DZADB v Minister for Immigration

[2012] FMCA 679

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZADB v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 679

MIGRATION – Review of decision of Independent Merits Reviewer – where implication that Reviewer found no objective fear – where Reviewer nevertheless considered question of state protection – where Reviewer did not consider failure of state to provide protection for a Convention ground – whether Reviewer engaged in an active intellectual process in considering claims of the applicant – whether Reviewer applied correct test in relation to state protection – whether Reviewer made finding based on no evidence – whether Reviewer made an error of law.

Migration Act 1958 (Cth), ss.36(2), 430(1)

Minister of Immigration and Citizenship v SZONJ and Another (2011) 122 ALD 87 at [33]
Minister for Immigration and Multicultural Affairs v Khawar and Others (2002) 210 CLR 1
Minister for Immigration v Khadgi (2010) 274 ALR 438; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 Khanam v Minister for Immigration and Citizenship and Another (2009) 111 ALD 421
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]
MIMA v Respondents 152/2003 (2004) 222 CLR 1
Razai v Minister for Immigration& Anor [2012] FCA 394
SZQKC v Minister for Immigration & Anor [2012] FCA 249
MZYPW v Minister for Immigration & Anor [2012] FCAFC 99
DZACI v Minister for Immigration & Anor [2012] FMCA 379

Applicant: DZADB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 14 of 2012

Judgment of: Raphael FM

Hearing date: 25 July 2012

Date of Last Submission: 25 July 2012

Delivered at: Sydney by video-link to Darwin

Delivered on: 7 August 2012

REPRESENTATION

Counsel for the Applicant: Ms N Karapanagiotidis

Solicitors for the Applicant: Northern Territory Legal Aid Commission

Counsel for the Respondents: Mr T Anderson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

THE COURT DECLARES THAT:

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 complete the review by failing to consider whether the applicant was at risk of future persecution on account of his Faili Kurd ethnicity.

THE COURT ORDERS THAT:

1. The First Respondent pay the Applicant’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 14 of 2012

DZADB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Iraqi citizen of Shia Muslim religion and Kurdish Faili ethnicity.  He was born in Baghdad in 1974 but was expelled in 1980 and lived in Iran until 2009.  He returned to Iraq in 2009 where, with the aid of his cousin and a $200.00 facilitation fee, he secured an Iraqi passport.  He remained in Iraq living in Diala and then in Baghdad until June 2010 when he made his way to Australia arriving at Christmas Island on 1 September 2010.  The applicant was interviewed by a refugee status assessment officer who, on 21 January 2011, found that he did not meet the definition of a refugee set out in Article 1A of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.  He applied for a review of that decision by an Independent Merits Reviewer (“Reviewer”)[1]. He was assisted in this application by a migration agent who made a detailed submission first to a pre-review examination officer dated 14 September 2011 and later to the Reviewer on 19 October 2011. This latter document is found at [CB 123 – 131]. The applicant attended a hearing with the Reviewer who, on 13 January 2012, found that the applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958[2]. 

   [1] “Reviewer”

   [2] “Act”

2. The applicant’s claims to be a person to whom Australia owed protection obligations were based upon his ethnicity as a Faili Kurd and religion as a Shia Muslim.  He also claimed that as a Faili Kurd he was imputed with the nationality of Iranian and thus with a political opinion of being opposed to Iraq.  The Reviewer identified his claims at [27] & [28] [CB 142]:

   “[27]The persecution is claimed to be “a sustained and systematic denial of his core human rights if returned to Iraq and this includes:

   ·    Being subjected to abduction, detention, physical harassment, physical assault and possibly beaten to death by the armed militia groups;

   ·    Being subject to physical harassment and extortion… by armed militia groups while travelling around most parts of Iraq;

   ·    Denied the ability to travel freely outside of his area, earn a livelihood and denial of basic services that would threaten his ability to subsist.”

   [28]It is claimed that the Iraqi authorities “are not capable of providing any protection to him.”

