BZAGM v Minister for Immigration

[2016] FCCA 1231

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAGM & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1231

Catchwords:
MIGRATION – Application for judicial review of decision of Independent Merits Reviewer – whether Reviewer fell into error in considering applicant’s fear of harm from members of his tribe – whether Reviewer failed properly to consider applicant’s mental health problems and related difficulty in giving evidence – almost all the medical evidence sought to be relied on not before the Reviewer – Reviewer not falling into error – application dismissed.

Legislation:

Migration Act 1958, s.36(2)

Cases cited:
Chan v MIEA (1989) 169 CLR 379
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

First Applicant: BZAGM

Second Applicant: BZAGN

Third Applicant: BZAGO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERTS REVIEWER

File Number: BRG 152 of 2014

Judgment of: Judge Demack

Hearing date: 25 July 2014

Date of Last Submission: 25 July 2014

Delivered at: Rockhampton

Delivered on: 20 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Steele

Solicitors for the Applicant: Refugee and Immigration Legal Service

Counsel for the First Respondent: Ms Wheatley

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the Application is dismissed. 

2. That the Applicants pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 152 of 2014

BZAGM

First Applicant

BZAGN

Second Applicant

BZAGO

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of an Independent Merits Reviewer (“the Reviewer”) dated 25 July 2011. The Reviewer recommended that the applicant MZAGM, together with his two sons, MZAGN and MZAGO (who applied as dependents and are not otherwise relevant for these purposes) did not meet the criterion for Protection visas set out in s.36(2) of the Migration Act 1958 (Cth) (“the Act”). The Reviewer recommended that the applicants not be recognised as persons to whom Australia has protection obligations under the Refugees Convention. Although the issuing of this judgment has been very significantly and unfortunately delayed by pressure of other work, there are no issues of credit and I have the transcript of the proceeding available to assist me.

2. The grounds of application are essentially twofold.  First, it is asserted the Reviewer erred in considering whether the applicant had a well-founded fear of persecution by reason of his membership of a particular social group, namely, the Hassan tribe in Iraq.  The second ground is that the Reviewer failed to take into account evidence of the deficiencies in the mental health of the first applicant, thereby failing to take into account relevant considerations when assessing his evidence and failing to give him natural justice.

3. The first respondent resists both these assertions and for the reasons that follow I think that the first respondent’s submissions should be upheld.

The materials before the Reviewer

1. The bundle of relevant documents before the Reviewer commences

   
   

   (in time) with copies of their passports and bio data on their direct arrival form at Court Book (“CB”) 148-156.  Nothing presently turns on those matters.

2. The Unauthorised Arrival Form at CB118-147, however, is relevant.  At CB127, the applicant provided an answer to the question, “Why did you leave your country of nationality (country of residence)?”

3. The answer set out in full reads:

   “In 2003 when we entered, a member of my tribe they asked us about my sister + why she is married to someone from outside,

   
   

   a stranger to us.  That’s when they started to hate us, we used

   
   

   to have some properties they took it + they used to fight us. 

   
   

   In 2005 they killed my father.  My brother had to flee to HAMZA.  I had to change my residence from here to there.  They threatened us + I was afraid they would kidnap my kids.  That’s why I took my sons because they don’t usually target females.  They kill the boys.

   WHO IS THEY? 

   Our tribe, AL HASSAN.

   HOW WAS YOUR FATHER KILLED?

   They started to threaten since 2003.  Every day we used to have a problem.  They used to catch my father + in the end they killed him.  During an argument about why he married his daughter outside the tribe, one of the pulled out a gun + killed him

   (the statement continues at CB138-139).

   WERE YOU THERE?  No.

   HOW DO YOU KNOW HE WAS KILLED?

   It’s a small town, everyone knew.

   DID YOU COMPLAIN ABOUT WHAT WAS HAPPENING

   
   

   TO THE AUTHORITIES?  No, they threatened us, everyday there was a problem.

   ANY OTHER REASONS WHY YOU LEFT IRAQ?

   They will target anyone because he’s SHIA.  There’s no security no stability there.  They also started to fight people on their names.  At the checking points, they will be questioning people with SHIA names e.g. ALI or HAIDER etc. + they will kill them.  This is terrorism.  They will just shoot them with a silent gun,

   
   

   for no reason, just if they don’t like you.  And there is also the bombs happening.  We have had the tribe situation + also what is happening in the whole of Iraq as well.”

4. At CB130 the applicant recorded that he had evaded military service

   
   

   in Iraq by deserting and fleeing to Kuwait.

5. At CB135 the applicant answered the question, “Do you have any reasons for not wishing to return to your country of nationality (residence)?” as follows:

   “I cannot go back because they are fighting there.  I am afraid they will kill me like my dad.  I’m thinking about my kids mostly now.  The situation there is chaos.  I’m lucky I survived + my brother is also escaping.

