not articulated by the applicant, I am satisfied he is a Shia male and would be identified as a failed asylum seeker from a Western country on return to Iraq. As this claim has been assessed based on the facts of the case, he has not fully articulated the feared harm. However this is not required given the above claims in relation to arbitrary deprivation of life.

Finding

I find that the claimed harm is significant harm within the meaning of subsection 36(2A) of the Act.

54    It will be appreciated that there is no reference to any generalised violence claim. Moreover this discussion sets the scene for what follows. Further, the reference “… he will be killed for the reasons above…” is a reference back to elements referable to the previous discussion concerning the refugee criterion.

55    Now after the first section headed “Significant harm” there is a second section headed “Real risk of significant harm” which includes the five paragraphs I have set out above at [51]. But as to these five paragraphs, I do not consider that, properly construed, the delegate was discussing and disposing of a generalised violence claim.

56    The first of these paragraphs beginning “For the reasons stated …” clearly concerns profile questions.

57    As to the second of these paragraphs beginning “The applicant has raised…”, the first sentence is not specific to Karbala. And the second sentence addressing Karbala concerns IS attacks which as the appellant “has claimed” targeted Shias and Shia areas.

58    The appellant makes much play of the third of these paragraphs beginning “As discussed earlier…”, to pick up all generalised references in the section of the delegate’s reasons under the heading “Is the fear of persecution well-founded?” But in my view that does not of itself demonstrate that the delegate was considering and analysing a generalised violence claim unrelated to the appellant’s profile; rather the reverse if I might say so.

59    Finally, the appellant makes much of the fifth paragraph:

The applicant has not expressly raised any other claims to fear significant harm for non-subsection 5J(l)(a) reasons if he were to return to Iraq and I am satisfied that no such claims are implicit based on the information before me.

60    So, the appellant says that the implication arising from the phrase “not expressly raised any other claims to fear significant harm for non-subsection 5J(1)(a) reasons” was that the delegate had analysed one such claim already (the generalised violence claim), but there was not any other. But in my view this is reading too much into what was said. Albeit perhaps infelicitously drawn, in my view the delegate was really saying that there were no claims made for non-subsection 5J(1)(a) purposes.

61    In summary, the better reading of the delegate’s reasons is that the delegate was not addressing and disposing of a generalised violence claim as it related to the complementary protection criterion. Indeed, it seems to me that the appellant’s legal representatives and the Authority also read the delegate’s reasons as I would read them. There is no agitation by the appellant or the appellant’s legal representatives thereafter of any such claim. Moreover, the Authority did not discuss any such claim.

62    After the delegate’s decision was referred to the Authority, on 5 August 2016 it wrote to the appellant saying that the delegate’s decision had been referred to it for a review. An information sheet attached to the Authority’s letter stated, inter-alia:

Can I make a submission to the IAA?

You can provide a written submission on:

•    why you disagree with the department’s decision, and

•    any claim or matter you presented to the department that was not considered.

Your submission should be no longer than 5 pages and given to us within 21 days of your case being referred to us by the department.

63    In response to that letter, the appellant’s legal representative provided written submissions and the appellant’s further statutory declaration. But the appellant’s further statutory declaration made no reference to any generalised violence claim. If one considers the appellant’s further statutory declaration, there is simply nothing concerning the generalised violence claim. It was all about aspects of his profile, culminating in [31] which said:

I miss my family each day. I wish that I could return to Iraq safely, in order to be with them. However, I know that if I return that I would be targeted and ultimately killed by terrorists. I ask the IAA to consider the information I have provided and reconsider the delegate’s adverse findings. My life depends on it.

64    Further, the appellant’s solicitor’s letter dated 21 September 2016 stated under the heading “IV. Profile of interest” the following:

Next, we turn to the delegate’s finding that [the appellant] does not hold a profile of interest to terrorist groups. We will consider this credibility finding in tandem with the delegate’s finding that [the appellant] would face a real chance of persecution on return to Iraq. We assert that on review of the latest country information, by virtue of his membership on the SWAT team and prolonged absence from Iraq, [the appellant] would face a real chance of persecution.

