DZADC v Minister for Immigration - [2012] FMCA 687

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZADC v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 687

MIGRATION – Review of decision of Independent Merits Reviewer – where apparent application of incorrect tests – where apparent expansion of particular social group without giving applicant opportunity to respond – whether Reviewer’s adverse finding on credibility renders apparent errors otiose.

PRACTICE AND PROCEDURE – Adjournment – where matters raised requiring amendment to application – whether to adjourn.

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
NABE v Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (2004) 144 FCR 1
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137

Applicant:

DZADC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 15 of 2012

Judgment of:

Raphael FM

Hearing date:

26 July 2012

Date of Last Submission:

26 July 2012

Delivered at:

Darwin

Delivered on:

26 July 2012

REPRESENTATION

Counsel for the Applicant:

Ms N. Karapanagiotidis

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the Respondents:

Mr P. d’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Applicant to file and serve an amended application by 9 August 2012.
Respondent to file and serve amended reply by 23 August 2012.
Applicant to file and serve amended outline of case and list of authorities by 13 September 2012.
Respondent to file and serve outline of case and list of authorities by 21 September 2012.
Matter to be heard by video link on a date to be agreed with my associate.
Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 15 of 2012

DZADC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The Reviewer’s decision in this matter, which comes before me for review, is not without difficulty. It deals first with what might be called the substantive claim made by the applicant: that he had left Iraq because as a hairdresser in the town of Nazaria, specialising in western styles and working in a unisex salon, he had been attacked by an extremist group and threatened with death should he continue in his occupation. The applicant had told that after this attack he had not returned to his profession, but had made arrangements to leave Iraq.
The Reviewer deals with this matter at [39] and [40] CB158. These paragraphs read:
“[39] I do not accept the explanations given by the claimant and by his representative for the discrepancies between the evidence given at his entry interview and the claims made subsequently. His account at his entry interview of what happened to him and why he left Iraq was quite clear and detailed. Moreover, he was asked, after he had finished describing the threat that he had received from the motorcyclist on 25 August 2010, whether there was anything he wanted to add. His reply was – as I repeated to him at my interview with him – “I cannot work in Iraq. Southern Iraq is quiet but we cannot work there.” There was no reference to being accosted by six men or having his head shaven. His decision to leave Iraq, according to the evidence given at his entry interview, was taken after the 25 August incident, after which he did not again go to work.
[40] Had the discrepancy between the entry interview and subsequent interviews or written statements involved only the later addition of information not provided tat the entry interview, I would have taken a more benign view. However, the fact that his explanation in his entry interview contained a version of events which was at more than one point incompatible with later versions causes me to find that these accounts are concocted. Accordingly, I do not accept that the claimant left Iraq for the reasons he has given.”
There follows, after this section of the decision, a discussion of claims made by the applicant as a member of a particular social group. The respondent concedes that there may be some difficulties with the Reviewer’s apparent understanding of the relevant law and the requirements upon him in regard to these findings. At [41] the Reviewer opines, “If, however, the claimant remained fearful of a return to his former occupation, he would be free to choose another”. But the respondent argues that there is no necessity to consider them because they are, in fact, otiose. He argues that the finding in [39] and [40] cover the field as to the applicant’s claims. It constitutes, by implication, a finding that the Reviewer does not accept that the applicant was a hairdresser, or was a hairdresser enthusiastic about western styles and working in a unisex salon, and because the claims associated with being a member of a social group (other than the claim of being a member of the social group of Shia Muslims, which the Reviewer dismissed at [47] and the claim to be a member of social group of returnees, which the Reviewer dismissed at [45] neither of which findings are impugned) are all based upon the fact that he was a hairdresser, as described.
At the commencement of the hearing, I expressed some concern about the Reviewer’s findings and reasons, in particular, his apparent misunderstanding of the law as laid down by the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473, that as Kirby and McHugh JJ stated at [40]:
“The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps - reasonable or otherwise - to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a "particular social group" if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.”
The Reviewer’s continual emphasis on the ability of the applicant to change jobs, seems to me, to be in direct contradiction to the law as laid down in that case.
I also indicated a concern about [44] CB159 of the decision:
“To make the first claim, the claimant states that he was providing a service to people who wanted it. To that extent, not only he and his colleagues but also their clients and the clients of other salons providing similar services could be included in the particular social group as defined. There is no evidence before me that this group of people were under systematic attack or in any other way could be described as suffering or being threatened with persecution. I note that the claimant’s family has told him that six salons have received threats but are still operating. I assume from the absence of information to the contrary that no one has been killed or abducted and that threats of that degree of seriousness have either not been delivered or not been carried out.”
I suggested that it appeared, at first sight, what the Reviewer had done was to vastly expand the membership of the particular social group articulated by the applicant, and then make a finding based upon the alleged lack of evidence about that expanded group. It seemed to me that if the Reviewer intended to expand the group in that way, and utilise the expansion to assist him in coming to a conclusion about it, he should have so advised the applicant and allowed the applicant an opportunity to respond and if necessary, to provide the evidence that the Reviewer said was so lacking.
Mr d’Assumpcao, who appears on behalf of the respondent and who has acted in a most fair and reasonable manner befitting a model litigant, referred me to the decision of the Full Court, Black CJ, French and Selway JJ, in NABE v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (2004) 144 FCR 1 at [58], where their Honours stated:
“By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant - Minister for Immigration and Multicultural Affairs v Sarazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing.”
It has been suggested that the unarticulated claim must be raised “squarely on the material available to the RRT before it has a statutory duty to consider it”: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligations of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. In my view, the purpose of this paragraph was to be beneficial in respect of applicant rather than detrimental to him, and I do not believe that it opens the way for a Reviewer or Tribunal to indulge it in its own expansionary tendencies as was done here.
There is another problem that I foresee with [44], and that is from the words of the last sentence. There is no indication in the whole paragraph that the Reviewer is looking to the future, as is required. He seems to be fixated only on the past.
Because of the concerns which I have just expressed, I proposed to adjourn the matter so that an amendment can be made to the application and written submissions provided to me. I proposed that, if the matter required it, a further hearing be heard by video-link.
Mr d’Assumpcao asked that before I made that decision, I give consideration to his original point, that all these comments about the particular social group were otiose in the light of the findings at [40], which were repeated at [49]:
“In summary, I do not accept the particular facts concerning the events stated by the claimant to have caused him to leave Iraq. I find that this story is concocted. I have nevertheless considered some of the broader claims made by him or on his behalf and find that there is not a real chance of the claimant suffering persecution in Iraq for reason of his religion, his political opinion, real or imputed, his membership of a particular social group or for any other Convention reason.”
I have done so, and I remain of the view that I expressed to counsel that, as I read the decision, the concocted story was limited to the events which are particularly referred to by the Reviewer in his decision, namely the attack upon the applicant. I do not believe that it covers the applicant’s claim that he was a hairdresser or that he was a hairdresser specialising in Western styles and working in a unisex salon. I find that difficult to reconcile with certain parts of the transcript, such as at T10, where the Reviewer says:
“So while I can accept that you have trained as a hairdresser, and that’s what you want to do, you would need to persuade me that it would not be reasonable for me to make a decision based on the presumption that you could move to a different job.”
or the requests that the Reviewer made for the applicant to obtain information from his family back in Nazaria about the number of salons and the type of work they undertook and any threats or attacks made upon them. I find it inconsistent with what the Reviewer says at [41]:
“If, however, the claimant remained fearful of a return to his former occupation”
and I find it inconsistent with what, with respect, I would consider the glib comment:
“In addition, an organisation like Asa’in Ahl al-Haq has more important matters on its agenda than to pursue a former hairdresser.”
For these reasons, I would not accept the respondent’s contention that there is a separate and independent finding that makes the complaints raised by the applicant otiose, and it will be necessary to consider those matters in more detail. I propose the following orders:
1) Applicant to file and serve an amended application by 9 August 2012.
2) Respondent to file and serve amended reply by 23 August 2012.
3) Applicant to file and serve amended outline of case and list of authorities by 13 September 2012.
4) Respondent to file and serve outline of case and list of authorities by 21 September 2012.
5) Matter to be heard by video link on a date to be agreed with my associate.
6) Costs reserved.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 10 August 2012