   They can’t, it couldn’t be done.  And when everyone else was leaving.  I wanted to leave also.  And when my father was killed, I couldn’t stay in Iraq.”

6. The applicant also provided a statement of his claims, which is CB113-116.  I note that the applicant asserted discrimination and difficulty

   
   

   as a result of sections of his father’s asserted Shia religion and inter-related involvement with the Al-Dawaa Party, causing the applicant’s family to leave Iraq for Iran.

7. The applicant returned to Iraq after the fall of Saddam Hussein’s regime but the applicant asserted that life was “very bad from the beginning” (CB114).  Because he had grown up in Kuwait, it was difficult to adapt to the Iraqi way of life and he was not accepted as an Iraqi.  At paragraph 16, the kernel of the applicant’s claims were set out as follows:

   “In 2005 my father was killed.  Our tribe was angry at my father for allowing my sister to marry someone outside of the tribe.  Under tribal law and customs, men from the tribe are given the first choice to marry women from the tribe.  Also, there was

   
   

   a dispute about the distribution of property.  My father wanted to claim some land that he was entitled to.  Someone from our tribe shot and killed my father.  The tribes in Iraq act like animals.  They are savages.  My brother and I were forced

   
   

   to flee the area as we feared we would also be killed.  I was forced to keep a low profile.  I would rotate between staying with my brother, my aunt, and going home to visit my family.”

8. The applicant went on to depose to legal action taken after his father’s death and the case is still ongoing  The applicant deposed to being in constant fear as a result of his tribe and referred to the unstable social and political situation in Iraq.  At paragraph 23 he deposed:

   “I believe that if I return to Iraq I will face a real risk of harm by the Hasani tribe.  Our family broke tribal rules by allowing my sister to marry outside the tribe.  They killed my father because of this.  With the ongoing dispute over assets I face a constant risk of being killed.”

9. The applicant’s statement goes on to assert a lack of State protection and the incapacity to relocate anywhere else in Iraq.

10. The applicant sought a Refugee Status Assessment (“RSA”) Record and completed the relevant documentation at CB73-107.  The applicant completed such documentation with the assistance of a migration agent but his claims were clearly those already set out in the statement

    
    

    to which I have referred.

11. The RSA Record is at CB60-72.  Having set out the applicant’s background details, the delegate analysed the claims made at CB62.  The applicant gave evidence, with the assistance of an Arabic interpreter, at the RSA interview in Darwin on 4 January 2011. 

    
    

    He advanced two claims.  The first, that he would be killed by Sunnis because he is a Shia.  The second was that he would be killed by members of the Hassan tribe.  The fear of the Hassan tribe was summarised at CB62:

    ·He and his family returned to Al Rumaitha in 2003 after the fall of Saddam’s regime.  Because he had spent most of his life abroad, he had difficulty in adjusting to life in Iraq.  He faced discrimination from people who perceived him to be Iranian.

    ·In 2005, his father was killed by a member of their tribe (the Hassan tribe) for two reasons:

    oHe had violated their custom of giving Hasani men first preference in marrying Hasani women.  His daughter, Iman (who has resided in Australia since around 2000), had married outside the tribe in Iran.

    oHe was embroiled in a property dispute with someone from another tribe.

    ·After their father’s murder, (BZAGM) and his brother, (name omitted), kept low profiles.  They feared they would be murdered too.  They had not had direct contact with the tribe since then, although they have commenced legal proceedings to reclaim their property.

    ·

    The tribe considered him and (his brother) cowards for not revenging their father’s murder and not taking their property

    
    

    by force.

    ·

    He claims that the Iraqi authorities are unable and unwilling

    
    

    to protect him because they have no power, nor any interest, in getting involved in tribal disputes.

    In oral submission at RSA interview, (BZAGM’s) agent submitted that the constant fear of being killed has resulted in serious mental harm

    
    

    to (BZAGM), and this of itself may amount to persecution.

12. The delegate’s reasons are set out at CB64-72.  The delegate found that the applicant did not have effective protection in a safe third country and found his evidence generally credible but did not accept that he faced a real chance of being killed by Sunnis or by members of the Hassan tribe if he returns to Iraq.

13. Because the matter proceeded to hearing before the Reviewer, I do not propose to set out the delegate’s findings in any great detail.  I note that the delegate was conscious of difficulties that the applicant might have in giving his evidence in a coherent and plausible manner and noted the difficulties he had in recalling and articulating past experiences. 

