DZAAJ v Minister for Immigration
[2012] FMCA 706
•31 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAJ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 706 |
| MIGRATION – Judicial review – independent merits review – Iraqi fire fighter – whether credibility findings based on illogical or irrational findings or inferences of fact – whether “circumstantial” or “supposition” evidence properly considered – whether procedural fairness afforded for findings as to occupation as fire fighter – whether claim made concerning persecution of foreign trained fire fighters. |
| Migration Act 1958 (Cth), ss.5, 476(1) |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Bains v Minister for Immigration & Multicultural Affairs [2001] FCA 403 Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Li v Minister for Immigration & Citizenship & Anor (2008) 102 ALD 354; [2008] FCA 902 Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 MZXIV v Minister for Immigration & Anor (No.2) [2006] FMCA 1454 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1; FCAFC 263 NAXW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 644 Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 SBKC v Minister for Immigration & Citizenship [2011] FCA 533 Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 SZONA v Minister for Immigration & Anor [2011] FMCA 99 SZONR v Minister for Immigration & Anor [2011] FMCA 89 Thevendram v Minister for Immigration & Multicultural Affairs (2001) 182 ALR 290; [2000] FCA 1910 W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, [2001] FCA 679 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 WZAND v Minister for Immigration [2009] FMCA 26 |
| Applicant: | DZAAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 15 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 18 July 2011 |
| Date of Last Submission: | 18 July 2011 |
| Delivered at: | Perth (by telephone-link to Darwin) |
| Delivered on: | 31 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Karapanagiotidis |
| Solicitors for the Applicant: | NT Legal Aid Commission |
| Counsel for the Respondents: | Mr P d’Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
DECLARATION AND ORDER
The Court declares that:
(a)The second respondent, in his capacity as Independent Merits Reviewer:
(i)denied the applicant procedural fairness by failing to put to the applicant the second respondent’s serious doubts as to whether the applicant worked in a fire-fighting capacity, or, alternatively, as a fire fighter; and
(ii)did not make his recommendation in accordance with the law by reason of his failure to deal with the applicant’s claim alleging a well-founded fear of persecution by reason of the applicant being a member of a particular social group, namely Iraqis trained as fire fighters by westerners in Bahrain, alternatively, by reason of the applicant’s imputed political opinion by reason of the applicant having been trained as a fire fighter by westerners in Bahrain.
The Court orders that the first respondent, whether by himself or by his servants, officers, delegates or agents, be restrained from relying upon the second respondent’s recommendation of 5 April 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
DNG 15 of 2011
| DZAAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The application
The applicant is an off-shore entry person as defined in s.5 of the Migration Act1958 (Cth).[1] The applicant seeks judicial review under s.476(1) of the Migration Act 1958 in respect of an independent merits review recommendation,[2] that the applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[3]
[1] “Migration Act”.
[2] “Second IMR Recommendation” (at Court Book (“CB”) 137-157).
[3] Collectively “the Convention”.
Orders sought
The applicant seeks the following final orders:
1.A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the ground/s of this application.
2.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer.
3.An order remitting the matter to the Independent Merits Reviewer (differently constituted) for determination according to law;
4.Any other order which the Court thinks fit;
5.Costs.
Grounds of application
There are four particularised grounds of application, each of which is set out hereunder prior to the parties’ submissions and the Court’s consideration of each ground.[4]
[4] See paras.19 (ground 1), 43 (ground 2), 55 (ground 3) and 61 (ground 4) below.
Jurisdiction
The application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the Second IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[5]
[5] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM (“Darabi”).
Background
The applicant is a citizen of Iraq.[6]
[6] CB 3 and 154 at para.75.
The applicant arrived at Christmas Island on 16 February 2010 as an “irregular maritime arrival”.[7]
[7] CB 79.
On 23 February 2010 the applicant participated in an entry interview.[8]
[8] CB 3-48 (“Entry Interview”).
On 25 April 2010 the applicant participated in a Refugee Status Assessment interview.[9]
[9] “RSA Interview”; CB 140 at para.14.
On 16 June 2010 the RSA officer found that the applicant did not meet the definition of a refugee as set out in the Convention.[10]
[10] “RSA Decision”; CB 77-86.
On 20 September 2010 the applicant took part in an interview with a first independent merits reviewer.[11]
[11] “First IMR”.
On 22 October 2010 the First IMR found that the applicant did not meet the definition of a refugee as set out in the Convention.[12]
[12] “First IMR Recommendation”; Supplementary Court Book (“SCB”) 3-9.
Following the High Court ruling in Plaintiff M61, the applicant’s case was reconsidered, and on 17 March 2011 the applicant took part in an interview[13] with a second independent merits reviewer.[14]
[13] “Second IMR Hearing”.
[14] “Second IMR”. The Second IMR was a different person to the First IMR.
On 5 April 2011 the Second IMR issued the Second IMR Recommendation. The Second IMR found that the applicant did not meet the definition of a refugee as set out in the Convention. The Second IMR therefore recommended that the applicant not be recognised as a person to whom Australia owed protection obligations.[15]
[15] CB 157 at paras.95 and 96.
Applicant’s claims
The applicant’s claims were summarised as follows:
a)the applicant attended a three month fire fighting training course in Bahrain, and then worked as a fire fighter in Baghdad from 2005 until November 2009;
b)in November 2009 the applicant went, with other fire fighters, to a fire in Baghdad, and he rescued two unidentified children tied up inside a burning house. At the time, unidentified persons were warning the fire fighters not to interfere because the militia had warned against putting out the fire in the house;
c)the applicant was consequently targeted to be killed by extremist Muslim militias;
d)on one occasion a masked man travelling in a car fired shots at the applicant and his cousin, while they were out walking, injuring his cousin;
e)a few days later, a threatening letter was delivered to his house, and another to the fire station where he worked, referring to the Koran and stating “your blood will be shed”;
f)the applicant fled Iraq in January 2010 and his family have since ceased living in their house. He lost contact with his parents and sisters several months after their house was shot at by unidentified people; and
g)the applicant fears persecution by reason of:
i)his action in releasing the children in contravention of the militia’s order;
ii)his being perceived as supporting foreign troops and the Iraqi government; and
iii)having trained in Bahrain by the British with Americans.[16]
[16] Applicant’s Contentions of Fact and Law, para.3.
In support of his claims, the applicant also relied upon:
a)a statutory declaration of 23 April 2010;[17]
b)submissions of his legal advisers of 19 July 2010;[18] and
c)undated submissions;[19]
d)a training certificate along with photographs of him and his colleagues;[20] and
e)a letter from the Red Cross tracing service tendered at the Second IMR Hearing confirming that the applicant’s family’s whereabouts were unknown.[21]
[17] CB 50-51 (“Statutory Declaration”).
[18] CB 101-120 (“July 2010 Submissions”).