The delegate noted that the Institute for the Study of War has not reported any recent attacks in the Karbala region. We note that insurgent violence has taken place in Karbala, specifically post-dating the delegate’s decision. On 29 August 2016, five assailants with suicide vests, rifles and grenades opened fire in a town west of Karbala, killing 17 people. The Islamic State of Iraq and the Levant (ISIL) claimed responsibility for the attack.

The delegate stated that they were not able to locate any recent reports of insurgent groups actively targeting specific people or groups in Karbala. However, the United Nations Assistance Mission in Iraq (UNAMI) provided a demographic breakdown of casualties in Iraq for August 2016 that showed that 691 Iraqis died and 1,016 were injured due to violence. 473 of those killed were civilians. Of these, 16 people were ‘members of federal police, civil defence, personal security details, facilities protection police and fire department’. The report noted that 17 people were killed and 25 people were injured in Karbala. The above statistics cited do not take into consideration those who died in the course of service in security forces. The UNAMI recorded 218 fatalities amongst members of the Iraqi Security Forces and 203 persons injured.

These recent statistics show that persons associated with security forces die in Iraq and Karbala in and outside the course of their duties – in Karbala and elsewhere in Iraq.

The most recent security information suggests that a former member of the Iraqi SWAT team would face a risk of being targeted by terrorists no matter where they settle in Iraq.

In addition, [the appellant] notes that unknown people regularly inquire as to his whereabouts:

My […] go to the market or shopping Karbala, strangers ask them about me. They say that they have not seen me in a while and they ask where I have gone. This happens all the time. These strangers want to know my whereabouts. They ask ‘where has he gone, where is he?’ This started happening when I left Iraq and continues to happen to this day. I believe that these men asking questions are linked to the people who burned my home down.

The reported casualties in Iraq and Karbala, among which many are members of security forces suggest that [the appellant] would be targeted if he returned to Iraq. The arson attack and intimidation experienced by [the appellant’s …] in Iraq strongly suggest that [the appellant] is a person of interest to terrorist organisations.

We reject the delegate’s finding that [the appellant] would not face a real chance of persecution on return to Iraq. As outlined in his statement, [the appellant] is extremely fearful of the consequences of returning to Iraq.

65    But this material was all under the heading “Profile of interest”, rather than a generalised violence claim independent of his profile. Further, in the submission provided under this heading “Profile of interest” was a footnote reference to the statement:

On 29 August 2016, five assailants with suicide vests, rifles and grenades opened fire in a town west of Karbala, killing 17 people. The Islamic State of Iraq and the Levant (ISIL) claimed responsibility for the attack.

66    The footnote reference was to the Al Jazeera report. But this was raised in the context of the appellant having a profile of interest and being at risk as a result, rather than as a result of random or indiscriminate violence.

67    In summary, nothing was put to the Authority by the appellant’s legal representatives concerning any generalised violence claim.

68    Perhaps unsurprisingly then, the Authority on review did not discuss any such claim. The Authority concluded on the complementary protection criterion that:

I accept the applicant was a former low ranking police officer who has previously worked alongside the Coalition forces in Karbala, Iraq. The applicant did not claim that he would re-join the police force upon return to Iraq. I have found there is no real chance the applicant will face harm on this basis. As real chance equates to real risk, I am satisfied the applicant will not face a real risk of significant harm.

The applicant will be returning to Karbala as a Shia Muslim and I have found not real chance [sic] the applicant will face harm on this basis. As real chance equates to real risk, I am satisfied the applicant will not face a real risk of significant harm.

I accept the applicant will be returning to Iraq as someone who is a failed asylum seeker from a western country. I have found not real chance [sic] the applicant will face harm on this basis. As real chance equates to real risk, I am satisfied the applicant will not face a real risk of significant harm.

Taking into account the applicant’s claims cumulatively, that he will be returning as a former low ranking police officer who worked with the Coalition forces, a Shia Muslim from Karbala who has resided in Australia for a period of time and failed to seek asylum, I am not satisfied there is a real risk of significant harm.