3. In the interview with the Reviewer and consistently throughout his application process the applicant told that when he first returned to Iraq he went to Diala where his family had been located.  He sought to recover some land which had been taken from him by one of his cousins but was unable to do so.  He stated that while he was there Diala was a warzone with suicide bombings and explosions everywhere.  He stated that because of his ethnicity he was treated with disgust:

   “One of the biggest problems for us in Iraq is that as Kurdish Faili we are perceived as Iranian nationals.  This immediately causes massive hostility against us.  I sensed this immediately and avoided going out.  They would say to us “What are you doing here, go back to Iran.”

4. The applicant told of a particular incident when he was stopped by the police at a checkpoint and they picked upon him immediately because he was Kurdish.  He was with his cousin who was able to calm the police officers down and persuade them that the applicant had an Iraqi identity document (not his passport).  He claimed that the police reluctantly let him go and warned him “to be careful”.  He did not believe that the police would protect him against terrorists and that the police themselves may attack him for being a Kurdish Faili.

5. The applicant told the Reviewer that whilst he was concerned for his safety in Baghdad nothing further happened to him.  The incident with the police officer occurred before he received confirmation of his Iraqi citizenship and passport.

6. At [19 – 22] [CB 139 – 141] the Reviewer deals with country information noting the agent’s submission in that regard including in April 2009 UNHCR report which stated inter alia:

   “Faili Kurds, who primarily adhere to the Shi’ite branch of Islam, have been targeted by Sunni extremists on the basis of their sectarian identity.”

   The Reviewer noted:

   “Information that Faili Kurds have historically been seen as Iranian and generally discriminated against by Iraqis and could now be targeted by Sunni militants.”

7. The Reviewer noted that a substantial quotation from the US Department of State (DOS) Country Report on Human Rights published on 11 March 2010 utilised by the applicant’s advisor was only part of the report.  At [22] the Reviewer quotes the whole report.  That report indicates that the general security situation in Iraq has improved substantially and that violence had fallen.  It noted an increase in members of the trained security forces who generally maintained law and order effectively.  The quotation also contained an important paragraph relating to attacks on minorities:

   “Insurgent and extremist violence, coupled with weak government performance in upholding the rule of law, resulted in widespread and severe human rights abuses.  Although their influence and ability to attack has significantly weakened since 2007, terrorist groups such as AQI and other extremist elements continued to launch highly destructive attacks, attempting to fuel sectarian tensions and undermine the government’s ability to maintain law and order.  Extremist and AQI attacks continued against ISF and government officials.  AQI and other extremists also conducted high-profile bombings targeting urban areas, particularly prominent government buildings, Shia markets and mosques, and killing Shia religious pilgrims.  Religious minorities, sometimes labelled “anti-Islamic,” were often targeted in the violence.  Insurgents also carried out a number of attacks against other civilians.  During the year, despite some reconciliation and easing of tensions in several provinces, the government’s human rights performance consistently fell short of according citizens the protections the law provides.”

8. The findings and reasons of the Reviewer commence at [23] [CB 141].  In that paragraph the Reviewer accepts the applicant’s story concerning his antecedence and return to Iraq.  At [24] the Reviewer utilises a standard clause explaining the requirements of a well-founded fear and the necessity for it to have a Convention based relationship with the persecution claimed.  At [25] the Reviewer states:

   “[25]Where the claim is of persecution by non-state agents, the failure of the state to provide protection is an essential element (Horvath).”

9. What the Reviewer does not say is that the failure of the state to provide protection must be for a Convention reason: Minister of Immigration and Citizenship v SZONJ and Another (2011) 122 ALD 87 at [33]; Minister for Immigration and Multicultural Affairs v Khawar and Others (2002) 210 CLR 1.

