GKX18 v Minister for Home Affairs
[2019] FCCA 2028
•26 July 2019
FFEDERAL CIRCUIT COURT OF AUSTRALIA
| GKX18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2028 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the Tribunal engaged in fact-finding that was irrational, illogical and/or unreasonable and/or did not give real, genuine and proper consideration to material before the Tribunal in respect of some of the applicant’s claims – whether the Tribunal granted the applicant procedural fairness – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 425, 476 |
| Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 CGA15 v Minister for Home Affairs [2019] FCAFC 46 The Republic of Nauru v WET040 (No2) [2018] HCA 60; (2018) 93 ALJR 102; (2018) 362 ALR 235 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 353 ALR 641; (2018) 74 AAR 121; (2018) 353 ALD 641 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 161 ALD 441 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780; (2018) 359 ALR 1 Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966; (2002) 190 ALR 601; (2002) 68 ALD 257 NAEH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 927 BWC15 v Minister for Immigration and Border Protection [2017] FCA 199 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 SZIMM v Minister for Immigration & Anor [2008] FMCA 34 |
| Applicant: | GKX18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3464 of 2018 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 26 April 2019 |
| Date of Last Submission: | 26 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.J. McDonald-Norman |
| Solicitors for the Applicant: | Westside Legal |
| Counsel for the Respondent: | Ms. R. Francois |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application made on 10 December 2018 and amended on 20 March 2019 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3464 of 2018
| GKX18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
| First Respondent |
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 10 December 2018 and amended on 20 March 2019. The application seeks review of the decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 13 November 2018, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a protection visa.
In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”, “AE1”) and the affidavit of Mr Pathmanathan Rama, solicitor, of 21 March 2019 annexing a transcript of the Tribunal hearing (“T”).
Background
The applicant is a citizen of Iraq (item 18 CB 25). He arrived in Australia on 30 January 2017 (item 46 CB 32). The applicant applied for a protection visa, which was received by the Minister’s department on 17 April 2018 (CB 12-CB 48).
The Ministers written submissions provide a summary of the applicant’s claims to fear harm. On the evidence before the Court they are a fair summary which provides useful background to the applicant’s claims:
“7. The applicant’s claims for protection were contained in an undated statement provided with his protection visa application and can be summarised as follows (CB 53-54):
7.1 He was a Sunni Muslim, who was from the same province as former Iraqi leader Saddam Hussein. During Saddam Hussein’s regime, his father had been a lieutenant-colonel. In 2004, the applicant’s father was trained by, and became part of, the American forces. He subsequently became the commander of Rissafa police.
7.2 The applicant and his family were threatened and attacked. In 2005, there was a failed attempt on the applicant’s life and the applicant discovered that a faulty adhesive device (IED) had been placed on his car. On another occasion, the applicant and his father were shot at, and his father was hit and suffered injuries. After this, the applicant’s father and one of his brothers went to Syria. The applicant remained with his female family members.
7.3 Whilst he remained in Iraq, the applicant’s house was raided and shot at. Whenever the applicant went shopping, militias bashed him and asked about his father’s whereabouts.
7.4 In February 2007, the applicant obtained a passport and travelled to Syria but the security situation changed and his father asked the family to return to Iraq.
7.5 The family home was confiscated by the ‘Mahdi Army’. The applicant was unable to obtain a job because of discrimination.
7.6 The applicant would not go out in public but in 2013, he accidentally saw one of the perpetrators who had threatened his family before. The man asked about the applicant’s family address but knew his workplace. The family knew he had to escape Iraq because his family would be at risk if he remained. The applicant went to Jordan where he met his wife before travelling to Australia.”
I note that the applicant’s claims to fear harm are set out in the Tribunal’s decision record at [9]-[14] (at CB 206) as follows:
“9. The applicant claimed that his father was a lieutenant-colonel and that his Sunni family came from the same province as Saddam Hussein and that in 2004 his father was called for by US forces, trained and then became the commander of police in al-Rissafa. They began receiving threats as a result and his father was seriously injured by an RPG fired at his office; they also received threats via phone.
10. In 2005 the applicant believed he was targeted as a faulty explosive device was found attached to his vehicle. He was then subject to threatening phone calls and accused of being a Ba’thist, Saddamist and supporter of Sunni terrorist groups.
11. He was with his father in his car driving to see relatives in Tikrit when a car followed them and fired at them. His father was shot in the back and legs and they were able to take him to hospital. As a result of this, his brother Saddam and his father fled to Syria but the applicant stayed to look after the womenfolk – he also lacked a passport. During this time their house was raided and shot at.
12. Whenever he went shopping he was bashed by the militias who wanted information about his father’s whereabouts, and insisted that he was hiding in Iraq. In January 2007 their house was shot at and the attackers screamed at them. In February 2007 they obtained passports and went to Syria for nine months. Once the prime minister said the security situation had improved his father advised that they would be returning to Iraq.
13. On returning to Iraq their home had been confiscated by the Mahdi Army, so they moved and kept a low profile. His father was forced to apply for retirement. The applicant was unable to find a job as he was discriminated against and worked privately as a hairdresser, but this also made him fearful of militias as they didn’t want him to cut people’s hair in a western style.
14. He rarely went out in public but in 2013 he accidentally saw one of his perpetrators who had previously threatened them. He knew the applicant’s work address but quizzed him about his home address. He knew that he had to escape Iraq so he went to Jordan in June 2013 and sought asylum with UNHCR. It was there that he met his wife.”
On 3 September 2018 the delegate refused to grant the applicant a protection visa (CB 77-CB 93). The delegate found that the applicant did not satisfy s.36(2)(a) or s.36(2)(aa) of the Act (CB 77). The delegate additionally held that the applicant was not a member of a family owed protection under s.36(2)(b) and s.36(2)(c) of the Act (CB 77). On 6 September 2018 the applicant applied to the Tribunal to review the delegate’s decision (CB 97-CB 98).
