DZABW v Minister for Immigration
[2012] FMCA 1106
•30 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZABW v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1106 |
| MIGRATION – Judicial review – independent merits review – whether misconstruction or misunderstanding of the Convention and Migration Act 1958 (Cth) – whether real chance of future harm. |
| Migration Act 1958 (Cth), ss.5, 91R, 476(1) |
| Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | DZABW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DR RON WHITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 58 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 8 March 2012 |
| Date of Last Submission: | 8 March 2012 |
| Delivered at: | Perth (by telephone to Darwin) |
| Delivered on: | 30 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gibson (with Ms R Sharkey) |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the First Respondent: | Mr T Anderson (with Ms K-M Kinniard) |
| Solicitors for the First Respondent: | Clayton Utz |
| For the Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
DNG 58 of 2011
| DZABW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DR RON WHITTON IN HIS 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 in respect of a recommendation by an independent merits reviewer.[2] The IMR recommended 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] “IMR Recommendation” (at Court Book (“CB”) 159-173) and “IMR” respectively.
[3] Collectively “the Convention”.
Relief sought
The applicant seeks the following relief:
a)a declaration that the IMR Recommendation was not made in accordance with law, by reason of the ground/s of this application;
b)an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the IMR Recommendation;
c)an order remitting the matter to the IMR (differently constituted) for determination according to law;
d)any other order which the Court thinks fit; and
e)costs.
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 IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[4]
[4] 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”).
Grounds of application
The grounds of application are set out in the application as follows:
1.The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend that the Applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status Refugees, as amended by the 1967 Protocol relating to the Status of Refugees and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction and/or the decision was affected by an error of law.
PARTICULARS
In that it misunderstood and/or misconstrued a criterion (being the test under the Refugees Convention) about which it had to be satisfied for the purposes of establishing whether the Applicant was owed protection obligations pursuant to s36 of the Migration 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.
a)The reasoning of the Second Respondent reflected a misunderstanding and/or misconstruction of the Convention and/or of s91R(1)(c) of the Act. In the context of assessing the real chance of future harm following the immediately preceding finding (at [48]) that the Applicant had suffered serious harm in an attack for Convention reasons of imputed opinion of support for the government, the finding of past persecution clearly represented a finding that the act in question was ‘deliberate, premeditated or intended’ and thus the attack and the harm suffered by the Applicant was “selective” and “non-random”. Given the clearly implied finding that the attack must have been non-random it is wrong and a misconstruction of the test and/or of s91R(1)(c) to use the supposed ‘random’ nature of that attack together with the relatively few people who were injured to reject a “real chance” of future harm. At [54] the same reasoning was repeated in the context of a situation were the Applicant to volunteer for military service again that the “serious harm suffered was of such a random nature that there is not a real chance it will re-occur”. The Second respondent fell into legal and/or jurisdictional error when it predicated the likelihood of future harm on the ‘random’ nature of the attack and the serious harm suffered when both the attack and the serious harm suffered could not be characterised as anything other than non-random (or selective) satisfying s91R(c).[5]
[5] Transcribed from the original without amendment.
Background
The applicant is an offshore entry person, as that term is defined at s.5 of the Migration Act. He arrived at Christmas Island on 17 November 2010. His claims for asylum were subsequently considered during a Refugee Status Assessment[6] and by the IMR.[7]
[6] CB 123-132 (“RSA”).
[7] CB 159-173.
The applicant is an Iraqi Kurd who was injured during a terrorist attack upon an army recruitment centre in Baghdad while he was waiting in a very large group with others to apply to join the army. Both the RSA,[8] and more particularly the IMR,[9] found that the applicant had suffered serious harm for a Convention reason (his imputed political opinion of support for the Iraqi government), but that there was not a real chance a similar fate would befall him if he returned to Iraq. That finding was expressed as follows:
On the basis of the claimant’s wounds and the medical report submitted, the reviewer accepts that the claimant was injured in an explosion in August 2010 when he and some 600 others were in an army base where they had gathered to apply to join the Iraqi army. The reviewer accepts that this represented serious harm to the claimant and that it was inflicted on him by non-state agents who had imputed to him the political opinion of support for the Iraqi government. Given the random nature of that attack and that he was one of only a relatively few people injured out of the approximately 800 army volunteers present, the reviewer finds that were he to again volunteer to join the army, there is not a real chance that he would suffer serious harm for reason of an imputed political opinion of support for the Iraqi government.[10]
The IMR also found that:
The reviewer has also considered the claimant’s claim that he may in the foreseeable future suffer serious harm for reason of actual or imputed political opinion on the basis that he is perceived to be supportive of the current Iraqi government or the multi-national forces currently in Iraq. The reviewer has no evidence before him that there is a real chance the claimant would ... suffer serious harm for this reason. As discussed above, the only action he has taken in this regard in the past was to volunteer for military service and the reviewer has found that the serious harm he suffered was of such a random nature that there is not a real chance it would re-occur.[11]
[8] CB 130-131.
