FEDERAL COURT OF AUSTRALIA

DBE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 779

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs, as agreed or taxed.

THE COURT NOTES THAT:

4.    The first respondent has indicated that it does not anticipate that costs will exceed the short form bill amount prescribed in Item 15.2 of Schedule 3 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

PERRY J:

1.    INTRODUCTION AND BACKGROUND

1    The appellant is a citizen of Iraq and a Shia Muslim. He had previously lived in the south of Iraq, and arrived in Australia on 16 July 2013. On 28 April 2017, he applied for a Temporary Protection Visa, on the basis that he feared persecution or significant harm if returned to Iraq. The appellant claimed to fear harm on the basis of general threats received whilst working for two companies in the years prior to his departure from Iraq, as well as other attacks directed towards his family and neighbour involving militia and political groups.

2    On 30 May 2019, a delegate of the first respondent, the Minister for Immigration, refused to grant the appellant a protection visa. The appellant’s matter was then referred to the second respondent, the Immigration Assessment Authority. On 18 July 2019, the Authority affirmed the decision of the delegate of the first respondent to refuse to grant the appellant a protection visa.

3    The appellant, who then had legal representation, sought judicial review of the Authority’s decision in the (then) Federal Circuit of Australia. On 8 May 2020, the primary judge dismissed the application for judicial review: DBE19 v Minister for Immigration & Anor [2020] FCCA 811. This proceeding is an appeal from the decision of the primary judge.

4    This appeal was amongst the cohort of matters which were delayed an allocation for hearing due to restrictions on in-person hearings during the Covid-19 pandemic, bearing in mind that the appellant was not in immigration detention.

5    Orders were made by the Registrar on 15 June 2020 with respect to the filing of submissions in advance of the hearing of the appeal. On 6 June 2023, the Minister filed written submissions. The appellant did not file written submissions but made oral submissions at the hearing of the appeal. His participation in the hearing was facilitated by a National Accreditation Authority for Translators and Interpreters (NAATI) certified interpreter in English and Arabic. The Court is indebted to the interpreter who also translated the Minister’s submissions to the appellant before the hearing commenced.

2.    LEGISLATION AND RELEVANT PRINCIPLES

6    The Migration Act 1958 (Cth) (the Act) provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter and remain in Australia. The Act provides for different classes of visas. One class of visa is a protection visa, the criteria for which are specified in s 36 of the Act.

7    A protection visa may be granted where the criteria in s 36(2)(a) are met. That provision provides that a “criterion for a protection visa is that the applicant for the visa is … a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee” (the refugee criterion).

8    In circumstances where a person is a national of another country, a person will be a “refugee” for the purposes of the Act if they are “outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”: s 5H(1)(a) of the Act.

9    The expression “well-founded fear of persecution” is defined in s 5J of the Act. That section relevantly provides that:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

10    A determination of whether a (subjective) fear is (objectively) “well-founded” requires the Authority to assess what might occur in the future. A fear is “well-founded” when there is “a real and substantial basis for it” even though the chance of the fear eventuating is less than 50 per cent (often described as a “real chance”): Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-founded “if it is merely assumed or if it is mere speculation”: ibid.

11    Section 36(2)(aa) provides an alternative criterion for the grant of a protection visa to a non-citizen where the Minister is not satisfied that the person is a refugee but is nonetheless satisfied that the person is entitled to protection under Australia’s international non-refoulement obligations (described as complementary protection), being a person:

…in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

(the complementary protection criterion)

12    Section 36(2A) provides that a person will suffer “significant harm” if:

(a)    the non-citizen will be arbitrarily deprived of his or her life;

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)     the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

13    A determination of whether there is a real risk for the purposes of the complementary protection criterion requires a consideration of whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at 551 [242]-[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at 557-558 [297] and Flick J at 565 [342] relevantly agreed). The level of risk of harm under the s 36(2)(aa) complementary protection criterion is therefore the same as the level of risk required under the s 36(2)(a) refugee criterion.

3.    THE AUTHORITY’S DECISION

14    On 18 July 2019, the Authority affirmed the decision of the delegate of the first respondent to refuse to grant the appellant a protection visa. In summary, the Authority was not satisfied that the appellant was owed protection obligations for the purposes of the refugee criterion. The Authority also did not accept that the appellant met the complementary protection criterion for the grant of a protection visa.