    
    

    The delegate did not draw any adverse inference from inconsistencies which arose as a result.  The delegate did note, however, that the applicant’s uncles remained in Al Rumaitha whilst the applicant’s family was abroad and that they helped him to reintegrate into Iraqi society.  The Hassan tribe is the majority in Al Rumaitha, although other tribes live in the area.  The property dispute referred to in the applicant’s statement consisted of two houses which had been occupied by squatters while the applicant’s family were in Kuwait. 
    The squatters were not from his tribe and legal proceedings had been issued against them.  Although the applicant gave more detail of the sequelae to his father’s murder and his and his brother’s failure to take revenge, I do not think this takes the matter further.

14. The delegate was aware from country information that tribes wield considerable political influence in present day Iraq and are recognisable social groupings (CB67).  Having set out authority dealing with the question of the well-founded fear and the real chance test (Chan v MIEA (1989) 169 CLR 379) the delegate addressed the fear of being killed by Sunnis. Based on country information,

    
    

    the delegate found it was difficult to form a definitive view of Iraq’s political and sectarian future.  Nonetheless, the delegate found that the likelihood of the applicant being killed by Sunnis was remote because his fear was not based on any personal experience and he lived in

    
    

    a Shia dominated area, additionally to which sectarian violence has over time reduced.  The applicant had these matters put to him for comment and disagreed with the country information but the delegate remained of the view, on balance, that the fear of being killed

    
    

    by Sunnis for being Shia was not well-founded (CB70).

15. The delegate went on to consider fear of harm from the Hassan tribe

    
    

    at CB70-72.  The delegate found that although the applicant had ignored tribal custom there was not a real chance the tribe would persecute him because his father was murdered five years ago and both the applicant and his brother remained in Al Rumaitha since then. 

    
    

    The brother is still there.  Neither had faced a serious attempt on their lives in that time.  Given that the Hassan tribe is in the majority in that town, which is small, it would have been relatively easy for the tribe

    
    

    to locate and harm the applicant should they have wished to do so.  From 2008 to May 2010 the applicant worked in a shop in a fixed public location, which appeared inconsistent with his claim to have moved around regularly to avoid detection.

16. The applicant responded that the mere lack of harm to date does not mean that harm would eventuate in the future.  The delegate dealt with various alleged incidents during this time and concluded that the applicant’s subjective fear was out of proportion to the minor indirect threats he had perceived himself to have experienced.  As the delegate concluded at CB72:

    “… His own evidence shows that there have been no more than two possible indications that the tribe maintains an ongoing adverse interest in him.  In the same period in which he perceives to have been threatened, he has been able to work to support his family and save substantial funds for his journey to Australia.”

17. On this footing, the delegate rejected the applicant’s claim

    
    

    for convention protection.  The applicant applied for merits review.  The application, of itself, does not take the matter further.  I note that the Reviewer wrote to the applicant’s adviser on 29 April 2011 noting that no submission had been yet received.  The email also relevantly said at CB31:

    “From some scant file notes, I understand that there may be some medical problems in the family.  Is there anything relevant which should be brought to my attention before the hearing?”

18. On 8 May 2011, the applicant’s lawyers and migration agents wrote

    
    

    to the Reviewer (CB25-27) setting out their submission.  The written submissions essentially traverse matters already raised by the applicant, although they do give further detail, including that the applicant’s brother has not lived in Al Rumaitha for some time, and is moving from place to place.  Further details were given of the applicant’s sister who married outside the tribe and came to Australia.  The submission does not, for present purposes, take the matter further save to say that at paragraph 6 (CB27) the agent asserted:

    “(BZAGM) states that he does not have any medical issues that would impact on his ability to attend the hearing and provide evidence.”

19. The applicant attended the hearing, together with an adviser.

The Reviewer’s Decision

1. The Reviewer commenced with an introduction and paraphrase of the relevant law at CB2-3.  There is no suggestion that the matters there recorded are in any way the subject of proper criticism.  The Reviewer then traversed the applicant’s claims and evidence at CB3-7. 

   
   

   The paraphrase of the applicant’s entry interview, RSA interview and pre-hearing submission are, in my view, entirely fair and indeed may well constitute a better and more complete précis than that earlier in these reasons for judgment.  I note that at CB7 at the commencement of the hearing the adviser informed the Reviewer that the applicant’s brother has fled from Al Rumaitha to Al Hamza, about 30 kilometres away, and then further again to Najaf and:

   “then back to Al Hamza where “he is still hiding from place

   
   

   to place”.

   The claimant also noted that although his last submission contains only these two incidents of actions taken against him

   
   

   by tribal persons, these are “an indication of the kind

   
   

   of behaviour they would engage in, and that is the reason

   
   

   I avoid being caught by them therefore always changing locations”.”

2. The applicant gave further details of his work, clearly supporting the inference that the tribe would not know where he was when he was there.

3. The Reviewer then set out the interview details at CB8-12.  The two children of BZAGM were not present and it was noted they were not presenting claims on their own behalf but relying on their membership of their father’s family unit.