[9] CB 170, IMR Recommendation at para.48.
[10] CB 170, IMR Recommendation at para.48.
[11] CB 172, IMR Recommendation at para.54.
In reaching the above finding both the RSA and the IMR rejected, on credibility grounds, the applicant’s account of having been publicly identified by press reports of the attack, and of subsequently receiving written and verbal threats.[12]
Submissions
[12] At CB 130 and CB 170-171, IMR Recommendation at para.49 respectively.
Applicant’s submissions
As to what errors were reviewable the applicant submitted that:
… in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion.[13]
[13] VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 at para.16 per Wilcox, Gray and RD Nicholson JJ. See also Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 (2003) (“S157”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441; [2003] HCA 1 (“S134”) cited by the applicant.
The applicant submitted that:
a)it was important when approaching the Convention test and whether any fear of persecution is well-founded, that is, whether there is a real chance of persecution occurring in the reasonably foreseeable future, that what the IMR says must be taken as constituting the basis of his understanding of the various principles which are to be applied;
b)in the present case there is no antecedent statement of fundamental principles regarding how the IMR should go about his jurisdictional task in interpreting the Convention (as there usually is with a Refugee Review Tribunal decision), so the Court is entitled to take what appears on its face in the relevant parts of the IMR Recommendation as the IMR’s understanding of the principles to be applied in its consideration of whether the applicant is someone to whom Australia owes protection obligations;[14]
[14] Minister for Immigration & Citizenship v MZYLE (No 2) [2011] FCA 1467 at para.35 per North J (“MZYLE (No. 2)”).
c)the reasoning of the IMR reflected a misunderstanding or misconstruction of the Convention and of s.91R(1)(c) of the Migration Act;
d)the argument hinges on the use of the term “random”[15] in the context of assessing the real chance of future harm following the finding that the applicant had suffered serious harm in an attack for Convention reasons of imputed political opinion of support for the government,[16] the finding of past persecution clearly represented a finding that the act in question was “deliberate, premeditated or intended”, and thus the attack and the harm suffered by the applicant was “selective” and “non-random”;
[15] CB 170, IMR Recommendation at para.48.
[16] CB 170, IMR Recommendation at para.48.
e)section 91R(3) of the Migration Act requires persecution to be “systematic” for a Convention reason, and there is clear authority that an essential element in the act of persecution is that it be non-random;[17]
[17] Minister for Immigration & Multicultural Affairsv Haji Ibrahim (2000) 204 CLR 1 at 30 per McHugh J; [2000] HCA 55 at para.95 per McHugh J (“Ibrahim”).
f)a random act means a non-selective act, that is, not deliberate or premeditated or intended. Unsystematic or random acts are non-selective;[18]
[18] IbrahimCLR at 27-32 per McHugh J; HCA at paras.88-101, particularly at paras.99 and 100 per McHugh J; SBWD v Minister for Immigration & Anor [2007] FMCA 1156 (“SBWD”) at para.42 per Lindsay FM.
g)in SZJVD & Ors v Minister for Immigration & Anor[19] this Court said:
[19] [2007] FMCA 817 (“SZJVD”).
