Federal Court of Australia

BRQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1044

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

ANDERSON J:

introduction

1    The Appellant appeals from the judgment of the primary judge delivered on 22 October 2021, in BRQ17 v Minister for Immigration and Border Protection [2021] FedCFamC2G 177 (PJ) dismissing the Appellant’s application for judicial review of a decision of the Second Respondent (Authority). The Authority had affirmed an earlier decision of a delegate (Delegate) of the First Respondent (Minister) refusing to grant the Appellant a protection visa.

2    The Appellant relies on an Amended Notice of Appeal filed on 5 August 2022. The Appellant submits that the primary judge erred by failing to find that:

(a)    in the circumstances, the Authority’s finding that the Appellant had been dishonest and inconsistent in his claims was unreasonable, or constituted a failure to properly consider relevant information or a failure to discharge its task (Ground 1);

(b)    the Authority failed to consider the Appellant’s claim to face harm as an apostate (Ground 2);

(c)    the Authority failed to correctly assess whether the Appellant faced a “real chance” of harm in the foreseeable future in his home region (Ground 3).

background

3    The background facts to the Appellant’s case can be summarised as follows:

(1)    The Appellant, a citizen of Iraq. He arrived in Australia on 26 January 2013. An arrival interview was conducted eight days later. The Appellant was unwell. In transit to Australia, he had been on a boat for days without food or water and had drunk from the ocean. He had blurred vision and a rash on his chest. He had asked for medical treatment, but none had been provided.

(2)    The Appellant was asked if any armed, political or religious groups were operating in the area where he lived. The Appellant replied that there were many such groups, and mentioned the Jaish Al Mahdi (Mahdi Army), an Iraqi armed group with links to the Shi’a community. When asked how they affected his life, the Appellant said: “They are affecting my job as a musician. This [playing music or singing] is unacceptable. It is prohibited. Singing is no more. They have destroyed it. There is none of that”.

(3)    On 8 April 2016, after being invited to do so, the Appellant applied for a protection visa. A statement accompanying his application relevantly explains:

(a)    The Appellant was born on 1 May 1980, into a family of Arab ethnicity and Shi’a faith.

(b)    Between 1997 and 1999, he undertook compulsory military service. He relates: “I learned how to play music since they allocated me within the musician team… After that, I started developing my skills and I started to have that as a second job.” He performed in a band; over time, they became more well-known and performed at weddings, engagements and special events.

(c)    During this time, the Appellant “had nothing to do with religion and radicalism”, and had a “different view than religious people whom I have no connection with.”

(d)    In August 2012, the Appellant received a written threat from the Mahdi Army. It warned him that he was engaged in behaviour forbidden by Islam. Two months later, he received a second and more serious written threat, accusing him of being a “Kafir” (disbeliever) who “must get killed as a matter of… religious duty”. The authors threatened to kill him and demanded he leave the area. The Appellant explained that the Mahdi Army targeted young men with his profile, i.e., musicians who drank alcohol and did not practise Islam.

(e)    After receiving the death threat, the Appellant kept a low profile and hid in relatives’ houses until he was able to leave Iraq.

(4)    The submission concluded:

If I went to Iraq I would be denied my life, my liberty, tortured, mistreated, or live in discreet [sic]. I will not be able to practice my music and will not be able to consume alcohol and enjoy my liberty as a human being. All my human rights will be abused and relocating in Iraq is unreasonable as the whole country is under one similar system. I have no access to a third country and I seek the Australia [sic] protection for the above reasons.

The Authority’s Decision

4    The Authority commenced its decision by summarising various matters pertaining to the Appellant's background at paragraphs [1]-[4] of its reasons.

5    At paragraph [5] of its reasons, the Authority summarised relevant information from the Appellant’s arrival interview. The Authority recorded, among other things, that:

(a)    “after being discharged from the Army in 1999, the applicant was a drummer in a band…”. The band provided music for weddings, parties and other celebrations. The Appellant was with the band until he left for Jordan in 2005; and

(b)    in relation to why he left Iraq, the Appellant stated that he could not live there, he had been working hard but he was not earning enough money, and that none of his brothers worked to help his parents. When asked whether there were armed groups, political groups or religious groups operating in the area where he lived, he said there were many groups including the “Mahdi Army”. In response to the question as to how these groups affected his life, the Appellant stated “they are affecting my job as a musician. This [playing musical singing] is unacceptable. It is prohibited. Singing is no more. They have destroyed it. There is none of that”.

