Federal Court of Australia

COE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 669

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely upon the grounds in the amended notice of appeal dated 15 June 2023 and filed 16 June 2023 be refused.

2.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority. The Authority had affirmed a decision of a delegate of the first respondent, now known as the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse the grant of a Safe Haven Enterprise Visa (SHEV), a kind of temporary protection visa.

2    The appellant was legally represented at all stages leading up to the Authority’s decision, but was unrepresented before the primary judge. He is now represented in this Court by counsel upon a direct access basis. His counsel candidly concedes that the grounds of judicial review advanced before the primary judge could not succeed, such that an appeal on like grounds in the original notice of appeal to that effect were similarly doomed to fail. The appellant seeks instead to rely upon grounds in an amended notice of appeal, acknowledging that leave to rely upon such grounds is required. The Minister only opposes leave upon the basis of insufficient merit for those grounds to proceed. In order to regularise the proceeding, I granted the appellant leave to file the amended notice of appeal, so as to dispatch the abandoned original grounds of appeal, upon the express basis that leave to rely upon the replacement grounds would still be required.

3    This was not a case in which sufficiency of merit to warrant the grant of leave to rely upon new grounds could be determined upon an impressionistic basis. The grounds needed to be properly addressed and assessed, taking into account the competing arguments. That approach has been sanctioned by the High Court in relation to the grant or refusal of an extension of time within which to bring an appeal: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [18]-[19]. There is no reason why that approach should not also apply to the grant of leave to appeal, including upon particular grounds: see Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 140 at [13]-[15]. This does not preclude the assessment of merit on an impressionistic basis in an appropriate case, but this was not such a case. The appellant and the Minister both agreed that the approach being taken in this case, which involves assessing merit on a final basis, is appropriate.

Context from the primary judge’s reasons

4    It is convenient to reproduce the summary by the primary judge of the appellant’s original claims and of the Authority’s decision, before turning to the grounds in the amended notice of appeal and the competing arguments. His Honour found (citations removed):

Claims for Protection

[2]    The applicant stated his claims for protection on a number of occasions. It would be convenient to set out the claims the applicant stated in his statutory declaration that forms part of his application for a SHEV. Those claims are as follows:

a)    The applicant is a Shia Muslim. He was born in the province of Basra. His father is a Sunni Muslim, his mother is a Shia Muslim, and all of the applicant’s brothers and sisters are Sunni Muslims.

b)    The applicant’s family used to be famous traders in foodstuff. They are a very rich family. They imported foodstuff from the United Arab Emirates (UAE) or Iran.

c)    One of the applicant’s brother [brother A] managed the import side of the business; the applicant and his three other brothers managed the wholesale side of the business; and one other brother managed the warehouse.

d)    The applicant and his brothers witnessed hatred by the local community and local traders because most of the applicant’s family are Sunnis; local traders insulted the applicant’s family and called them “Sunni” and “Wahabi”; and the government created a lot of problems for the applicant’s family when, for example, the family business tried to clear goods from UAE.

e)    In 2011 brother A was kidnapped in an area near the border between Iran and Iraq. The kidnappers blindfolded brother A and the applicant believes he was taken across the Iranian border. The applicant’s family paid the kidnappers a ransom and secured brother A’s release. The kidnappers threatened to kill brother A and the applicant’s family if brother A were to report the kidnapping to the authorities.

f)    After he returned to Iraq [brother A] reported his kidnapping to the Iranian consulate, but the consulate did not believe brother A. They called him a liar and called the police who kicked him out of the consulate.

g)    Brother A informed others in the market about what happened to him, and warned traders about what will happen to them if they go to the area in which brother A was kidnapped. One day people from inside a yellow Iranian car started shooting at brother A, but he managed to get inside the house. Brother A subsequently left Iraq for Indonesia. He there applied to the United Nations High Commissioner for Refugees (UNHCR), and he was resettled in Australia.

h)    Because of brother A’s complaints to the authorities, another of the applicant’s brothers [brother B] was shot and killed in late 2011. The murderer used brother B’s telephone, and called another of the applicant’s brothers [brother M] telling him that this was the beginning, and that they are going to kill all of the members of the applicant’s family. After brother M received this threat, most of the applicant’s family moved to Hillah in the centre of Iraq. Another of the applicant’s brother [brother AR] moved to an area in Basra where he lived with his maternal uncle.