Although the event in question was fortuitous and, indeed, isolated, as the Minister has submitted, the conduct towards the applicant was not random or unsystematic in the sense of being non-selective. The fact that the applicant and his wife were in the wrong place at the wrong time, as the Tribunal described it, was a random chance but the treatment which was meted out to the applicant was not random. It was specifically directed towards him by his political opponents because he was their political opponent. To this extent, the Tribunal erred in finding that the conduct in question was not systematic and discriminatory.[20]
[20] SZJVD at para.18 per Cameron FM, cited in SBWD at paras.39 and 40 per Lindsay FM.
h)given the construction that must be placed on the terms “random” and “non-random”, it is wrong, and a misconstruction of the test, or of s.91R(1)(c) of the Migration Act, to use the supposed “random” nature of that attack, together with the relatively few people who were injured, to reject a “real chance” of future harm;
i)the IMR’s reasoning was repeated in the context of a situation that, were the applicant to volunteer for military service again, the “serious harm suffered was of such a random nature that there is not a real chance it will re-occur”;[21]
j)in view of the “intentional” targeting of the recruits, and thus the Convention-related infliction of serious harm by non-state agents who had imputed to the applicant support for the Iraqi government, the use of the term “random” to describe the attack, when it could not be so described, and to characterise the chance of its re-occurrence in this way, demonstrates a legal or jurisdictional error;
k)in this instance, and as the reasoning in SZJVD indicates, the applicant could be regarded as being in the wrong place at the wrong time and, in that sense, it was a random chance that he was caught up in the targeted killings. But, as is reasoned in SZJVD, the treatment meted out or suffered was not random. It was, therefore, incorrect to predicate the likelihood of future harm on the “random” nature of the attack and the serious harm suffered, when both the attack and the serious harm suffered could not be characterised as anything other than non-random, or selective. This is particularly so in the context of the applicant’s claim as a Shia Muslim where the “random bombing” of public places which might be characterised more as “generalised”, and thus indiscriminate violence,[22] goes some way to show the error of using the same word without distinction to cover different meanings;
l)the importance of the relationship between past persecution and the chance of future persecution is made clear in Minister for Immigration & Ethnic Affairs v Guo& Anor[23] where the High Court stated:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events….[24]
m)the IMR fell into legal or jurisdictional error when it predicated the likelihood of future harm on the “random” nature of the attack when both the attack and the serious harm suffered could not be characterised as anything other than non-random, or selective, thereby satisfying s.91R(1)(c) of the Migration Act.
[21] CB 172, IMR Recommendation para.54 (applicant’s emphasis in the Applicant’s Contentions of Fact and Law at para.34).
[22] CB 171, IMR Recommendation at para.50.
[23] (1997) 191 CLR 559 (“Guo”).
[24] Guo at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
Minister’s submissions
The Minister submits as follows:
a)the applicant’s sole ground of complaint is that the IMR’s use of the word “random”[25] demonstrates the IMR’s misunderstanding or misconstruction of s.91R(1)(c) of the Migration Act, that is, the requirement that persecution involve systematic and discriminatory conduct, which in turn affected the IMR’s application of the real chance test. The Minister’s retort is that on a fair reading that is not so;
[25] CB 170, IMR Recommendation at para.48.
b)as the applicant notes in his contentions,[26] the IMR found that the applicant had suffered serious harm in the attack for a Convention reason. It is implicit in this finding that the persecution was systematic in that the attackers deliberately targeted those seeking to join the Iraqi army because of their imputed political opinion. In that sense the attack was selective.[27] There is nothing in the IMR Recommendation to suggest the IMR considered otherwise. If he considered the attack was “random” in the sense suggested by the applicant, the IMR would not have been able to conclude that it was Convention related in the sense that the attackers targeted the group because of their imputed political opinion of support for the Iraqi government;
[26] Applicant’s Contentions of Fact and Law at para.28.
[27] Applicant’s Contentions of Fact and Law at para.36.