6    At paragraph [6] of its reasons, the Authority summarised claims made by the Appellant in his protection visa application and a document entitled ‘A Statement of Claims for a Protection Visa’ (the Statement of Claims). The Authority recorded, among other things, that:

(a)    the Appellant was allocated to the ‘musician team’ when he was in the Army, that he developed his skills and after discharge from the Army, played music in the band from 1999 until January 2005. Further, after returning from Najaf in January 2011, he again ran a street stall selling clothes in Al Qurna;

(b)    there was demand for the Appellant's skills to play at various events. In August 2012, he received a letter from the Mahdi Army that stated, inter alia, if he continued to play music, he would be viewed as an infidel or apostate;

(c)    the Appellant ignored the letter referred to above, however some two months later he received a second letter which was not just a warning but a death threat. The letter stated he must leave his house because he was not obeying Islamic rules, that he was a “Kafir” (unbeliever) and it was a religious duty that Kafirs be killed. The Appellant left his home and went to stay with relatives until he contacted a people smuggler and left the country;

(d)    if the Appellant was to return to Iraq, “he would be denied his life, his liberty, and he would be tortured and mistreated… He would not be able to practice music and would not be able to consume alcohol and enjoy liberty as a human being”.

7    At paragraph [7] of its reasons, the Authority summarised the Appellant’s evidence relating to, among other things, his employment and the threats against him that were garnered during the protection visa interview of 24 January 2017. In summary, the Authority recorded, among other things that:

(a)    the Appellant was not a practising Muslim and never had been. The Appellant had been in a band until the fall of Saddam Hussein but after the fall everything changed. Because of militia and enforcer groups, no singing was allowed. The Appellant went to Jordan in 2005 as a way to obtain employment. People in Al Qurna looked at him in a disrespectful way because he was a musician;

(b)    after he returned from Jordan, a friend suggested to the Appellant that he go elsewhere and that when things changed and music was allowed, then he could return. The Appellant went to Najaf and took up a position as a petrol station attendant. In 2011, life went back to normal and music was allowed again. The band was in great demand and they were famous. When the Appellant was not working with the band, he would help out at his friend's market stall;

(c)    in August 2012, the Appellant’s father opened the door and there was a letter addressed to the Appellant from the Madhi Army. It said “you have to leave the music industry or we will think you are an infidel.” The Appellant and the other band members who had received the letters ignored the letters;

(d)    a second letter was also left outside the door of his house. There was a bullet in the envelope together with a threat bearing the stamp of the “Peace Brigades”. The letter contained a verse from the Quran as well as a statement “that if we see you on the street, we will think you are an infidel and we will have to kill you”. The Appellant fled to Basra where he stayed with relatives;

(e)    during the month of October, four masked men went to his parent's home and asked after him. They asked on two occasions. They did not visit again after he had departed the country;

(f)    the Appellant was asked why the militia would still be interested in him after such a long time. The Appellant replied that “it was because they would see him as an infidel and would want him to join their party, pray in the same way and have the same lifestyle”, and that he “wanted a different lifestyle, he went to weddings and ceremonies, he liked to drink and to enjoy”. He was asked whether the militia had ever mentioned his drinking and he stated that they did, in particular, the second threat letter had “said you are an infidel, that you are a musician and that you drink”.

8    At paragraph [9] of its reasons, the Authority recorded its concerns about the “significant divergences” in the Appellant's evidence since his arrival in Australia. The Authority put these concerns to the Appellant who responded, inter alia, that he was in poor health on his arrival in Australia. The Authority did not accept that his poor health would render him unable to recall the central events which precipitated his departure from Iraq, this being the warning letter and the subsequent death threat.

9    At paragraph [10], the Authority recorded that the delegate put to the Appellant that he gave a detailed list of his employment from 2005 in his protection visa application, but that this list did not include his working as a musician. The Authority recorded that the Appellant was unable to explain this.