[19] CB 125-135 (“Undated Submissions”).
[20] CB 121-124 (“Training Certificate and Photographs”).
[21] “Red Cross Letter”.
Second IMR Recommendation
The Second IMR Recommendation said that the applicant’s core claims were as follows:
71. The claimant’s fear of persecution in Iraq centre on his actions when, as a fire fighter he was called to put out a fire in Baghdad in November 2009. He claims that he rescued two unidentified children tied up in a burning house, disregarding a warning from unidentified persons that unspecified militias had warned against putting out the fire in the house. He claims that as a consequence of this, he was targeted to be killed by unspecified extremist Muslim militias. The claimant described two incidents as evidence of this. First, that unidentified masked men travelling in an unidentified car fired shots at him and his cousin while they were out walking, injuring his cousin. Second, that a few days later, an unaddressed and unsigned letter was delivered to his house and another to the fire station where he worked invoking the Koran and stating “your blood will be shed”. This prompted the claimant to flee Iraq in January 2010 and his family to cease living in their house. He has further claimed that he lost contact with his parents and sister three or four months ago after their house was shot at by unidentified people.[22]
[22] CB 154 at para.71.
The Second IMR Recommendation found that:
a)the applicant was a citizen of Iraq from Baghdad, an Arab by ethnicity and a Shia Muslim by religion;[23]
[23] CB 154 at para.75.
b)on the basis of the Training Certificates and Photographs the applicant attended Basic/Recruit Fire Fighting in Bahrain for two months in 2005;[24]
[24] CB 154 at para.75.
c)the applicant was not “a reliable, credible or truthful witness”,[25]
[25] CB 154 at para.74.
d)several aspects of the applicant’s account of the fire he attended raised doubts as to whether, in fact, he ever attended the fire he described or whether the fire took place at all;[26]
[26] CB 154 at para.76.
e)the following were factors which cast doubt upon the applicant’s claims as to the fire:
i)it was not credible that a fire which was only smoking when the fire brigade got to the scene would have produced signs of fire serious enough to have prompted someone to call the fire brigade 15 minutes earlier;[27]
[27] CB 154 at para.77 (“First Factor”).
ii)the applicant’s inconsistent evidence concerning the state of the fire when he left. He told the RSA officer that it had been cooled but not extinguished. He told the First IMR that “we put the fire out”, and he told the Second IMR that his friend was still working to put the fire out completely;[28]
[28] CB 154-155 at para.78 (“Second Factor”).
iii)the applicant gave various accounts of when it was that he first became aware of children in the house;[29] and
[29] CB 155 at para.79 (“Third Factor”).
iv)some of the comments of the applicant raised “serious doubts” as to whether he, in fact, “worked in a fire fighting capacity”: for example, his comment that he had not learned about dealing with people at the scene of a fire as his role was to deal with people inside;[30]
[30] CB 155 at para.80 (“Fourth Factor”).
f)the applicant had not been truthful and that he had fabricated his claims,[31] observing that:
… I am not satisfied that the claimant has been truthful in his evidence about the fire and find that he fabricated his claims that he attended such a fire or rescued two children. It follows that if he did not attend the fire or rescue the children against the warnings of the unspecified extremist Muslim militias, he is not being targeted by these militias as he claims or for reasons of his imputed political opinion.[32]
g)as the applicant did not attend a fire or rescue children, he was not targeted by anyone as a result;[33]
h)the claim that the applicant’s cousin was shot by armed extremist Muslim militias was “merely … supposition”, and not a fact, and the Second IMR did not accept that these militias were targeting the applicant;[34]
i)the applicant’s claims in relation to the alleged threatening letters received by the applicant at work and home, were “nothing more than his supposition”,[35] and the Second IMR did not accept that the applicant received any letters;[36]
j)the Red Cross Letter as to the applicant’s family’s whereabouts, did not substantiate “a claim that the family has been targeted by extremist Muslim militias” because it did no more than record the information given by the applicant to the Red Cross, and indicate that the family’s case remains open;[37]
k)there were inconsistencies between the Statutory Declaration and the evidence the applicant gave at the Second IMR Hearing concerning his experience at Al Baladiyat fire station;[38] and
l)the applicant had fabricated his original claims to support an argument that he was at risk of persecution for reasons of membership of a particular social group, namely fire fighters, which he withdrew at the end of his interview with the Second IMR.[39]
[31] CB 155 at para.81.
[32] CB 155 at para.81.
[33] CB 155 at paras.81 and 83.
[34] CB 155 at para.84.
[35] CB 156 at para.86.
[36] CB 156 at para.89.
[37] CB 156 at para.90.
[38] CB 156 at para.92.
[39] CB 157 at para.93.
The Second IMR also:
a)expressed concerns with, effectively, the lack of specificity with, and a degree of inconsistency in, certain aspects of the claims;[40]
[40] CB 155 at paras.82-84.
b)considered the evidence supplied by the applicant, but found that the evidence did not assist him;[41]
[41] CB 156 at paras.85 and 90.
c)considered other elements of the claim,[42] and then said:
As discussed above and having considered all the evidence, I am not satisfied that the claimant attended the fire or that any of the claimed consequences, including the threatening letters, occurred.[43]
d)considered the general security situation in Iraq and found that violence there is indiscriminate and affected Iraqis in general;[44]
e)did not accept that the applicant:
… faces persecution for a Convention reason or that he has a particular profile which would make him the target for a Convention reason on his return to Iraq.[45]
f)concluded by recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.[46]
[42] CB 156 at paras.86-88.
[43] CB 156 at para.89.
[44] CB 157 at para.94.
[45] CB 157 at para.94.
[46] CB 157 at para.96.
Ground 1
Ground 1 is as follows:
1.The Second Respondent made adverse credibility findings without proper basis or foundation
Particulars
(a)Central to the Applicant’s claims was that in the course of his employment as a fire fighter, he attended a fire and rescued two children.
(b)The Second Respondent found that the Applicant had fabricated these claims.
(c)It was a combination of reasons that led the Second Respondent to make adverse credibility findings and to conclude that the fire had not occurred.
(d)In making its critical findings the Second Respondent failed to discharge its review obligations in that it failed to engage in proper reasoning, supported by evidence.
Applicant’s submissions
The applicant submitted that the Second IMR made significant adverse credibility findings against the applicant which ultimately led to the rejection of the applicant’s most central factual claim, that he attended a fire and rescued two children. The Second IMR considered a number of factors, set out above,[47] and it is not apparent whether more weight was given to one factor or another, nor whether each factor taken individually would have led to the adverse finding on credibility. Instead, the way in which the Second IMR dealt with the applicant’s claims suggests that it was an accumulation of factors that led it to conclude that he was not a credible witness.
[47] See para.17(e) above.