Relevant legal principles

69    Complementary protection is not concerned with protection from persecution but with exposure to the significant types of harm as identified in s 36(2A). And such “significant harm” can include harm inflicted wholly by a non-State actor, as I discussed in BPF15 v Minister for Immigration and Border Protection (2018) 264 FCR 319 at [88]. Therefore it would be wrong to conflate the tests of persecution and complementary protection by focusing on the existence or non-existence of a Convention nexus in addressing the complementary protection criterion. And subject to the question of materiality, such an error, if made, would be jurisdictional in nature. But did the Authority make such an error here? I should say immediately that it made no such error.

70    Let me turn to the central point of whether a generalised violence claim was made.

71    Whether a decision maker is obliged to consider a complementary protection claim depends primarily on whether any such claim was advanced by the applicant for the visa. Was such a claim clearly articulated? Or in any event did it clearly or squarely emerge from the material before the decision maker or the decision maker’s findings of fact?

72    Now a complementary protection claim may be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant might be targeted.

73    As observed in AOS18 v Minister for Immigration and Border Protection [2019] FCAFC 140 at [18] by McKerracher, Banks-Smith and Colvin JJ:

It may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted. Certain types of harm might be so prevalent or likely that there is an identifiable risk for any person or for large parts of a population, such as children, unmarried women or the elderly, without any evident motivation directed towards a particular group. However, such a claim needs to be articulated as a basis for a visa application based on complementary protection and material advanced to support the claim before the failure to consider such a claim could be said to amount to jurisdictional error.

74    Further, even if it is apposite to view such circumstances as unusual outside war zones or other places where the infestation of anarchy may be rife, nevertheless other places may produce such complementary protection claims.

75    Let me say something more generally about claims. Whether a particular claim was made by an applicant is a question of fact. Moreover, that question cannot be assessed in a vacuum. It requires attention to all of the material presented by the applicant to the decision maker(s) in both written and oral form.

76    Further, it is to be recalled that the process of deciding a visa application is not adversarial, but inquisitorial in nature. The question, ultimately, is whether the case put by the applicant has sufficiently raised the relevant issue that the decision maker should have dealt with it.

77    Further, and as I have said, a decision maker must consider claims that clearly emerge from the material that is before the decision maker or the decision maker’s findings of fact, even if not clearly articulated by the applicant.

78    Let me say something about the Authority’s review function. The Authority’s statutory obligation under s 473CC(1) is to review a decision referred to it under s 473CA. So, the statutory obligation is to review the particular decision of the delegate. And generally speaking, if a claim is identified by the delegate and is dealt with adversely to the applicant, the Authority’s statutory obligation to review the delegate’s decision requires it to reconsider the claim and reach its own decision on whether it should be accepted. But such a general proposition may need to be qualified by how the matter may have evolved before the Authority.

Analysis

79    The appellant says that he made a generalised violence claim and that the delegate dealt with it by reference to the complementary protection criterion.

80    The appellant says that whilst his first statutory declaration, which was prepared without legal assistance, lacked the clarity of a pleading, it referred both to the general “security issues” in Karbala province and to the specific risk of a terrorist attack on the nearby Shia holy sites.

81    The appellant says that in characterising the appellant’s claims, the delegate commenced by enumerating matters that related only to the general security situation in Iraq, and not to any specific characteristics of the appellant. Then, in addressing the issues raised by the appellant in his first statutory declaration and during his interview, the delegate referred to evidence of activity in Karbala province by non-State actors, in the form of both Sunni and Shia insurgent groups, and to the risk that the large annual religious pilgrimage to the Imam Hussein Holy Shrine would make the area around the shrine an attractive target for Sunni terrorist groups, such as IS. I should note that I did not have a transcript or tape of the interview, but neither party contended that it was necessary for me to procure this.

82    The appellant says that if his claim had been based solely on the refugee criterion, there would have been no need for the delegate to summarise his claims by reference to general security issues that had nothing to do with his personal attributes, nor would the activities of non-State actors have had such immediate and overwhelming relevance to his claim. The appellant says that there would have been no need for the delegate to address the activities of Shia insurgent groups if the appellant’s claim to be at risk of dying in a terrorist attack or similar event had been a “refugee” claim based on his Shia ethnicity. I should say now that I think that the appellant is reading too much into the delegate’s reasons which was setting out a broader summary of information, but all still as part of considering the refugee criterion; that was the context. The delegate had to consider a broader set of information in order to contextually assess whether Shias or Shia areas were generally or specifically being targeted.

