DZABF v Minister for Immigration - [2012] FMCA 1066

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZABF v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1066

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

Appellant S395/2002 v MIMA (2003) 216 CLR 473
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Applicant:

DZABF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

INDEPENDENT MERITS REVIEWER

File Number:

DNG 40 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 first Respondent:

Mr T. Anderson

Solicitors for the first Respondent:

Australian Government Solicitor

Counsel for the second Respondent:

Mr T. Anderson

Solicitors for the second Respondent:

Australian Government Solicitor

ORDERS

That the application filed 8 August 2011 be 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 40 of 2011

DZABF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

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 experienced during the regime of Saddam Hussein. The applicant and his family returned to Iraq in 2005 where he applied for and was issued Iraqi citizenship.
He arrived in Australia on 1 September 2010, and on 7 September made an unsuccessful request for Refugee Status Assessment (RSA). On 28 December 2010, he applied for an Independent Merits Review (IMR). The IMR was determined by report dated 29 June 2011 and a decision was formally reported on 5 July 2011. The reviewer found that the applicant did not meet the criterion for a protection 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 Refugee Convention.
The applicant was unhappy with that determination and sought judicial review by way of this 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)The reviewer misunderstood and/or misconstrued a criterion, that 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 and/or failed to consider an issue going directly to the question of whether that criterion was satisfied and/or a central element of the applicant’s claim, in that:
i)The reviewer failed to consider the claim that the applicant modified his religious practice in order to mitigate harm emanating 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 (also 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 and 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 first criterion complained of was an alleged failure by the reviewer to consider the clearly articulated claim that the applicant had modified his religious practice in order to mitigate the risk of harm from others and that the reviewer did not consider whether the applicant had a well-founded fear of persecution on this account. The applicant contends that clear jurisdictional error arose in the decision because of the reviewer’s failure to consider an articulated a claim made by the applicant, a claim which was recognised by the reviewer and posed for determination, but never dealt with either expressly or impliedly by the reviewer.
The applicant claimed that, by reason of his well-founded fear of religious persecution, he had modified his conduct. He says that he was forced to modify his religious practices because of a fear of persecution at the hands of local Sunnis. In the course of his interview with the reviewer, the following exchange occurred:
“…
MS BARTLETT: Do you practise [sic] your Shi’a faith outside of your home?
INTERPRETER: No, we can’t. If I want to go to the Shi’a mosque I would be afraid to go there, so I will pray at home.
MS BARTLETT: Do you ever go to the mosque?
INTERPRETER: No, I never.
MS BARTLETT: The Shi’as mosque, is it a long way from your home or close?
INTERPRETER: A distance.
MS BARTLETT: What sort of distance, if walking?
INTERPRETER: A few minutes – between five to seven minutes.
MS BARTLETT: That’s walking?
INTERPRETER: Yes.
MS BARTLETT: That’s close.
INTERPRETER: It’s not about the distance, it’s the fear. I fear if I go – I’m scared for myself I might be – I feel that I might be killed, and because I am born in Iran, you know, it’s obvious and they will say, “He’s Iranian and he’s coming here to pray.”
MS BARTLETT: Who is it you think might want to kill you?
INTERPRETER: The Sunni. When somebody will try to threaten somebody he wouldn’t come uncovered or something, he would be using either glasses or something.
MS BARTLETT: If that’s the case, that if someone comes they will be covered, how will you know if they are Sunni?
INTERPRETER: It’s obvious. We live in (indistinct) place in Musayyib, you know, the minority is Shi’a. That’s for a Shi’a person who – impossible he will do such a thing because he will think he’s Shi’a like me …”[1]
[1] IMR Interview transcript page 9 ln 36 – 45; page 10 ln 1 – 33.
In her reasons, the reviewer observed concerning this evidence:
“[14] … He can’t practice his Shi’a faith outside of home because if he wants to go to the Shi’a Mosque he is afraid so he prays at home. It is about a five to seven minute walk to the nearest Shi’a Mosque, so it is not the distance but the fear of walking there as he may be killed as it is obvious he was born in Iran. He fears it is Sunni people who will kill him, and that they will come covered or with glasses on. It is obvious they will Sunni Muslim because they live in Mussayab and in their area Shi’a are a minority …”
Plainly, she did not appear to reject this evidence, for at [16] she observed:
“[The applicant’s] agent submitted that the claims are concerned with (i) Shi’a religion – in his area followers of Sunni outnumber followers of Shi’a Islam, and whilst sectarian violence may have reduced [the applicant] has a daily fear of violence in his area so he prays at home rather than walking five to seven minutes to the Shi’a mosque, and (ii) his membership of the particular social group Iranian born Iraqi Citizen identifiable by his Iranian accent despite speaking Arabic.”
In her findings, the reviewer accepted that because of his Iranian accent the applicant was imputed by other people as being Iranian and of the Shi’a Muslim faith.[2] It is in my view clearly implicit in her conclusion that, even accepting the applicant’s response, his modified behaviour was an involuntary response to those factors. There was no evidence to suggest otherwise and in the absence of such an explanation, together with the evidence of low level harassment, it was a fair conclusion to draw. The applicant’s case required too fine a reading of the reviewer’s decision. It is well settled that the administrative decision should not be read with an eye finely attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[3] Respectfully, that is what the applicant seeks to do in this instance.
[2] IMR at [25].
[3] (1996) 185 CLR 259.
That left the objective basis for a real fear of persecution for consideration. In addressing the “real chance of persecution,” at [27] the reviewer observed:
“[27] The reviewer accepts [the applicant] prefers to pray at home rather than at the Mosque as he fears Sunni people may kill him, as he believes it is obvious he was born in Iran. The reviewer must determine, however, whether in [the applicant’s] case, his [sic] there is a real chance he will experience serious harm amounting to persecution as provided for in the Refugee Convention.”
At [28] she dealt with the matter of religion as follows:
“[28] The reviewer accepts [the applicant] is of the Shi’a Muslim religion and notes at his entry interview he is recorded as stating No [original emphasis] to the questions asked of him if he (or family members) has/have been associated or involved with political groups or organisations, protests … Based on [the] independent [country] information and the finding [the applicant] has not suffered serious harm in the past for any Refugee Convention reason, the reviewer finds there is nothing more than a remote chance now and in the reasonably foreseeable future [the applicant] will be the victim of systematic and discriminatory conduct for the essential and significant reason/s of his imputed Iranian race, imputed Iranian nationality and Shi’a Muslim faith …”
The respondent contends that it is plain that the reviewer understood and addressed the applicant’s modification of behaviour claim. In fact, the respondent points to the reviewer’s conclusion at [34] where she stated:
“[34] As it has been found [the applicant’s] past experiences have not amounted to serious harm, and there is nothing more than a remote chance now and in the reasonably foreseeable future he will be the victim of systematic and discriminatory conduct for the essential and significant reasons of his imputed Iranian race, imputed Iranian nationality and Shi’a Muslim religion, the reviewer finds his fear of being killed by Sunni followers or being harmed because it is obvious he was born in Iran, are not well founded.”
At paragraph 10 of its submissions, the respondent contended that in the context of recognising the past (or likely future) modification of his behaviour the reviewer expressly recognised that, notwithstanding the modified behaviour, her obligation was to determine whether his fear was well-founded, based upon the real chance test. It was submitted that it was clear to her that the behaviour modification was involuntary in the sense that it was motivated by the fear of death. However, the submission noted that the reviewer went on to find that on the basis of country information there was only a remote chance of future harm and that the applicant’s fears were therefore not well-founded. Accordingly, adopting a beneficial reading of the report, the deficiencies alleged by the applicant in the approach of the reviewer are not disclosed: Appellant S395/2002 v MIMA.[4]
[4] (2003) 216 CLR 473.
While it is correct to say that the reviewer did not expressly state that the applicant did or did not modify his behaviour (by not going to a Shi’a mosque because of fear of persecution), the respondent contends that consideration of this matter was implicit in her findings. In particular, it says that it was implicit in the findings that the reviewer concluded there was nothing more than a remote chance, now or in the reasonably foreseeable future, that he would be subject to offending conduct for the essential and significant reasons of his imputed Iranian race and Shi’a Muslim religion. The basis for this contention follows the logic that although the applicant modified his behaviour, that would only be of consequence if he did so for a Convention reason. For a person to fall within the Convention definition of a “refugee,” the person must have a well-founded fear of persecution for a Convention reason. There must be objective reasons for a fear of persecution as well as a subjective fear for the particular Convention reasons.
Therefore, to succeed the applicant had to satisfy the reviewer that there was:
a)a risk of harm because of his religious beliefs causing him to modify his behaviour; and
b)a subjective fear of persecution on religious grounds as a result of his religious beliefs without his modified behaviour.
It also had to be established that there was objective evidence to show that that fear of persecution is well-founded. In this instance that was contained in the country information. However given the fact that the applicant had not previously been harmed the reviewer considered that there was nothing more than a remote chance now or in the reasonably foreseeable future that the applicant was at risk of serious harm.
It followed that there was no Convention reason to support his conduct and accordingly his fears were not well-founded. In that event, the need for his conduct modification was unwarranted, and upon that basis the issue raised by the applicant was considered and impliedly addressed, albeit against the applicant.
It follows that I am not satisfied that the applicant has made out this ground.

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).”[5]
[5] Applicant’s Contentions of Fact and Law at [47].
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 reasonably speculate by asking “what if I am wrong?” In particular, he relied upon the observations in Minister for Immigration and Multicultural Affairs v Rajalingam,[6] 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:
[6] (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 and Shi’a Muslim faith given that she had made findings in the mother’s case drawing on country information.
For the respondent it was contended that Rajalingam stands for the proposition a decision maker may need to consider the possibility that an alleged past event took place if uncertain as to whether it occurred, 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 [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.”[7] That matter still depended on “the significance of the alleged event to the ultimate question.” 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 claimed fear of persecution,” but that of itself was a matter of degree. Significantly however, at [67], the respondent noted his Honour continued:
“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.”
[7] At para [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 the reviewer “ought to have had doubts as to her ultimate conclusions because she reached different conclusions in a similar, but distinguishable case.”
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 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 also fails.

Conclusion

The applicant seeks judicial review of an unfavourable IMR determination. He raised two grounds:
a)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 twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date: 30 November 2012