The Tribunal affirmed the delegate’s decision on 13 November 2018 (CB 204 to CB 215). The Tribunal held that the applicant did not “have a well-founded fear of persecution for any Convention reason” ([75] at CB 215). The Tribunal found that the applicant was not targeted by Shi’a militias due to his father’s previous work or membership in the Ba’th Party ([49]-[51] at CB 211). The Tribunal did not accept that the applicant would be targeted in Iraq because he is Sunni ([62]-[63] at CB 213).
In considering the applicant’s claims that he would be at risk due to his father’s “work”, and his Sunni identity, the Tribunal noted that the applicant’s family had lived in Iraq for eleven years “without apparent incident” ([64] at CB 213). The Tribunal rejected the claim that: “…their house in Baghdad had been taken over by a member of JAM” and did not accept: “…that the applicant was subject to threatening phone calls, accused of being a Ba’thist, Saddamist or supporter of Sunni terrorist groups, nor that he was discriminated against professionally” ([68] and [69] at CB 214).
The Tribunal also assessed whether the applicant could be eligible to receive complementary protection. The Tribunal did not accept the applicant’s claims and thus, found that there are not “any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm” (see [76]-[78] at CB 215). Therefore, the Tribunal held that the applicant was not owed complementary protection ([78] at CB 215).
The Minister’s written submissions also provide a fair summary of the Tribunal’s findings [8]-[16]:
“8. The Tribunal found the applicant’s evidence to be implausible, inconsistent and lacking in credibility (CB 211, [48]).
9. The Tribunal accepted that the applicant’s father had worked as a lieutenant-colonel in the Iraqi police service, held a similar position under Saddam Hussein and was a member of the Ba’th Party (CB 211, [49]-[50]). The Tribunal did not accept that the applicant was himself a member of the Ba’th Party, or that he would be targeted due to his father’s membership of the party (CB 211, [51]).
10. The Tribunal rejected as not credible claims made by the applicant at the hearing that he had been a bodyguard for his father (CB 211, [53]). In this regard, the Tribunal noted that when the Tribunal’s concerns were put to the applicant at hearing, he changed his evidence to be that he and his brother would drive their father to meetings (CB 211, [53]).
11. On the basis of its finding that the applicant had not been a bodyguard for his father, the Tribunal also rejected the applicant’s claim to have had a faulty IED placed on his car, finding it implausible that the militia would have placed such a device on his vehicle (CB 212, [55]). The Tribunal also did not accept that a 16 year old such as the applicant would have had his own vehicle or that the militia would have attached an IED in such an “amateurish fashion” that a person of the applicant’s age without any training would have been able to determine its presence.
12. The Tribunal dismissed as not credible the applicant’s claim to have been beaten by militias to ascertain his father’s whereabouts but then released when he said he did not know where his father was (CB 212, [56]). The Tribunal found that had this claim been truthful, it was reasonable to expect that the militia would have held and tortured the applicant either until he gave up the information or his father’s location was otherwise revealed.
13. With respect to the applicant’s claimed fear of harm as a Sunni, the Tribunal referred to the applicant’s evidence that he and two of his siblings had married Shi’as, which together with country information, led the Tribunal to conclude that the applicant and his family are well-integrated in Iraqi society (CB 213, [62]-[63]).
14. On the basis of its credibility concerns, the Tribunal rejected the applicant’s claims regarding the circumstances leading to his departure from Iraq in 2013, which were unsupported by documentary evidence (CB 214, [68]-[71]).
15. In relation to complementary protection, the Tribunal relied on its anterior findings, including as to the applicant’s evidence that his family had lived safely in Iraq for 11 years without incident (CB 215, [76]-[78]).
16. On the basis of these findings, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under either s 36(2)(a) or (aa) of the Act, and accordingly, affirmed the decision under review (CB 215, [75]-[82]).”
The applicant’s written submissions of 8 April 2019, helpfully, set out the Tribunal’s findings specifically relevant to the ground of the amended application [7]-[10]:
“7. The Applicant claimed to fear harm if removed to Iraq because of, relevantly, his father’s role as a former military official (and member of the Ba’ath Party) under Saddam Hussein and his subsequent role as a lieutenant-colonel in the Iraqi police service after 2003: CB 194.
8. The Tribunal did not accept that the Applicant would face a real chance of persecution or a real risk of significant harm if removed to Iraq.
9. The Tribunal did not accept that a faulty improvised device was attached to the Applicant’s car in 2005: CB 212 [54] (IED Finding). It set out its reasoning in this regard at CB 212 [55]:
Given I have not accepted the applicant was a bodyguard, I also do not accept that the militia would have bothered placing an IED on his vehicle (or what a 16 year old was doing with their own vehicle in the first place) or have done it in such an amateurish fashion that a completely untrained 16 year old boy would have been able to determine its presence (emphasis added).
10. The Tribunal did not accept that the Applicant was bashed by militias whenever he went shopping when he refused to lead them to his father’s location that they believed was somewhere in Iraq: CB 212 [54] (Militias Finding). It set out its reasoning in this regard at CB 212 [56]:
It also lacks credibility that if the militias were trying to gain information about his father’s whereabouts, they would simply bash the applicant every time he went to the markets and release him when he denied any knowledge. If they truly believed his father to be in hiding in Iraq, then it is reasonable to believe that they would have detained the applicant, tortured him for the information and/or held him until the father gave himself up, returned to Iraq, or another family member revealed his location (emphasis added).”
The Application before the Court
The sole ground of the amended application to the Court is as follows:
“1A. The Tribunal engaged in fact-finding which was irrational, illogical and/or unreasonable and/or did not give real, genuine and proper consideration to material before the Tribunal in respect of the Applicant’s claim to have had a faulty improvised explosive device attached to his car.
Particulars
(a)The Tribunal did not accept that the Applicant had a faulty improvised explosive device attached to his car in 2005: CB 212 [54]-[55] (IED Finding).
(b)Part of the Tribunal’s basis for the IED finding was that it did not accept that a militia would have attached an improvised explosive device “[in] such an amateurish fashion that a completely untrained 16-year-old boy would have been able to determine its presence”: CB 212 [55] (Amateurish Fashion Premise).
(c)The IED Finding was a material part of the basis for the Tribunal’s finding that the Applicant’s oral testimony lacked credibility.
