DZABE v Minister for Immigration
[2012] FMCA 1067
•3 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZABE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1067 |
| MIGRATION – Judicial review – offshore entry person – protection visa – decision of Independent Merits Reviewer – failure to properly consider claim of religious practice – failure to reasonably speculate about the risk of harm facing the applicant – whether the applicant had an imputed faith or racial classification – modification of religious practices – consideration of favourable determination of relative’s application – no warrant for reviewer to engage in speculation – grounds not properly made out – application dismissed. |
| Migration Act 1958 (Cth), s.36(2) |
| Ahvazi v Minister for Immigration and Multicultural Affairs [2002] FCA 279 United Nations Convention Relating to the Status of Refugees 1951 |
| Applicant: | DZABE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 39 of 2011 |
| Judgment of: | Burnett FM |
| Hearing date: | 15 November 2011 |
| Date of Last Submission: | 15 November 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 3 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Northern Territory Legal Aid |
| Counsel for the Respondents: | Mr T. Anderson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Unless application is made for any other orders within fourteen (14) days, the applicant pay the respondent’s costs fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 39 of 2011
| DZABE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is an Iraqi national born in Iran in 1985. His family had relocated from Iraq to Iran before his birth because of difficulties they had experienced under the regime of Saddam Hussein. The applicant and his family returned to Iraq in 2005 where he applied for and was granted Iraqi citizenship.
He arrived in Australia on 1 September 2010 and on 7 November 2010 made a request for Refugee Status Assessment (RSA). On 15 December 2010 the RSA found that Australia did not owe him protection obligations. On 28 December 2010 he applied for an Independent Merits Review (IMR) of the RSA. The IMR was determined in a report dated 29 June 2011, with the report formally delivered on 5 July 2011. The finding was that the applicant did not meet the criterion for a protected visa set out in s.36(2) of the Migration Act 1958 (Cth) (the Act) and the reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees 1951 (Refugee Convention).
The applicant was unhappy with that determination and sought judicial review by way of his application filed 8 August 2011.
Grounds for Review
In an amended application filed 22 September 2011 the applicant particularised the basis for his application. He contended that the decision of the reviewer was made in breach of an essential precondition to her jurisdiction or the exercise of her power in recommending that he not be recognised as a person to whom Australia had protection obligations under the Refugee Convention; and/or the reviewer failed to observe the requirements of procedural fairness; and/or the reviewer exceeded her jurisdiction; and/or constructively failed to exercise her jurisdiction. The particulars of the applicant’s complaints were:
a)That the reviewer misunderstood and/or misconstrued a criterion (being the test under the Refugee Convention) about which she had to be satisfied for the purpose of establishing whether the applicant was owed protection obligations pursuant to s.36 of the Act and/or failed to consider an issue going directly to the question whether that criterion was satisfied and/or a central element of the applicant’s claim.
i)That the reviewer failed to consider the claim that the applicant modified his religious practice in order to mitigate the harm from others and did not consider whether the applicant had a well founded fear of persecution on this account; and
ii)By reason of the relationship between the applicant and his mother, Khathera Hussein, and the positive findings and recommendation made by the same reviewer in her case (on 29 June 2011) and given the reviewer’s actual notice that the relationship between the applicant and his mother, the reviewer failed to reasonably speculate about the risk of harm facing the applicant on the grounds of his implied Iranian race/Shi’a Muslim faith given the reviewer’s implied acceptance of the low level harassment and discrimination suffered by him in Iraq.
Ground 1 - Modification of Religious Practices
The applicant’s claim is premised upon an alleged failure by the reviewer to consider an articulated claim made by him, which was said to be recognised and posed for determination, but which was never dealt with either impliedly or expressly.
It was alleged that this was a case of modified conduct. In his statement to the reviewer, the applicant stated:
“… Everything that my brother said in his statement is what has occurred to all of us as a family in Iran and Iraq.”
The reference to his brother’s statement was a reference to the statement made by the applicant in DNG40 of 2011, DZABF v Minister for Immigration and Citizenship and Anor.[1] In his statement to the reviewer, the applicant in DZABF stated:
“… the Sunni people wanted to attack us because we are Shi’a. We had constant pressure on us to leave Iraq and return to Iran. Many times I was abused and accused of being Iranian.
9. Mostly we had to practice our religion in secret because if the Sunni find out we are practising Shi’a Muslim they will fight us. I went to the local mosque to practice my religion. If the Sunni people found out that I was attending the mosque there was risk for me but the people who were at the mosque were all Shi’a. We had many Sunni people in our area.”
[1] [2012] FMCA 1066.
In his own statement, the applicant made no direct statements concerning fear he held for convention related reasons. His safety concerns were more generally directed to Shi’a people being targeted by Suni people and the situation being dangerous.