i)    In 2012 brother AR’s barbershop was burned. The police report concluded the shop was deliberately burned, and two witnesses observed two people standing in front of the shop who spoke Persian. Brother AR left Iraq, and is now in Australia seeking protection.

j)    In late 2016 (corrected to 2015 in the interview before the delegate) a group belonging to Asaeb Ahl Alhaq (AAH) came to the applicant’s family home. They questioned two of the applicant’s brothers about the family’s history in Basra. The group stated they have some information that the family fled Basra, the family is Sunni, and that they suspected the family was hiding something. The applicant’s family decided to go and live in Erbil in the northern Kurdish region. The applicant’s family overstayed their stay in Erbil, but they have nowhere else to go.

[3]    Before the delegate, the applicant said that, despite past insults, he was never personally seriously harmed by anyone because of his association with his wealthy Sunni family; he did not leave Iraq with brother A in 2011 because he was not personally at risk of harm; after his family moved to Hillah he was not frightened to return to Basra because, as a Shia, he was a member of the majority religion, and he would not be harmed, and that other Shia’s would have compassion for him; it was the Sunni members of his family who feared harm; and that “he has nothing wrong” in Basra.

Authority’s reasons

[4]    The Authority accepted or found that:

a)    the applicant was raised in a mixed Shia-Sunni household; he and his mother identify with the Shia faith; and the applicant’s father (now deceased) and siblings are Sunni.

b)    the applicant’s family operated a profitable and well-known wholesale trading business in Basra, importing food from the UAE and Iran and selling it in Iraq, and the family were considered wealthy;

c)    brother A managed the business; and brother A was required to travel to and from the UAE and Iran;

d)    the applicant’s Sunni siblings were subjected to hatred and harassment; and the government created problems for the business;

e)    the applicant was also subject to harassment, even though Shia, because many in his family are Sunni, but the applicant had not been personally threatened or otherwise subjected to serious harm;

f)    brother A was kidnapped and held for ransom because of his status as a wealthy businessman; he was released after the payment of a ransom, but was warned not to tell the authorities; brother A reported his kidnapping to the Iranian embassy, and informed other traders of his kidnapping; unknown persons waited outside the applicant’s family home and shot at brother A, but he managed to escape without injury, and then he left Iraq and came to Australia; and in 2011, before his departure, brother A closed the family business, selling all the stock;

g)    after the family business closed the applicant ceased his employment with the business, and has not worked for his family or in any other business since that time;

h)    brother B was killed in retaliation for brother A’s actions, and the applicant’s family were threatened, as a result of which the family moved to Hillah in the Babil province;

i)    brother AR remained in Basra and was targeted in 2012 when his business was deliberately burned down; he left and is now in Australia;

j)    the applicant returned to Basra in 2011, and remained there until 2012;

k)    members of the AAH visited the applicant’s family in Hillah; they said they knew the family were Sunnis from Basra and believed the family was up to something; and the family moved to Erbil to avoid further threats; and

l)    brothers of the applicant have rented a shop in Erbil and have a small business of selling food locally.

[5]    Having made these findings the Authority considered whether the applicant faced a real chance of harm because of the actual or perceived wealth of his family, or because of their Sunni religion. The Authority was not satisfied the applicant faces a real chance of any harm from Shia militias, the government, members of the community, other traders, or anyone else because of the applicant’s membership of a mixed Shia-Sunni family, or because of his membership of a rich or wealthy Sunni family, or because of his association with his Sunni family, or his association with the previous or current business of his family, or because of the actual or perceived wealth of the applicant or of his family. The Authority relied on the following:

a)    Country information that Sunnis in Shia-dominated and in mixed provinces face a high risk of violence from Shia armed opposition groups, although such attacks appear to be more common in central Iraq and contested areas than in the applicant’s home area of Basra.

b)    The evidence the applicant gave to the delegate I have set out in paragraph 3 of these reasons.

c)    The finding, based on the applicant’s evidence and country information before it, that the applicant would be identified as a Shia Muslim on his return to Basra, including by the government, members of the community, and Shia militias.

d)    The Authority’s finding that it does not accept the applicant’s family would continue to be wealthy or rich, or wealthy or rich business owners, given that six years have passed since brother A closed the previous business and the majority of the applicant’s family left Basra, and the business some of the applicant’s siblings established in Erbil consists of a small shop.

e)    The absence of any suggestion in the country information to which the Authority referred that individuals from a mixed Shia-Sunni family face harm from Shia militias or anyone else on that basis.