10. The Reviewer’s conclusions are dealt with at [29 – 31].  They are short.  I shall set them out in full:

    “[29]The January 2011 UNHCR statement cautions that return to southern and central Iraq should be considered individually and depending on the circumstances of the case.  The claimant is a 37 year old single man.  He speaks Arabic.  He is an Iraqi citizen and has the necessary documentary proof of that status.  He has family in Iraq, in both Diyala and Baghdad.  He lived with both families during 2009-1010.  He was able to fund several journeys between Iran and Iraq over a six month period and then to expend more than US$10,000 to travel to Australia.  He is a Shia, as are the majority of the Iraqi population.  During the several months that he lived in Baghdad and Diyala in 2009-2010, nothing untoward happened to him.  Despite his claimed fear of being persecuted as a perceived Iranian national, he was able to deal successfully with government authorities to obtain citizenship.  Despite his claimed fear of harm as a Shia and Faili Kurd originally from Diyala province, on the once occasion that he was stopped by the Police he came to no harm.  Indeed, this was at a time before he had obtained formal documents and did not have citizenship.  He was simply told to “be careful” and allowed to go on his way.  His uncle was killed by terrorist some three years ago, but there is no evidence that this was a targeted attack.  Indeed, his cousins have continued to reside in Diyala and Baghdad without evidence of targeted harm.  Often, the best predictor of the future is the past.  The facts are that Mr [Applicant] lived in Baghdad without attracting the adverse attention of the authorities, the militia groups, or anyone else.  He was able to subsist in Baghdad without apparent difficulty; he has a broad work history especially in the construction industry, he speaks Arabic, he has family to stay with and the demonstrated capacity to obtain significant sums of money.

    [30]The US DOS Report quoted by the agent describes political and sectarian violence in Iraq.  However, set in context, the same Report describes substantial improvement in the general security situation and a dramatic reduction in the level of violence.  It also describes significant positive developments in the growth, training and performance of the Iraqi security forces.  No state can guarantee protection against generalized random attacks (see Spanish and UK rail bombings, Us Twin Towers etc.)   In light of the independent evidence, I do not accept the claim that the Iraqi authorities are not capable of providing a reasonable level of protection to Mr [Applicant].  The essential element of the failure of the state to provide protection against non-state actors is not present in this claim.

    [31]I have carefully considered the claims, evidence and independent country information. I find that the claimant, does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958.”

11. On 22 February 2012 the applicant applied to this court for a review of the Reviewer’s decision.  The grounds for that review were said to be contained in an Amended Application dated 15 June 2012.  As frequently happens in these cases the oral submissions laid more emphasis on some claims than others.  But the respondent did not object to the manner in which the case was presented by counsel for the applicant.  The first ground of application was:

    “1.The second respondent failed to consider whether the applicant faced a real chance of future persecution for reasons of his ethnicity as a Faili Kurd, his religion and his imputed nationality of being an Iranian.

    Particulars

    (a)The second respondent summarised the applicant’s claims and concluded that the applicant had been able to live in Baghdad without attracting the adverse attention of the authorities and had been able to subsist.

    (b)Beyond summarising the applicant’s claims and noting that “the best predictor of the future is the past”, the second respondent failed to engage in a consideration of the future risk of persecution claimed by the applicant for the Convention reasons advanced.

    (c)While it is often important in the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events, the second respondent was still required to engage in a separate assessment of whether the applicant faced a well-founded fear of future persecution.

    (d)The second respondent failed to engage in such an assessment and thereby failed to accord the applicant procedural fairness and/or failed to consider the integers of the applicant’s claims.”

12. The applicant submits that [29] of the Reasons is no more than a summary of the claims and some observations of the Reviewer.  It does not engage in and assess the applicant’s claims according to law.  In particular, in regard to his claim of a fear of being persecuted as an Iranian national the Reviewer refers only to the incident provided by the applicant as an example of the sort of thing that could happen to him.  There is nowhere in the Reviewer’s statement that he has considered the other evidence in the country information supplied on behalf of the applicant and concluded that notwithstanding it he believes that the applicant’s fear is not objectively well-founded.  Those claims have not been subject to an active intellectual process as required: Minister for Immigration v Khadgi (2010) 274 ALR 438; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.