It was contended that notwithstanding any specific claim made in the hearing, the issue of a convention-based fear of persecution for religious practice was before the reviewer because of:
a)The applicant’s express adoption of what his brother had said in his statement;
b)The acknowledgement by the assessment officer that a claim had been made that “the local Sunnis are opposed to Shia [sic] religion and the claimant felt threatened because of continued sectarian tensions and had to practice his religion in secret at times …” and
c)The statement from the applicant’s Australian sister that “… practicing your religion was to be kept a secret if you wanted your life.”
The issue of religion and ethnicity was raised in the IMR request. At paragraph 17, the reviewer noted that “approximately 60 to 65% of the population of Iraq follow the Shi’a faith and 30% follow the Sunni faith.” That issue was addressed.
The applicant now seeks to re-characterise the issue as one of “modification” as opposed to general religious persecution. The issue raised was on its face that of general religious persecution. The modification of the claim itself was not articulated, but was simply a manifestation of behaviour following the primary convention claim related to religions persecution.
In his interview before the reviewer, the only relevant exchange concerning this issue was as follows:
“MS BARTLETT: … I understand that the agent – the person back at the office where Mr Doe comes from – has also talked about your Shi’a religion is another reason why there has been difficulties for you. Some of the country information I have indicates that in Iraq the people who follow the Shi’a religion are about 60 to 65 per cent of the population, and about 30 per cent follow Sunni Muslim.
INTERPRETER: That’s right.
MS BARTLETT: The constitution enshrines the right for people to follow their religion and that Islam is the state religion.
INTERPRETER: Can you repeat it, please.
MS BARTLETT: The constitution says that people have the right to follow their religion, and that in essence the laws cannot be anti-Muslim.
INTERPRETER: That’s right.
MS BARTLETT: So I have to look at that information and also look at your particular circumstances as to why people – if indeed there’s a real chance that people would want to harm you. I also have to look at the information that talks about the amount of people who were originally in Iraq who were then expelled when the Saddam regime was in power, and the many people that have returned to Iraq since 2005.
INTERPRETER: Yes.”[2]
[2] Transcript Independent Merits Review page 20 ln 1 – ln 26.
Beyond those observations, the matter of religion was not otherwise expressly raised and, more particularly, when invited to consider the issue the applicant did not seek to expressly advance the behaviour modification issue. Indeed, the real matter of concern raised by the applicant was summarised by his agent’s submission to the reviewer in these terms:
“For [the applicant], the central part of this claim has been probably a unique membership of a social group of persons that were – his family were expelled from Iraq in about the 1980s when Saddam was in power. Then having lived in Iran for about 25 years he was Iranianised even though he’s Iraqi. As a consequence of that, after returning into (indistinct) after the fall of Saddam Hussein and reasserting his Iraqi citizenship, the ordinary Iraqi citizens have then considered him to be Iranian, and the treatment that he’s received since returning to Iraq has suggested that.
He’s told you about name-calling, and it was very difficult for him to actually tell you what was said. It was obviously something that was difficult for him to say. It was embarrassing but it was also – it was just the words are very nasty and he just didn’t feel comfortable saying them. He’s also told you about the kidnapping, or the attempted kidnapping that happened to him in the coffee shop and he hopes you will accept the two events that did happen.
Part of his claim must be considered that he is Shi’a because having lived in Iran where it’s probably about a 90 per cent Shi’a population in Iran, compared to Iraq, there’s more Sunni’s in Iraq, so there is potential that these persecutors could be Sunni Muslims. So that does form a substantial part of the written submissions put out by my office and obviously we ask you to consider that in the decision.”[3]
[3] Transcript Independent Merits Review page 21 ln 34 – 22 ln 10.
The applicant contends that these matters demonstrate an “articulated claim” concerning modified behaviour for a Convention reason.
For the respondent it is contended that the claim did not have to be considered because on the material it could not be characterised as a “substantial clearly articulated argument relying on established facts,” which “clearly emerge[s] from the materials.”
The applicant relies upon the observations in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2),[4] where at [58] the Court observed:
“… The Tribunal is required to deal with the case raised by the material or evidence before it … 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 … 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 … 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 … 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.”
[4] (2004) 144 FCR 1.
At [61], the Court continued:
“… We are of the view that the observations by Merkel J in Paramananthan [v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28], by the Full Courts in Sellamuthu [v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287] and [Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184] and by Cooper J in SDAQ [v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137] 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 [v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088], 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 …”
As the Court noted, each case must be considered according to its own circumstances.[5]
[5] At [63].
The High Court has stated that initial assessments and subsequent review assessments made under the procedures for dealing with offshore arrivals undertaken for the purpose of the Minister considering whether to exercise power under either s.46A or s.195A are subject to principles of procedural fairness, given the claimant’s right “… to liberty from restraint at the behest of the Australian Executive is directly affected …”[6]
[6] Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319at [77].