[6]    The Authority also considered whether there was a real chance the applicant would face significant harm for any other reason. The Authority found there was nothing in the evidence before it to suggest the applicant will be unable to obtain access to employment in the future; and it was not satisfied the applicant faces a real chance of any harm from the government, or at a societal level, because of his Shia religion, or Arab ethnicity, if he returns to Basra; or from Sunni militias, including Daesh; or from generalised violence in Basra. The Authority was satisfied that the security situation in Basra remains relatively stable, and that the applicant can safely access his home in the Basra province.

[7]    On the basis of these findings the Authority found the applicant does not meet the requirements of the definition of “refugee” given in s.5H of the Act. Further, relying or repeating findings it had already made, the Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country there is a real risk the applicant will suffer significant harm.

The key reasons of the Authority

5    With the benefit of the above context, it is convenient next to reproduce the specific paragraphs of the Authority’s reasons upon which the arguments turned, with the key paragraphs among them being 19 and 25 (citations removed):

Home area

[14]    The applicant resided in Basra with his family until 2006 when he travelled to the Netherlands. He was granted temporary protection in that country in 2008 and remained there until 2010 when his permit was revoked due to the changing circumstances in Iraq. The applicant travelled back to Iraq with assistance from the International Organisation for Migration (IOM) and returned to his family home in Basra. I accept that has no right to enter and reside in the Netherlands. The applicant stated that in 2011 he and his family moved to Hillah, in Babil governorate, but that he returned to Basra later that year. He remained in Basra until his departure for Australia in September 2012.

[15]    The applicant has stated he has no immediate family members remaining in Basra, with his mother and several siblings now in Erbil, one sister living with her husband in Najaf and two brothers in Australia. I accept his consistent oral and written evidence that his sister is in Najaf and he has two brothers in Australia. I note the delegate did not accept that the applicant's mother and other siblings moved to Erbil in December 2015 and concluded they remain in Hillah.

[16]    Erbil is located in the Kurdish Region of Iraq (KRI) in the north of the country. Information from the United Kingdom (UK) Home Office is that entry into the KRI was restricted in February 2015 with internally displaced persons (IDPs) not permitted entry except in particular circumstances. This included in certain humanitarian cases, previous registration with the Ministry of Migration, or having local sponsorship. It is also difficult for IDP's to obtain residency unless they are of a particular religious or ethnic background (generally Kurdish, Christians or Yazidi), have political, government or security connections, or are otherwise sponsored. The applicant's evidence in the SHEV interview was that one of his brothers had business contacts in the KRI who may have provided the relevant sponsorship. However, even if the applicant's family did not have the requisite contacts in the KRI, country information also states that, in the past, sponsorships were able to be purchased at checkpoints and that, as recently as 2014, the sponsorship requirement was sometimes not imposed, including where Iraqi citizens come as IDP's. Having regard to the country information, I am prepared to accept as plausible that the applicant's mother and other siblings moved to Erbil in 2015 as claimed.

[17]    The applicant's evidence is that his family have overstayed their period of permitted residence in Erbil and may not be able to settle or remain there. Given this uncertainty and his inability to speak Kurdish, he stated he would not join his family in Erbil. The applicant gave evidence that: he is familiar with Basra; the family still owns their home in Basra; as a Shia he wouldn't be frightened to return to Basra; and that he has a number of maternal aunts and uncles in Basra. As noted above, apart from brief periods of residence in the Netherlands and Hillah, the applicant has resided most of his life in Basra, including between 2011 and his departure for Australia in September 2012. Cumulatively, these factors lead me to find that Basra is the area to which he would return in Iraq and is his home area for the purpose of assessing his application for protection.