In relation to the First Factor the Second IMR made the following finding:
The claimant said his fire brigade took around 10 minutes to reach the fire after they were alerted through an emergency number and that it had been burning for about 15 minutes. Yet when asked to describe the state of the fire on their arrival, the claimant said there were no flames but only white smoke. As I suggested at the interview, it is not credible that a fire which was only smoking when the fire brigade got to the scene would have produced signs of fire serious enough to have prompted someone to call the fire brigade 15 minutes earlier.[48]
[48] CB 154 at para.77.
In terms of what transpired at the interview with the Second IMR, the Second IMR recorded the following exchange:
… I asked him who had alerted the fire brigade. He said he thought the locals had called the emergency number. Asked what they would have seen which prompted that call 15 minutes earlier. The claimant said the people would know there was smoke there. I suggested that when people cooked kebabs on the street there was also smoke. He said it was different smoke – it was white and straight away they could see it was the beginning of the fire. When he went inside there was a lot of smoke there...”[49]
[49] CB 147-148 at para.38.
The applicant submitted that this First Factor was one of the factors that raised serious doubts as to whether, in fact, the applicant had ever attended the fire.[50] The applicant submitted that there was no rational basis, or probative evidence, to support the First Factor finding of the Second IMR that the applicant’s account, on this matter, was not credible. The applicant was unable to say who had called the fire brigade or precisely what it was that had prompted the call. There was no basis whatsoever to find that the smoke, as described by the applicant, did not in fact prompt the call.
[50] CB 154 at para.76.
The applicant submitted that the Second IMR’s finding was made without evidence to support it, or was unreasonable, and the kebab analogy used by it, and put to the applicant at hearing, reinforces this submission.
In relation to the Fourth Factor the Second IMR made the following finding:
Moreover, some of the claimant’s comments in the course of the interview raise serious doubts as to whether he, in fact, worked in a fire fighting capacity. These included his comments that if there had been a fire at the house as opposed to smoke, he would not have been able to go inside; that he had not learned about dealing with people at the scene of a fire as his role was to deal with people inside; and yet, that his fire fighter team divided up tasks in the car on the way to a fire. I note also that when asked about his training, the claimant spoke more about first aid aspects and dealings with people in shock after a fire.[51]
[51] CB 155 at para.80.
The Second IMR Recommendation partly records what transpired at the interview with the Second IMR relevant to the above finding, as follows:
When I asked him what he had learned about dealing with people at the scene of fire, the claimant said this was not his role and that his role was to deal with people inside. I expressed surprise at his focus on windows and doors, rather than people. He said that on the way to a fire the group would be divided into two groups each with different tasks – one group facilitating the work, the other group putting out the fire. I expressed surprise that these tasks were only distributed in the car. The claimant responded that, in Baghdad, things were done differently.[52]
[52] CB 146 at para.29.
The applicant submits that:
a)aside from the applicant’s evidence, the Second IMR had no evidence, or information, before it as to the workings, operation, efficacy or policies of the fire brigade in Iraq. There was also nothing to suggest that the Second IMR had any expert knowledge of, or familiarity with, the workings of the fire brigade in Iraq; and
b)the Second IMR’s Fourth Factor finding was based on assumptions, instead of probative evidence or rational, logical inferential reasoning.
In terms of the other factors relied upon to make the adverse credibility findings against the applicant, the applicant contended that they were minor inconsistencies, incapable alone of supporting an unequivocal rejection of the applicant’s most central and critical claim; that is, that he attended at a fire in November 2009 as described.
With respect to the relevant law the applicant submitted that:
a)the Federal Court observed in Bains v Minister for Immigration & Multicultural Affairs[53] that:
[53] [2001] FCA 403 (“Bains”).
It remains a fact that decisions of a court or a Tribunal about matters of credibility "are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive": Re Refugee Review Tribunal; ex Parte Mansour Aala (2000) 176 ALR 219 at 221 per Gleeson CJ. If a Tribunal has reasonably come to the conclusion that it is unable to accept an Applicant's evidence and its reasoning process cannot be faulted, there is no room for this Court to intervene even though it considers that it might have come to a contrary conclusion if it had been the original decision-maker.[54]
b)a decision-maker is only empowered to make a determination regarding the relevant state of satisfaction where that determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds;[55]
c)in Thevendram v Minister for Immigration & Multicultural Affairs[56] the Federal Court considered the issue of adverse credibility findings on the basis that evidence given by claimants was considered to be “implausible”, “incredible”, or “concocted”, and said:
Anyone experienced in fact finding would be well aware that in the usual course clear and cogent evidence is necessary before such strong findings are made against a witness. Whether, and in what circumstances, a court can set aside a decision under the Act that has been made on the basis of such findings is a vexed question. It is sufficient for present purposes to state that it would be an abuse of the powers and duties of a tribunal to make findings in such terms for the purpose of immunising the decision from judicial review or without having a proper basis for doing so.[57]
d)in SZLGP the Federal Court stated:
Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations "judicially" imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly....[58]
[54] Bains at para.17 per O’Loughlin J.
[55] Citing various cases including Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611 at 624-625 per Gummow ACJ and Kiefel J; [2010] HCA 16 at paras.37-42 per Gummow ACJ and Kiefel J (dissenting as to the application of law to facts) (“SZMDS”); Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 998 per Gummow and Hayne JJ; [2004]; HCA 32 at paras.37-38 per Gummow and Hayne JJ; WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 at 573-574 per Lee and Moore JJ; [2004] FCAFC 74 at paras.17-26 per Lee and Moore JJ; SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 at para.15 per Gordon J (“SZLGP”).
[56] (2001) 182 ALR 290; [2000] FCA 1910 (“Thevendram”).
[57] Thevandram ALR at 305 per Merkel J; FCA at para.59 per Merkel J (with whom Carr J agreed: ALR at 303; FCA at para.48).
[58] SZLGP at para.25 per Gordon J.
Minister’s submissions
The Minister submitted as follows:
a)this ground attacks the Second IMR’s credibility findings. A finding of credibility is the function of the primary decision-maker par excellence;[59]
b)it is important to emphasise that the IMR did not accept the principal factual elements of the applicant’s claims. The Second IMR’s Recommendation turned on the finding that the Second IMR “was not satisfied that the applicant attended the fire, or that any of the claimed consequences, including the threatening letters, occurred”;[60]
c)in those circumstances, there was no basis upon which the Second IMR could have been satisfied that the applicant had a well-founded fear of persecution if required to return to Iraq. The Second IMR gave full reasons for reaching this conclusion, which centred on:
i)the credibility of the applicant;
ii)the unconvincing nature of his evidence; and
iii)a lack of consistency between some elements of his claims;
d)no reviewable error attended the formation of these views.
[59] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J. (“Durairajasingham”)
[60] CB 156 at para.89.