It was submitted by the applicant, and I accept, that the court’s jurisdiction under s.476 is the constitutional jurisdiction provided in s.75(v) of the Constitution, as migration decisions under s.46A are not excluded by reference in s.476(2)(d) to s.474(7); SZQCY v Minister for Immigration and Citizenship and Anor[7] at [2].
[7] [2011] FMCA 358.
Accepting that foundation, the issue for determination is whether that omission gave rise to jurisdictional error. In Minister for Immigration and Multicultural Affairs v Yusuf,[8] McHugh, Gummow and Hayne JJ, with whom Gleeson J agreed, said at [75]:
“… If the tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past)…”
[8] (2001) 206 CLR 323.
Later, at [95], their Honours said:
“The failure to refer to one of the alternative bases on which an applicant for a protection visa based a claim would, in many cases, reveal a failure to take account of relevant considerations or an error of law such as would enable judicial review on the grounds stated in s.476(1)(b), (c) and (e). Cases can, however, readily be imagined where the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection.”
Hill J, in Ahvazi v Minister for Immigration and Multicultural Affairs[9] at [19], considered these issues in a similar context. There a claim was made by an applicant that the Tribunal had failed to rule upon a case where the circumstances of association between the applicant and his girlfriend, who was of the Baha’i faith, and his association with others friends of the Baha’i faith, allegedly gave rise to real chance that he would have had imputed to him the Baha’i beliefs. On that basis a real chance of being persecuted on religious grounds. It was submitted that the failure to rule upon that issue constituted a constructive failure of jurisdiction. In reliance upon the observations of the High Court in Yusuf, and the approach taken of other Federal Courts such as in Paramananthan v Minister for Immigration and Multicultural Affairs,[10] his Honour noted that, notwithstanding their authoritative nature, the difficulties those authorities throw up is:
“… in what circumstances can it be said that the Tribunal has constructively failed to exercise its jurisdiction to deal with a case which may be available to an applicant, but which is not argued by the applicant at all.”[11]
[9] [2002] FCA 279.
[10] Supra.
[11] At [19].
His Honour continued:
“[20] In one sense it is difficult to see how a Tribunal commits an error of law (I use that ground as comprehending the other possible grounds which the High Court suggests may be raised) when the applicant himself or herself does not really raise the case squarely. To find reviewable error may be thought, at least in some cases, to be unfair to the Tribunal. While it is true that the Tribunal operates in an inquisitorial, rather than an adversarial way, it may be said that the Tribunal really has no obligation to an applicant to make the applicant's case for him or her and perhaps somewhat bizarre to conclude that in doing so the Tribunal makes an error of law.
[21] Be that as it may, it is obvious from the extracts both from the High Court and the Full Court of this Court that there will be cases where the failure of the Tribunal to consider a case may involve an error of law. The question is then, what are the boundaries of this principle.
[22] In the passage, secondly extracted from the judgment of the High Court in Yusuf, their Honours refer to the situation where the case which the Tribunal did not rule upon was one on which the applicant had “based” his case. If that is the relevant test, then any issue of unfairness to the Tribunal does not arise. But if that is the test then the applicant in the present case can not succeed. In no way can it be said that the applicant based himself on a case where his fear of persecution on religious grounds arose from the imputation to him of Baha'i beliefs because of his friendship with his girlfriend or other friends who happened to have that faith. The only relevant case upon which the applicant based himself was a fear of persecution because of conversion (or rather, intended conversion) to the Baha'i faith.
[23] The test adopted by Merkel J and approved by Full Courts of this Court, which are binding upon me is clearly a lesser test. To come within it, it would suffice that the material or other evidence before the Tribunal raises the case, even if the case is not one on which the applicant bases himself and therefore raises squarely for decision by the Tribunal. I have some doubt whether this test is really consistent with what is said in Yusuf but, in any event, as I have said, I am bound by the decision of full courts and am content to accept the test as set out in the extract from the judgment of Merkel J above.”
That difficulty appears to have been addressed on appeal in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs,[12] where Cooper J, with whom Carr J agreed, said at [19]:
“For the purposes of this appeal, the alternative case of a well-founded fear of being persecuted for reasons of religion as a result of having imputed to the appellant the religious beliefs of those Baha’is with whom he associated, had to arise squarely on the materials available to the [Refugee Review Tribunal (RRT)] before it had a statutory duty to consider it. That is, it had to arise squarely on the history of past events and the account and justification of present fears…”
[12] (2003) 129 FCR 137.
The decision of Hill J at first instance was upheld because, as was accepted on appeal, the applicant had not addressed in an evidentiary sense the matter of subjective concern required to causally link the Convention reason and his fear of persecution.