Past harm to the applicant's family

[18]    The applicant stated his family operated a well-known wholesale trading business in Basra, importing food from the UAE and Iran and selling it in Iraq. He gave detailed oral and written evidence about the name of the business and the operation of the business. I accept that the applicant's family operated this business as claimed; that it was managed by his [brother A] who was required to travel to and from the UAE and Iran; that the applicant and his other brothers worked in the business; that the business was profitable and well-known throughout Iraq; that the family were considered wealthy.

[19]    The applicant's claims that his siblings experienced hatred from other traders, members of the local community and the government are broadly consistent with the country information, including the new information referred to above. Relevantly, Sunni Muslims constitute approximately 32 to 37 per cent of the population in Iraq. The fall of Saddam Hussein's Sunni dominated regime in 2003 saw a transfer of power to a coalition government dominated by Shias, with many Sunnis reported to have experienced societal discrimination and harassment. The United Nations High Commissioner for Refugees (the UNHCR) confirms that Sunnis were exposed to targeted violence on the basis of their religion and that internal relocations resulted in more homogenised Sunni and Shia neighbourhoods. In Basra, the Sunni population was estimated to have reduced to about 20% as a result of Sunni migration from the city due to harassment from the Shi'ite sect as well as increased Shia migration into areas previously dominated by the Sunni community. Moreover, by 2007 Sunnis were largely excluded from the political life of the city with no representation in the Basra Governorate council. I accept that the applicant's Sunni siblings were subjected to hatred and harassment as claimed and that the government created problems for the family business. I am also prepared to accept as plausible that the applicant, a Shia, working with his Sunni siblings in the family business was also subject to some harassment, such as being called Sunni and 'Wahabi’, by the community and other traders due to his association with his siblings and employment in the business. I also accept on the applicant's own evidence, that he was not personally threated or otherwise subjected to serious harm by anyone in the past for reasons of his association with his wealthy Sunni family or their business.

[20]    The applicant's claims that his Sunni brothers were harmed in 2011 and 2012 are also consistent with country information. Relevantly, information supports that Iranian backed Shia militias, armed and trained by Iran and committed to the Iranian religious leader Ayatollah Khameni, were active in the south of Iraq at that time and are known to have engaged in criminal activities. In addition, criminal gangs took advantage of the unstable security situation and the diminished capacity of law enforcement to engage in various illegal activities during this time. There was an interaction between criminal gangs and armed groups and it was often difficult to clearly differentiate between them. Many criminal gangs and armed groups had multiple motivations for targeting individuals and there was often an overlap between criminal activities and the pursuance of a religious or political ideology. However, information supports that militias and armed gangs did target businessmen and religious rivals for harassment and assassinations and that Sunnis were often kidnapped and held for ransom. Victims were often released after the ransom was paid, though in some cases victims were killed and their bodies were discovered after ransom had been paid.

[21]    On the basis of the above information, I accept the applicant's evidence that his [brother A] was kidnapped on the Iraq-Iran border and held for ransom on the basis of his status as a Sunni and as a wealthy businessman. I accept that: [brother A] was released after payment of a ransom; he was warned not to tell the authorities; he reported this matter to the Iranian embassy who took no action; he informed other traders of his kidnapping; unknown persons waited outside the family home and shot at [brother A]; he managed to escape without injury; and that he left Iraq and came to Australia. I accept the applicant's oral evidence that prior to his departure, [brother A] closed the family business, selling all the stock and that the applicant ceased employment in the business in 2011 and has not worked for his family or in any other business since that time. Given the above information supporting that Shia militias engaged in acts of violence, I accept as plausible that the applicant's [brother B] was killed in retaliation for [brother A]'s actions, that the family were threatened and moved to Hillah in Babil province. Noting country information above that militias and criminal gangs were known to target businessmen and Sunnis, I also accept his [brother AR], who stayed in Basra, was targeted in 2012, that his business was deliberately burned down, that he subsequently left Iraq and is now in Australia. However, I also accept the applicant's own evidence that he returned to reside in Basra in 2011, remaining there until September 2012, and that he was not subject to any harm from anyone during this time.