10    At paragraph [11] of its reasons, the Authority recorded that the Delegate also put to the Appellant that he had not mentioned, in either his arrival interview or in the Statement of Claims which accompanied his protection visa application that the Madhi Army had been to his parent’s house. The Appellant offered an explanation for this, and the Authority recorded that it is plausible that such an event may not have been mentioned at the arrival interview, however, its absence from the Appellant’s Statement of Claims led the Authority to conclude it did not occur. The Authority also records that further to this, the Appellant gave lengthy responses to the appearance of the men and what they had said to his parents, but when asked what his parents had told the men, the Appellant responded that he did not know, as he was not there.

11    At paragraph [12], the Authority recorded, inter alia, that “due to the change in the evidence provided by the applicant and the lack of plausible explanation for the significant changes I consider that he has significantly elaborated on his claims over time to enhance his claims for protection”.

12    At paragraph [13], the Authority accepted that the Appellant may have been a non-practising Shia Muslim and a consumer of alcohol when he lived in Iraq, but did not accept that he was viewed by any militia groups as an apostate at the time of his departure from Iraq, or that he attracted the attention of the Mahdi Army due to not practising Islam or drinking alcohol.

13    From paragraphs [14]-[27], the Authority assessed whether the Appellant was a refugee. Among other things:

(a)    at paragraph [16], the Authority summarised the Appellant’s claims to “fear harm from militia groups, firstly on the basis that he worked as a musician and secondly that he is considered an apostate because he is a non-practising Shia and that he drinks alcohol”;

(b)    at paragraph [17], the Authority accepted that the Appellant worked as a musician until 2005. The Authority also found that the Appellant was not subject to adverse attention from militias from 2005 to 2012 and that he would not now be targeted by militias on the basis of his past work as a musician;

(c)    at paragraph [18] of its reasons, the Authority considered whether the Appellant would in fact work as a musician in the foreseeable future and noted that it was now some 12 years since he had done so, that he had not undertaken any work or study in music since coming to Australia, and that he had stated in his protection visa interview “I cannot work in the music industry; they will disrespect me and look at me differently”. In light of these matters, the Authority recorded that it was “not satisfied that the applicant would work as a musician on return to Iraq” and that it was “not satisfied any fears [the Appellant] may possess about working as a musician are well-founded”;

(d)    at paragraph [19] of its reasons, the Authority cited country information that indicates how changes in music and the arts have been viewed and noted that “Iraq’s cultural scene is said to be flourishing again”. The Authority also recorded that “artists report restrictions resulting from intolerance and strict interpretations of Islamic values, rather than by direct attacks”;

(e)    at paragraph [20] of its reasons, the Authority referred to a news article about the Islamic State group and the banning of music. The Authority referred to the country information quoted at paragraph [18] (which seems to be an incorrect reference - the reference should be to paragraph [19] of its reasons) and notes that there may be restrictions or intolerance towards artists including musicians. The Authority ultimately concluded “that there is no longer a real chance that the applicant would be subject to serious harm, were he to resume working as a musician on return to Iraq”;

(f)    at paragraph [21] the Authority considered the Appellant’s employment prospects;

(g)    at paragraph [22], the Authority considered the Appellant’s claim that he was considered to be an apostate due to drinking alcohol and not practising his religion. The Authority, inter alia, stated that it had “not accepted that he has in the past been the subject of unwelcome attention due to drinking or not attending mosque. The country information does not indicate that Shia militia target individuals due to any actual or perceived lack of religious devotion or for not practising their faith”. The Authority concluded that it was “not satisfied that there is a real chance of serious harm to a person who consumes alcohol”;

(h)    at paragraph [23], the Authority considered whether the Appellant may consume alcohol on return to Iraq and concluded that it is satisfied from the Appellant’s accounts of torture or mistreatment related to the drinking of alcohol that he “would not drink alcohol on return to Iraq out of fear of harm”;

(i)    at paragraph [24], the Authority concluded, inter alia, that the Appellant could take reasonable steps to avoid persecution by not consuming alcohol;