(d)The Tribunal’s finding that the Applicant’s oral testimony lacked credibility served as the sole or substantial reason for the rejection of several of the Applicant’s claims: CB 212 [57], [59], CB 213 [61], [65], CB 214 [68], [69].
(e)The Amateurish Fashion Premise was an unwarranted assumption not based in any evidence before the Tribunal: DAO16 v MIBP [2018] FCAFC 2; (2018) 353 ALR 641 at [45]; BZD17 v MIBP [2018] FCAFC 94 at [58].
(f)In the premises:
(i)the Tribunal, in reaching the IED Finding by reference to the Amateurish Fashion Premise, engaged in fact-finding which was irrational or illogical; and/or
(ii)the Tribunal, in reaching the IED Finding by reference to the Amateurish Fashion Premise, did not give real, proper and genuine consideration to the material before it.
(g)In the premises, the Tribunal’s decision was affected by jurisdictional error.
1B. The Tribunal engaged in fact-finding which was irrational, illogical and/or unreasonable and/or did not give real, genuine and proper consideration to material before the Tribunal in respect of the Applicant’s claim to have been bashed by militias.
Particulars
(a)The Tribunal did not accept that the Applicant was “bashed by the militias whenever he went shopping when he refused to lead them to his father’s location that they believed was somewhere in Iraq”: CB 212 [54] (Militias Finding).
(b) Part of the Tribunal’s basis for the Militias Finding was its finding that, had militias believed the Applicant’s father to be hiding in Iraq, “it is reasonable to believe that they would have detained the applicant, tortured him for the information and/or held him until the father gave himself up, returned to Iraq, or another family member revealed his location”: CB 212 [56] (Militia Behaviour Premise).
(c) The Militias Finding was a material part of the basis for the Tribunal’s finding that the Applicant’s oral testimony lacked credibility.
(d) the Tribunal’s finding that the Applicant’s oral testimony lacked credibility served as the sole or substantial reason for the rejection of several of the Applicant’s claims: CB 212 [57], [59], CB 213 [61], [65], CB 214 [68], [69].
(e) The Militia Behaviour Premise was an unanswered assumption not based in any evidence before the Tribunal: DAO16 v MIBP [2018] FCAFC 2; (2018) 353 ALR 641 at [45]; BZD17 v MIBP [2018] FCAFC 94 at [58].
(f) In the premises:
(i) the Tribunal, in reaching the Militias Finding by reference to the Militia Behaviour Premise, engaged in fact-finding which was irrational or illogical; and/or.
(ii) the Tribunal, in reaching the Militias Finding by reference to the Militia Behaviour Premise, did not give real, proper and genuine consideration to the material before it: WAGO of 2002 v MIMIA [2002] FCAFC 437; (2004) 184 ALR 676 at [54].
(g) In the premises, the Tribunal’s decision was affected by jurisdictional error.
1C. The Tribunal did not grant procedural fairness to the Applicant.
Particulars
(a) The Applicant repeats particulars 1A(a) to (d) and particulars 1B(a) to (d).
(b) The Amateurish Fashion Premise and the Militia Behaviour Premise:
(i) did not form part of the basis for the Delegate’s decision to refuse the Applicant’s application for a Safe Haven Enterprise (subclass 790) visa;
(ii) was not put to the Applicant as an aspect of his account which was an important issue on the review: SZBEL v MIMIA [2006] HCA 63; (2006) 228 CLR 152 at [43]; and
(iii) was not based on information put to the Applicant as information that the Tribunal considered to be the reason, or part of the reason, for affirming the decision under review.
(c) In the premises, the Tribunal’s decision was affected by jurisdictional error.”
[Particular 1C(b)(iii) not pressed.]
[Underlining removed.]
[Error in the original.]
As is clear the amended application contains one ground divided into three parts. For the sake of convenience I will refer to them as ground 1A, ground 1B, and ground 1C.
Grounds 1A and 1B assert the same jurisdictional error on the part of the Tribunal’s decision, but that such error is revealed in two different ways. The legal error is said to be one of a process of fact-finding which was irrational, illogical or unreasonable, or a failure to give proper and genuine consideration to the applicant’s claims.
Ground 1A is said by the applicant to reveal jurisdictional error because of the Tribunal’s reasoning in relation to, as the applicant describes it now, the “IED Finding” which in part arose from what the applicant describes as the “Amateurish Fashion Premise”. [”IED”: “Improvised Explosive Device”]. (See above at [11] of this judgment).
Ground 1B asserts the same legal errors as arising from what the applicant now describes as the “Militias Finding”, arising from what the applicant also now describes as the “Militia Behaviour Premise” (see [11] above).
Ground 1C asserts legal error on the basis that the Tribunal denied the applicant procedural fairness. Specifically, that the amateurish fashion premise, and the militia behaviour premise, did not form a part of the delegate’s decision to refuse the grant of the visa, and neither premise was put to the applicant as required by SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”).
Grounds 1A and 1B: The Applicant’s Argument
The Tribunal accepted that the applicant’s father was a senior officer in the Iraqi police and that he was a member of the Ba’th Party ([49] at CB 211).
The applicant’s argument, as against that background, in relation to ground 1A is as follows. He claimed that he worked as a bodyguard or driver for his father. In 2005 he discovered that a faulty IED had been attached to his car.
The Tribunal did not accept this claim. The Tribunal stated ([55] at CB 212):
“55.Given I have not accepted the applicant was a bodyguard, I also do not accept that the militia would have bothered placing an IED on his vehicle (or what a 16 year old was doing with their own vehicle in the first place), or have done it is such an amateurish fashion that a completely untrained 16 year old boy would have been able to determine its presence.”
Ground 1A is directed to what the applicant now describes as the amateurish fashion premise. That is, that the militia acted in such an amateurish fashion such that the applicant would have detected the IED. The applicant’s argument was that this finding was material to the Tribunal’s ultimate decision, was not severable from the reasoning which otherwise led to that conclusion, and that the Tribunal’s fact-finding, notwithstanding its fact-finding discretion, nonetheless revealed legal error as alleged in the ground.
The applicant’s argument before the Court proceeded with reference to what he anticipated (given the Minister’s written submissions) to be the Minister’s answer to his ground.