15    The Authority considered the submissions, as well as certain new information, presented by the appellant (at [4]-[10]). It is not necessary to repeat all of the detail of the Authority’s decision. For present purposes, it suffices to observe that, before the Authority, the appellant made a number of claims, including that (at [10]):

1)    several of his family and friends had been killed in Iraq, and that he believed some of these killings were perpetrated by Shia militias;

2)    whilst working for an international company, the appellant received indirect threats from unknown people (which he believed to be militia or political groups) who requested that he leave the company and join the militia or a political group, and that following these events, he was seized with fear and fled Iraq;

3)    after leaving Iraq, a further family member was shot; and

4)    he believes he will be targeted by extremists if returned to Iraq.

16    In response to those claims, the Authority made various factual findings (at [11]-[18]). I will refer to those relevant findings in greater detail shortly. Importantly, while accepting certain of the appellant’s claims including that he had worked for an international company and his claims as to the killings of family and friends, the Authority did not accept that the appellant faces a real chance of harm on account of his faith, his profile, or his or his family’s past experiences in Iraq. At the risk of oversimplification, the Authority found that:

1)    the appellant was not personally targeted, threatened or harmed by any groups in Iraq, and was not wanted by any group when he left Iraq (at [21]);

2)    whilst several of the appellant’s family and friends had been injured or killed, the Authority did not accept that these events were linked to the appellant (at [21]);

3)    since the appellant left Iraq in 2013, the security situation in that country has improved, although there is still intra-group violence which affects the country (at [22]);

4)    whilst the appellant fears harm from forcible recruitment by militia and political groups, the “country information before me overwhelmingly indicates recruitment to these groups is on a voluntary basis and while forced recruitment is not unheard of it affects individuals with different profiles to that of the applicant” (at [26]);

5)    whilst the appellant may obtain difficulties finding employment, this would not threaten his capacity to subsist or otherwise amount to serious harm (at [27]); and

6)    subject to certain exceptions, the evidence does not indicate that involuntary returnees are not accepted back into Iraq or are otherwise harmed (at [28]).

17    On that basis and having regard to the appellant’s profile and country information about the situation in Iraq and those persons at risk of harm in Iraq, the Authority was not satisfied that the appellant had a well-founded fear of persecution for the purposes of the refugee criterion.

18    The Authority then turned to consider whether the appellant satisfied the criterion for complementary protection. In this regard, the Authority concluded that it was not satisfied that the inability to obtain employment would amount to “significant harm”, as defined in ss 36(2)(aa) and 36(2A) of the Act (at [34]). In so reasoning, the Authority found that (at [35]):

In considering the applicant's refugee status, I have otherwise concluded that there was no 'real chance' the applicant would suffer harm on his return to Iraq for the other reasons claimed. 'Real chance' and 'real risk' involve the same standard. For the same reasons, I am also not satisfied the applicant would face a 'real risk' of significant harm.

19    The Authority therefore affirmed the decision not to grant the appellant a protection visa.

4.    THE FEDERAL CIRCUIT COURT’S DECISION

20    The appellant relied on two grounds in his amended application for judicial review before the (then) Federal Circuit Court. The first of those grounds contended that the Authority had made an error in failing to find that he satisfied the refugee criterion, in that the Authority:

a)    failed to determine whether the applicant subjectively fears persecution if returned, and failed to determine whether there is a real chance that the applicant would be persecuted, if returned; and

b)    took into account an irrelevant consideration in considering whether the applicant was not “personally targeted” when living in Iraq.

21    In dismissing the first argument, the primary judge rejected the contention that the Authority failed to determine whether the applicant subjectively fears persecution if returned, as a matter of fact (at [49]). Rather the primary judge held that the Authority “carefully ma[de] relevant factual findings” in relation to each of the applicant’s claims, and related those findings to whether the applicant has a “well-founded fear of persecution” (at [47]). Hence, according to the primary judge, it was “implicit” in the Authority’s reasoning that it had considered and accepted that the appellant’s subjective fear was genuine (at [48]-[49]).