83    The appellant submits that the delegate dealt with the generalised violence claim in two ways.

84    The appellant says that the delegate considered that the appellant’s fear of being killed in a terrorist attack on one of the Shia holy sites could be regarded as a claim based on the refugee criterion, in that it could be characterised as a fear of being killed in a terrorist attack aimed at members of the Shia religious group, even though the claim was not expressed in that way.

85    But the appellant says that the delegate also approached the generalised violence claim on the basis that it raised the question of whether there was a real risk that the appellant would be arbitrarily deprived of his life in an incident that had nothing to do with his Shia ethnicity, such as an attack by a Shia non-State insurgent group or a terrorist attack that, although it was directed at a Shia holy site, was intended simply to cause chaos and was indifferent to whether it killed Sunnis, Shiites, and/or members of other religious and ethnic groups. That is, according to the appellant, the delegate correctly dealt with the generalised violence claim as a complementary protection claim to the effect that the appellant was at risk of being killed for no reason other than that he might have the misfortune to be in a particular place at a particular time.

86    As I have already indicated, I do not accept the appellant’s analysis or reading of the delegate’s reasons to conjure up the identification and then disposal of a generalised violence claim in the context of the complementary protection criterion.

87    Further, the appellant says that in reviewing the primary decision, the Authority was required to review the actual decision made by the delegate. Of course, that proposition is unremarkable.

88    The appellant says that to discharge its obligation to review the primary decision, the Authority was required to review the delegate’s rejection of the generalised violence claim and to address it by reference to a correct application of the complementary protection criterion. It says that it did not do so. But as I have said, that proceeds on a false premise that the delegate had analysed and then rejected a generalised violence claim in the context of the complementary protection criterion.

89    The appellant says that the Authority conflated the refugee and complementary protection criteria and asked whether the appellant was at risk of significant harm because of his religion or his membership of two particular social groups. For this reason, the Authority fell into jurisdictional error. But in my view the Authority made no such error. It is unremarkable in light of how the appellant had put his claims and how the appellant had constructed his material that the Authority’s consideration of the complementary protection criterion concerning significant harm drew upon forensic material relevant to the refugee criterion. But that does not bespeak error. Further, no generalised violence claim was made.

90    Finally, according to the appellant, the fact that the Authority might have reached the same conclusion if it had properly applied the complementary protection criterion and had regard to s 36(2B) does not affect his arguments. I would note here that the question of materiality was not raised before the primary judge nor raised before me, as I clarified with counsel for the Minister. It would seem that I have been asked to assume materiality if such a claim of generalised violence was made and not considered by the Authority in the context of addressing the complementary protection criterion. I will return to this later.

91    It will be apparent that I do not accept the appellant’s case.

92    It may be accepted that the Authority is required to “review” the decision referred to it pursuant to s 473CA, although it is of course broader than a review for correction of error; the correct characterisation is as Besanko J described it in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 at [38]. And in performing its review, the Authority is provided with the materials identified in ss 473CB and 473DB. But the Authority is not obliged to consider the appellant’s claims in the precise manner that they were considered by the delegate. But of course the Authority should in substance deal with the claims raised.

93    Further, the Authority is required to consider claims that are either the subject of a substantial and clearly articulated argument or clearly emerge from the materials or the Authority’s own findings. So the question is whether on the materials before the Authority including the delegate’s reasons a generalised violence claim was sufficiently made.

94    Further, understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum or indeed statically. Consideration should be given to the way an applicant’s claims may have evolved at each particular stage of any consideration of the visa application.

95    Applying these principles, in my view there was no claim squarely raised or that clearly emerges on the material before the Authority that the appellant would suffer a risk of generalised violence in the sense that the appellant would be the subject of indiscriminate or random violence.

96    Further, to the extent the appellant says the claim arose from his first statutory declaration, that claim was framed in the context of IS attacking his home area “because it is an area of religious Shia significance and is home to prominent Shia shrines which attract religious tourists”. So, this was not a claim of indiscriminate violence.