(j)    at paragraph [25], the Authority accepted that the Appellant is a non-practising Shia Muslim and proceeded to consider whether this would give rise to protection obligations. The Authority concluded that on the basis of, inter alia, the referred material, it was not satisfied the Appellant would suffer a real chance of serious harm as a result of ‘sectarian conflict’ and that there was not a real chance that the Appellant would be persecuted if he returned to Basra province now or in the foreseeable future;

(k)    at paragraph [26] the Authority considered inter alia, risks arising from generalised violence and concluded that “there is not a real chance the applicant would be seriously harmed” due to generalised violence (among other things) should he return;

(l)    at paragraph [27] the Authority recorded “although not raised by the applicant, the delegate has considered whether there is a real chance of harm on the basis that the applicant would be a failed asylum seeker”. The Authority cited country information before concluding that it was “not satisfied that the applicant faces a real chance of harm on the basis that he has spent time in Australia or that he unsuccessfully sought asylum in Australia”;

(m)    at paragraph [28], the Authority concluded that the Appellant did not meet the criteria set out in s 36(2)(a) of the Migration Act 1958 (Cth) (Act);

(n)    at paragraphs [29]-[34], the Authority considered whether the Appellant would suffer “significant harm” under s 36(2A) of the Act and ultimately concluded that there were not substantial grounds for believing, inter-alia, that there was a real risk the Appellant would suffer significant harm.

appellant’s submissions

14    The Appellant submits that the Authority found that there “has been significant divergence in the Appellant’s evidence since his arrival in Australia which leads to concerns regarding his credibility”. The Appellant submits that the identified three putative points of divergence were that:

(a)    the Appellant did not, in his arrival interview, relate that the Mahdi Army had sent him threatening letters;

(b)    the Appellant’s visa application form did not list ‘musician’ among jobs he had held after 2005; and

(c)    the Appellant submitted in his interview with the Delegate that members of the Mahdi Army had visited his parents after he left his home; this had not been previously submitted to the Delegate in writing.

15    The Appellant submits that on these three bases, the Authority concluded that the Appellant had lied about his central claims. The Authority did not accept that he had worked as a musician any later than 2005 or attracted any adverse interest from the Mahdi Army.

16    The Appellant submits that the Authority accepted that the Appellant’s work as a musician may have been adversely affected by “groups such as the Mahdi army” and that his inability to work as a musician led to his decision to leave Iraq.

17    The Appellant submits that the Authority considered whether the Appellant would face a real chance of harm on return to Iraq were he to resume working as a musician. The Authority accepted the relevant country information to the effect that “there may be restrictions or intolerance towards artists, including musicians”; and that this may be “more prevalent in rural areas such as Al-Qurna [the Appellant’s home region]”. The Appellant submits that the Authority concluded “there is no longer a real chance that the applicant would be subject to serious harm, were he to resume working as a musician on return to Iraq”.

18    The Appellant submits that the Authority considered the risk to the Appellant from sectarian and generalised violence in his home region. The Appellant submits that the Authority accepted that Sunni groups had attacked locations in the Appellant’s home region, but “overall the level of violence is much lower than elsewhere in Iraq”. The Authority, in the Appellant’s submission, found that although there was violence in some parts of the Appellant’s home region, rural areas were safer. On that basis, the Authority found that the Appellant did not face a real chance of harm from sectarian violence.

19    The Appellant submits that the Authority accepted that the security situation in Iraq had “deteriorated significantly” in recent years; that “coordinated bombings and shootings took place on a daily basis”; and that DFAT had advised that “Daesh and associated Sunni extremist groups are currently in control of large parts of northern, western and central Iraq”. DFAT found that “government forces retain control of southern Iraq”, the Appellant’s home region; and though “violent crime”, “kidnappings” and “killings” occur in the Appellant’s home region, “there is not a real chance that the applicant would be seriously harmed”.

Ground 1 – Authority’s finding on credibility

20    The Appellant submits that at his arrival interview, the Appellant stated that the Mahdi Army had prevented him from being a musician, and this had precipitated his departure from Iraq. The Appellant submits that this was not the occasion for the Appellant to articulate his protection claims. He advanced those claims at the appropriate time: when he made his protection visa application. The Appellant submits that his protection claims were totally consistent with what he had said in his arrival interview.