One, the Minister’s argument was said to be that no legal error arises because the Tribunal had rejected the applicant’s claim to have been a bodyguard for his father. In that light the “Amateurish Fashion Premise” is severable from the basis of the Tribunal’s decision. That is, the Tribunal’s statement in the last sentence of [55] (see [20] above) is severable from the central and primary reason for affirming the delegate’s decision.
To argue against that position the applicant referred to ARG15vMinister for Immigration and Border Protection [2016] FCAFC 174 (“ARG15”) and CGA15v Minister for Home Affairs [2019] FCAFC 46 (“CGA15”). The applicant’s submission was that in ARG15 the Minister raised a similar argument to that raised now (that is the severability argument) (see ARG15 at [72]).
Before this Court the applicant directed attention to ARG15 at [74]:
“74. It is evident from the terms of [53] of the Tribunal’s reasons for decision (which are set out in [22] above), that the Tribunal’s reasons for rejecting the appellants’ application for review were cumulative. It is significant that the reasoning in [45] is effectively repeated in [53], but it is accompanied in that latter paragraph by a series of additional findings, all of which are preceded by the word “Further”. In other words, the Tribunal relied upon a series of adverse findings in coming to its ultimate conclusion. No single finding was relied upon by the Tribunal in coming to that conclusion. That is made clear by the fact that in the final sentence of [53], the Tribunal refers to “all of the reasons given above”, which necessarily draws together all the various strands which are identified in that paragraph.”
Further to CGA15 at [61]:
“61. The Tribunal’s flawed statistical analysis is expressed as one of three reasons underpinning its conclusion that the chance that the appellant would face serious harm if he relocated to Islamabad or Rawalpindi is “remote”. In our view it can be safely inferred that the analysis materially contributed to the Tribunal’s conclusion in that regard. Where a decision-maker relies on intermingled findings or matters in coming to an ultimate conclusion and there is no proper basis for one of the findings, jurisdictional error may result: ARG15 at [74]. In our view the statistical analysis cannot easily be severed from the Tribunal’s other reasons for the conclusion that the appellant faced only a remote chance of harm and it could realistically have resulted in the Tribunal reaching a different conclusion.”
The proposition that the applicant sought to relevantly draw from this was that where a decision maker relies on a number of intermingled findings to reach a conclusion, and one of those findings lacks a “proper basis”, then jurisdictional error may result.
In applying this to the current circumstances, the applicant acknowledged that the Tribunal had found that the applicant had not served as a bodyguard to his father (with apparent reference to [53] at CB 211).
However, he argued that while this may have been one reason for its conclusion, the Tribunal proceeded to set out further reasons as to why it rejected the applicant’s claim. The applicant argued that it was not open to the Court to “infer” that any one of these reasons supported the “premise” (that is the amateurish fashion premise).
Two, the applicant made clear that his argument in relation to ground 1A (and for that matter ground 1B) involved what he described as one premise that is one of the “reasons” for supporting a finding, that is itself one finding that supports the ultimate conclusion.
Nonetheless the applicant’s argument was that the adverse IED finding was “underpinned” by the amateurish fashion premise, was material to the Tribunal’s exercise of its power because this premise, and finding, supported the Tribunal’s adverse credibility finding (in relation to the applicant) expressed elsewhere in the decision record.
In short, had the Tribunal not proceeded in the manner alleged in ground 1A it may not have made the global adverse credibility finding which led to the rejection of much of the applicant’s claims to fear harm.
Three, what is impugned in ground 1A (and for that matter similar in ground 1B) is the assumption that the militia would not have placed an IED on a vehicle in such an amateurish fashion that an untrained 16 year old boy (the applicant’s probable age at the relevant time) would have been able to detect it.
The applicant acknowledged that the Minister’s response, that the fact that someone else may not have made that assumption, does not render the decision irrational, illogical or unreasonable as being “an entirely orthodox position”.
However, the applicant sought to press the area of interaction between the exercise of discretion by the Tribunal, and what he said was a line of authority regarding the use of “unwarranted” findings of fact which led to jurisdictional error.
The applicant relied on:
(1) The Republic of Nauru v WET040 (No2) [2018] HCA 60 at [26]:
“Crulci J's reasoning is erroneous. Evidently, her Honour based5 it on the judgment of Lee J in W64/01A v Minister for Immigration and Multicultural Affairs6, unaware that the judgment was later overturned on appeal7. Crulci J also relied8 on certain of the observations of the majority of the Full Court of the Federal Court of Australia (Tamberlin and R D Nicholson JJ) in W148/00A v Minister for Immigration and Multicultural Affairs9 although the majority also observed10 that "a reviewing body must not set aside [a] finding [of credibility] simply because it thinks that the probabilities of the case are against, or even strongly against, the finding". More fundamentally, the Tribunal's implausibility findings were not speculative or matters of conjecture or unsupported by basic inconsistencies.”
[Footnotes omitted.]
(2) DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (“DAO16”) at [45]:
“Thirdly, as the appellant submits, a consideration of the AAT’s reasons discloses that many of its findings were underpinned by unexpressed and unwarranted assumptions not based in any evidence. An example is the disbelief expressed by the AAT member as to, among other things, the polygamous nature of some of the sexual relationships between the appellant and a number of the witnesses at [62]-[63] of its reasons. As a further example, in finding at [73] that “the witnesses who have provided statutory declarations and oral evidence to support the applicant’s applications for Protection visas have been willing to provide false evidence to support the applicant’s claims”, the AAT took into account among other things “the lack of independent witnesses until recently, despite the fact that the applicant lives in a city which has a sizeable and visible homosexual population”. Among other objections that might be made to this line of reasoning, it is underpinned by an unwarranted assumption that if the appellant had truly been homosexual, he would have engaged in sexual relationships with a larger number of men. Furthermore, the finding shows no appreciation of the fact that a visa applicant is entitled to call evidence afresh before the AAT, including to address issues considered dispositive by the delegate bearing in mind that the issues before the Tribunal are usually the issues raised by the decision under review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; 93 ALD 300; [2006] HCA 63 at [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ)). Bearing in mind that the further evidence was not relied upon here to raise a new claim, the mere fact that the appellant relied upon evidence from additional witnesses in support of his claim to be homosexual in circumstances where the delegate did not believe that claim, does not logically suggest that the additional witnesses were giving false evidence.”