[22]    Shia militias, including the AAH, continued to be active in the central and southern governorates of Iraq in December 2015 and were known to hold an anti-Sunni outlook. In this context, I am prepared to accept as plausible the applicant's claims that: members of the AAH visited his family in Hillah as claimed; stated they knew the family were Sunnis from Basra and believed they 'were up to something'; and that the family moved to Erbil to avoid further threats. I also accept on the applicant's detailed evidence that his brothers have rented a shop and have a small business selling food locally.

Future harm to the applicant in Basra due to an association with his Sunni family and the family business

[23]    The applicant's representative contended that the applicant would be harmed in the future due to the actual or perceived wealth of his family and due to their Sunni religion.

[24]    DFAT advises that the constitution and legal systems do not discriminate against Sunnis and that the current government has made attempts to reconcile the Sunni and Shia communities. Overall tolerance of religious minorities is currently higher in southern Iraq, including in Basra, than in central Iraq. However, Sunnis living in Shia dominated areas in the southern governorates do face moderate levels of societal discrimination and harassment, with Sunnis reporting difficulties accessing employment, largely due to nepotism and a bias towards hiring Shias. Further, recent information is that Shia militias continue to be active in the contested areas and in Government controlled territory including in the southern governorates; that they continue to engage in criminal activities, including murder, kidnapping and extortion; and that they currently target Sunni religious institutions and Sunni Muslims, particularly young Sunni men and those suspected of links with Daesh (IS or ISIL). DFAT has advised that Sunnis in Shia-dominated and mixed provinces face a high risk of violence from Shia armed opposition groups, although information before the [the Authority] is that such attacks appear to be more common in central Iraq and the contested areas, rather than in the applicant's home area of Basra.

[25]    I accept the submission of the applicant's representative that membership in a family or possession or lack of wealth can provide the basis of a particular social group for the purpose of protection claims. I have accepted above that the applicant was insulted and called a Sunni and 'Wahabi' in the past due his association and work with his family. As I have found the applicant's family continues to own their home in Basra and that this is the area to which he would return, it is plausible that the applicant will be identified as a member of his family on return to Basra. However, I give weight to the applicant's oral evidence that, despite these past insults, he was never personally seriously harmed by anyone in the past for reasons of his association with his wealthy Sunni family. His oral evidence at the SHEV interview was that he did not leave Iraq with his [brother A] in 2011 because he was not personally at risk of harm. He stated that, after his family moved to Hillah, he was not frightened to return to Basra because as a Shia he was a member of the majority religion and would not be harmed. He stated that other Shia's would have compassion for him, and that it was the Sunni members of his family who feared harm. The applicant stated that 'he has nothing wrong' in Basra. As noted above, the applicant resided in Basra from 2011 until his departure for Australia in September 2012 and did not experience any harm from anyone, including Shia militias, the government or members of the community during that time. The applicant stated that he identified with the Shia faith in the past and that he continues to do so. These circumstances, country information and the applicant's oral evidence cumulatively lead me to find that the applicant would be identified as a Shia Muslim on return to Basra, including by the government, members of the community and Shia militias.

The grounds of appeal for which leave is sought

6    The two grounds in the amended notice of appeal are as follows:

[1]    The Immigration Assessment Authority (“IAA”) accepted the appellant’s claim that he was Shia, but all his siblings were Sunni, although most of the siblings lived in Erbil (“Erbil Family”) (at [16] and [22]). The IAA found that in the past, when the appellant lived in the family home in Basra with his siblings, because his siblings were Sunni, he was perceived to be Sunni (at [19] and [25]). The IAA also found “it is plausible that the [appellant] will be identified as a member of his family on return to Basra” (at [25]), which was a Shia-dominated part of Iraq, but, assuming the Erbil Family would remain in Erbil, “the [appellant] would be identified as a Shia Muslim on return to Basra” (at [25]). The IAA, in its assessment of the risk of harm to the appellant on return to Basra, overlooked or failed to have regard to the likelihood, or at least real chance, that the Erbil Family would be evicted from Erbil and return to the family home in Basra, in which case:

(a)    the probability that the appellant, now living in Basra with his Sunni siblings, would be identified as, or perceived to be, Sunni, would increase; and

(b)    the risk of harm to the appellant in Basra (as a person perceived to be Sunni in a Shia-dominated area) would increase.

