DZADC v Minister for Immigration and Anor (No.2)
[2012] FMCA 778
•3 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZADC v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2012] FMCA 778 |
| MIGRATION – Review of decision of Independent Merits Reviewer – where Reviewer accepted applicant was a member of the particular social group of Iraqis performing ‘un-Islamic’ behaviour, followers of western cultural practices, and encouraging western culture in Muslim Iraq – where Reviewer made finding about past persecution of applicant as member of the particular social group – whether Reviewer failed to consider whether applicant faced a risk of future harm as a member of that particular social group – where Reviewer found that applicant could avoid persecution by changing occupation – whether Reviewer erred in finding that applicant could take reasonable steps to avoid persecution – whether Reviewer applied the incorrect test for serious harm – where Reviewer expanded the identified particular social group – whether Reviewer required to raise issue of expanded particular social group with applicant. |
| Migration Act 1958 (Cth), s.91R(2) |
| DZADC v Minister for Immigration & Anor [2012] FMCA 687 Dranichnikov v Minister for Immigration & Anor [2003] 77 ALJR 1088 Appellant S395/2002 v Minister for Immigration & Anor (2003) 216 CLR 473 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 MSXSA v Minister [2010] FCAFC 123 SBZF v Minister for Immigration and Citizenship [2008] FCA 1486 Morato v Minister for Immigration & Anor [1993] 29 ALD 455 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 158 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 |
| 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: | 24 August 2012 |
| Date of Last Submission: | 24 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Karapanagiotidis |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Solicitors for the Respondents: | Australian Government Solicitor |
DECLARATION
The Court declares that the recommendation of the Independent Merits Reviewer that the Applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees was not made in accordance with law by reason that:
(i)The Reviewer failed to properly consider the applicant’s claim to fear persecution on the grounds of his membership of a particular social group constituted by Iraqis performing “Un-Islamic” behaviour, follower of western cultural practices and encouraging western culture in Muslim Iraq by failing to consider whether the applicant faced a risk of future persecution because of his membership of the particular social group.
(ii)The Reviewer erred in a manner constituting jurisdictional error by assessing the applicant’s claims on the basis that he was expected to take reasonable steps to avoid persecution if returned to Iraq.
(iii)The Reviewer misapplied the “serious harm” test in his assessment of the applicant’s claim to be a member of a particular social group.
(iv)The Reviewer denied the Applicant procedural fairness in failing to notify him of an issue to which its reasoning processes were directed.
ORDERS
The First Respondent shall pay the Applicant’s costs assessed in the sum of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY VIA VIDEOLINK TO MELBOURNE |
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
(Corrected Judgment)
This matter first came before me in Darwin on 26 July 2012. On that day, after hearing the parties, I expressed some concerns about the decision of the reviewer. As a result the applicant sought leave to file and serve an amended application. I agreed to this course of action in a judgment DZADC v Minister for Immigration & Anor [2012] FMCA 687. In the course of that Judgment I made a ruling concerning a submission made by the respondent that the applicant’s grounds for review that centred around the applicant’s membership of a particular social group and the Reviewer’s treatment of those claims did not need to be considered in the light of certain findings by the Reviewer. I did not accept that argument for the reasons given between [11] and [12] of my decision. The effect of this was that when the matter came before me for final hearing on 24 August 2012 all of the grounds contained in the applicant’s further amended application were considered.
The applicant is a citizen of Iraq. He was a professional hairdresser in Nasiriyah. He worked in a unisex salon where he cut the hair of men including their beards and styling his customer’s hair in modern western styles. The salon also catered to women for whom it was claimed he did facials [CB 111]. The applicant claimed that he received threats from the fundamental Islamic group Assaaib al Haq that targeted hairdressers, particularly those working as the applicant did, on the basis that they were anti-islamic followers of the west. The applicant claimed that certain threats had been made against him and that he was beaten up. He also told that the salon in which he worked closed down as did the four other unisex salons in the centre of Nasiriyah. He told that after his involvement with the Assaaib al Haq group he did not return to work again because he was too frightened. He said that a colleague was similarly targeted and had gone missing. He was frightened that if he continued to work as a hairdresser he would suffer violence or be killed.