4. The description of the applicant’s earlier life and time in Kuwait

   
   

   is unremarkable.  I note that the applicant had married outside his tribe but this was not a problem because it was only women who were prohibited from doing so.  The applicant gave greater details of his sister’s marriage in Iran and consequential difficulty between

   
   

   the applicant’s family (in particular, two younger brothers) and the cousin from the Hassan tribe who had proposed to marry

   
   

   the applicant’s sister but not done so.  I note that the applicant and his elder brother were not involved in those fights.  The sister, together with her husband and the applicant’s two younger brothers, successfully arrived in Australia and claimed refugee status.

5. The Reviewer noted the return of the applicant and his family, together with his elder brother and his family plus their parents, to Al Rumaitha in 2003.  The decision traverses the difficulties with the two properties already referred to and the sequential legal action arising therefrom. 

   
   

   I note that the Reviewer asserted at CB9:

   “I questioned the claimant at length about the court case but found it difficult to get a very clear picture of the proceedings. 

   
   

   I understand that no decision has been reached as yet and that the case has not been formally concluded.”

6. The Reviewer traversed with the applicant what he meant when he said that “they” threatened him.  The applicant said that the property dispute was still going on so animosity is still there and had not stopped with his father’s death.  The applicant gave details of the alleged threats and the Reviewer put it to him that working in a shop did not seem

   
   

   to be hiding.  The applicant said it was a small shop in a different suburb of Al Rumaitha.  The Reviewer traversed again (CB10) the fact that no actual harm had come to any members of the applicant’s family since the death of his father in 2005, despite the fact that the applicants have stayed in Al Rumaitha and his brother also lived there. 

   
   

   The Reviewer put it to the applicant that any tribal dishonour was discharged by his father’s death and that the only outstanding quarrel related to the property was in the courts.  The Reviewer put it to the applicant that his talk of threats against him had been vague and unconvincing.

7. The applicant responded that such threats had been made and that they would kill him if they could.  It is fair to further paraphrase that the Reviewer was clearly putting it to the applicant that his threats of harm were vague and that the area in which he lived was one with a very low rate of violent incidents of any sort.  The Reviewer put it that she could not see any evidence of ongoing threats other than vague assertions, nor could she see a Convention nexus in either of the two disputes.  Following a break, the applicant repeated his claims and the adviser (CB11) referred to the tribal system in Iraq, something with which the Reviewer agreed.  The applicant responded to a number of the questions put to him before the break.  He denied being motivated

   
   

   to come to Australia for economic reasons.  He repeated that his elder brother continues to move from house to house to avoid harm.  The Reviewer asked the applicant if he had any claims to put forward about being a Shia.  This did not appear to elicit any particularly cogent response.

1. The Reviewer traversed country information at CB12-15.  This dealt with tribes in Iraq, the security situation (most particularly in the part of Iraq where the applicant had lived), State-protection and honour killings and other matters.

2. The Reviewer’s findings and reasons are at CB15-21.  I note that

   
   

   at CB15 the Reviewer said:

   “Credibility is difficult to assess and should not be decided upon demeanour or reaction at interview alone.  However, where there are clear inconsistencies or where some claimed history

   
   

   is fanciful, far-fetched or unrealistic it may be that those claims, after careful consideration, cannot be accepted as being true. 

   
   

   In the case of this claimant, I note that much of his testimony was vague and it could not be clarified even though I put

   
   

   a number of questions to him to attempt to establish something more definite.  I also note that much of his testimony is not supported by reliable independent evidence.  Overall, the testimony was not entirely credible.”

3. The Reviewer went on to assess the applicant’s claims as to his early life, both in Iraq and outside, and the marriage of his sister in Iran

   
   

   in the late 1990s.  The Reviewer accepted that this angered some members of the extended family and accepted that the disappointed cousin and some of his supporters caused a good deal of trouble about the marriage.  The Reviewer accepted that there were physical fights between two of the applicant’s younger brothers and those persons and that there were threats made against the applicant’s father.

4. The Reviewer traversed the circumstances in which the applicant’s sister and other family members obtained refugee status in Australia but noted that the sister had not been available to give evidence.

5. The Reviewer noted at CB16 that the applicant made no claims about any harm befalling him or his family during the remainder of the time that they stayed in Iran from the sister’s marriage until they returned

   
   

   to Iraq in 2003.  The Reviewer noted at CB16-17:

   “… The claimant was sure that the first problems he and his family experienced in Iraq were for reason of the property dispute and subsequent legal action.  It was only after a dispute was established that the claimant’s father was also criticised for allowing his daughter to marry out of the tribe.