21    The Appellant submits that the effect of the Authority’s reasons is that because the Appellant did not, during his arrival interview, mention specific examples of how he was targeted as a musician by the Mahdi Army, his protection claims had “diverged” from his initial account, and were fabricated.

22    The Appellant submits that, in the circumstances, it was not reasonable or rational for the Authority to reason in this way - that is, to rely on the absence of specific examples of harm from the Appellant’s arrival interview in order to reach the conclusion that his protection claims were fabricated. The Appellant submits that the absence of these details from the arrival interview had no bearing on the Appellant’s credibility, and did not suggest that he concocted his protection claims. The Appellant submits that he answered all the questions he was asked in the arrival interview appropriately.

23    The Appellant submits that the Authority sought to reason from the fact that the Appellant did not include “musician” in a list of jobs he had held after 2005 to the conclusion that he had fabricated the claim to have worked as a musician after 2005.

24    The Appellant submits that the Authority’s finding is extraordinary in the circumstances where the list of jobs which appeared in the Appellant’s protection visa application form stated that the Appellant had worked as a musician after 2005. The Appellant submits that the Authority fell into error by bifurcating parts of the protection visa application form and indicated that because details from one part were not given in another part, the Appellant concocted those details. That was not a reasonable course to adopt in the circumstances and the Authority thereby erred.

25    The Appellant submits that the Authority fell into error by finding that the Appellant had concocted his claims by reason of the fact that he told the Delegate at the interview that his parents had been visited by the Mahdi Army after the Appellant left home; but he did not include these details in his written application. The Appellant submits that contrary to the Authority’s conclusion he did not change his evidence over time.

Ground 2 – Failure to consider a claim

26    The Appellant claims that he was considered an apostate due to not practising his religion, and feared harm on this basis. The Appellant submits that the only reasons given by the Authority for concluding that the Appellant would not face harm due to not observing his religion are these: “The country information does not indicate that Shia militia target individuals due to any actual or perceived lack of religious devotion or for not practising their faith”. The Appellant submits that his claim was not confined to a fear of harm from Shia militia. As a consequence, the Appellant submits that his claim was not disposed of by a finding that he would not face harm from Shia militia. The Appellant submits that the Authority failed to address the claim that was put by the Appellant.

27    The Appellant submits that the Authority made no reference to any potential source of harm other than Shia militia groups.

Ground 3 – Application of the “real chance” test

28    The Authority found that the Appellant would not face a real chance of serious harm in Iraq were he to resume his work as a musician there nor from sectarian or generalised violence in his home region.

29    The Appellant submits that in each case the Authority’s reasons indicated that it was supplied the “real chance” test. The Appellant submits that he faces a real chance of harm if the chance faced is not far-fetched or merely theoretical. The Appellant submits that there may be a real chance of persecution even when persecution is unlikely; or even when there is only say a 10% chance of it occurring: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 397-8, 407, 429; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

30    The Appellant submits that “serious harm” may include physical harassment or ill-treatment, economic hardship or denial of a capacity to earn a living: s 5J(5) of the Act.

31    The Appellant submits that the Authority accepted reports of “restrictions or intolerance” towards musicians. The Authority also accepted too that such mistreatment may be more prevalent in the Appellant’s home region. The Appellant submits that on this basis, the Authority ought either to have found that a real chance of harm arose, or explained why it did not. As it stands, in the Appellant’s submission, the Authority’s finding that the Appellant would not face a real chance of serious harm demonstrates that it erred: either by applying an unduly high threshold for the existence of a “real chance”, or by failing to appreciate that restrictions or intolerance could constitute “serious harm”—for example, by constituting harassment or ill-treatment, or causing the Appellant, who would earn a living as a musician, economic hardship or denying him the capacity to earn a living.