The applicant’s claims were put in convention terms by his advisors in a letter to the Independent Merits Reviewer dated 11 September 2011:
“In September 2010 the applicant fled Iraq given his fear of persecution at the hands of the Militia groups on account of his imputed political opinion (mainly Iraqis perceived to be opposing armed groups or political factions) and his membership of a particular social group (mainly persons accused of un-Islamic behaviour, mainly Iraqis who violate Islamic practices by following the western culture and encouraging the western culture in Muslim Iraq.”
The applicant attended a hearing with his advisor at which he was questioned about the matters that had constituted direct persecution and inconsistencies between his entry interview evidence and his evidence to the RSA assessor were discussed. After the hearing the applicant provided with Reviewer with certain further information in the form of a statement. The Reviewer asked the applicant to obtain more information from his family about how many hairdressing salons operated in Nasariah to which he responded:
“There were twenty-six hairdressing shops in Nasariah. Twenty-two shops were men only hairdressers. Ten shops had been threatened by militia. Of those ten shops four of them were unisex shops like the one I worked in. All four unisex shops have gone. The other six shops which were targeted by the militia are still operating but they are subject to threats.”
The Reviewer had also asked the applicant to obtain some information from the owner of the shop. In the same statement the applicant responded that the owner had left Iraq for his own safety.
In the decision record the Reviewer commences under the heading “Claims and Evidence” with the applicant’s signed statement and entry interview and then makes reference to his RSA interview. He then turns to his own review interview and at [23]:
“Turning to the substance of the claims to be considered, I said that it seemed that there were two issues of concern. Firstly, there was the general question of hairdressing in southern Iraq, in particular in Nasariah, secondly there was a question of whether or not he could avoid the problems he feared by changing career.”
The Reviewer’s concern about the applicant’s ability to change his career was manifested at several points in the transcript. At [T10] the Reviewer states:
“So while I can accept that you have trained as a hairdresser and that is what you want to do you will need to persuade that it would not be reasonable for me to make a decision based on the presumption that you could move to a different job.”
At [T24] the Reviewer says:
“Reviewer: Well, that will be a start. We’ll see, but I’d like to move on now to a couple of other issues. Now, the other critical issue – I’m beginning to understand the beauty salon world of Iraq and you’re going to give me more information about that, but the other critical issue is why you could not have changed your career. I mean, it’s a very drastic step to leave your country and subject to what your adviser may tell me – if she believes that my understanding of the law is wrong.
I can’t make a positive decision simply because you want to stick to one profession if there are other options. If there are no other options, no other reasonable options then that’s another matter. Why couldn’t you have found a different sort of career to follow?
At [T32], after discussing with the advisor some inconsistencies in the applicant’s evidence, he says:
“Reviewer: I’ve really got more important issues.
Applicant: Yes.
Reviewer: The more important issues being essentially country information ---
Applicant: Yes.
Reviewer:--- and whether it really is impossible for him to change his profession or relocate.
Applicant: Yes.
Reviewer: Relocation would be probably the lesser of the two options because ---
Applicant: Yes.
Reviewer: --- if he doesn’t have family elsewhere, it would be difficult.
Applicant: Yes, yes, and relocation is very difficult in Iraq.
Reviewer: I know that. That’s my point, exactly.
Applicant: Yes, yes.
Reviewer: That’s what it’s the lesser of the two options, anyway.
Applicant: Yes, yes.
Reviewer:But I remain to be persuaded. I’m persuadable, but I remain to be persuaded that he couldn’t change his work.”
The Reviewer’s findings and reasons commenced by indicating that he did not accept the applicant’s explanation for the discrepancies in his evidence finding at [40] [CB 158]:
“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.”
In my first judgment I indicated that I was satisfied that this finding related to the applicant’s stories about being attacked and not to his more general claim that he had a well-founded fear of persecution because of his membership of the particular social group described. The applicant’s profession as a hairdresser was the reason that he fell within the particular social group and the Reviewer appears to have accepted that the applicant was indeed a hairdresser and did indeed work in a unisex salon. After the finding at [40] the Reviewer continued at [41]:
“However, he has also mentioned the disappearance of a colleague and a general fear of Asa’ib Ahl al-Haq. It is true that there was a period when there were attacks on hairdressing salons by fanatical religious groups. However, as I said to the claimant at interview, that period had passed. A search made subsequent to the interview found only one report of such an attack in 2011 and that was north of Baghdad. If, however, the claimant remained fearful of a return to his former occupation, he would be free to choose another occupation. I do not accept that the threat he claimed to have received implied any more than its terms. In other words, the objection was to his occupation not to the manner in which carried out his occupation. I find that a change of occupation would be enough to eliminate any such threat. In addition, an organisation like Asa’ib Ahl al-Haw has more important matters on its agenda than to purse a former hairdresser.”