   This indicates to me that the tribe, as a collective entity, was not concerned about the father’s actions as no-one raised it with him on his re-settlement in the town of Al Rumaitha.  That is,

   
   

   the claimant’s father did not face approbation or harm for reason of transgressing tribal mores.  He was not harmed

   
   

   for allowing his daughter to marry outside the tribe.  The claimant was not harmed for reason of being the brother

   
   

   of a woman who transgressed tribal rules, nor for being the son of a man who allowed this transgression to happen.

   I conclude that the cousin who was rejected in marriage to the claimant’s sister opportunistically added his anger at the claimant’s father to the ill-feeling held by the other family member embroiled in the court case.  The fact that several members of the claimant’s extended family, all members of the Hassan tribe, have specific arguments with the claimant and his father and brother, does not mean that the whole Hassan tribe

   
   

   is against the claimant (and father and brother), or that the tribe endorses sanctions against them, or that the tribe believes that traditional rules have been broken.  There is no claim, nor does the evidence suggest, that any tribal leaders (the equivalent

   
   

   of office-holders within a traditional structure) delivered any particular ultimatum or threat to the claimant’s father or other family members, nor called them in for any sort of meeting

   
   

   or council.

   I accept that the claimant’s father was killed (shot) in 2005.  There is little information about this.  Neither the claimant nor his brother was present and therefore the claimant cannot give an account of the circumstances.  I have already found that the father was not threatened by the tribe as an entity in relation

   
   

   to his daughter’s marriage and therefore I am not satisfied that the death of the claimant’s father was a tribe-sanctioned punishment in accordance with traditional rules.  However, this does not discount the death as murder or manslaughter by

   
   

   a person or persons who happen to be a member of the Hassan tribe.  It has already been established that there was a rejected suitor (a cousin) and his supporters, plus the people involved in the court case with the claimant’s father who was the owner of the disputed properties.  If the claimant’s father was killed by either the rejected cousin or the other party in the court case,

   
   

   or people associated with them, I am satisfied that the reason was not essentially or significantly a Convention one.  It lies outside the scope of the Convention.”

6. Further on, at CB17-18, having dealt with the police’s inefficient conduct of the matter, the Reviewer went on:

   “Nevertheless, I will consider the alternative view in case I have erred in my reasoning.  If it were a tribal matter and caused by the tribe’s condemnation of the claimant’s father for allowing his daughter to transgress tribal customs, then the father was punished for it.  His daughter, who also transgressed, had never returned to Iraq and was far away.  That would seem to be the end of the matter.  I find it implausible that further punishments with respect to a past action of the claimant’s sister would

   
   

   be meted out to the claimant and his older brother, when their father - the head of the family and the one with responsibility for the past action - had already been punished.  I am satisfied that the father’s death put to an end any course of action sanctioned by tribal custom.  I note that the claimant stated that members

   
   

   of the Hassan tribe came to pay their respects to his father during the 40 day mourning period.  That also indicates to me that matters were settled.  I also note that the claimant stated earlier that he had made a non-specific threat to avenge his father’s death and the person to whom he said it disregarded it, telling him to take it easy.  At my hearing, when I put it to the claimant that his threat referred to his telling someone from the opposing family ranks that he would see them in court over the property dispute - rather than being a threat to avenge his father’s death - he said it was both.  I do not accept that the claimant made a threat against the tribe to avenge his father’s death.  I note that the claimant earlier (in his first statement) specifically wrote that he made no attempt avenge his father and therefore the tribe judged him to be cowardly.  I dismiss the claim that the claimant may be harmed by the tribe as a pre-emptive strike against him because of the threat he uttered against the tribe.”

7. On this footing, the Reviewer found that the Hassan tribe represented no threat to the applicant.

8. The Reviewer continued by considering that there might be individuals within the Hassan tribe who are antagonistic to the applicant. 

   
   

   She found at CB18 that:

   “If the Hassan tribe as an entity wished to harm the claimant and his older brother, they had the numbers and resources to do so anytime since their return to Iraq in 2003.  … I am satisfied that the claimant was quite easily traceable by the major local tribe had it so wanted.”

9. The Reviewer went on to find at CB19, having noted that it appeared that the person with whom the applicant was litigating in Iraq seemed to be getting the better of it:

   “I also note that if the claimant were to be harmed by the person with whom he is in dispute over his property, this is harm by

   
   

   a private individual for a commercial reason and does not fall within the scope of the Convention.

   By a process of elimination, it seems that those whom the claimant fears - and who he claims have attempted adverse actions against him - are the spurred cousin and his supporters.  However, they have not actually harmed the claimant or his older brother.  There has been no harm befall the claimant’s family since the death of his father in 2005, despite the fact that the claimant stayed in the same town until he left Iraq in 2010.  The claimant asserted that he went to different houses belonging to maternal relatives, but I find this implausible.”