32    The Appellant submits that the Authority accepted that ongoing harm was occurring in the Appellant’s home region, in that Sunni armed groups had been attacking locations in the southern provinces. Yet the Authority concluded that the Appellant did not face a real chance of harm on this basis. The Appellant submits that the basis for the Authority’s conclusion appears to be that the level of sectarian violence in his home region is much lower than elsewhere in Iraq. The Appellant submits that the real chance test is not relative. There is no need for an applicant to demonstrate that he or she faces a prospect of harm greater than others also at risk. The Appellant submits that even if the chance of harm is lower than it may be elsewhere, and if even it is low, he may still face a real chance of harm. The Appellant submits that the Authority’s finding implicitly expects that the Appellant will remain in remote or rural areas of Basra province. That expectation is not warranted as, in the Appellant’s submission, it is likely that he will either travel in the region as a musician, or seek employment in urban centres as he had in the past. In this respect, the Appellant submits that the Authority erred.

33    The Appellant submits that the Authority accepted that the situation in Iraq had significantly deteriorated and that Daesh and associated Sunni extremist groups had overcome government forces in large parts of northern, western and central Iraq. The Authority accepted that coordinated bombings and shootings were a daily occurrence in Iraq and that in the Appellant’s home region, kidnappings, killings and violence were taking place. Notwithstanding this, the Authority found that the Appellant would not face a real chance of harm because the Appellant’s home region had “remained significantly more secure than central Iraq”.

34    The Appellant submits that the Authority erred by applying a relative version of the real chance test. This error was compounded, in the Appellant’s submission, by a failure of the Authority to apply the test in a forward-looking manner. The Appellant submits that in circumstances where the situation in Iraq was deteriorating and large parts of Iraq had been successively overrun by Sunni extremists, it was incumbent on the Authority to consider whether this may occur in the Appellant’s home region in the foreseeable future. The Appellant submits that the Authority gave no consideration to this aspect and therefore erred.

minister’s submissions

35    The Minister submits that for the reasons given by the primary judge the Appellant failed to identify any jurisdictional error in the Authority’s reasoning and that the appeal should therefore be dismissed.

consideration

Ground 1

36    The primary judge did not err by dismissing the Appellant’s first ground. The Authority’s finding that the Appellant had “significantly elaborated on his claims over time to enhance his claims for protection” was reasonably open to be made and did not involve legal error.

37    The primary judge correctly set out the principles of law concerning when an adverse credibility finding may give rise to jurisdictional error: PJ [27]-[28]. The Appellant does not challenge those principles on appeal. The Authority is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility provided it does so fairly and reasonably and by taking a “careful and thoughtful approach”: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 (AVQ15) per Kenny, Griffith and Mortimer JJ at [23]. A visa applicant’s failure to raise a claim previously may well be relevant to credibility, even if it is not strictly “inconsistent” with their earlier account: AVQ15 at [27].

38    The Court undertaking judicial review must exercise caution before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: AVQ15 at [23] and BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 at [71] per Murphy J with O’Callaghan and Snaden JJ agreeing.

39    The Authority identified the following anomalies in the information provided by the Appellant:

(1)    First, in his arrival interview, the Appellant did not say that he had received any threatening letters from the Mahdi Army. He claimed this in his protection visa application and protection visa interview.

(2)    Second, in his protection visa application, the Appellant “gave a detailed list of his employment from 2005 on but does not include in any of this period that he was working as a musician.” This information said he worked in Jordan unloading trucks between January 2005 to December 2007, as a petrol station attendant in Iraq from January 2008 to January 2011, and as a clothes seller at a self-owned street stall in Iraq from January 2011 to November 2012. The Authority noted these accounts were seemingly inconsistent with the Appellant’s statement in his protection visa interview that “he again worked as a musician after returning from Najaf in 2011”.

(3)    Third, the Appellant claimed during his protection visa interview that four masked men came to his parents’ home and asked after him. He had not previously mentioned this in his initial interview or protection visa application.

40    These identified anomalies were logically and rationally capable of supporting the Authority’s finding that “there has been a significant divergence in the Appellant’s evidence since his arrival in Australia which leads to concerns regarding his credibility”: Authority reasons at [9]

41    The Authority put these anomalies to the Appellant and considered the Appellant’s response. The Authority’s approach was therefore consistent with the requirements identified by the Full Court in AVQ15 to consider “whether there is an acceptable explanation for the person having given inconsistent evidence”: AVQ15 at [28].