Consideration
As has so often been said, the assessment of credibility is a matter for the finder of fact par excellence.[61]
[61] Durairajasingham at 423 per McHugh J; HCA at para.67 per McHugh J. See also, for example, SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM; SZONA v Minister for Immigration & Anor [2011] FMCA 99 at para.31 per Lloyd-Jones FM; SZONR v Minister for Immigration & Anor [2011] FMCA 89 at para.49 per Nicholls FM.
In W148/00A vMinister for Immigration and Multicultural Affairs[62] the plurality of a Full Court of the Federal Court observed that:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.[63]
[62] (2001) 185 ALR 703, [2001] FCA 679 (“W148/00A”).
[63] W148/00A ALR at 716 per Tamberlin and RD Nicholson JJ; FCA at para.64 per Tamberlin and RD Nicholson JJ.
It is also the case that:
a)the Second IMR was not obliged to have rebutting evidence available before rejecting a factual assertion made by the applicant;[64]
b)it is not necessarily irrational, or illogical, for a finder of fact who is convinced that a witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the witness;[65]
c)there is no error of law, and hence no jurisdictional error, in the Second IMR making a wrong finding of fact;[66] and
d)a court conducting judicial review must be astute not to turn judicial review into merits review, and it is not appropriate to analyse the reasons of the decision-maker minutely and with a focus upon perceiving error.[67]
[64] Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J; Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at para.13 per French J.
[65] Citing Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1168-1169 per Gleeson CJ; [2003] HCA 30 at para.12 per Gleeson CJ.
[66] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16-17 per Black CJ, French and Selway JJ; [2004] FCAFC 263 at paras.52-54 per Black CJ, French and Selway JJ (“NABE (No. 2)”); SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at para.17 per Jacobson J (“SZJEH”).
[67] SZMDS CLR at 623-624 per Gummow ACJ and Kiefel J, at 634, footnote 73 per Heydon J; HCA at para.35 per Gummow ACJ and Kiefel J, at footnote 73 per Heydon J; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh & Gummow JJ (“Wu Shan Liang”); Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 67 per Gleeson CJ and Hayne J; [2001] HCA 22 at para.23 per Gleeson CJ and Hayne J.
The Court must ultimately look at the finding with respect to credibility having regard to the totality of matters considered by the Second IMR. In that regard, the applicant has identified four factors relevant to the Second IMR’s finding that the applicant was not a credible witness.
With respect to the First Factor, namely the state of the fire upon the fire brigade’s arrival, it was an appropriate line of inquiry for the Second IMR to pursue and put to the applicant. Likewise, it was proper for the Second IMR to ask the applicant what it was that those reporting the fire might have seen to warrant reporting the fire, if upon arrival of the fire brigade the fire was “only smoking”.[68]
[68] CB 154 at para.77.
There is no doubt that a different decision-maker might have approached this issue differently. A different decision-maker might have first inquired as to the nature and combustibility of the material said to be on fire. That inquiry was, however, foreclosed in this case by the applicant’s evidence that he did not seek out or examine the actual source of the fire, as he would have done “under normal circumstances”, that is, in circumstances where there were not children to be saved in the building.[69] Likewise, a different decision-maker might have not suggested that when people cooked kebabs on the street there was also smoke. It is not immediately apparent what the relevance of this suggestion was, but it nevertheless gave the applicant the opportunity to suggest that the house fire gave rise to a different kind of smoke, such as that which occurred at the beginning of a fire. There can be no doubt that the applicant was given an opportunity to deal with this issue, and did deal with it, but not to the satisfaction of the Second IMR. Rather, the Second IMR has considered the circumstances of this case, which include:
a)the failure of the applicant and other fire fighters to examine the source of the fire; and
b)the nature of the fire, and the absence of actual fire by the time the fire brigade arrived,
to arrive at a conclusion that the signs of fire would not have been serious enough to have prompted a person to call the fire brigade at the time at which the applicant alleges the call was made. That is a course of reasoning which is not so illogical that it could not have been adopted by a reasonable person to arrive at the same conclusion as that reached in the Second IMR Recommendation.[70]
[69] CB 147-148 at para.38.
[70] SZMDS CLR at 647-648 per Crennan and Bell JJ; HCA at para.130 per Crennan and Bell JJ.
The applicant also criticised the Second IMR’s findings with respect to credit in relation to the Fourth Factor. It did so on the basis that there was no evidence of how the fire brigade operated in Iraq. The Second IMR’s finding with respect to credibility on the Fourth Factor is, however, related to the applicant’s own answers to reasonable questions about his work and conduct at the scene of a fire. On face value, that evidence, if not contradictory, is at least confused or confusing, and leaves open the possibility of a fact-finder taking an adverse view of the applicant’s credit on the basis of that evidence. There was evidence which was capable of being considered by the Second IMR to:
a)not be credible, including that the applicant would not go into a house if there was a fire as opposed to smoke; and
b)be contradictory; for example, that the applicant had not learnt to deal with people at the scene of a fire, when his evidence about his training was about first aid aspects and dealing with people in shock after a fire.
The nature of the applicant’s evidence might therefore be capable of giving rise to doubts in a decision-maker’s mind as to whether the applicant did actually work in a fire-fighting capacity. Therefore, once again, the conclusion reached is not so illogical as to be one which could not reasonably be reached.[71]
[71] SZMDS CLR at 647-648 per Crennan and Bell JJ; HCA at para.130 per Crennan and Bell JJ.
The applicant dismissed the Second and Third Factors considered by the Second IMR as minor inconsistencies incapable of supporting a rejection of the applicant’s central claim to have attended the fire and rescued two children. The Second and Third Factors, however, went to:
a)whether or not the fire was extinguished, and if so at what time; and
b)when the applicant became aware that there were two children in the house, and the impact of that upon whether or not he investigated the source of the fire on entry to the burning house.
The Second and Third Factors were matters upon which the applicant gave differing answers at differing times, which were in some respects contradictory, and which left open the possibility that a fact-finder might arrive at a finding that the applicant was not being truthful. A finding that the applicant was not being truthful in relation to the Second and Third Factors was manifestly relevant to a determination of whether or not the applicant actually attended a fire and rescue as he alleged. Moreover, they were matters on which there was probative evidence, from the applicant himself, upon which the Second IMR could logically or rationally infer that the applicant was not a credible witness. This enabled the Second IMR to make adverse credibility findings in relation to the applicant, which were open on the evidence.
There is no doubt that the Second IMR’s view of the Second and Third Factors is one upon which minds might differ, and which might make for a different decision by another decision-maker. That does not mean that the Second IMR has made a jurisdictional, legal or procedural error.