10. The Reviewer went on to give what to me are cogent reasons as to why that last remark was made.  The Reviewer regarded the applicant’s testimony about threats as very vague and noted that, despite being given ample opportunity to do so at the hearing, the applicant had provided no further details.

11. The Reviewer continued at CB20 relevantly:

    “Even if the cousin still holds a strong antipathy to the claimant and wishes to do him harm, I am of the view that this is

    
    

    a personal situation - harm by a private individual for non-Convention reasons - and falls outside the scope of the Refugee Convention.  It is not to do with harm as a member

    
    

    of a particular social group constituted by family and in relation

    
    

    to transgression of tribal mores.”

12. The Reviewer noted that while the applicant had made a claim of fear of harm because of his Shia faith and the fact that his name might

    
    

    be recognisably Shia, this claim was not pursued at hearing, even though the applicant was specifically questioned about it. 

    
    

    The Reviewer noted that the overwhelming proportion of the local population where the applicant lived is Shia.  Having referred to the security situation in Iraq and noted that there was always the chance that a civilian, whether Shia, Sunni or other, might be the victim

    
    

    of violence, including sectarian violence, the Reviewer found at CB20:

    “there is nothing to indicate that the claimant simply as a Shia with nothing more is particularly at risk of sectarian harm. 

    
    

    I note that the final outcome of the elections has been to elect

    
    

    an inclusive government (see independent evidence at page 15) in which major religious and ethnic groups are well represented.  This indicates that the State, per se, is not targeting

    
    

    nor condoning any such targeting of Shias.  I dismiss this claim.”

13. In the ultimate, the Reviewer concluded at CB21 that, on the basis

    
    

    of all the evidence before her, no persecution had befallen the claimant in the past for a Convention reason and there was no real chance that such would befall him in the reasonably foreseeable future.  Accordingly, she dismissed the claims of the applicant and, of course, of his two dependant sons.

The material put forward for this hearing

1. The applicant’s written submissions were filed 9 July 2014. 

   
   

   They traversed the claims made and the second respondent’s decision.  The written submissions refer, at paragraphs 14-20, to the applicant’s mental health circumstances and refer to material that was before

   
   

   the delegate (and, of course, the Reviewer) hinting at mental ill-health on the applicant’s part.  The written submissions go on to refer

   
   

   to medical examinations of the applicant in July 2012 and March 2013, establishing that the applicant had major depressive disorder and post-traumatic stress disorder.

2. Paragraphs 23-38 of the written submissions take issue with the Reviewer’s asserted failure to take the medical condition into account.  The submissions point (accurately enough, in my view) to the fact that the Reviewer found that the applicant’s evidence was vague and lacked credibility.  The kernel of the matter is at paragraphs 30-31 where the submissions assert:

   “30.  In the present case, the first applicant’s mental condition, and his diminished ability to give evidence, was relevant to the evidence in fact given by him (including whether it was “vague” or coherent).  That the second respondent did not take his mental state into account was a failure to take into account

   
   

   a relevant consideration.  That failure affected the second respondent’s decision because of her assessment of the first applicant’s credibility.

   31.  She did not consider, because she did not take it into account, whether or how the first applicant’s mental state affected his evidence and credibility.”

3. The written submissions go on to refer to authority for the proposition that in certain cases an applicant may fail to be given the required fair hearing because of ill-health and being unfit to represent themselves.

4. It was submitted that in the circumstances of this case that was the outcome.

5. At paragraph 38, this part of the submission relevantly concluded:

   “Accordingly, for the reasons referred to above, the applicants submit that the second respondent’s failure to have regard to the diminishment in the first applicant’s mental capacity was

   
   

   a jurisdictional error for two reasons.  First, it was an error because of a failure to take into account a relevant consideration, particularly in assessing credibility.  Secondly,

   
   

   it was a failure to give the applicants a proper opportunity

   
   

   (even if not a deliberate failure) to present their case.”

6. In relation to the failure properly to consider membership of the Hassan tribe at paragraphs 39-58, the kernel of the submission is at paragraphs 39-40:

   “39. … The correct question the second respondent ought to have asked was whether the fear which the first applicant suffered was because he was a member of the tribe.

   40.  However, rather than considering that question, the second respondent has wrongly considered whether the first applicant’s fear emanates from that social group.  That is, rather than asking whether the persecution, or fear of persecution, was because of the first applicant’s membership of that group

   
   

   (ie the tribe), the focus of the second respondent has wrongly been on whether the source of the fear is that social group.”

7. This matter is developed by reference to the findings that the Reviewer made.

8. At paragraphs 47-48, the submission asserts:

   “47.  That is, the second respondent ought to have engaged in

   
   

   a two-step analysis.  First, she should have identified the well-founded fear, and second, she ought to have identified whether that fear was due to the first applicant’s membership of

   
   

   a particular social group (in this case, the tribe).