At [43] the Reviewer refers to the submission about membership of a particular social group:
“The submission which I had not received prior to the interview contains a version of the claimant’s claims in terms very different to those expressed by the claimant himself. This version is loosely based, however, on the factual evidence of the claimant. It is expressed in the submission in the following terms:
“Membership of a particular social group – the Applicant claims a well founded fear of persecution due to his membership of particular social group, namely, (persons accused of “un-Islamic” behaviour) Iraqis who violate Islamic practices by following the “Western culture” and encouraging the Western culture in Muslim Iraq;””
The Reviewer’s findings on this aspect of the matter are contained at [44]:
“To take 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.”
The applicant articulated the complaints that he says led the Reviewer into jurisdictional error in six grounds in the Further Amended Application. Ground 3 was not pursued. Ground 1 is in the following form:
“Ground 1
The second respondent failed to properly consider the applicant’s claim to fear persecution on the grounds of his membership of a particular social group constituted by Iraqis performing ‘un-Islamic’ behaviour, follower of western cultural practices, and encouraging western culture in Muslim Iraq.
Particulars
(a)The second respondent failed to consider the claim based on the particular social group advanced by the applicant.
(b)The second respondent failed to assess the composition of the particular social groups.
(c)The second respondent failed to consider and make a finding as to whether the applicant, by reason of his occupation, would be imputed with a pro Western opinion and accused of “un-Islamic” behaviour.
(d)The second respondent failed to consider whether the applicant faced a risk of future persecution because of his membership of the particular social groups postulated.”
The applicant argues that the Tribunal failed to undertake the steps suggested by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration & Anor [2003] 77 ALJR 1088 at [26]:
“[26]At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.”
The respondent argues that it was not necessary for the Reviewer to ask the first question as it would appear from his decision that he accepted that such a social group existed. He would also appear to have accepted that the applicant could be considered to be a member of it. The Reviewer then turned directly to the question of whether or not the applicant had a well-founded fear of persecution as a result of being a member of that group and concluded that he would not. Those conclusions are the subject of other grounds but I do not think that it can be said as it is alleged that the Reviewer failed to follow the proper procedures. The final concern in Ground 1 is that the Reviewer failed to consider whether the applicant faced a risk of future persecution because of his membership of the group. The respondent argues that this is dealt with at [46]:
“Accordingly, I find that there is not a real chance that the claimant would suffer harm amounting to persecution in Iraq for reason of his membership of a particular social group.”
He argues that the use of the word “would” amounts to a consideration of the future. The respondent also argues that the Reviewer is using what he considers to be the lack of persecution in the past as indicative of the future. But the last sentence of [44] seems to me to be no more than a denial of the applicant’s ground for his well-founded fear. I do not think that [44] or [46] complies with the strictures suggested by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration & Anor (2003) 216 CLR 473[1] at [73] and [74]. In my view there should be a clear engagement with what might occur in the future that cannot be satisfied by pointing to the fact that what occurred in the past had been considered. Clearly an examination of what may have occurred in the past is a good indicator of what may occur in the future: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559[2]. In Guo the High Court opined at 575:
“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.”
[1] “S395/2002”
[2] “Guo”.
However, simply to make a finding about what occurred in the past is not enough to satisfy the real chance test as elaborated in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379[3]. As the High Court opined in Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ., the essence of the real chance test propounded in Chan is the process of looking to the future. Such a process has not been effectively engaged in the present case. As a counterpoint, where a Tribunal finds that no past persecution has occurred, as the Reviewer found in this case, it is not then required to consider the claims of past persecution when considering the real chance test : MSXSA v Minister [2010] FCAFC 123. It follows that a finding as to past events alone will not satisfy the real chance test, and indeed, in MSXSA the Full Court also noted that the real chance test “requires a decision-maker to engage in a degree of speculation about future events.” (at [94]). In SBZF v Minister for Immigration and Citizenship [2008] FCA 1486, Lander J opined at [51]-[52]:
“However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S 395/2002 216 CLR 473 per Gummow and Hayne JJ at 499.