22    In relation to the appellant’s second argument with respect to ground one, the primary judge rejected the submission that the Authority had erred in focusing on whether the appellant had been “personally targeted”. The primary judge accepted that the question of whether someone has a well-founded fear of persecution is a forward-looking question (at [51]). However, the primary judge held that this forward-looking question is “of necessity, informed by the [appellant’s] past experiences and other information … A relevant consideration in forming such a conclusion is whether or not the applicant was personally targeted in the past” (at [51]). In this regard, his Honour observed that no evidence was provided to the Authority that the appellant was the subject of any direct threats, and that the appellant relied instead upon harm occasioned to other people as the basis of his view that he would be targeted next (at [51]). The primary judge also held at [52] that:

There was no evidence before the Authority that if the applicant was returned, he would resume working for foreign companies, nor was there any other material to indicate that he would be under direct threat because of his profile or any other reason. The Authority carefully considered the applicant’s fears, but did not find them ‘well founded’.

23    On this basis, the primary judge therefore dismissed the first ground of judicial review.

24    The second ground advanced by the appellant before the Federal Circuit Court contended that the Authority erred in making findings with respect to the complementary protection criterion, because the Authority:

a)    misstated the law by reasoning that there is no relevant difference between the refugee criterion and the complementary protection criterion; and

b)    failed to give adequate consideration to the appellant’s claims under the complementary protection criterion by reasoning at [35] that its rejection of the appellant’s claim under the refugee criterion necessitated rejection of his claim under the complementary protection criterion.

25    The primary judge also rejected the second ground of judicial review. Specifically, the primary judge held that it is “entirely orthodox” for a decision-maker to rely on findings made in relation to the refugee criterion, in the context of considering whether the criterion for the complementary protection criterion have been satisfied (at [53], citing SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] (Robertson J); BCX16 v Minister for Immigration and Border Protection [2019] FCA 465 at [23] (Charlesworth J)). The primary judge observed that the Authority had set out the relevant test for considering whether the appellant met the complementary protection criterion, and “clearly considered the applicant’s claims as they related to his refugee status and other relevant material” (at [54]-[55]). The primary judge observed that, having regard to this information, the Authority had considered the appellant’s claims with respect to the complementary protection criterion, and ultimately did not consider there to be a real chance that the appellant would suffer harm on returning to Iraq (at [55]). The primary judge held that this approach disclosed no error, and on that basis, rejected ground two of the application for judicial review.

5.    DISPOSITION OF THE APPEAL

26    The appellant appeals from the decision of the primary judge. Two grounds are advanced in support of that application, both of which, as the Minister’s counsel submitted, substantially mirror those before the primary judge. Those grounds of appeal are as follows:

1)    The primary judge erred in dismissing the applicant's application for judicial review because the Authority in assessing the applicant's claims under s 5J of the Act, failed to apply the 'two-stage test' to consider whether the applicant had a subjective fear of harm. The applicant submitted that this is an essential step in the decision-making process. The primary judge stated that "The fact that the applicant had not been personally targeted was centrally relevant to determine whether he had a well-founded fear of being persecuted." Although this is correct, however, this conclusion was based on the specific reference to the applicant's answer as to whether he was targeted while he worked in the construction sites in 2013, the applicant complains that the approach followed by the primary judge was narrow in nature.

2)    The primary judge erred in dismissing the applicant's application, the applicant's complaint is that the Authority misconstrued or misapplied s 36(2)(aa) of the Act and failed to give adequate consideration to the applicant's claims to be entitled to complimentary protection. Because the reasons given by the tribunal was not read in light of the reasons as whole.

27    In addition, the appellant raised a number of matters in his oral submissions. It is convenient to deal with those matters first.

28    The appellant asked this Court to review his case again and asked for compassion and mercy. He referred to the fact that he was suffering from mental health issues, and experienced nightmares and a lack of sleep, including because of the tragic circumstance of having seen a neighbour murdered in front of him in Iraq (as he claimed before the Authority). I note in this regard that the Minister’s counsel properly acknowledged that he did not doubt the sincerity of the appellant’s submissions. Nor, as I explain below, did the Authority doubt these claims, or the appellant’s subjective fear of harm if returned to Iraq.