42    The Authority weighed each of the explanations given by the Appellant for the anomalies which the Authority had put to the Appellant and rejected the Appellant’s explanation. Having considered those matters “how all these matters are weighed and evaluated in a particular case is a matter for the decision-maker”: AVQ15 at [28].

43    In the circumstances, the primary judge was correct to reject the Appellant’s claims that the anomalies and inconsistencies in his accounts were “minor and benign variations”: PJ [33].

44    The primary judge was correct to conclude that the “Authority put these matters to the applicant, weighed his response and in doing so considered the significance of the inconsistencies with which it was dealing. The findings made by the Authority were open to it and were not unreasonable”: PJ [33].

45    For the reasons given, the Appellant’s first ground must be dismissed.

Ground 2

46    For the Appellant to establish that a decision-maker committed a jurisdictional error by failing to respond to a substantial, clearly articulated argument relying upon established facts, the Appellant must prove per Rangiah J in CXB20 v Minister for Home Affairs [2020] FCA 1667 at [41], that the matters:

(1)    were raised squarely, or clearly arose from, the material before the Authority;

(2)    relied upon established facts;

(3)    were not considered by the Authority when determining whether to grant the visa; and

(4)    were substantial, or material, in the sense that consideration of the arguments might realistically have resulted in a different decision.

47    Whether a decision-maker has failed to consider a claim that was advanced in support of a particular outcome is a question of fact: BMA16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1938 per Snaden J at [37]. The Appellant bears the onus of establishing that fact.

48    The primary judge at PJ [37], identified, with respect to the issue of being viewed as an apostate, that the Appellant claimed:

(1)    to have a “different view than religious people whom I have no connection with”: at paragraph [7] of the Statement of Claims;

(2)    he had “received a threat from…Mahdi Army… Telling me that I'm doing wrong things… and I have to avoid doing Haram things. In their view music is taboo and for me playing music I am perceived as an infidel or apostate”: at [8] of the Statement of Claims;

(3)    that he “received another paper…it was a real death threat… They acted seriously against musicians and young man who drink alcohol and not practising Islam”: at [9] of the Statement of Claims; and that he was accused of being ‘Kafir (disbeliever)… and must get killed as a matter of their religious duty’: at [10] of the Statement of Claims;

(4)    “I have been in Australia for quite a long time enjoying my liberty and expressing my views freely…now Mahdi army is devided (sic) in two main militias…Both militias acting freely to persecute people of my kind. The government is associating with all militias and yet there is no protection available”: at [16] of the Statement of Claims; and

(5)    “If I went to Iraq I would be denied my life, my liberty, tortured, mistreated or live in discreet (sic). I will not be able to practice my music, will not be able to consume alcohol and enjoy my liberty as a human being”: at [17] of the Statement of Claims.

49    The primary judge correctly recognised that the Authority considered the Appellant’s claims that he feared harm as an apostate on the basis that he worked as a musician, drank alcohol and did not practise his religion: PJ at [39].

50    The Appellant contends that “the Authority characterised the applicant’s claim as a fear of harm from militia groups. However, it was not confined in this way”. The primary judge correctly observed that, since the focus of the Appellant’s claims was the threat posed by militia groups, particularly the Mahdi Army, “it is therefore unsurprising that the Authority in its reasons focused on the threat from the Mahdi Army”: PJ at [40]. The primary judge also correctly observed that the Authority considered whether people who consume alcohol are “targeted by militia groups or individuals” and that “people in Al Qurna would look at him in a disrespectful way because he was a musician”.

51    The Appellant has failed to identify any material in which a claim was raised squarely that there was a real chance of serious harm to him due to not practising his religion from sources other than militia groups such as the Iraqi government or the community: PJ at [41].

52    I accept the Minister’s submission that the primary judge was correct to find that the Appellant’s written statements that “I have been in Australia for quite a long time enjoying my liberty and expressing my views freely” and “If I went to Iraq I would be denied my life, my liberty, tortured, mistreated, or live in discreet. I will not be able to … enjoy my liberty as a human being” are not substantial, clearly articulated arguments which, if accepted, might establish a well-founded fear of persecution.