There was a not insignificant evidentiary basis for each of the findings as to credibility in relation to the Second and Third Factors, and to a slightly lesser extent the Fourth Factor. The evidentiary basis in relation to the First Factor finding with respect to credibility is much slimmer, but not without the bounds of the available evidence. There was, therefore, an evidentiary basis for the findings as to credibility in the Second IMR Recommendation, which flowed over to the ultimate findings.[72]
[72] SZMDS CLR at 632 per Heydon J; HCA at para.78 per Heydon J.
Ground 1 is therefore not made out.
Ground 2
Ground 2 is as follows:
2.The second Respondent erroneously rejected evidence and claims of the Applicant on the basis that such material was ‘purely circumstantial’ and supposition
Particulars
(a)The Applicant relied upon a range of evidence, including direct evidence and ‘circumstantial’ evidence.
(b)The Second Respondent was required to assess and weigh up the evidence presented by the Applicant in support of his claims.
(c)The Second Respondent failed to assess all of the evidence and instead rejected parts of it on the grounds that it was ‘circumstantial’ or ‘supposition’.
(d)This was not a proper basis to reject evidence or claims that were otherwise relevant and admissible.
Applicant’s submissions
The applicant submits that:
a)the Second IMR made adverse credibility findings and dismissed some of the Applicant’s claims on the basis that they were “circumstantial” or “supposition”;
b)an applicant is entitled to put forward his case and have it considered. This includes putting forward evidence that is of both a direct and indirect character. Courts commonly receive circumstantial evidence and are required to draw inferences, open on the evidence, to come to a finding or conclusion. The fact that evidence, or a claim, can be described as circumstantial should not lead to its rejection;
c)it is apparent from the Second IMR’s record of what transpired at hearing that she repeatedly put to the applicant that some of his claims were only his “surmise”[73] or his “thoughts”;[74]
[73] CB 149 and 150 at para.48 and CB 152 at para.62.
[74] CB 150 at para.50 and CB 151 at para.57.
d)in relation to the applicant’s claim that his cousin was shot, the following finding was made in the Second IMR Recommendation:
As I put to the claimant at interview, this was merely his supposition and not a fact. Nor was the claimant able to give a plausible explanation as to how the assailants knew that he would be walking down the street with his cousin at that particular time or that it was not a random act. The claimant argued retrospectively that he knew he was being targeted because of the subsequent arrival of the threat letters. I do not accept this explanation as plausible.[75]
[75] CB 155 at para.84.
e)because:
i)his cousin was shot at in the applicant’s company; and
ii)soon after his cousin being shot at, the applicant received death threats,
this had led him to infer that he was being targeted. This was entirely reasonable inferential reasoning, and it is completely unclear upon what basis the Second IMR found the explanation of the applicant implausible;
f)similarly, in relation to the threatening letters, the Second IMR stated:
In the case of his unsupported claim that letters were sent to the claimant’s house and work place, which contained a Koranic verse and a threat to kill, I note that, by the claimant’s own evidence these letters were anonymous and unaddressed. The claimant stated that because they were received both at his home and at his work, they related to what had happened at work. He insisted that he was the target of the letters. I consider the claimant’s explanation as purely circumstantial and as I pointed out to him at the hearing, was nothing more than his supposition.
Asked how he knew the letters were meant for him and not for someone else at his house or at the fire station, the claimant gave contradictory evidence on both scores. With regard to the letter at his house, the claimant said was a million percent sure that he was the target but then went on to say his family was bearing the consequences because the militias had not found him. He later said his father had told him that because they had failed to find him, the militias would target others in his family and at the same time that it was well known that when one family member was targeted the whole family was at risk.[76]
g)it is not at all clear what the “contradictory evidence” was that was identified by the Second IMR above; and
h)it was not open to the Second IMR to dismiss the applicant’s explanations because they were perceived to be “circumstantial” and “nothing more than his supposition”. The Second IMR was required instead to consider:
i)the facts provided by the applicant; and
ii)whether an inference was open in accordance with the claim,
regardless of whether there were other inferences also open.
[76] CB 156 at paras.86-87.
Minister’s submissions
The Minister essentially made the same submissions as were made with respect to ground 1.
Consideration
Similar considerations arise with respect to this ground as arose in ground 1, and in particular that:
a)findings of fact and credit were matters for the Second IMR; and
b)the Second IMR Recommendation ought not be scrutinised too closely with a view to finding error, lest there be a lapse from judicial review into impermissible merits review.
It is also relevant to note that:
a)where there are specific aspects of an applicant’s account which a decision-maker considers may be important to the decision and may be open to doubt, the decision-maker need only ask an applicant to expand upon those aspects of the account and ask an applicant to explain why the account should be accepted;[77] and
b)it is important not to confuse taking into account relevant considerations with taking into account particular pieces of evidence, and a failure to take into account a particular piece of evidence does not necessarily give rise to jurisdictional error.[78]
[77] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; [2006] HCA 63 at para.47 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”).
[78] Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236-237 per Carr J (with whom Sheppard & Gummow JJ agreed); WZAND v Minister for Immigration [2009] FMCA 26 at para.57 per Lucev FM.
The Second IMR Recommendation in relation to the street shooting and threatening letters takes into account various relevant issues which were raised with the applicant at the Second IMR Hearing. With respect to the street shooting these issues included:
a)whether the applicant knew the people who shot at him;
b)who the shooters might be;
c)the fact that who the applicant thought the shooters might be was merely supposition on his part;
d)how the shooters would have known that the applicant would be walking down the street at a particular time;
e)whether the shooting was a random act;
f)whether the shooting could be explained, in relation to the applicant being a target, by the subsequent arrival of the threatening letters; and
g)the gunshot wounds suffered by the cousin and the cousin’s admission to hospital.[79]
[79] CB 149-150 at paras.48-49; Second IMR Hearing Transcript, pages 27-28 and 41-43.
Having considered all of these matters the Second IMR was not satisfied that it could be established “who fired the bullets”, or that the shooting was intended for the applicant.[80]
[80] CB 156 at para.85.
In relation to the threatening letters the Second IMR referred to:
a)where the letters were sent to, namely, the applicant’s home and the fire station at which he worked;
b)their content, including Koranic verses; and
c)the fact that they were anonymous and unaddressed,
and specifically queried the applicant in relation to these issues, before coming to a finding that the sending of the threatening letters had not occurred.[81] That finding also has to be seen in light of the finding, which this Court has held was open on the evidence, that the incident said to give rise to the occasion for sending the threatening letters, namely the applicant’s attendance at the fire, did not occur.
[81] CB 156 at paras.87-89.
In the circumstances, the Second IMR has considered, sifted, weighed, and in some instances rejected, the evidence relevant to the shooting and threatening letters issues, before arriving at conclusions on those issues. That is the function of the decision-maker,[82] and it is not apparent that there has been any error in the carrying out of that task in this instance. In the Court’s view to uphold this ground would be to simply substitute its view of the evidence and facts for that of the Second IMR’s.