(3) BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 (“BZD17”) at [58]:
“58. As the appellant submitted, however, the finding that the information regarding the assault could have been passed on anonymously to activists outside Cameroon for them to post was not supported by any evidence; indeed the only evidence suggested the contrary. That unwarranted assumption, in turn, was relied upon by the Tribunal as material in forming its view as to the credibility of the appellant. In our view this was an error of the kind identified by Flick J in SZVAP at [22]: see above at [36].”
In short, the applicant’s contention was that the Tribunal, in the current case, in relation to the amateurish fashion premise, made an unwarranted assumption as explained in DAO16 and BZD17.
The argument was that the Tribunal relied upon an assumption of how militias in Iraq function. It assumed that they were professional, and that it was implausible for them to have planted an IED in such a fashion that the applicant, given his age and lack of expertise at the time, could have discovered it.
The applicant argued that this assumption was unwarranted given the absence of a probative basis for that assumption. Therefore the finding, arising from this premise, was illogical, irrational or unreasonable, or demonstrated a failure to give proper and genuine consideration to the applicant’s claim.
Before the Court the applicant acknowledged that the Tribunal member had told the applicant at the hearing of his experience as follows (T5, Line 18 – 24):
“Mem: I have a PhD in Arabic Islamic studies, my thesis is on Shia political development. I’m pretty familiar with Shia – interrelationship between Shia and Sunni across the Middle East. I travel to the Middle East regularly. I’ve lived in five countries in the Middle East, I’m pretty familiar with the place. I don’t need history lessons, I don’t need regional lessons. I just need you to tell me who you believe is going to harm you, for what reason they’re going to harm you, and how they’re going to harm you. So who is going to harm you?”
However, his argument was that even in that light, there is still no explanation for the basis upon which the amateurish fashion premise was derived (see further below).
Ground 1B asserts the same legal errors as ground 1A, but is focused on a different finding and premise. Here the claim directs attention to the Tribunal’s finding that it did not accept that the applicant had been bashed by militias when he refused to lead them to his father’s location, whom they believed to be hiding in Iraq at the time (the Militias Finding) ([54] at CB 212):
“54. I also do not accept that the applicant had a faulty improvised explosive device (IED) attached to his car in 2005, that their house was raided and shot at in January 2007 and that he was bashed by the militias whenever he went shopping when he refused to lead them to his father’s location that they believed was somewhere in Iraq.”
The applicant’s argument is that the Tribunal’s basis for this finding was that the militias would, in the circumstances, have detained the applicant and tortured him for the information (the Militia Behaviour Premise) ([56] at CB 212):
“56. It also lacks credibility that if the militias were trying to gain information about his father’s whereabouts, they would simply bash the applicant every time he went to the markets and release him when he denied any knowledge. If they believed his father to be in hiding in Iraq, then it is reasonable to believe that they would have detained the applicant, tortured him for the information and/or held him until the father gave himself up, returned to Iraq, or another family member revealed his location.”
The applicant pressed the same argument on materiality in relation to ground 1B as in ground 1A. He further argued that on the severability point the argument here was stronger because there did not appear to be any other finding to support the adverse finding impugned by ground 1B, as there was for ground 1A.
The nub of the complaint in ground 1B is that the Tribunal proceeded on the assumption, or premise, that the militias would only act in one particular fashion, without any evidence, either country information, or the Tribunal member’s own experience, to support it.
Ground 1 C: The Applicant’s Argument
Ground 1C asserts a failure to accord procedural fairness to the applicant in relation to the matters raised in grounds 1A and 1B. That is, the applicant was denied the opportunity to present his arguments in relation to these matters, as required by s.425 of the Act.
Further, that the applicant was not on notice that the Tribunal’s adverse findings in this regard were at issue in the review (with reference to SZBEL). That is, the matters raised in grounds 1A and 1B were not identified by the delegate as being determinative, and the Tribunal did not put them to the applicant at the Tribunal hearing.
Consideration: Grounds 1A and 1B
It is the case that Tribunal decisions are meant to be read fairly, wholistically, and particularly relevant in the current circumstances, as the Minister submitted, with regard to what the applicant actually claimed, his evidence, and how the Tribunal dealt with this (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (“Wu Shan Liang”).
The applicant’s careful and well presented arguments focused, in relation to all aspects of his ground, on the specific matters encompassed by grounds 1A and 1B. But such matters as materiality, and severability require a wholistic reading of the decision, in all of the circumstances presented to the Tribunal, before jurisdictional error can be revealed.
In my respectful view, as the High Court made clear in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (“Hossain”), to reveal jurisdictional error it is not sufficient to point to the existence of some error, but to the degree or gravity of that error (see at [25] of Hossain). Further, such error must be material, in the sense that had it not been made, the ultimate decision could have been different (see at [31], [72] and [75]–[76] of Hossain).
The applicant applied for a protection visa on 17 April 2018 (CB 12–CB 48). He attached a statement of his claims to that application (CB 53–CB 54).
The elements relevant to the current consideration are as follows (CB 53–CB 54):
1. The applicant and his family lived in the province in Iraq from which Saddam Hussein had come.
2. His father was a Sunni and a Lieutenant–Colonel in the Saddam Hussein regime.
3. In 2004 his father received training from US forces and ultimately became a commander in the police.
4. The family started to receive threats because of this.
5. The IED claim was as follows (ground 1A):
“4. In 2005, there was a failure assassination attempt to my life when I realised that there was adhesive device pasted on my car but was faulty. Following this failed attempt, I received phone calls threatening my life. I was accused to be Baathist, Saddamist, and supporter of Sunni terrorist groups.”
6. Specific acts of past harm were said to be:
“5. While I was with my father in his car heading to visit relatives in Tikrit, a car followed us and fired refiles towards us. My father was shot in his back and legs and the perpetrators escaped through speeding away in their BMW car which was with a number plate. I survived the attack and my father suffered injuries.