   48.  However, rather than engaging in that process, the second respondent has conflated the two questions.  She has correctly identified the relevant social group as being the tribe, but has then limited her consideration to whether harm flows from that group.  Rather, what she ought to have done is identify whether the particular harm arises because of that membership, irrespective of the persons committing the harm.”

The medical evidence sought to be submitted

1. Angus James Francis, solicitor for the applicant, has sworn an affidavit filed 9 July 2014 which relevantly seeks to put into evidence medical evidence about the applicant.  The Reviewer’s decision was given

   
   

   on 25 July 2011.  The first document sought to be submitted is a report for tabling in Parliament by the Commonwealth and Immigration Ombudsmen dated 17 July 2013.  The parts of the report relevant to the applicant show that he was prescribed with psychotropic medication

   
   

   to treat various issues on 28 January 2011, and had further counselling from September 2011 onwards for his condition and was ultimately diagnosed, as best I can see it, on 10 February 2012 as having post-traumatic stress disorder.

2. The next relevant document is a report from Dr DeSilva dated 15 April 2013 and further documents consistent with the applicant’s significant mental health are also appended.

The submissions of the first respondent

1. I note that following some introductory matters the submissions assert at paragraphs 8-10:

   “8.    More recently, there has been a renaming of the administrative processes that are undertaken, however, this matter occurred under the original system which was the same as that considered in Plaintiff M61/2010E v Commonwealth

   
   

   of Australia (2010) 243 CLR 319.

   9.    The Applicants must establish a legal error, which includes a denial of procedural fairness.  It is not necessary to establish

   
   

   a jurisdictional error as such, as properly, that phrase is

   
   

   a statement of a conclusion.  The conclusion being that some essential or indispensable requirement for jurisdiction is not been met, which renders the decision invalid.  These notions

   
   

   of invalidity are not applicable to the recommendation of the IMR, as it has not statutory force.

   10.  However, the IMR review must be conducted “according

   
   

   to the criteria and principles identified in the Migration Act and applied by the courts of Australia” (M61 at [88]).

2. The written submissions first deal with the issue of membership of the Hassan tribe.  Having set out various passages of the Reviewer’s decision, the submissions assert at paragraphs 33-34:

   “33.  When the reasons of the second respondent are read as

   
   

   a whole, it is clear that the second respondent understood the claim being made was based on a fear from the Hassan tribe, because the first Applicant was a member of the Hassan tribe.

   34.  The second respondent accepted that the first Applicant’s father was killed in 2005 but found that his death was not

   
   

   a tribe-sanctioned punishment in accordance with traditional (tribal) rules and was not for a Convention reason.  The second respondent also considered, that if it was wrong about that finding, then the death of the father and the first Applicant’s sister’s absence from Iraq meant that the matter, of any adverse interest in the first Applicant or his family by the Hassan tribe, was settled and finished.  This was supported by the lack

   
   

   of harm to the Applicant’s family since 2005, despite staying

   
   

   in the same town until the Applicants left Iraq in 2010.  Any claimed harm from his cousin and supporters was regarded as

   
   

   a private individual matter and not for a Convention related reason.”

3. The written submissions go on to take issue with the asserted two-step process propounded by the applicant’s written submissions and assert that there was no legal error identified by the applicant’s submissions.

4. The first respondent objected to the reading of Mr Francis’ affidavit.  Apart from annexure AJF4, dated 18 January 2011, which was before the Reviewer and relevantly asserts, “Tanya was concerned that the father is not leaving his room”, all materials post-date the hearing before the Reviewer.  It was submitted that the material was therefore irrelevant.  Objection was also taken to annexure AJF4 on the footing that there was no evidence in materials that proves it was before the decision maker.  At paragraph 41 the submission asserts:

   “The second respondent did not fail to take into account any claimed medical condition, as the Applicant did not make

   
   

   a claim of any medical condition.  In the written submissions provided just prior to the hearing, the Applicants’ representative specifically stated in the written submissions:

   “6.    (BZAGM) states that he does not have any medical issues that would impact on his ability to attend the hearing and provide evidence”.”

5. It was submitted that what in substance was being done was an attack on the credibility findings of the Reviewer, this being a matter for the Reviewer par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

   
   

   at [67].

6. It was submitted by the first respondent that in the circumstances the applicant was not denied an opportunity to be able to present his case He was, of course, accompanied by an adviser at the hearing.

Submissions made at Court

1. Objection was initially taken to the receipt of all of the material annexed to Mr Francis’ affidavit.  I indicated that I would deal with this matter in my judgment.