[82] Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 (“Abebe”).
The Second IMR Recommendation findings are also consistent with country information,[83] and with the evidence given to the Second IMR Hearing by the applicant. The Second IMR put to the applicant that:
In a situation like that which prevails in Baghdad or Iraq, where there is a lot of turmoil, it is possible that somebody who doesn’t like you, maybe even your fire chief or somebody else who works with you who is jealous of you, can pay somebody, a criminal, to shoot you and your cousin when you’re walking down the street in order to frighten you. I’m not saying that’s what I think; but can you see that, when we’re dealing with uncertainties, that could be a possible explanation also. Would you like to comment?[84]
[83] CB 152 at para.61.
[84] Second IMR Hearing Transcript, page 58. See also CB 152 at para.62.
The applicant responded to that as follows:
… what you just mentioned, various people with this mentality and various people doing or committing what you just mentioned, this is not only in Iraq, this what you just mentioned could happen anywhere in the world …[85]
and having given three commonplace examples repeats that “this could happen anywhere in the world”.[86]
[85] Second IMR Hearing Transcript, page 59. See also CB 152 at para.63.
[86] Second IMR Hearing Transcript, page 59. See also CB 152 at para.63.
Ground 2 is therefore not made out.
Ground 3
Ground 3 is as follows:
3.The Second Respondent breached its duty of procedural fairness by failing to put the Applicant on notice that it did not accept that he was a fire fighter by occupation
Particulars
(a)Central to the Applicant’s claims was that he was a fire fighter by occupation.
(b)The Second Respondent expressed grave doubts as to his occupation and inferentially did not accept the Applicant’s claimed occupation.
(c)Given how critical this matter was to the Applicant’s case, the Second Respondent was required to accord him procedural fairness and to put him notice that it did not accept the claims as to his occupation.
(d)The Applicant should have been afforded with an opportunity to address this critical issue either by way of further submissions or evidence.
Applicant’s submissions
The applicant’s submissions with respect to ground 3 are as follows:
a)the applicant’s claimed occupation of fire fighter was central to his case;
b)the RSA Decision accepted that the applicant was employed as a “fireman” in Iraq;[87]
c)in the First IMR Recommendation it was accepted that the applicant was “a fireman in Iraq”;[88]
d)in light of the certificate and photographs, the Second IMR Recommendation accepted that the applicant had attended Basic/Recruit Fire Fighter training in Bahrain for two months in 2005;[89]
e)the Second IMR Recommendation finding that:
moreover, some of the claimant’s comments in the course of the interview raise serious doubts as to whether he, in fact, worked in a fire fighting capacity[90]
suggests that the Second IMR did not accept that the applicant was, in fact, a fire fighter; and
f)whilst procedural fairness does not require decision-makers to invite comment upon thought processes on route to a decision,[91] in this case, the Second IMR failed to adequately raise these issues with the applicant, and the applicant was thereby denied an opportunity to comment on critical matters, or was denied an opportunity to put forward further evidence in support of his occupation.[92]
[87] CB 84.
[88] SCB 7 at para.20.
[89] CB 154 at para.75.
[90] CB 155 at para.80.
[91] Citing Abebe CLR at 576 per Gummow and Hayne JJ; HCA at para.187 per Gummow and Hayne JJ.
[92] Citing NAXW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 644.
Minister’s submissions
The Minister’s submissions with respect to ground 3 are as follows:
a)the Second IMR did not expressly tell the applicant that he had doubts as to his claimed occupation. However, the Second IMR notified the applicant during the interview that his credibility was in issue. In this respect, the RSA Decision bears some significance. While the RSA Decision accepted that the applicant worked as a fire fighter,[93] it was also found that the applicant’s claims lacked veracity, and that there was no credible evidence to support the claim that the applicant had been targeted;
b)the Second IMR was not under an obligation to inform or provide “a running commentary” to the applicant that she had concerns about the credibility of evidence given by the applicant at the time when that evidence was being heard by the Second IMR.[94] This is especially so given that the applicant should have been alert to the fact that his credibility was in issue; and
c)if, however, the Court considers that this issue should have been put to the applicant, then the Minister submits as follows:
i)the Second IMR did not actually make a positive finding in relation to whether the applicant worked as a fire fighter or not;
ii)at its highest, the Second IMR was taken to express “serious doubts as to whether [the applicant], in fact, worked in a fire fighting capacity”;[95]
iii)absent a positive finding, procedural fairness did not require the Second IMR to put those “serious doubts” to the applicant. The statement was merely an extension of the Second IMR’s general credibility concerns, to which the applicant was already alert; and
iv)the particular incidents underpinning the position as a fire fighter were the real reasons for fearing persecution, and, once these elements were rejected, it mattered not, on a practical level, whether the Second IMR accepted that the applicant was a fire fighter or not. In that sense, a finding one way or the other as to the occupation would not have altered the result. Thus, the applicant suffered no “practical injustice”.[96]
[93] CB 84.
[94] SZBEL CLR at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; SBKC v Minister for Immigration & Citizenship [2011] FCA 533 at para.14 per Marshall J.
[95] CB 155 at para.80.
[96] Re Minister for Immigration & Multicultural & Indigenous Affairs Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 per Gleeson CJ; [2003] HCA 6 at para.38 per Gleeson CJ.
Consideration
Assuming, for present purposes, that “worked in a fire fighting capacity”[97] means to work in the occupation of fire fighter, the “serious doubts” expressed in the Second IMR Recommendation[98] as to whether the applicant worked in the occupation of fire fighter were only one element of the reasoning behind finding that the applicant’s evidence concerning his attendance at the fire was not credible. However, from a reading of the entirety of the Second IMR Hearing Transcript it is apparent that although the Second IMR expressed doubts as to issues associated with the applicant’s attendance at the fire there was never any question about, or doubt expressed in relation to, whether the applicant was in fact a fire fighter. Although there was considerable doubt expressed by the Second IMR about precisely what the applicant did if he attended at the fire, and whilst the answers that the applicant gave might leave open the conclusion that he was not working “in a fire fighting capacity”, it was never put, squarely or otherwise, to the applicant that he was not a fire fighter, or not working in a fire fighting capacity. Doubt on these issues cannot legitimately be implied into the Second IMR’s questioning of the applicant at the Second IMR Hearing. Further, it having been accepted in the RSA Decision and in the First IMR Recommendation, that the applicant was a fire fighter, there was nothing in those earlier administrative processes which would put the applicant on notice that there was a doubt as to whether or not he was a fire fighter, or had worked in a fire fighting capacity. The fact that the applicant’s credibility generally might have been in issue cannot, in the circumstances of this case, put in issue what had been accepted as an undisputed fact prior to the Second IMR Recommendation.
[97] CB 155 at para.80.
[98] CB 155 at para.80.