97    Now I accept that where an applicant is legally unrepresented, a Court may be more willing to draw the line in his favour in terms of determining what claims were made. But even so, no generalised violence claim was made before the delegate or clearly emerges from the material. In any event, this does not assist the appellant concerning the Authority’s review. At that stage the appellant was legally represented. It becomes a little problematic for the appellant to say that the generalised violence claim clearly emerges from the material when the appellant’s legal representatives never said anything about it. Now the appellant might say that they didn’t have to if the delegate discussed it and rejected it. But as I have said, that premise is flimsy at best for the appellant. The more likely inference is that the appellant’s legal representatives and the second statutory declaration never drew attention to it because it was not being put.

98    Let me turn to one other aspect of the Authority’s reasons, part of which I have already set out (at [68]). I should also set out [27], [28] and [30] which provide:

Shia communities are subject to both general and targeted violence by Sunni-linked insurgent groups and extremists. The violence is largely aimed at destabilising the government and communities, rather than being targeted at individuals. However, Shia who are also members of government security services, detainees or ethnic minorities also appear to have been specifically targeted by [IS]. While senior political or government leadership may also be targets, the state provides extensive security for them.

Since early 2013, Sunni extremist groups have increased attacks on a range of targets particularly those associated with the government. Insurgents have attacked Iraqi civilians and government personnel (mainly the Iraq Security Forces and the police) and facilities, including checkpoints and police stations. Insurgent activity is highest in cities and provinces with a mixed ethnic or religious composition (the northern, western and central provinces, especially Ninewa, Diyala, Salah al-Din, Anbar and Baghdad). Levels of violence in the southern provinces (a majority Shia area) are much lower. Sunni groups have attacked locations in southern provinces, but the casualty rate is much lower than elsewhere in Iraq.

…

The applicant will be returning to Karbala, a southern governorate of Iraq and one which is Shia dominated. DFAT assesses that the Shia-dominated provinces have experienced fewer violent attacks and that Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence, whereas Shias in Baghdad province face a moderate risk of generalised violence.

99    I agree with the Minister that it is necessary to understand what meaning the Authority gave to the term “generalised violence”.

100    When the Authority referred to “generalised violence” by Sunni linked insurgent groups and extremists, it was in the context of Shia communities being the target of the violence and “largely aimed at destabilising the government and communities rather than being targeted at individuals”.

101    But the Authority’s reference to “targeted violence” refers to “individuals” who were the target, in particular, Shias who are “members of government security services, detainees, or ethnic minorities” who the Authority found “also appear to have been targeted specifically by [IS]”; see also, the Authority’s findings at [30] to [33].

102    Given that the Authority’s findings focused on the appellant’s profile as a Shia and “generalised violence” being linked to the appellant having such a profile, there was no need for the Authority to consider whether the appellant suffered a real risk of significant harm on the basis of indiscriminate violence.

103    More generally, no claim of indiscriminate violence otherwise arose on the material before the Authority or was pressed before the Authority. Further, nothing in the delegate’s reasons required the Authority to address or consider the appellant’s claims in a fashion differently from the way it in fact did.

104    Accordingly, I reject the appellant’s case. No generalised violence claim was made or clearly arose from the materials or any findings of fact. Therefore, none had to be considered by the Authority in the context of the complementary protection criterion.

105    Moreover, even if the delegate had dealt with but rejected a generalised violence claim in the context of the complementary protection criterion, I would nevertheless have held that the Authority did not make a jurisdictional error by not expressly discussing such a claim. Given the nature of the review before the Authority, it was bound to consider in the context of the delegate’s reasons, how the claims, which had been rejected by the delegate, were being put to the Authority, but taking into account the further material before the Authority including the submissions made to it and the second statutory declaration. This gave the Authority some scope to deal with and address the claims then emphasised by the appellant before the Authority in such fashion as the Authority thought appropriate. I can detect no error in the Authority’s approach or its emphasis in the then light of how the appellant was putting his case.

106    Further, in any event I would have had significant doubts as to whether any failure to consider such a claim, if made, would have been material in light of the Authority’s other findings; further, s 36(2B)(c) may also have been a potential hurdle for the appellant.

107    For these reasons, no jurisdictional error has been established, and the primary judge was not in error. The appeal must be dismissed with costs.

Associate:

Dated:    23 November 2020