6. My brother Saddam was with us and drove with care heading to the hospital to where he received treatments. Upon the incident, in 2006 my father and Saddam escaped to Syria; while we were under continuing threats from Shi’a militias. I had to stay back with female members of the family whereas in fact I had no passport to join them.
7. My mother, my sisters and my brother Noor stayed at home. Noor and I had to take care of the females at the time that my father and brother Saddam were in Syria. Our house was raided and shot at. It was very obvious that both groups Sunni and Shi’a targeted us due to our background and for my father’s position in the new government.”
7. Relevant to the militia finding (ground 1B):
“8. Whenever I went for shopping, I was bashed by the militias who wanted me to lead them to my father’s whereabouts. They insisted that my father was hiding in Iraq even though I told them that he was in Syria.
9. In January 2007, my home was shot at and the attackers were screaming on us. In February 2007, we managed to obtain passports and fled the country heading to Syria. In Syria, we remained 9 months. At the time, the Prime Minister announced that the security situation changed and developed. Therefore, my father asked us all to return to Iraq.
…
11. I was not able to find a job where I was discriminated against by the authorities due to my background. Hence, I had to work privately; I worked as a hairdresser. Having worked as a hairdresser made me fearful of the militias who prevented us from cutting any western styles.
12. I withstood all the threat and lost my liberty as I would not go in public. However, in 2013, I accidentally saw one of the perpetrators who threatened us before. He asked me about my family address and yet he knew my work place. I did not provide him with information but I had to escape Iraq as the whole family would be at risk if I remained.”
The applicant was interviewed by the delegate. The delegate’s account of what was discussed at the interview is set out (listed) in her decision record. Amongst this list is recorded the applicant’s claim that in 2005 an attempt was made on his life by the attachment of a faulty IED to his car (CB 80.6), in 2007 he received threatening telephone calls and attempts were made to assassinate him because he was “close to his father” (CB 80.7), he fled Iraq in 2007, to escape assassination attempts and was granted asylum by the UNHCR, he feared harm from a man whom he encountered in 2013, who had previously threatened him in 2007 (CB 80.9).
What can be fairly understood is that the applicant advanced two sets of claims to fear harm due to his father’s background and position, and his own ethnicity and Sunni faith.
One is the generalised fear due to his background (including being his father’s son), the other is a specific fear from a particular individual which was manifested in 2013, and dated back to 2007.
For current purposes, in particular in relation to ground 1C, the following findings made by the delegate are important.
The delegate accepted the applicant’s claims relating to his father’s service in the Iraqi defence forces and that he played a law-enforcement role with the US forces after the fall of the Saddam Hussein regime in 2003. The delegate also accepted his claims to be a “Sunni Muslim of Arab ethnicity” (CB 84.3).
The delegate did not accept (CB 84.8):
“I do not accept:
· He was threatened in 2007
· He fled Jordan to avoid harm and prevent harm to his family after a chance encounter in 2013 with an individual who had threatened him in 2007
· He was granted asylum by UNHCR in Jordan”.
The applicant therefore, would have been on notice following the delegate’s decision as to the following. One, the claim of harm directed to him generally was not accepted. Two, the claim of a personally directed threat of harm (in 2007) was also rejected. Therefore, the applicant was on notice that the claims relating to him specifically (as opposed to him being a Sunni) were at issue.
In relation to claims arising from his Sunni religion and family background and history, the delegate was unable to find any information to support the applicant’s claim that former members of Saddam Hussein’s party or supporters: “…are currently facing ongoing persecution from Shia militias” (CB 88.6).
Given country information before her on this issue the delegate found this: “…to adversely affect the credibility of the Applicant’s claim” (CB 88.6). Not only was the applicant’s factual account at issue, but he would have been on notice that his credibility had been brought into question.
In this regard the delegate also found (CB 90.4):
“…I find that the Applicant has vastly overstated his claims of harm and the severity of the situation he faces…”.
Ultimately the delegate also found (CB 91.4):
“I find the Applicant’s core account that he will be persecuted if he returns to Iraq by reason of his imputed political opinion is not well-founded but is merely assumed. It is entirely speculative that the Applicant will be harmed by the individual who allegedly accosted or confronted him in 2007 or by any person or persons in Iraq in connection with his imputed political opinion or for any other s 5J(1)(a) reason. I am satisfied that there is nothing about the Applicant’s particular circumstances that would give rise to a fear of serious harm in Iraq. I find the risk of serious harm is remote and fanciful.”
I agree with the Minister that following the delegate’s decision the applicant would have been on notice that the key aspects of his claim to fear harm, both those generally arising from his circumstances and background, and that arising specifically from claims of harm directed to him personally, were at issue.
This informs what occurred at the Tribunal hearing. The transcript provided to the Court by the applicant reveals that the Tribunal member understood the need to put to the applicant the issues in the review. The Tribunal stated: “…During the hearing I’ll point what I think might be any problems with your claims…” (T3, Line 47–48).
In his submissions to the Court the applicant relied on claims relating to past events, in particular the IED finding (with reference to 2005) and the militia finding (with reference to 2007).
It is important to note, given the applicant’s arguments before the Court, that the statutory task set for the Tribunal was to determine whether it could reach the requisite level of satisfaction such that the protection visa for which he had applied, must be granted to him (s.65 of the Act).
The relevant test in relation to the relevant criteria for the grant of the protection visa (here s.36(2)(a) and s.36(2)(aa) of the Act) requires the Tribunal to make findings of fact based on the applicant’s claims and other evidence, and information before it, and to consider whether the applicant’s claim to fear harm are well founded with reference to the reasonably foreseeable future (Wu Shan Liang at 279 and 294, Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189 at [42]).
While past events can often provide “a reliable basis” for determining probability in this context, they “are not a certain guide to the future”. (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 at 574).
This point was illustrated at the hearing with the applicant where he told the Tribunal that he had been “…actually recognised as a refugee” in 2007, and the Tribunal responded: “Yes, but circumstances changed…” (T 3, Line 24–26). A proposition with which the applicant agreed (T3, Line 28–29).