Consideration of this question is interwoven with the issue of credibility with respect to whether or not the applicant attended a fire, and it is the answers in that respect that have given rise to the Second IMR Recommendation finding that there are doubts as to whether he worked as a fire fighter. Although the conclusion with respect to credibility was open on the answers that were given, it was nevertheless the case that it was not put to the applicant that he was not a fire fighter or working in a fire fighting capacity. Had the matter been put squarely to the applicant, it may be that the applicant’s answers in response to that stark, and what might have been to the applicant novel, proposition, might have persuaded the Second IMR that he was a fire fighter. It is also possible that the answers might have been such as to provide further factual material which might have affected the Second IMR Recommendation findings with respect to the applicant’s credibility. Thus, whilst there was no specific finding that the applicant was not a fire fighter, the fact that the Second IMR entertained “serious doubts” as to whether the applicant was a fire fighter, or even that he worked in a fire-fighting capacity, ought, as a matter of procedural fairness, to have been put to the applicant. Given the inter-relationship between the credibility findings and this procedural fairness issue, it is not possible to say that had the matter been put squarely in that way, it would not have affected both the Second IMR Recommendation findings as to whether or not the applicant worked in a fire-fighting capacity, but also the credibility issues generally. In that sense, putting the “fire fighter” occupational issue to the applicant might have altered the ultimate result. In that sense, the applicant has suffered a potential practical injustice.
In the circumstances, the applicant was denied procedural fairness because it was never put to him that the Second IMR entertained serious doubts as to whether he worked in a fire-fighting capacity, or as a fire fighter.
Ground 4
Ground 4 is as follows:
4.The Second Respondent failed to consider an integer of the Applicant’s claims
Particulars
(a)The Second Respondent noted that at hearing the Applicant’s adviser abandoned a claim that the Applicant was at risk of persecution on the grounds of his membership of a particular social group. Consequently, the Second Respondent did not consider this ground.
(b)The Second Respondent confined itself to a consideration of whether the Applicant was at risk of persecution by reason of his involvement in the fire.
(c)The Second Respondent failed to consider whether the Applicant was at risk of having a profile and/or opinion imputed by reason of his training (as accepted by the Second Respondent) in Bahrain that was conducted by westerners.
Applicant’s submissions
With respect to ground 4 the applicant submits as follows:
a)that he relied upon the Convention grounds of particular social group and imputed political opinion,[99] which was part of a claim that the applicant was trained by US and British personnel in Bahrain and therefore became a target of Islamic extremists in Iraq;[100]
[99] CB 103.
[100] CB 103.
b)that he claimed in the Statutory Declaration that since September 2005 he had been a fire fighter, and that it “was dangerous because we were seen as supporting the foreign troops and the Iraqi Government.”;[101]
[101] CB 50.
c)the Second IMR found that the applicant abandoned the particular social group claim at hearing, stating that:
In his statutory declaration, the claimant referred to ‘numerous threats to fire fighters’ at the station and that they were ‘continually trained by the foreign governments to improve their fire fighting techniques”, which was inconsistent with his statements in his interview that there were no threats to his fire station until November 2009 and that he did not receive any further training. I do not consider plausible his explanation that what he meant was that some individual fire fighters linked with foreign governments were targeted and others received short course training though not him. I find that the claimant fabricated the original claims in his RSA statutory declaration to support a claim that he was persecuted as a member of a particular social group, namely fire fighters, which he decided to withdraw at the end of his final IMR interview.[102]
[102] CB 157 at para.93.
d)the perceived abandonment of this claim led the Second IMR to:
i)confine her consideration of the applicant’s case to the factual claim of rescuing the children; and
ii)led to adverse findings that the applicant had previously fabricated claims;
e)in relation to this matter, the following transpired at the Second IMR Interview:
Ms GOULD: … We confirm, yes, our client is not claiming that he’s of a particular group, namely, firefighters. He is claiming that his act was seen as – I think we at best would be saying imputed political opinion. This act could have been committed by anyone. He was not chosen to be the person to commit this act…”[103]
[103] Second IMR Hearing Transcript, page 59.
f)at the Second IMR Interview the following exchange occurred:
MS MOUSTAFINE: I just also want to raise something which in your RSA – when I asked you today I said, “Had there been any threats to your fire station before?” and you said not that you were aware of. Whereas in your RSA interview you said that there were numerous threats to firefighters because they were seen as supporting foreign troops.
INTERPRETER: I don’t know, it is the RSA – he’s confused …
MS MOUSTAFINE: It was your second interview.
INTERPRETER: No, I didn’t say as the umbrella of all firefighters were targeted, no. I said that the workers who has been trained or had some links with the foreigner trainees or something they could be targeted. But not as the firefighters title, if you’re a firefighter or firefighters are targeted, no. But could be individuals under this force.[104]
g)a fair reading of what transpired at the Second IMR Interview demonstrates that the applicant did not completely abandon his claim that those fire fighters, with links to foreigners, were at risk of being imputed with a certain, pro-Western political opinion;
h)the Second IMR gave no consideration to whether the applicant might be imputed with a pro-Western opinion or profile, irrespective of any findings made as to the November 2009 incident; and
i)importantly, the Second IMR Recommendation found that the applicant had attended the training course run in Bahrain, and that that training course had been conducted by Westerners.[105]
[104] Second IMR Hearing Transcript, pages 62-63.
[105] CB 154 at para.75.
Minister’s submissions
As to ground 4 the Minister submits as follows:
a)it is well established that a failure to consider an integer of an applicant’s claim can amount to a jurisdictional error.[106] However, the claim, as formulated in the application to the Court, was not expressly advanced by the applicant at any stage before the RSA or the Second IMR. Nor was the claim apparent on the face of the material.[107] That being so, there was no obligation for the Second IMR to engage in constructive or creative activity to expose the claim;[108] and
b)in this matter, the key elements of the applicant’s claims were correctly summarised and addressed in the Second IMR Recommendation.[109]
Consideration – ground 4
[106] Citing Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (“Htun”).
[107] Citing NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at 18-19 per Black CJ, French and Selway JJ; [2004] FCAFC 263 at para.58 per Black CJ, French and Selway JJ (“NABE (No. 2)”).
[108] Citing NABE (No. 2) FCR at 18-19 per Black CJ, French and Selway JJ; FCAFC at para.58 Black CJ, French and Selway JJ.
[109] CB 154 at para.71.
The law
In Dranichnikov v Minister for Immigration & Multicultural Affairs[110] the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a)the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a special group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence;[111]
b)the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice;[112] and
c)a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction.[113]
[110] (2003) 77 ALJR 1088; [2003] HCA 26 (“Dranichnikov”).
[111] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at para.23 per Gummow and Callinan JJ.