In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act.”
In my opinion, the same must be said of the present case. The Reviewer did not go the extra step of explaining why his finding that nothing had happened in the past meant that nothing would happen in the future.
The second ground of application is:
“Ground 2
The second respondent erred in a manner constituting jurisdictional error by assessing the applicant’s claims on the basis that he was expected to take reasonable steps to avoid persecution if returned to Iraq.
Particulars
(a)The applicant was a professional hairdresser in Iraq and his protection visa claims centred around his occupation.
(b)The second respondent made a finding that the applicant could change his occupation and that “eliminate” any threats feared.
(c)The second respondent erred by imposing on the applicant a requirement or an expectation that he take reasonable steps to avoid persecution.”
This ground is based upon what fell from the High Court in S395/2002 found in particular in the joint Judgment of McHugh and Kirby JJ at [40] to [43] upon which I draw by way of example:
“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…. 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.”
The applicant’s membership of the particular social group described arises because of his profession and the manner in which he wishes to carry it out. He believes that it is appropriate for men’s hair to be cut and styled in western styles. That belief gives cause for others to impute to him un-Islamic behaviour and the following of western culture. The respondent seeks to put the activities of the applicant within the class considered by the Chief Justice in Morato v Minister for Immigration & Anor (1992) 29 ALD 455 where his Honour says at [457]:
“Each element of the definition must be considered. A critical element in the present case is that the fear of persecution relied upon must be a fear for reasons of membership of a particular social group. It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason. The primary focus of this part of the definition is upon an aspect of what a person is — a member of a particular social group — rather than upon what a person has done or does.
It may well be that an act or acts attributed to members of a group that is in truth a particular social group provide the reason for the persecution that members of such a group fear, but there must be a social group sufficiently cognisable as such as to enable it to be said that persecution is feared for reasons of membership of that group.
The need to show that persecution is for reasons of membership of a group, rather than for an act or acts done, tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character. I emphasise ``sole'’ because that is how the particular social group is sought to be defined in this case. The doing of an act or acts of a particular character may, in some circumstances and together with other factors, point to the existence of a particular social group but in this case it is only the common action of turning Queen's evidence that is said to define the group.”
And at [458]:
The conclusion may be tested by asking whether, in respect of a group as defined by the appellant, it could ever be said that persecution would be for reasons of membership of such a group rather than for the reason that the person who feared the persecution had engaged in the activity that was said to define the group. The answer must be that the supposed particular social group, defined by an act or acts done, is so lacking in common characteristics that persecution, if it occurred, would be by reason of those acts and not by reason of those acts of membership of a particular social group. In my view, therefore, the appellant's case on this point must fail. There was no error in determining that the appellant was not a refugee within the meaning of the convention and the protocol.
I think there are two answers to this argument. The first is that it appears to me (and was argued by the respondent) that the Reviewer accepted the social group as defined and that the applicant was a member of it. The second is that much more consideration has been given to what constitutes a particular social group since 1992. This has blurred the boundaries between membership and acts done. For example, it is now well accepted that there is a particular social group of unsuccessful asylum seeker returnees. That would appear to be a group defined solely by what people have done. But it is important to note that even Black CJ was cautious about the application of the distinction he drew, opining at [459]:
“It must be acknowledged that the part played by acts done, or assumed to have been done, by those who are said to constitute a particular social group can give rise to difficult questions and I should not be taken as concluding that the activities of the members of an asserted group are necessarily irrelevant. It may be, for example, that over a period of time and in particular circumstances, individuals who engage in similar actions can become a cognisable social group. The actions may, for example, bear upon an individual's identity to such an extent that they define the place in society of that individual and other individuals who engage in similar actions. There may be such an interaction in a particular society that a group of people becomes a cognisable element within the society by virtue of their common activity. Persecution may be part of that interaction and may contribute to the development of the social group. Thus similar actions engaged in by people may be a factor to be considered when examining whether a particular social group in fact exists or whether a person is a member of such a group. But all this is far removed from the present case where acts, without anything at all more, are said to define a particular social group.”
