DZADA v Minister for Immigration
[2012] FMCA 874
•17 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZADA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 874 |
| MIGRATION – Review of Independent Merits Review – application for protection – whether all integers of claim considered – no matters of principle. |
| Applicant: | DZADA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 13 of 2012 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 17 August 2012 |
| Date of Last Submission: | 17 August 2012 |
| Delivered at: | Darwin |
| Delivered on: | 17 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gilbert |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission. |
| Solicitors for the First Respondent: | Ms Watson |
| Solicitors for the Second Respondent: | Australian Government Solicitor. |
DECLARATION
The recommendation of the Second Respondent that the Applicant was not a person to whom Australia owed protection obligations was not made in accordance with law by reason of the failure of the Second Respondent to consider the Applicant’s claim that he was at risk of persecution by reason of his membership of a particular social group or imputed political opinion as a result of working as an Oil Policeman.
ORDERS
The First Respondent pay the Applicant’s costs fixed at $6471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 13 of 2012
| DZADA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITZENSHIP |
First Respondent
INDEPENDENT MERITS REVIEWER
Second Respondent
REASONS FOR JUDGMENT
(as revised from transcript)
This is an application for judicial review with respect to a decision by a reviewer, described as an independent merits reviewer.
The applicant arrived in Australia on 5 November 2010. The application for protection was first made on 3 March 2011 and decided in January 2012, following which there was an application to this court for judicial review of the decision by the reviewer.
The applicant’s primary claim in this case relates to the fact that he was a member of an oil police force or security force, that was set up to guard oil installations in Iraq.
The nature of this force or group is conveniently summarised in a US Department of Defence report, quoted by the reviewer, which says as follows:
34. The US Department of Defense reports the following about the Oil Police (OP):
“The OP are responsible for protecting oil production infrastructure, including oil fields, pipelines, refineries, convoys, and retail stations, which are located throughout Iraq in both remote and urban areas. The OP organization includes three districts (North, Center, and South) and an HQ element in Baghdad collocated with the MoO (Ministry of Oil). The organization has 47 battalions (43 static and 4 Mobile Emergency Battalions).
The biggest challenge facing the OP today is a personnel shortage… As Iraq’s oil infrastructure grows, the number of OP personnel will have to increase to meet increasing protection responsibilities. All OP permanent hire personnel have completed the 240-hour BRT (Basic Recruit Training) course. OP leaders are actively involved in their organizations and are qualified for their positions with most officers trained in a police or military academy. The only significant shortfall in leadership is found in the junior officer and Non-Commissioned Officer (NCO) ranks.”
Source:
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During the course of his duties, he said that he had observed thieving at the installation and reported it, this led to the thieves being arrested and consequentially, it led to the tribe from whom the thieves appear to have been members, seeking to exact revenge against him for being a part of a series of events that resulted in their tribal members being arrested by the police. He also said that, as a result, he left the oil police force without giving appropriate notice and therefore was at risk of being arrested for having abandoned his post or deserting.
The two specific incidents were discussed in considerable detail in the materials, not only in written submissions, but also in the transcript and in the review decision. At the end of the first interview, the reviewer raised concerns about the extent to which there was a political connection between the events that the applicant had specifically referred to and the convention. That is whether there was a convention element. When the matter resumed on another day, the applicant set out considerable further material.
Given the nature of the particular issue that was raised before me, it is appropriate that I set out that section of the transcript in full:
INTERPRETER: I am a policeman and I work for the government, for the Iraqi government, and this current Iraqi government has a lot of opposition parties, and because I represent the government as I am a member of the police force, that makes me like a target for the opposition parties or resisting parties. This is in addition to the fact that I was working for the foreign forces, and some of the groups and parties in Iraq – militias – they are people who are cooperating or working with the foreigners as traitors. The reason for the persecution I am claiming is not just because I am a policeman – the reason wasn’t just because the problem I mentioned before. In addition to this, I am a policeman.
So just because I am a policeman, it presents a great danger for me. While doing my duties, a lot of people, they don’t like me being a policeman working for the government, and some of the tribes especially, they hate this. They don’t like this. So the last problem created- it’s a big problem. It creates a lot of danger for me, and it brought me up to the surface. I am now more noticed by people. So the tribe I’m talking about has a political power, and it’s resisting the current government. They don’t agree with the Iraqi government. So they have two factors of power. They have a tribal power and they have political power. That makes the problem big and grave for me, and actually they are against the government. They don’t support the Iraqi government.