[112] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at paras.24-25 per Gummow and Callinan JJ. See also Plaintiff M61 CLR at 356 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.90 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where it was said that: “The failure to deal with the claim was a denial of procedural fairness”, because the Minister was not informed upon a question he had been asked to consider.
[113] Dranichnikov ALJR at 1092-1093 per Gummow and Callinan JJ; HCA at paras.24-25 and 32 per Gummow and Callinan JJ.
The High Court said that failures of the type identified above entitled a court exercising jurisdiction under s.75(v) of the Constitution to consider exercising the discretion to grant relief.[114]
[114] Dranichnikov ALJR at 1093 per Gummow and Callinan JJ; HCA at paras.33-34 per Gummow and Callinan JJ.
In Htun the Federal Court observed, in the context of claims made with respect to an application for a protection visa, that:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.[115]
[115] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
Even where a claim is not necessarily articulated expressly in oral submissions at a hearing before the decision-maker, the “clarity of … expression of … fear in … [an] application for review and the existence of objective material put forward … to support … [a claim]” means that there is an extant claim.[116]
[116] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
The claims made are “definitional with respect to the very question which comes before the relevant decision-maker.”[117]
[117] Li v Minister for Immigration & Citizenship & Anor (2008) 102 ALD 354 at 362 per Jessup J; [2008] FCA 902 at para.22 per Jessup J.
What is required of the decision-maker was described in practical terms by this Court in MZXIV v Minister for Immigration & Anor (No. 2)[118] where the Court spoke of the decision-maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims”[119] and of “a specific consideration of the claim”.[120]
[118] [2006] FMCA 1454 (“MZXIV (No. 2)”).
[119] MZXIV (No. 2) at para.44 per Riley FM.
[120] MZXIV (No. 2) at para.45 per Riley FM.
The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs,[121] namely that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.[122]
[121] (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”).
[122] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.
In NABE (No. 2) the Full Court of the Federal Court said as follows:
58. The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it - Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated - Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 - 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant - Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it - SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.[123]
[123] NABE (No. 2) FCR at 18-19 per Black CJ, French and Selway JJ; FCAFC at para.58 per Black CJ, French and Selway JJ.
and
61. In STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):
‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court. That jurisdiction is limited to the identification of jurisdictional errors. The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made. In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112.’
We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
62. Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa – Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 195 ALR 1 at 8-9 [31]-[32]. Gleeson CJ generalised from this, albeit in dissent, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at 114 [1]:
‘Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.’
63. It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’[124]
[124] NABE (No. 2) FCR at 19-21 per Black CJ, French and Selway JJ; FCAFC at paras.61-63 per Black CJ, French and Selway JJ.
Was the relevant claim of persecution made or open on the material before the Second IMR?
At the Second IMR Hearing. The applicant was asked:
What I’m interested in is what happened to you to make you leave Iraq.[125]
[125] Second IMR Hearing Transcript at page 25.
The applicant gave a very long lengthy response, the final words of which were:
Yes, because they know – it was very well known there that this course was conducted in Bahrain was – the training was with Western experts, so by British, by other foreigners. It was very well known there. So I was very terrified and it was very hard for me, that’s why I left. I can’t now live in my country and the proof of that, that when my family tried to go back four months ago that was the reason I lost them and the Red Cross is – because they’re still chasing me, chasing my family. They want to kill me or kill my family. The risk is still and the dangerous is still on. That’s why I’m here.[126]
[126] Second IMR Hearing Transcript at page 28.
Later in the Second IMR Hearing the particular social group of fire fighter claim having been expressly withdrawn,[127] the applicant was asked by the Second IMR about an earlier statement that “there were numerous threats to fire fighters because they were seen as supporting foreign troops.”[128] The applicant’s response to this was to say that:
No, I didn’t say as the umbrella of all fire fighters were targeted, no. I said that the workers who had been trained or had some links with the foreigner trainees or something that they could be targeted. But not as the fire fighters title, if you’re a fire fighter all fire fighters are targeted, no. But could be individuals under this force.[129]
[127] Second IMR Hearing Transcript at page 59.
[128] Second IMR Hearing Transcript at page 63.
[129] Second IMR Hearing Transcript at page 63.
The Second IMR correctly observed that the claim that the applicant was persecuted as a member of a particular social group, namely fire fighters, was withdrawn at the Second IMR Hearing.[130] The Second IMR also found that the applicant fabricated claims in the Statutory Declaration, and seemingly subsequently, to the extent that they were not plausible, that there were numerous threats to fire fighters at his fire station and that they were continually trained by foreign governments to improve their fire fighting techniques. That is quite a specific finding in relation to what occurred once the applicant, and his fellow fire fighting trainees, returned from Bahrain in 2005. It does not however recognise that the applicant claimed to be persecuted by reason of being a member of an even more particular social group, namely fire fighters trained by Westerners in Bahrain, or by reason of possibly imputed political opinion, that is support of the Iraqi government, by reason of that training. The former was a claim specifically raised in the Second IMR Hearing, the latter was one raised in the Statutory Declaration,[131] and in submissions to the Second IMR, and never withdrawn.[132]
[130] Second IMR Hearing Transcript at page 59.
[131] See para.62(b) above.
[132] CB 104.
Was the relevant claim of persecution identified and considered by the Second IMR?
Neither of the two claims identified above were addressed in the Second IMR Recommendation. Such claims need to be specifically addressed, and cannot, without such consideration, be held to have been considered by reason of generalised conclusory statements about the applicant’s profile.[133]
[133] See, for example, CB 157 at para.94.
The claims were separate, substantial and clearly articulated, and had an arguable factual foundation in the evidence and materials before the Second IMR. There was, therefore, either a constructive failure by the Second IMR to exercise jurisdiction, or a denial to the applicant of procedural fairness, or both.
Conclusion
For the reasons set out above the Court has concluded that:
a)grounds 1 and 2 of the application have not been made out; and
b)grounds 3 and 4 of the application have been made out.
Relief
In circumstances where the Court has concluded that grounds 3 and 4 of the application have been made out, and as a consequence:
a)the applicant has been denied procedural fairness; and
b)the Second IMR failed to consider a separate, substantial, and clearly articulated claim or claims, which had arguable factual foundations in the evidence and materials before the Second IMR, there was, therefore, either a constructive failure to exercise jurisdiction, or a denial of procedural fairness, or both,
it is appropriate to grant declaratory and injunctive relief to the applicant. The Court will not, however, make an order that the matter be remitted to be heard by an independent merits reviewer other than the IMR, as the Court has no power, in the absence of an ability to issue writs of mandamus and certiorari, to compel a re-exercise of an independent merits review.[134] It follows, therefore, that the Court has no power to compel by whom any further independent merits review might be conducted.
[134] Plaintiff M61 CLR at 358-359 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.99-100 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Costs
The Court will hear the parties as to costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 31 August 2012
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