In relation to the applicant’s claim the following is of note from the Tribunal hearing (T 4, Line 36 – T 5, Line 47):
“App: Okay, Iraq at the moment is actually – living in Iraq is like living in cemetery. It’s made up of a group of militia who are monsters. A person is born there to be dead, to be killed.
Mem: Sorry, I understand Arabic is a very colourful language. You need just to answer my questions directly and not talk about general circumstances, I’m just interested in your particular circumstances. I’m quite familiar with the situation in Iraq. So this pertains just to you, so can you tell me what reason you fear being harmed, who will harm you, and for what reason will you be harmed?
App: We are from the Sunni religion and the threat we receive is from the Shia religion.”
Notwithstanding that last answer, the applicant then proceeded, with prompting by the Tribunal, to give evidence about his father’s position and circumstances with the Iraqi army and subsequently the police (T5, Line 49 – T 9, Line 37).
It is fair to say that up to this point the applicant’s evidence was focused on his father’s circumstances and the claimed situation for the family of such a person. In context that plainly included the applicant.
It is not surprising therefore that the Tribunal then asked (T 9, Line 38 T9–Line 40):
“Mem: Okay. Let’s get on to you, why do you think you’re gonna be killed? I mean, there’s about 8 million Sunnis in Iraq, why are you going to be killed? … - sorry, why out of the 8 million are they going to choose you to kill?”
The applicant raised the matter of being his father’s bodyguard (T 9, Line 44–T 10 Line 47):
“App: Okay, because my – we actually were like bodyguards, myself and my brother … Saddam Hussein. We used to, you know, work as bodyguards for my father, and wherever he goes, we were his security, and we were subject to many shootings from unkown cars when we out and about proving security for my father.
Mem: So, …?
App: Okay when the American forces were … when they were … and there was no trucks or anybody, my father had security there already, but we were add security to him. Even though I was young back then, but we were adding an extra security for him.
Mem: But what kind of – are you trained in close personal protection?
App: Our life was full of wars, we were forced to learn.
Mem: Yeah, so you were put on a course …?
App: When my father used to train … police to go with him, and so I can say between the period 2001 to the period 2003, my brother and myself used to accompany my father when he went to train …
Mem: That’s not what I asked. Have you been trained in close personal protection? These are the fields that people are – bodyguards are trained in, you know, the Americans … course.
App: No, no we didn’t have any training, it was – we were already providing this protection for my father. Look, I met Americans but hadn’t trained with them or anything.
Mem: Why didn’t he have his own vehicle …?
App: He had not trust because some criminals eventually were hired by the government. In 2004 people – my father came face to face with some people that used to be criminals and they are recruited by the government.
Mem: No, I’m, just trying to work out why your father would employ a 15 year old boy with no military training or any kind of training as a bodyguard. Seems a bit hard to believe. And I can’t recall you mentioning you being a bodyguard for your father.
App: Look, only – you know, it was mentioned maybe in headlines or like, you know, little points. I only talk about it and detail it when we sit down and mention more stuff and we have more time.
Mem: No, I actually can’t recall you mentioning you being a bodyguard anywhere. Not in big points or little points.
App: It’s true, I haven’t, but what we used to do is get my father right where he wants to be, like, you know, want to – where he want to – need to be. What we do, we just get him there, and – only my father, and that’s what we did.
Mem: What, you drove him somewhere?
App: Okay, we did used to drive him in our own private car, we used to get my father to the commanding station where he wanting to go, or the department that he wanted to go, and we used to have weapons with that.”
On the matter of the militias the applicant’s evidence was (T 10, Line 49 –T 12, Line 12):
“Mem: So what’s happened – so why do you think you’re being targeted in 2018?
App: Okay, before the militia was present, yes, killing anyone by them was illegal. But now, at the moment, the militia are present in the government, so they still want to target anybody, they can fabricate any story about that person, and they can be killing of that person legal.
Mem: So why are you going to be killed?
App: Okay, because back in 2013 I met the person who kicked us out of our house, and that got me really scared and shook me, and that’s why I ran away, and I don’t need to tell you about Iraq, the situation in Iraq is obvious, there is no security, no safety there. If I did not get killed by the …, I would be killed by some other ways due to the kinds of cases happening or the – because of all the pollutions as well.
Mem: So who’d you meet in 2013?
App: It was our neighbour who … our house, and I met him then, and he was part of this – it’s called …, or the … police, and he was wearing the – their uniform.
Mem: Sorry I don’t understand so when are you talking about …?
App: In the beginning of 2013, the – I’m forced to have – giving the authority all of the control of my area, or – it’s called …, to the police or the … police force, so my area was handed into the – handed to them, and on that day, this particular person, whose name’s Khaled(?), he was part of that …, I saw him face to face, and he’s the one who threatened us.
Mem: Where did you know him from before?
Int: When?
Mem: Yeah, did you know him from before, or?
Mem: Yes, he was our neighbour in our area – in the area … area where we were.
Mem: And why did Khaled threaten you in 2013?
App: Because he’s asking me about my parents, where are your parents, where are they living now? That’s the reason why I ran and I notified my parents, because he was asking me why – are you defeated(?)? Why didn’t she come back and take your home?
Mem: So, why did Khaled threaten you? I don’t understand.
App: Okay, because he’s part of the …, look, because of my father and his ranking, because we’re Sunni, because even why – when … of the area, and they’ve always – he always wanted our house from a very long time ago, he always wanted to write any number on the piece of paper to make us sign, but we never did. And – but despite all that, he still torch the papers and he took our house, even when we came back from Syria we couldn’t get our house back.
Mem: Okay. Did you take him to court?
App: No, no why – every time any Sunni take any Shia to court, it’s always against us and we’re always the ones to be pronounced guilty. And so that’s reason why I was worried about my family and I ran away.
Me: Is there any evidence that anybody’s taken your house off you, other than your verbal claims?
App: No, not at all, I’ve only got the – my verbal answers that I’m telling you…”
What emerges, clearly, is that the Tribunal expressed concerns with the applicant’s claim that a 15 (the applicant was not clear on his age at the relevant time) year old boy, and further, without training would be employed as a bodyguard. A claim raised by the applicant for the first time at the hearing.