However, the Full Court’s acceptance of Hill J’s approach and his observations of the need for the matter to be “squarely” raised, an approach accepted by the Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[13]at [58], reflect the need to assess whether the issue was indeed squarely raised. In this instance, the issue of behaviour modification was not squarely raised. In my view it was not enough to make an ambit allegation by reference to the statement of another contained in another application. As the court book demonstrates, the other statement did not make it before the reviewer in this application. Each application is separately assessed. I do not think that it is enough to speculate on the reviewer drawing inferences on the basis that particular applicants are related. In the circumstances I do not consider the applicant to have properly made out this ground.
[13] Supra.
Ground 2 – Failure to reasonably speculate given findings in mother’s case
The applicant contends that a further failure or jurisdictional error arose because the reviewer failed to “reasonably speculate regarding the risk of harm facing the Applicant for reasons of his imputed Iranian race and/or Shi’a Muslim faith given the findings made in his mother’s case drawing on country information of “oppressive treatment” …” [and notwithstanding the lack of “serious harm” suffered by him in the past (although, implicitly, acceptance of past harassment over a period of time).]
Three particular issues were also agitated:
a)the mother’s case (particularly her age and implied vulnerability);
b)the contextual and familial links between the mother and her sons; and
c)the reviewer’s actual notice of the relationship between the applicant and his mother.
It was contended that these factors had an important consequence. The applicant submitted that once the reviewer had found in favour of the mother, based on the same country information considered in the applicant’s case, it was incumbent upon her to consider the claims of the two sons and ask “what if I am wrong?” In particular, he relied upon the observations in the Minister for Immigration and Multicultural Affairs v Rajalingam,[14] where Sackville J (with whom North J agreed and Kenny J, in separate reasons, took a similar approach) discussed the principles to be applied when it is claimed that a Tribunal should have considered the possibility that its findings of primary facts were wrong, before reaching an affirmative conclusion that an applicant did not have a well founded fear of persecution. He noted his Honour’s observations:
[14] (1999) 93 FCR 220.
“[60]… there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a “real substantial basis” for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
…
[62] In this context, it is not always possible for the decision maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution …
[63] Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement … as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not …”
It was in that context that the applicant contended that the reviewer had failed to proceed to speculate regarding the risk of harm facing him for reasons of his imputed Iranian race or Shi’a Muslim faith given that she had made findings in the mother’s case that drew upon country information.
For the respondent it was contended that Rajalingam stands for the proposition that a decision maker may need to consider the possibility that an alleged past event took place when uncertain as to whether it occurred. That is even though the probabilities are against it in considering whether there is a real chance of future harm. The respondent noted the observations of Sackville J, particularly at [60] to [63], which support the proposition that “when the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question.” That matter still depended on “the significance of the alleged event to the ultimate question.”[15] As the respondent noted, Sackville J continued: “a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claim for fear of persecution but that of itself was a matter of degree”. Significantly the respondent further noted his Honour’s observations at [67]:
“In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” … that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT's reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error” … Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.”
[15] At [62].
In this case, the reviewer accepted the applicant’s claims of past harassment. Accordingly, it was submitted that there could not be said to be any doubt as to the relevant facts as the alleged past events were found to have occurred. It was submitted that this case was not one where there was a foreclosure of reasonable speculation about the chances of a hypothetical future event occurring as is contended for by the applicant. As the respondent noted, the applicant’s contention appears to be that reasonable speculation ought extend to circumstances where it was contended that the reviewer ought to have had doubts as to her ultimate conclusions because she reached different conclusions in a similar but distinguishable case.[16]
[16] First Respondent’s Contentions of Fact and Law at [17].
The applicant does concede that there were distinguishing features in the mother’s case. Significantly, the applicant’s mother was found to have suffered persecution in the past on the basis that, as “a woman of mature years,” she could not be expected to tolerate the oppressive treatment that she had experienced. However, the applicant and his sibling were found to be in a different situation. It follows that there was no warrant for the reviewer to engage in speculation that she may have reached the wrong conclusion with respect to the sons because she had reached a different conclusion with respect to the mother on the basis of different facts. In my view the applicant’s contention on this ground fails.
Conclusion
The applicant seeks judicial review of an unfavourable IMR determination. He raised two grounds:
a)First, that the reviewer failed to take account of his claim that he had modified his behaviour because of fear of persecution for a Convention reason; and
b)That the reviewer failed to address the “what if I am wrong?” test.
I have concluded that the reviewer has not erred in either instance.
Order
Application dismissed.
Unless application is made for any other orders within fourteen (14) days, the applicant pay the respondent’s costs fixed in the sum of $6,240.00.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 30 November 2012
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