c)the question for the Court in this matter is the same as arose in SBWD:
What does the Tribunal mean when it uses the word 'random' in this context? It will be recalled that McHugh J in Ibrahim eschewed use of the expression 'systematic conduct' except if it is made clear that the reference is to 'non-random' acts; inferentially random acts can be taken to be non-systematic. But the discussion preceding that passage in Ibrahim makes it clear that His Honour was referring to non-random acts in the sense of non-selective acts: an act would be random if it was not deliberate or premeditated or intended. Is this the sense in which the Tribunal has used the word 'random'?[28]
d)in SBWD the Tribunal found “that religious violence in Nigeria is random and sporadic in nature and, therefore, not “systematic””.[29] The Court ultimately concluded that the Tribunal had applied a “faulty process of reasoning” in concluding that religious violence “that erupts from time to time” was “random and sporadic” and therefore not systematic, when, in the view of the Court, “religious violence which erupts from time to time might yet be systematic”;[30]
e)in contrast, in this matter, the word “random” was not used by the IMR in his consideration of whether the applicant had been the subject of systematic persecution for a Convention reason in the past, as noted above. The IMR only used it in considering whether there was a real chance the applicant would suffer serious harm by reason of an imputed political opinion in the future. For this reason alone, it must be seen to have no relevance to the question of whether the IMR misunderstood or misconstrued the aspect of s.91R of the Migration Act that requires persecution to involve systematic and discriminatory conduct;
f)the IMR uses the word “random”[31] to convey the unpredictable nature of the attacks. It is impossible to know when they may occur and whether any individual may be “in the wrong place at the wrong time”. As the Court held in SZJVD, there may be a “random chance” of an individual suffering harm, albeit if the individual does come to harm the treatment may not be “random or unsystematic in the sense of being non-selective”.[32] Clearly, this was the IMR’s meaning;[33]
g)after finding that the applicant had been the victim of a selective attack,[34] the IMR described the “random nature” of the attack in determining that there was not a real chance of the applicant being harmed in that way again. The IMR identified two aspects to this randomness: implicitly, that the timing was unpredictable and expressly, that because 800 odd people in the group were targeted it was impossible to predict who may be injured;
h)on the basis of country information cited in the RSA report[35] the IMR accepted that there continued to be Sunni-Shia sectarian conflict in Iraq resulting in the bombing of public places.[36] It is clear from the country information that this violence involved targeted attacks and was not non-selective or random in that sense. In describing the “random nature” of the bombings, the IMR’s intended meaning was that it is impossible to know when they may occur and whether any individual may be “in the wrong place at the wrong time”;[37]
i)in SZJVD (which like SBWD, but unlike this case, involved a Tribunal finding that persecution was not systematic), the Court found that the Tribunal had erred in misunderstanding the term “systematic” and so finding the conduct in question was not systematic, but that “its consequential conclusion that it was not satisfied that the applicant had a real chance of suffering similar harm in the reasonably foreseeable future was not affected by error”, as it “was a finding open to the Tribunal on the material before it and is not affected by its misunderstanding of the term “systematic””.[38] It was “a finding of fact unaffected by jurisdictional error and not susceptible to review”;[39]
j)in this matter, the applicant challenges the IMR’s finding that there was not a real chance of future harm because he characterised that chance as random, notwithstanding that the applicant accepts the IMR found that the past persecution was selective and non-random.[40] The IMR’s finding with respect to the real chance test was, however, a finding of fact for him alone, and not amenable to review in the manner suggested by the applicant. The Minister notes that the applicant does not challenge that finding on the basis that it was illogical, irrational or unreasonable (in the Wednesbury sense), or that it was made on a misunderstanding of the evidence, or following failure to consider relevant evidence, or for any other such reason; and
k)the IMR Recommendation does not reveal any misunderstanding or misconstruction of s.91R(1) of the Migration Act. Further, there is no error in the application of the real chance test. Even if there has been a misunderstanding of s.91R(1) of the Migration Act it does not necessarily follow that such error infects the real chance consideration, as SZJVD demonstrates.
[28] SBWD at para.42 per Lindsay FM (Minister’s added emphasis).
[29] SBWD at paras.35 and 42 per Lindsay FM.
[30] SBWD at para.47 per Lindsay FM.
[31] CB 170 and 171, IMR Recommendation at paras.48 and 51.
[32] SZJVD at para.18 per Cameron FM.
[33] CB 170 and 171, IMR Recommendation at paras.48 and 51.
[34] CB 170, IMR Recommendation at para.48.
[35] CB 127-128.
[36] CB 171, IMR Recommendation at para.50.
[37] CB 170, IMR Recommendation at para.48.
[38] SZJVD at para.19 per Cameron FM.
[39] SZJVD at para.21 per Cameron FM.
[40] Applicant’s Contentions of Fact and Law at paras.28 and 36.
Consideration
In Guo, in relation to the predictability of future events which might give rise to a real chance of serious harm, the High Court observed that there would be cases where “the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.”[41] That determination requires an estimation of the likelihood that an event will give rise to the occurrence of conduct causing serious harm, and in that respect, regard must be had to what has occurred in the past as a guide to what might happen in the future.[42]
[41] Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[42] Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
In SZJVD the attack on the applicant and his wife because they were in the wrong place at the wrong time was a random chance, but the treatment that they suffered was not random, but specifically directed to the applicant by his attackers who were his political opponents. The Court considered that the conduct in question was systematic and discriminatory for the purposes of s.91R(1)(c) of the Migration Act, contrary to what was found by the Tribunal.[43]
[43] SZJVD at para.18 per Cameron FM.