So they are a tribe with a criminal history and they are currently opposing the Iraqi government, and this is the main problem for me. Being a policeman protecting the oil refineries is an important job. So it’s a target for them, and oil industry is the most powerful industry in Iraq. So all political parties, they conflict with each other. They compete to have control on this industry. So that makes us part of the conflict and as a target by the various political parties and opposing groups. So I was subject to danger at any time.
When we were patrolling the refineries, there were many explosions happen and we were targeted, shot at. Some of my colleagues got injured. They had been targeted. The latest event, which is the conflict with that tribe, increased the danger to my life. To stay in Iraq was kind of impossible for me, because they have the power, they have the weapons, and they have political arm. Like, they have some political power. My name became known to them after the latest incident. So I believe I am on the list to get killed. While I was working, our bosses, they used to warn us to be cautious and to protect ourselves, but now I can’t do this, because I am known now to that tribe. I can’t hide myself, I can’t do anything.
And they can reach me through their political power, because they have connection with some political parties who are actually members of the government, but some of these political parties which joined the government, they don’t agree with the government actually. So they can do anything against the government if it’s in their interests. The political power they have got because they have connection with one of the parties which is actually a member of the government, and the party they have connection with is actually an opposing party to the government. They don’t have that strong influence on them, but that party, they will do everything to gain the power over the oil ministry. So they may be able to help that tribe to get rid of me just to cause trouble to the government in order to say, “The current government cannot control the oil industry. We are more able to do this.”
So I’m a target by Al Mahdi militia. They are against anyone who is cooperating with the coalition forces, and being a member of the police force would place me in great danger. So this tribe is regarded as a member of Al Mahdi army, Al Mahdi militia. This tribe actually doesn’t belong to Basra society. So when people in Basra organised the…
This is recounted, at least briefly, at paragraphs 23 and 24 of the review decision, where the reviewer says:
23. When we resumed, several days later, I invited the claimant to tell me whatever he wished. He said that he had been a policeman, working for the government, which had a lot of political opposition. He represented the government, which made him a target for opposition forces. In addition, the fact that he was working with the foreign forces was regarded by some people as making him a traitor.
24. The reason he left Iraq was not just because he was a policeman and not just because of what he had mentioned previously. His work was very dangerous. Many people did not like him to work for the government, including some people in his own tribe.
The country information cited in this decision is very brief and appears to have nothing dealing with this issue as to whether or not oil police were targeted as a result of their perceived support for the government, even though that appears to have been part of the applicant’s claim.
When turning to the decision, in the findings and reasons section, it appears that the reviewer made some specific findings about the facts that the applicant put forward with respect to the theft and leaving his post at paragraphs 37 to 39, which provide as follows:
37. I accept that the facts presented by the claimant in relation to the events which proceeded his departure from Iraq. That is, I accept that he and a colleague found contraband in two vehicle sleaving the site which it was their responsibility to guard, that they reported what they had found, that, as a result, the two drivers were arrested and charged for theft and that the two guards responsible for reporting their discovery were threatened by fellow tribesman of the two drivers. I also accept that he would be punished according to law for having abandoned his job with the oil police.
38. Despite having been given every chance to do so, the claimant did not provide in his evidence a link to the Refugees Convention. The reason the Gramsha threatened him was because he had reported two fellow tribesmen for an illegal act in pursuit of his duty. I do not accept that their threats were for a reason of his political opinion, real or imputed, or for reason of his membership of a particular social group. In fact, the claimant did not ague otherwise.
39. As to his abandonment of his job, I have been unable to verify his claim that this is an offence, but, in the absence of contrary evidence, will accept the claimant’s statement and supporting documentary evidence. However, again, I find that whatever penalty is due would be pursuant to a law of general application. I questioned the claimant about the implementation of this law, in case its implementation was in any way discriminatory. However, the claimant said that it was not and was universally applied. I therefore find that there is no convention nexus.
The reviewer goes on to discuss the question of whether or not the persecution is for a reason of imputed political opinion at paragraph 41 when referring to earlier written submission by the applicant’s advisor, saying
41. I will, however, address the specific claims set out in this submission. Firstly, she argues that there is a really chance that the claimant would suffer persecution in Iraq for reason of an imputed political opinion. I cannot find in any of the claimant’s evidence a basis for this claim. Neither he is doing his job to report on that attempted theft nor his fleeing his job in fear of reprisals from a fellow tribesman of the people he reported his the basis for an imputes political opinion.