29    However, as counsel for the Minister submitted, it is important to emphasise the very limited capacity of a court to interfere with a decision of the Authority. The jurisdiction of the (then) Federal Circuit Court was confined to deciding whether the Authority’s decision was made lawfully under the Act.  This Court in turn must decide whether the Federal Circuit Court wrongly held that there was no jurisdictional error, that is, if the Authority made a serious legal mistake (to use lay terms).  The Authority would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant’s protection visa application was required to be assessed, or if it failed to consider a substantial claim made by the appellant: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court). 

30    Thus, neither this Court nor the Federal Circuit Court has jurisdiction to grant the appellant a visa, to consider whether the appellant meets the criteria for the grant of a protection visa, or to correct mistaken findings of fact made by the Authority: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). Furthermore, the question of whether or not this Court agrees with the Authority’s decision is not a basis on which it can set aside that decision, even if another decision-maker might have reasonably reached a different decision.

5.1    Ground One: The appellant’s subjective fear of harm

31    By ground one of the notice of appeal, the appellant contends that the Authority failed to consider whether he has a subjective fear of harm. I agree with the primary judge that this contention fails at a factual level. As the primary judge held and the Minister’s counsel submitted, the Authority considered, and in fact accepted, that the appellant had a subjective fear of harm. The Authority did not overlook this part of the appellant’s claims.

32    The Authority’s consideration of the appellant’s subjective fear of harm is apparent from the various findings it made, including that:

    the appellant’s mental health suffered as a result of his past experiences (at [13]);

    the appellant may have been asked and even possibly pressured to join militia or political groups in the past (at [15]);

    the appellant’s cousins may have been targeted previously (at [16]);

    the appellant’s neighbour was shot and killed, and that the appellant witnessed this killing (at [17]); and

    the appellant’s older brother was injured while driving as a victim of generalised violence (at [18]).

33    The Authority also expressly accepted that the “applicant fears harm and forcible recruitment” by certain political and militia groups (at [26]). As such, this was not a case in which the appellant’s credibility was impugned.

34    Whilst ultimately rejecting the applicant’s argument on other grounds, those reasons disclose that the Authority did in fact consider and accept the appellant’s subjective fear of harm if returned to Iraq, as the primary judge held. It follows that the primary judge correctly rejected this aspect of ground one.

35    The appellant’s first ground of appeal also appears to raise a second issue: that is, whether the Authority had erred in focusing on whether the appellant had or had not been “personally targeted” in his home country. The primary judge held, and I agree, that the Authority was not in error for considering that matter.

36    In the course of its reasons, the Authority (at [14]) found that the appellant was not “personally targeted” while working for an international company in 2013. That finding arose in the context of the appellant’s claim that, as a result of his work for a particular international company, “he was threatened by militia or political groups and pressured to join them” (at [10]).

37    I agree with the primary judge that this reasoning discloses no error. In determining a protection visa application, s 5J of the Act requires, amongst other things, for a decision-maker to determine if a person would be persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion. As I have stated, that question is forward-looking. Nonetheless, in assessing whether there is a real chance of persecution in the context of the refugee criterion, it is well established that past events may assist in assessing what is likely to occur in the future. As the joint judgment held in Guo, “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence.”: at 574 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Thus, in the context of applying the definition of a refugee in the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), the joint judgment in Guo held (at 575) that:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

38    It follows, as the primary judge held, that the forward-looking inquiry required by the refugee criterion (and equally the complementary protection criterion) can be informed by an applicant’s past experiences. For example, in this case, the lack of past personal targeting was plainly relevant to the appellant’s claim that he feared forcible recruitment from militia or political groups if returned to Iraq.

39    This is not to say that past experiences are necessarily determinative of whether an applicant’s fear of harm is well-founded. Rather, it is to state that there was no error made by the Authority in considering the appellant’s past experiences as one of the factors informing its decision.

40    In this regard, the Authority did not focus exclusively upon the appellant’s past experiences in reaching the view that his fear of harm if returned was not well-founded. To the contrary, the Authority expressly considered (at [24]-[26]) whether the appellant’s profile meant that he faced a real chance of harm if returned and found that he did not based upon its assessment of the country information. As I have explained, it is not open to this Court to revisit that factual assessment. Nor was it open to the Federal Circuit Court to do so. The merits of the appellant’s claims were ultimately for the Authority and the Authority alone to determine.