    In Khadgi, The Full Court of the Federal Court per Stone, Foster and Nicholas JJ. held at [57-58]:

    “Section 109(1)(c) of the Act obliges the tribunal to “have regard to” the prescribed circumstances set out in reg 2.41. The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the ministerial discretion to cancel a visa under s 109. In order to comply with that prerequisite, the decision-maker mustengage in what has been described as “anactive intellectualprocess” in which each of the prescribed circumstances receives his or her “genuine” consideration: Tickner at FCR 462; ALR 238 per Black CJ and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 ;178 ALR 421;65 ALD 1;[2001] HCA 17at [105]per Gleeson CJ and Gummow J.

    [58] In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299per Mason J. The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.”

    It is not enough to extract without comment the whole of the US DOS Report because the reader will have no understanding of what the Reviewer may have thought about it or the processes he adopted to come to some unmentioned conclusion about it.  The reference to the report in [30] does not address the applicant’s particular concerns as a Faili Kurd with an imputed political opinion of being an Iranian.  The conclusions might be justified in respect of an Arab Shia Iraqi concerned about the possibility of insurgent attack but to my mind does not engage with the particular concerns of this applicant. Some examples of the submissions that have been made on the applicant’s part concerning the grounds for his fear as a Faili Kurd can be found at [CB 109, 110] where the Minority Rights Group in a 2010 table ranks Iraq as being the third most dangerous country for minorities and specifically identifies the Faili Kurds as a particular group at risk [CB 111, 112 & 113].  In case it should be suggested that the requirement to engage is confined to cases where there are matters prescribed to be considered, I would suggest that here the Reviewer’s reasons (or lack of them) indicate a failure to consider relevant information. Where clearly relevant and supportive information is not referred to, the court can conclude that the Reviewer has failed to have had regard to it: SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [20], Khanam v Minister for Immigration and Citizenship and Another (2009) 111 ALD 421, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47].

13. The problem I have with [29] and [30] of the Reviewer’s decision is that it is necessary in [29] to imply that the Reviewer has concluded that the applicant has no objective well-founded fear of persecution for the reasons that he claims.  However, in paragraph [30] the Reviewer deals with an aspect of the relevant law that only comes into play should an objective well-founded fear be established.  That is the availability of state protection or, more accurately, whether there will be a failure of state protection for a Convention reason.  The respondent’s case is that [29] should be read as implying a finding of no objective well-founded fear because he argues that if that is the case there is no obligation to consider state protection; MIMA v Respondents 152/2003 (2004) 222 CLR 1 at [11 – 12], [27], [14], [32 – 34], Razai v Minister for Immigration & Anor [2012] FCA 394 at [15 – 37], SZQKC v Minister for Immigration & Anor [2012] FCA 249 at [17 – 24]. The respondent argues that the Reviewer’s findings, whilst brief, are adequate, that he identified with particularity what the applicant was claiming so the court should imply that the Reviewer had come to the required conclusions according to law. In the light of the Reviewer’s apparent contradictory thinking between [29] and [30] and in light of the Reviewer’s apparent misunderstanding of the proper law relating to protection against non state actors I believe that such implications are hard to draw. I note that in MZYPW v Minister for Immigration & Anor [2012] FCAFC 99 the Full Court of Flick, Jagot and Yates JJ said, without deciding that this constituted a jurisdictional error:

    “[23]On any reading of paragraphs [83] to [85], the Minister was certainly not being presented with a coherent presentation of the reasons for the recommendation being made and the basis upon which that recommendation was founded.

    [24]The reasons for the recommendation are the very means by which the Minister is informed of the facts peculiar to each particular claimant and why, if at all, their circumstances warrant allowing them to make an application for a protection visa. They serve a centrally important and fundamental purpose. The document recording the recommendation to the Minister is important to both the claimant and the Minister. Even though it may be accepted that the reasons for a recommendation may not be drafted by those persons with the skills and expertise of an experienced legal practitioner, the reasons must clearly and accurately set forth the claimant’s case and the findings and reasons for either accepting or rejecting those claims. It may safely be assumed that the Minister, when considering a recommendation that has been made, will not always have available to him a member of the Inner Bar to guide him through the text.”