The applicant’s membership of this particular group, being due solely due to the way in which he conducts his profession as a hairdresser, puts him into the class of persons who fear persecution because of membership of that group and not because he has done some act such as cutting hair in a particular style and that others who have done an act of the same nature are also likely to be persecuted. They are likely to be persecuted because cutting hair in a particular style is deemed to be un-Islamic. It follows that being told that you do not have a well-founded fear of persecution as a member of that group because you can cease to do the very thing that places you within the group is to ignore what fell from the High Court in S395/2002.
Ground 4 is in the following form:
“Ground 4
The second respondent misapplied the “serious harm” test in its assessment of the applicant’s claim to be a member of a particular social group.
Particulars
(a)The second respondent found that in terms of the “membership of a particular social group” postulated by the applicant, there was no evidence that such groups had suffered persecution.
(b)The reasons for the decision demonstrate that the second respondent required proof that salon owners or employees had been killed or abducted before finding that they were subject to persecution.
(c)Such a requirement or threshold misapplies and misstates what is required by the Refugees Convention.”
This is another ground taking issue with [44] of the Reviewer’s decision record. The Reviewer applies the Australian law that threat of serious harm must be present in order that there be a well-founded fear of persecution. He then appears to define that serious harm by reference to systematic attack or being killed or abducted whereas serious harm is defined in s.91R(2) of the Migration Act 1958 (Cth) in the following way:
“Persecution
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.”
In Chan, Mason CJ referred to persecution as requiring:
“Some serious punishment of penalty or some significant detriment or disadvantage.”
I also have concerns about the use by the Reviewer of the phrase “systematic attack” as Ms Karapanagiotidis points out in her helpful written submissions:
“First, in order to constitute “serious harm” there is no requirement for the particular social group to be “under systematic attack”. As McHugh J explained in Ibrahim, the phrase “systematic conduct” has its origins in a decision of Wilcox J, in Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported; Federal Court of Australia; 28 July 1987). His Honour went on to state at [95] and [99/100]:
“The use of the term "systematic conduct" has proved unfortunate. Tribunals have read it as meaning that there can be no persecution for the purpose of the Convention unless there was a systematic course of conduct by the oppressor. That was not what I meant by using that expression in Chan. I used it as a synonym for non-random, and I think that in Murugasu Wilcox J intended to use it in the same way…
It is an error to suggest that the use of the expression "systematic conduct" in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or "must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic." The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person.
Given the misunderstanding that has arisen from using the term "systematic conduct", it is probably better to refrain from using it in a Convention context. But if it is to be used, those who use it should make it clear that they are referring to "non-random" acts; otherwise, they run the risk of making a legal error.”
I would also dispute that there is no evidence that persons within the group could be described as “suffering or being threatened by persecution” when the Reviewer accepted that ten shops had been threatened of which four were unisex and all of those had closed down. The other six shops continue to receive threats. The owner of the applicant’s salon had left the country after closing his shop because of threats received and a friend of the applicant had been targeted and gone missing. I am satisfied that the applicant has made out his case that the Reviewer erred in the manner described.
“Ground 5
The second respondent denied the applicant procedural fairness by failing to notify him of an issue to which its reasoning processes were directed.
Particulars
(a)The applicant claimed to fear persecution on the grounds of his membership of a particular social group.
(b)The central feature of this particular social group was the applicant’s employment as a hairdresser and it was otherwise defined as ‘persons accused of “un-Islamic” behaviour) Iraqis who violate Islamic practices by following the “Western culture” and encouraging the Western culture in Muslim Iraq.”
(c)The second respondent expanded the definition of the particular social group advanced by the applicant to include the applicant, his colleagues, their clients and the clients of other salons providing similar services.
(d)The second respondent then proceeded to make findings based on the alleged lack of evidence in relation to this new and expanded particular social group.
(e)The second respondent failed to raise with the applicant and/or failed to provide him with an opportunity to respond to the new and expanded particular social group that was ultimately considered by the second respondent.”