In SZJVD the Court went on to find that there was a consequential conclusion by the Tribunal that it was not satisfied that the applicant had a real chance of suffering similar harm in the reasonably foreseeable future. That was a finding which was held to be open to the Tribunal on the material before it, and a finding of fact unaffected by jurisdictional error and not susceptible to judicial review by this Court.[44] Although not adverted to in submissions by either party, SZJVD was appealed, unsuccessfully.[45] The Federal Court concluded that there was no error in the findings of this Court concerning the Tribunal’s consequential conclusion that it was not satisfied that there was a real chance of the applicant in those proceedings suffering similar harm in the reasonably foreseeable future, and that there was evidence to support that finding by the Tribunal.[46] The Federal Court concluded that:
Therefore, in regard to both the 1999 rickshaw incident and the 1996 attack, even if there was an error by the Tribunal in connection with its understanding of the word “systematic and discriminatory”, this did not affect its independent view, clearly open on the evidence, that there was no real chance that the conduct in question would occur in the future.[47]
[44] SZJVD at paras.19-21 per Cameron FM.
[45] SZJVD v Minister for Immigration & Citizenship [2007] FCA 1302 (“SZJVD Appeal”).
[46] SZJVD Appeal at paras.29, 31 and 33 per Middleton J.
[47] SZJVD Appeal at para.34 per Middleton J.
In this case, irrespective of the finding as to the random nature of the attack which resulted in injury which constituted serious harm to the applicant as a result of him being imputed with the political opinion of support for the Iraqi government by non-state agents, the IMR went on to consider the possibility of such serious harm occurring in the future. In that regard, the IMR considered past events, namely the attack in August 2010 which gave rise to the applicant’s injury which constituted serious harm, and went on to consider whether or not it was likely that the applicant would suffer serious harm in the foreseeable future by reason of him being perceived to be supportive of the current Iraqi government or the multi-national forces currently in Iraq. The IMR noted that the only action that the applicant had taken in the past was to volunteer for military service, and noted that the serious harm he had suffered “was of such a random nature that there is not a real chance it would recur.”[48] This was a finding, not in relation to the nature of the conduct for the purposes of s.91R(1)(c) of the Migration Act, but in relation to the possibility of future harm. Of that possibility the IMR said that there was “no evidence” that there is “a real chance” that the applicant would “suffer serious harm” by reason of an actual or imputed political opinion based on his support of the current Iraqi government or the multi-national forces currently in Iraq.[49]
[48] CB 172, IMR Recommendation at para.54.
[49] CB 172, IMR Recommendation at para.54.
In the circumstances, the IMR, having had regard to the evidence of past events, and the evidence of the likelihood of foreseeable future serious harm to the applicant, found that it did not give rise to a likelihood that there was a real chance that the serious harm the applicant had suffered would recur, or that there was a real chance that the applicant would suffer serious harm on the basis of his actual imputed political opinion in the future.[50] In that regard, the IMR has found that, for practical purposes, there is not a sufficient likelihood of serious harm in the foreseeable future to the applicant, and has done so in a manner consistent with that prescribed by the High Court in Guo.[51] To make any finding of that type in relation to these matters is to make a finding as to a consequential conclusion not dissimilar to that made by this Court in SZJVD, upheld on appeal in SZJVD Appeal, and in respect of which an application for special leave was held not to have reasonable prospects of success, such that the special leave application was to be refused and dismissed.[52]
[50] CB 172, IMR Recommendation at para.54.
[51] Guo at 575 per per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[52] SZJVD & Ors v Minister for Immigration & Citizenship & Anor [2008] HCASL 62 at paras.5 and 6 per Kirby and Heydon JJ.
SBWD does not assist the applicant. In SBWD the Court dealt only with the systematic conduct issue, and not with the consequential conclusion arising therefrom, as the Court did in SZJVD.
It follows that, in the circumstance of this case, the Court does not consider that the applicant has established that there is any jurisdictional, or other legal or procedural, error in the IMR Recommendation.
Conclusions and orders
The Court has concluded that the applicant has failed to make out the grounds of his application. It follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 30 November 2012
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