1. I would not say that an opaque decision record necessarily fails to comply with the provisions of s.430(1) of the Act (to the extent that such obligations might be implied into the work of an Reviewer). But I would say that this type of decision can be found to have been made either without the necessary intellectual engagement with the claims made by an applicant or by a simple failure to deal with them. It might also be said, and I do say in this case, that the Reviewer’s apparent misunderstanding of the test in respect of persecution by non state actors led it into error.

2. In the light of the finding made above it is not strictly necessary to deal with points 2 and 3 in Amended Application.  However, I do so for the sake of completeness.  Point 2 is:

   “2.In its findings as to the availability of state protection the second respondent failed to take into account relevant considerations and/or made findings without evidence.

   Particulars

   (a)The second respondent did not accept that the Iraqi authorities were not capable of providing a reasonable level of protection to the applicant.

   (b)In making its finding the second respondent failed to consider relevant considerations and/or factors relevant to whether the protection the state offered was sufficient by international standards

   (c)In addition, there was no evidence to support the second respondent’s findings as to the availability of state protection.”

3. As this ground was put to me it was assumed that I would have found that the Reviewer had engaged properly with the claim.  Ground 2 was thus at best a “no evidence” ground and to my mind really a claim for impermissible merits review.  In DZACI v Minister for Immigration & Anor [2012] FMCA 379 at [19] I dealt with a similar claim:

   “[19]The gravamen of the complaint is found at Particular (d). I have been provided with some helpful written submissions by counsel for the applicant. She argues that the finding that the applicant was a non-citizen was a central finding, so that if it was found to have been made in a manner that constituted jurisdictional error, it would permit me to find, that the review was made unlawfully. It is argued that the reviewer was making findings about the ability of the Iranian authorities to come to their own satisfaction that the applicant fell within one of the categories of person who would be considered an Iranian citizen. It is suggested that the evidence relied upon and found at [133] and [134] of the reviewer’s reasoning is mere speculation rather than evidence and that speculation is not sufficient: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 231; (2003) 77 ALD 402; Minister for Immigration and Citizenship v SZMDS[2010] HCA 16; (2010) 240 CLR 611; SZMIB v Minister for Immigration & Anor[2008] FMCA 1433; QAAA of 2004 vMinister for Immigration and Multicultural and Indigenous Affairs[2007] FCA 1918. The importance of these cases is that they establish there has to be no evidence to support the conclusions made by a reviewer or a tribunal in order to make out the applicant’s claim. Where there is some evidence available, the argument cannot succeed. In this particular case, the most effective evidence of the applicant’s nationality is his own. He accepts that his grandfather was an Iranian. It is that evidence which allows the reviewer to make factual findings concerning the Civil Code in Iran and its naturalisation sections.”

4. In my view the interpretation of a piece of evidence is a matter for the Reviewer.  Any reading of the DOS Report would provide some evidence to confirm the Reviewer’s conclusion not to accept the claim that the authorities are not capable of providing a reasonable level of protection.  Whether they wish to or not is another matter, which was not considered.  This ground cannot succeed.

5. Ground 3 is:

   “3.In its finding as to the availability of state protection the second respondent failed to consider whether the Iraqi authorities were unwilling to provide the applicant a reasonable level of protection because of his ethnicity as a Faili Kurd.

   Particulars

   (a)The second respondent only considered whether the Iraqi authorities were capable of providing a reasonable level of protection to the applicant.

   (b)The applicant had made a clear claim that he would not be afforded state protection and that the “police themselves may attack [him] for being Kurdish Faili and an “Iranian”.

   (c)The reviewer failed to address this claim and therefore committed jurisdictional error.”

6. This is the very matter that I have considered earlier in these reasons.  I do not believe that the Reviewer did apply the appropriate law and considered the matter in the manner required.

7. I make a declaration that 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 complete the review by failing to consider whether the applicant was at risk of future persecution on account of his Faili Kurd ethnicity.  I order that the first respondent pay the applicant’s costs assessed in the sum of $6,471.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  7 August 2012