The key paragraphs that are relied upon by the applicant are conveniently read one following the other, that is, 38, 46 and 49, which provide as follows:
38. Despite having been given every chance to do so, the claimant did not provide in his evidence a link to the Refugees Convention. The reason the Gramsha threatened him was because he had reported two fellow tribesmen for an illegal act in pursuit of his duty. I do not accept that their threats were for a reason of his political opinion, real or imputed, or for reason of his membership of a particular social group. In fact, the claimant did not ague otherwise.
46. There is reference in the submission to the need to consider the claimant’s claims cumulatively. In terms of the facts presented by the claimant, there really are only two sets of facts, which are quite distinct. One set concerns his reporting an attempted theft and the threat from the Gramsha tribe. The other concerns the warrant for his arrest for having abandoned his post. Although one set of events gave rise to another, I do not see how considering the two sets at the same time is helpful. It certainly does not alter the answer to the question as to whether the facts presented by the claimant gave rise to a valid Convention claim.
49. The submission then goes on to argue that the claimant is a member of a particular social group, namely a security force. I accept that he was a member of a security force, but I do not accept that he was threatened for that reason. He was threatened because his report was instrumental in having two people arrested and sent to prison. He was not threatened simply because he was a member of the oil police.
It seems to me that when one reads these paragraphs, it is quite clear that, at each point, the reviewer is using, as their touchstone for making the decision, the factual events concerning the incident involving the thieves and the incident of his potential risk for leaving his post without permission or without giving appropriate notice.
This is particularly strong with respect to paragraph 46, where the reviewer quite properly steps back to look at the claimant’s claims cumulatively, that is, to look at his overall circumstances. This is the point at which one would have expected that a reviewer would consider whether he had a risk because of an imputed political opinion when one looks at all of the circumstances that have occurred. The terms of the paragraph appear to make clear that the reviewer looked only at the two specific incidents, the thieving and the leaving the post and didn’t mention the claims that the applicant had articulated at the second hearing with respect to the targeting of him and colleagues by people shooting at them and explosions occurring at the refineries.
These are certainly significant events that add to the factual matrix which supports the claim on a more generalised level of fear of attack for imputed political opinion, as opposed to the specific events that originally founded the applicant’s case. It appears to me that the more generalised claim did need to be dealt with and was, in fact, a separate integer from the claims relating to the two specific incidents that were initially pressed.
It was argued that I should read the reasons of decision as impliedly rejecting the evidence of the applicant relating to the more generalised attacks at page 2 to 3 of the transcript as being convention related.
This, it seems to me, does not sit with the terms of paragraph 46, where such matters would have been added to the factual melting pot in considering the matter cumulatively. Nowhere in the decision does the assessor appear to specifically reject the claims that the applicant has made on a factual basis at pages 2 to 3 of the transcript, although dealing clearly with an acceptance of various other facts at paragraph 37.
I am therefore not persuaded that this is an issue that has effectively been dealt with, rather it appears to me that a fair reading of the decision is that the reviewer, unfortunately, confined themselves to the two specific incidents of the thieves and abandoning his post, rather than dealing with the more generalised claim of imputed political opinion and generalised risk which was supported by the evidence that the applicant gave at pages 2 to 3 of the transcript.
For this reason, I would therefore allow the application and grant a declaration.
A further issue was raised with respect to whether or not procedural fairness had been afforded to the applicant as a result of comments made by the reviewer at transcript page 7.09 to 7.17 where he said:
(Reviewer): Okay. I’m going to have to do some investigation into the situation in Iraq and in Basra in particular around the circumstances that you’ve described, before I make a decision. I don’t now know what that investigation will reveal. If it supports what you have said and if I’m persuaded that you would be persecuted if you went back for one of the reasons set out in the convention, I can make a decision. If it doesn’t, then I will inform your representative of the result of my researches and the conclusions that might arise from that research, and she will contact you, and you will have the opportunity to comment on the communication.
The reviewer did not subsequently contact the applicant’s adviser for further submissions. It was argued that paragraph 36 shows that this was considered by the reviewer and as the reviewer’s researchers showed nothing more, there did not need to be further contact. Similarly, it was argued that there’s nothing in the evidence here to show that the applicant suffered any prejudice as a result of this.
Ultimately, it seems to me that as a result of my finding on the main ground, I do not need to specifically deal with this amended ground and as it was raised late in the day¸ I won’t specifically deal with it in this decision.
I therefore formally make declarations in the usual form.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Reithmuller FM
Date: 19 September 2012
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