53    The primary judge did not err in dismissing the second ground of review.

Ground 3

54    The Appellant claims that the Authority misapplied the “real chance” test in s 5J(1)(b) of the Act in three respects.

55    Section 5J(1)(b) the Act provides that “a person has a well‑founded fear of persecution if … 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)”. Namely, race, religion, nationality, membership of a particular social group or political opinion.

56    The principles regarding the “real chance” test were recently summarised by the High Court in DQU16 v Minister for Home Affairs [2021] HCA 10; 95 ALJR 352 (DQU16) per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ at [10], stating “A “real chance” is a prospect that is not “remote” or “far-fetched”: it does not require a likelihood of persecution on the balance of probabilities”: DQU16 at [10]

57    The Appellant’s first asserted error before the primary judge was based on the premise that “the Authority accepted that there was ongoing ill-treatment of musicians in Iraq” and “the Authority accepted reports of the mistreatment of musicians”: PJ at [50]. The primary judge rejected this asserted error on the basis that what the Authority actually said was that “the country information as quoted … does however note that there may be restrictions or intolerance towards artists including musicians”: PJ at [51].

58    The Authority accepted reports of “restrictions or intolerance” towards musicians, not ill-treatment or mistreatment.

59    A fair reading of the Authority’s reasons show that the references to “restrictions or intolerance” and “restrictions resulting from intolerance” are not references to “ill-treatment” or “mistreatment” of a type that would constitute serious harm under s 5J of the Act: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610.

60    The Appellant’s second claim is that the Authority misapplied the “real chance” test as a relative test. The Authority made clear that “whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, it is not determinative whether the risk in one place is less severe than another place… What matters is the actual level of risk in any particular place”: CGA15 v Minister for Home Affairs (2019) 268 FCR 362, per Murphy, Mortimer and O’Callaghan JJ at [23]; BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 per Rangiah, White and O'Callaghan JJ at [41].

61    The Authority concluded that “there is not a real chance that the applicant would be persecuted if he returned to the Basra province” due to being a Shia Muslim. The Authority correctly expressed an objective assessment of the risk in the Basra province. This assessment by the Authority did not merely assess the relative degree of risk but rather arrived at an objective assessment of the actual level of risk in Basra province. The primary judge observed correctly that the Authority’s reasoning at paragraph [25] shows that this conclusion was supported by a number of findings, including that:

(1)    “the Appellant originates from a Shia dominated region of Iraq”;

(2)    “Country information indicates that Sunni armed groups have attacked locations in southern provinces, but overall the level of violence is much lower than elsewhere in Iraq”; and

(3)    “The referred material indicates that Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence”.

62    The primary judge correctly found, that the Authority assessed there was a low risk of generalised violence, not a lower risk: PJ at [56].

63    The Authority did not err by assessing whether the Appellant had a well-founded fear of persecution if he returned to a rural area of Basra province. That is because s 5J(1)(c) of the Act provides that, for a person to have a well-founded fear of persecution, “the real chance of persecution must relate to all areas of a receiving country”.

64    The Appellant’s third asserted error concerns the Authority’s finding at paragraph [26] that Southern Iraq, including Basra province “had remained significantly more secure than central Iraq”. This statement does not mean the Authority failed to assess the actual level of risk in Basra: PJ at [61]. This statement about relative security was just one consideration. The Authority also assessed the risk in Basra objectively by finding that the “referred material indicates that Shias in Shia-dominated provinces in southern Iraq are at a low risk of generalised violence”.

65    The Authority did not fail to apply the “real chance” test in a forward-looking manner by finding that “government forces retain control of southern Iraq, including Basra province and this area had remained significantly more secure than central Iraq”. The Authority adopted a forward-looking approach to assessing whether there was a real risk of harm from generalised violence. The Authority in its reasons applied the “real chance” test by considering the foreseeable future. The Authority correctly understood its statutory task and adopted a forward-looking approach in assessing whether there was a real risk of harm.

66    The primary judge was correct to dismiss the Appellant’s third ground of review.

disposition

67    The appeal will be dismissed. The Appellant will pay the Minister’s costs.

Associate:

Dated:    8 September 2022