2. The matter can be put shortly.  The question before the Court is whether or not the Reviewer fell into some form of legal error in the way the case was conducted, such that the decision should be set aside.  With the exception of annexure AJF4, (and there is a dispute as

   
   

   to whether this was in fact before the Reviewer or not), all the material clearly post-dates the hearing and would, in my view, be quite incapable of giving rise to error on the Reviewer’s part when it was not before her.  So far as annexure AJF4 is concerned, I will admit

   
   

   it because it is at least possible that it was before the Reviewer but

   
   

   I will deal with that in dealing with the grounds of application.  I note further the material in the RSA interview records that the applicant was distant, withdrawn and had difficulty in focusing his responses.

1. Both members of counsel briefed in the matter made extensive submissions but in the ultimate, in my opinion, despite the skill with which they were made, they do not significantly add to the materials previously filed.  It is appropriate, therefore, to come to the particular grounds of application.

Membership of the Hassan tribe

1. I have traversed and paraphrased the materials in this case at some length.  In circumstances where the Reviewer must be procedurally fair and address the relevant legal questions, in the ultimate it is a matter

   
   

   of considering all the materials and forming a conclusion.

2. So far as membership of the Hassan tribe is concerned, I think that the applicant’s submissions effectively misrepresent what the Reviewer did.  The applicant had always said that his fear of harm arose because

   
   

   he was scared members of his tribe, namely the Hassan tribe, would harm him were he to return to Iraq.  It was never in any way in doubt that the applicant was a member of the Hassan tribe.  He made this clear right from the start and it was this membership of the tribe, and failure allegedly to conform to tribal rules of conduct, that caused the fear asserted.

3. The Reviewer found that the applicant’s father’s death in 2005 was not for a Convention reason.  For my part, I am not so sure that that would be necessarily correct.  If the applicant’s father was a member of

   
   

   a particular social group, namely the Hassan tribe, and was killed as

   
   

   a result of failure to conform to that tribe’s mores, then it might be open to arguing that he was killed because of his membership of the particular social group.  However, in the ultimate, in my view, nothing turns on this.

4. That is because, on any view of the matter, there was material before the Reviewer which in my view legitimately supported the factual findings that the Reviewer made.  The applicant and his family, including his deceased father, returned to Iraq and to a Hassan tribe stronghold in 2003.  The applicant’s sister had previously married contrary to the desires of the cousin who was spurned and his supporters.  They were not harmed in Iran by the cousin and his supporters from the time of the marriage until they returned in 2003.  On the applicant’s own evidence, his powerful maternal uncles assisted his reintegration and that of his family into Iraq.  No harm befell the applicant and his family from 2003 to 2005.  More importantly,

   
   

   no harm befell the applicant and his brother who remained and were

   
   

   in the Hassan stronghold from 2005 to 2010.  The brother continues

   
   

   to reside there.  The Reviewer’s finding that the tribe could readily have caused harm to the applicant, had it wished to do so, between 2005 and 2010 is, on any view, a rational and logical one open on the evidence as it stood.

5. Put shortly, in the face of the facts that were before the Reviewer,

   
   

   it was logically open and reasonable for the Reviewer to make the findings of fact that she did.  These findings properly addressed the claims the applicant made.  The construct for which the applicant’s submissions contend is an artificial one which overcomplicates inappropriately what the applicant actually claimed.

The mental health issues

1. The mental health of the applicant was hinted at in annexure AJF4 and in the RSA assessment decision.  It was not, however, stated in terms.

2. What was stated in terms was that the applicant had no mental health problems and was fully able to present his case.  His adviser expressly asserted this to the Reviewer shortly before the hearing.

3. In these circumstances, it cannot have been a legal error or a breach

   
   

   of natural justice for the Reviewer not to have considered the material that was simply not before her.

4. So far as the other material is concerned (annexure AFJ4 and the RSA observations), bearing in mind the applicant’s agent’s express indication of the applicant’s good health, it did not constitute impermissible error on the Reviewer’s behalf to conduct the proceeding and form the conclusions that she did.  There is nothing in the Reviewer’s decision that suggests that the applicant expressed any incapacity to understand the process or any reservations about his capacity to do so.  Equally, the agent (who I think I have discerned was a qualified lawyer) made no such endeavour.

5. Put shortly, while the question of the applicant’s mental health is

   
   

   a matter of considerable concern, it does not seem to me that the Reviewer fell into proscribed error in the way that she dealt with this aspect of the matter.

Conclusion

1. In all the circumstances therefore, I do not find that the applicant’s criticisms of the Reviewer’s decision to be made out.  I note that the claim of possible persecution as a Shia was expressly not pursued,

   
   

   it would appear, at the hearing before the Reviewer.  In the face of the findings made by the RSA decision, that is not surprising.

2. Accordingly, the application will be dismissed with costs.  I note the applicant’s ongoing mental health difficulties.  I would urge that further consideration be given to bringing this to the attention of the Minister who has powers, should he be so minded, to assist him.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Demack.

Associate: 

Date:  20 May 2016