41    Ground one of the notice of appeal must therefore be dismissed.

5.2    Ground Two: s 36(2)(aa) of the Act

42    It will be recalled that by the second ground of appeal, the appellant submits that the Authority misconstrued or misapplied the complementary protection criterion, and failed to give adequate consideration to his claim for complementary protection.

43    As a starting point, it is of course correct that the refugee criterion and the complementary protection criterion are different, as the appellant’s legal representative submitted before the Federal Circuit Court. The complementary protection criterion is an alternative way in which an applicant may qualify for a protection visa where there is a real chance that an applicant will suffer significant harm if returned to her or his country of origin, even though the applicant does not meet the refugee criterion.

44    However, as the primary judge observed, it is entirely orthodox to rely on earlier factual findings made for the purposes of the refugee criterion, in the context of considering the complementary protection criterion, where the claims with respect to the former overlap with the latter. As a unanimous High Court held in DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1 (at [27]):

Although the statutory questions posed by s 36(2)(a) and s 36(2)(aa) are different, it has long been recognised that, to the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a).

(Citations omitted.)

45    In support of that proposition, the High Court cited with approval BCX16 (at [23]), where Charlesworth J held:

…the reasons given by a Tribunal in respect of the Complementary Protection Criterion must be read in the context of the reasons as a whole and especially having regard to any reasons given by the Tribunal for rejecting a non-citizen’s claim to have a well-founded fear of persecution for a Convention reason. The facts bearing on the alternate visa criteria in s 36(2)(a) and s 36(2)(aa) may partially or wholly overlap, particularly in cases where a claim to have an objectively well-founded fear of persecution for the purposes of s 36(2)(a) of the Act is supported by the same facts that are said to give rise to a real risk of significant harm faced by the visa applicant “personally”. To the extent of any such overlap in the factual bases for the claims, the Tribunal is entitled to rely on its earlier factual findings, provided that it applies the correct legal test to them: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285.

(Emphasis added.)

46    In this instance, the Authority made detailed findings about the appellant’s claims in the context of considering whether it was satisfied that the refugee criterion was met. Significantly, those findings included that the Authority:

    did not accept that the appellant was personally targeted during his work for various companies from 2010-2013 (at [14]);

    did not accept that the appellant was threatened, harmed, or forced to join a militia or political group (at [15]);

    did not accept that the harm suffered by the appellant’s cousins were linked to the appellant (at [16])

    did not accept that the harm inflicted on the appellant’s brother was linked to the appellant (at [18]);

    did not accept that there was a real chance that the appellant would be harmed by Shia militia groups if returned to Iraq (at [26]);

    accepted that the appellant would have difficulties obtaining employment, but did not consider that those difficulties would threaten his capacity to subsist (at [27]); and

    did not accept that that the appellant would face harm on account of being an involuntary returnee (at [28]).

47    First, it is therefore apparent that the Authority did consider the appellant’s claims to have been threatened by reason of having worked a foreign company, though it did not accept that claim. I do not therefore accept the appellant’s oral submission that the Authority overlooked his claim that he used to work for an international company and that this was the reason why he had been threatened in Iraq.

48    Secondly, the Minister submits, and I agree, that it was open to the Authority to rely on its earlier findings with respect to the appellant’s claims to fear harm in the context of considering the refugee criterion when it turned to address whether the complementary protection criterion was met. This is because the appellant relied upon the same claims to fear harm in support of both criteria. Further, in applying those previous findings to the complementary protection criterion, the Authority (at [32]-[33]) also applied the “correct legal test” to considering the complementary protection issue: BCX16 at [23] (Charlesworth J).

49    In addition, in the context of assessing the complementary protection criterion, the Authority specifically addressed the appellant’s claims that he may have difficulty in finding employment in Iraq if returned, but was not satisfied that this would amount to significant harm as defined.

50    In these circumstances, no error has been established in the primary judge’s reasons for rejecting the second of the appellant’s grounds in his application for judicial review. The appellant has therefore not established ground two of the notice of appeal.

6.    CONCLUSION

51     It follows that, for these reasons, the appeal is dismissed with costs.

Associate:

Dated:    11 July 2023