The definition of the particular social group was made by the applicant in a submission received at the interview. This is reproduced at [11] of these reasons. It was the applicant’s evidence that the persons accused of un-Islamic behaviour were fellow hairdressers. The force of the submissions made on his behalf is to that group:
“It is submitted that the Al Mahdi Militia and the AAAH are extremely conservative and do not tolerate any Western ideologies (See 4.2 for further discussion). The militia frequently attack those who oppose their views and those considered “Un-Islamic”. The militia systematic and discriminative targeting of anti western culture amounts to persecution. Thus we submit that the applicant’s practice of western culture ideologies (through western hairstyles) makes him a target of attack.” [CB 113]
Between [CB 114] and [CB 117] are further submissions based upon country information relating to barbers, particularly in regard to their shaving of beards. There is no discussion in those submissions of the situation of clients. Even if clients were to be considered part of the particular social group and were not attacked that does not make the situation of the barbers any less precarious. There was plenty of evidence that barbers were subject to attack. Even the Reviewer found one report of such an attack in 2011, although he used it to indicate that such attacks were no longer systematic. The “no evidence” finding by the Reviewer could not be in respect of barbers but only in respect of the clients. I believe that in the context of the discussions between the Reviewer and the applicant, which include the submissions made on his behalf, it was not anticipated that the Reviewer would come to a conclusion about his claims based upon a sub-set of the particular social group that had not been discussed with him and in respect of which he had had no opportunity to respond. In my view in order to provide procedural fairness to the applicant the Reviewer was required to specifically raise this issue with him: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 158 at [35].
The final ground of application was:
“Ground 6
The second respondent failed to consider whether the applicant was at risk of future persecution on account of his membership of a particular social group.
Particulars
(a)The second respondent considered whether the applicant faced persecution on account of his “membership of a particular social group” defined by the second respondent as including the applicant, his colleagues, their clients and the clients of other salons providing similar services..
(b)The second respondent found that there was no evidence before him that this group of people were under “systematic attack” or suffering persecution.
(c)There was evidence before the second respondent that hairdressers were under attack in Iraq in the nature of country information and the information received from the applicant’s family.
(d)The second respondent was required to consider the risk of future persecution and to assess this risk in light of all the circumstances and evidence.
(e)The second respondent confined its inquiry to whether the particular social group had suffered persecution in the past and failed to consider and/or make findings as to the risk of future persecution.”
The respondent argues that [46] of the Reviewer’s decision relates to both social groups that the applicant claims to be a member of and that it is expressed in terms that clearly apply to the future. I accept that paragraph [46] does apply to both groups discussed in [44] and [45]. I would also accept that the use of the word “would” in [45]:
“There is no recent evidence before me in addition that he would be persecuted for that reason even if it did become known.”
clearly points to the future but there is no such future consideration in [44]. It is all about the past. There is nothing upon which to ground any finding that the situation would not be any worse in the future. If the Reviewer intended to come to that conclusion based upon the applicant’s past experience then he should have said so. In the absence of any basis for the conclusion it is mere speculation.
Whilst there is some controversy at common law surrounding the scope of the principle that a finding based on no evidence amounts to an error of law, the principle that an administrative decision need be based on evidence is well established. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Deane J. opined that:
“If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. […] When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.”
Likewise, in considering the notions of illogicality and irrationality in decision-making in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ stated:
“If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as "Wednesbury unreasonableness". It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error.”
A nuance was identified in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 where Wilcox, Marshall and Jacobson, after recognising the existence of the no evidence principle, opined at [12]:
“However, it is difficult to apply [the principle] to a rejection of evidence. After reviewing the relevant case law up to that date, in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150, Wilcox J said that all of the cases of which he was aware, in which ‘no evidence’ was treated as a separate ground of invalidity, ‘were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact’.”
In my opinion, the conclusion arrived at by the Reviewer required him to first make a finding in relation to the future. I found at [14]-[16] of these reasons that that was not done. Absent such a finding, the conclusion at [46] was reached without evidentiary support and the Reviewer thus fell into an error of law.
The applicant has succeeded on all his grounds of application. The court will make the declarations sought. I do not believe that it will be necessary to order the injunctions at this stage. The court will order that the respondent pay the applicant’s costs assessed in the sum of $7,000.00.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 5 October 2012
CORRECTION
Paragraph (1) of the Order on page 3 of the Cover sheet and Orders has been vacated.
In Paragraph 32 of the Reasons the words “The court will order that the matter be remitted to the Independent Merits Reviewer, differently constituted, for determination according to law” have been deleted.
[3] “Chan”
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