For the IAA to overlook or fail to have regard to this matter, which clearly arose on the materials before the IAA, is a jurisdictional error.

[2]    The IAA at [25] found “it is plausible that the [appellant] will be identified as a member of his [principally Sunni] family on return to Basra”, but “the [appellant] would be identified as a Shia Muslim on return to Basra”. On a fair reading of these two findings, the IAA found that there was at least a real chance that the appellant “will be identified as a member of his family on return to Basra”, including as a Sunni Muslim, but on the balance of probabilities, he ”would be identified as a Shia Muslim on return to Basra”. The IAA, in addressing the ultimate question at [28] and [32] of whether the appellant faced a real chance of serious harm if required to return to Basra, erroneously disregarded the real chance, which it acknowledged at [25], that the appellant would continue to be identified as Sunni on return to Basra. This is a jurisdictional error: see Minister v Rajalingam (1999) 93 FCR 220.

Ground 1

7    The substance of the appellant’s argument on ground 1, disputed by the Minister as properly arising, may be summarised as follows:

(a)    the appellant’s whole family decided to leave Basra and go and live in Erbil in Iraqi Kurdistan, but had overstayed in Erbil and had nowhere else to go: Authority [7];

(b)    The delegate had referred to country information that indicated that longer-term relocation to Iraqi Kurdistan required a sponsor for entry, followed by a residency permit, there being no evidence that the appellant’s family had either a sponsor or a permit;

(c)    the Authority, contrary to the delegate, accepted as plausible that the appellant’s family moved to Erbil to avoid further threats: Authority [22];

(d)    it was unclear on the Authority’s findings whether the appellant’s family will be able to stay in Erbil, with the country information referred to by the delegate ruling out

long-term relocation there;

(e)    the Authority did not find that the family would be able to remain in Erbil;

(f)    the Authority found that when the appellant, who is Shia, lived with his family, all of whom are Sunni other than his mother, in Basra before he came to Australia, his risk profile was adversely affected and, in particular, he was subject to harassment by being called Sunni and Wahabi, and it was plausible he would be identified as a member of his family upon return to Basra: Authority [19] and [25];

(g)    based on the material before the Authority, it was likely that the appellant’s family would not be able to remain in Erbil and would return to Basra, which would adversely affect his risk profile by his association with his family and the country information of the high risk to Sunnis from Shia militia in Shia dominated areas;

(h)    the Authority committed jurisdictional error by overlooking or failing to take into account the likelihood, probability, or at least real chance that the appellant’s family would be evicted from Erbil and would return to their home in Basra, in which case his risk profile would change for the worse based on the Authority’s findings and country information accepted by it.

8    There are a number of insurmountable hurdles standing in the way of these arguments prevailing and thus this ground succeeding, as correctly identified by the Minister.

9    First and foremost, there was no overt claim made of the kind that is now advanced in ground 1, as counsel for the appellant accepts. It is not for this Court to ferret around and construct a claim when none has been made, or to isolate an issue that was not readily apparent, especially when the appellant was represented by a migration agent who was also a legal practitioner: see the summary of principles about the duty to consider claims and issues arising from material before the Authority in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18]; see also SZSHK v Minister for Immigration and Citizenship [2013] FCAFC 125; 138 ALD 26 at [37]. As evocatively put by Allsop J, as his Honour then was, almost 20 years ago in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (emphasis added):

The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]–[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

10    The asserted unaddressed issue or claim did not arise sufficiently from the material before the Authority as to require its existence, which may be doubted as discussed below, to be appreciated.

11    Secondly, once the Authority’s reasons at [16] are read and properly considered, there is considerable doubt that the foundation for the appellant’s family being unable to remain in Erbil even existed. The appellant’s own evidence is that one of his brother’s business contacts may have provided the relevant sponsorship, and the Authority noted that sponsorships could sometimes be purchased or the requirement not be imposed. That was part of the foundation for the Authority departing from the delegate’s refusal to find that the appellant’s family had gone to Erbil in the first place, finding instead that this was plausible.

12    Thirdly, the appellant’s evidence about the possibility that his family had overstayed in Erbil, as opposed to that being clearly asserted as a fact, was relied upon as a reason for him not joining them there. This led to the Authority accepting that Basra was where he would return to, and thus the home area for the purpose of assessing his claims. That is, the appellant was relying upon this possibility as part of the reason for him not going to Erbil, without any suggestion on his part that his family too might go to Basra. If there was ever a time for the appellant to have been asserting a concern that his family would be going to Basra, and that this might pose a source of additional risk to him, this was the time to make it. The reasonable inference to draw is that this was not a possibility that he had in mind, at least not sufficient to raise it. That in turn makes sense, because there was little or no basis for the Authority to consider that a return to Basra by the appellant’s family was in contemplation. That is, to the extent that any inference is to be drawn from the Authority’s reasons, it points away from, rather than towards, the asserted overlooked claim or circumstance. That is especially so because the Authority also recorded at [26] that the appellant had stated that his siblings had opened up a small business in Erbil, about which further observations were made, including a finding that he would therefore not work in a family business in Basra because no such business was located there anymore.

13    As it has not been established to my satisfaction that the material before the Authority indicated that there was any suggestion of the appellant’s family returning to Basra, there was no basis for any claim or indication of an unaddressed risk that had not been assessed by the Authority. It follows that, upon proper consideration, this ground was without a sound foundation. Leave to rely upon ground 1 in the amended notice of appeal must be refused.

Ground 2

14    The substance of the appellant’s argument on ground 2, also disputed by the Minister as properly arising, depends upon a juxtaposition between:

(a)    the Authority’s conclusion at [25] that the circumstances discussed in that paragraph, the country information, and the appellant’s oral evidence at his visa interview, cumulatively led to a finding that he would be identified as a Shia Muslim on return to Basra, including by the government, the community and Shia militias; and

(b)    that he would be identified as a member of his principally Sunni family, asserted to amount to a finding that he was at risk of being identified as Sunni,

such that the Authority had erroneously disregarded the real chance that the assessment that the appellant would be regarded as Shia was wrong, relying upon Sackville J in the Full Court case of Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; 93 FCR 220 at [60]-[67] (North J agreeing).

15    Once again, there are insurmountable hurdles to this ground being capable of succeeding, as correctly identified by the Minister.

16    First, when the Authority’s reasons at [19] and [25] are carefully read, it is apparent that at no stage was any finding made by the Authority that the appellant had ever been identified as Sunni, such that the asserted risk of a continuation of such an identification did not arise. What those paragraphs reveal is acceptance of the appellant’s claims that he had been harassed by reason of his association with and work in the business of his predominantly Sunni family, such harassment taking the form of being insulted and called a Sunni and a Wahabi (being a strictly orthodox Sunni sect), rather than any suggestion of being actually identified by anyone as Sunni. The identification of the appellant in question was not as a Sunni, but rather as a member of a family with predominantly Sunni members, giving rise to harassment, and no worse, by reason of that association.

17    Secondly, and in any event, as the Minister points out, the principle discussed by Sackville J in Rajalingam is that a decision-maker in a protection visa case may be required to take account of the chance that a past event might have occurred, even if that decision-maker thinks that it probably did not, as part of the assessment of a well-founded fear of persecution: see [63]. However, for that principle to have any application, there needed to be some rejection of a factual assertion, and the possibility of there being a real doubt about that rejection: see [67]. The concept is sometimes described as circumstances giving rise to a decision-maker needing to consider the possibility of being wrong about a factual conclusion in order to assess thoroughly a claimed fear of persecution that may therefore have greater veracity. That simply does not arise in this case in which virtually all of the factual claims made by the appellant were accepted and the live issue was whether those circumstances gave rise to a well-founded fear of persecution.

18    It follows that upon proper consideration, this ground was also without a sound foundation. Leave to rely upon ground 2 in the amended notice of appeal must be refused.

Conclusion

19    Leave to rely upon both grounds of appeal in the amended notice of appeal must be refused. It follows that the appeal must be dismissed with costs.

Associate:

Dated:    20 June 2023