It is clear that the applicant’s claim to fear harm from the militias, as it related to him personally in the past, arose from his father’s background, circumstances and position.
That is, the militias placed a faulty IED on his car because of his activities in support of, and in relation to, his father (The reference to “assassination attempt on you in 2005…” – T 13, Line 36, could only in context have been a reference to the IED matter).
In this regard the Tribunal made clear (at T 13, Line 42):
“…Raises questions as to whether any of this actually happened.”
Those parts of the Tribunal’s reasoning in its decision record impugned now by the applicant under grounds 1A and 1B are to be found under the heading of “Father’s Circumstances”.
Given that the applicant’s claims relating to the faulty IED and militias were said to arise out of his father’s claimed circumstances, it was appropriate for the Tribunal to consider these matters in that context.
I note for the sake of completeness that the Tribunal also dealt with the applicant’s claims to be targeted because he was a Sunni, and other aspects of his family circumstances ([62]–[67] CB 213–CB 214).
Further, under “Other Issues” (CB 214–CB 215) the Tribunal considered other aspects of the applicant’s claims, including the claim to have received threatening telephone calls ([69] at CB 214).
What distinguishes the current case from the authorities relied on now by the applicant, as the Minister in my view correctly submitted, is as follows. To avoid doubt I note that, of course, the principles enunciated in the cases apply generally and universally to any consideration of these types of matter by this Court. However, the application of these principles to the current case depends on the circumstances presented.
One, in CGA15, the unwarranted assumption, arose in part, and not severable from the remainder of the reasons for decision, from a flawed or erroneous statistical analysis, that with respect, was obvious in the face of the Tribunal’s reasoning. That is not this case.
Two, in DAO16 the Tribunal rejected the evidence of four independent witnesses that may have corroborated the applicant’s claim to be homosexual (the basis of his claimed fear) without any analysis or explanation for doing so. This is also not this case.
Three, in BZD17, the Tribunal failed to give proper, genuine and realistic consideration to certain corroborating evidence which arose from first hand, and direct, observation of the applicant in the country of claimed persecution in circumstances where the applicant claimed to fear harm on the basis of his sexuality.
Notwithstanding an otherwise adverse credibility finding against the applicant, the Full Court found in the circumstances of that case, that the applicant was “left to guess” why the corroborating evidence was rejected by the Tribunal given the absence of any realistic consideration of it.
The current case, and more particularly the impugned parts of the decision, does not involve any such corroborative evidence. The applicant made certain claims and gave certain evidence. That is the focus of the Tribunal’s consideration. In the current case the applicant cannot be said, nor did he argue, that he did not understand why the Tribunal found adversely to him either in relation to his credit generally, or specifically, in relation to the two impugned findings.
The applicant’s argument as set out above, is directed to what he says is the lack of realistic consideration, or the illogical, irrational, unreasonable approach of the Tribunal to the two “unfounded” premises on which he says each of the impugned findings relied.
Four, ARG15 does provide direction and guidance to this Court on the question of whether the impugned findings of fact were legally unreasonable and made without probative evidence (see ARG15 at [40]–[47] for the relevant principles, and [48]–[55] as to how they were applied in the circumstances of that case).
Further, ARG15 also provides direction on the question of materiality, and as in ARG15, the failure to consider country information, I note [61]–[62] for the relevant principles, and [56]–[60] and [63]–[76] for their application to the circumstances of that case.
I note in particular [73] of ARG15:
“73. In our opinion, the Minister has overstated the meaning and effect of [45] in the context of the Tribunal’s reasons for decision as a whole. As McKerracher J emphasised in SZOOR at [102], the significance of how the Tribunal “framed its reasons” is significant in assessing whether or not a particular finding is material to the Tribunal’s ultimate conclusion.”
It was reasonable in the circumstances for the Tribunal to understand the applicant’s claim to fear harm (as is relevant to ground 1A and 1B) as arising from his father’s claimed circumstances.
As set out above the Tribunal framed its reasons for decision with reference to the basis for the claimed fear of harm. Of these only the “Father’s Circumstances” part of the decision record contains impugned findings.
In this regard the Tribunal accepted that the applicant’s father, had been a member of the Ba’th Party and a Lieutenant-Colonel in the police.
The Tribunal did not accept however that these matters caused the applicant’s father to come to the attention of the militias, or that he, or, importantly in the current consideration, that members of his family were ever targeted as a result ([49] CB 211).
The Tribunal gave reasons for this based on country information before it, and the applicant’s own evidence ([50] CB 211). For current purposes neither of the two impugned findings, or the premises on which it is said they were based, were a part of the basis for these findings.
Further, the Tribunal did not accept that the applicant was a member of the Ba’th party. The Tribunal gave reasons for this probative of the evidence before it. The Tribunal also found that there was no country information available to it, nor did the applicant provide any such information, that the family of “simple Ba’th Party members [such as his father] were or are targeted” ([51] CB 211). This again was arrived at without relying on the impugned findings or premises.
The Tribunal also did not accept that the applicant’s father had been seriously injured by an RPG attack in 2004 as the applicant claimed. The Tribunal gave reasons for this being the lack of corroborating evidence, and the lack of credibility in the applicant’s own evidence about this ([52] CB 211).
As set out above at the hearing before the Tribunal the applicant raised for the first time that he had been a bodyguard to his father.
The transcript reveals that this was raised just after the Tribunal had expressed concerns about the applicant’s claims relating to his father following on from an examination of the applicant’s evidence about his father’s status and circumstances (see T8, Line 5–T9, Line 23, and in particular T9, Line 8–Line 29).
The Tribunal did not accept this claim. The reasons for this were, when read in context, that the father was not a senior member of the Ba’th Party, had not come to the attention of the militias (that is, what is set out at [49]–[53] CB 211), further that the applicant had not raised this previously and the claim itself lacked credibility in circumstances where the applicant at the relevant time was a young teenager.
This claim was further undermined, in the Tribunal’s view, when the applicant changed his evidence to say he only drove his father to meetings, when, in the Tribunal’s view (arising from what was said at the hearing) the applicant realised the bodyguard claim lacked credibility. ([53] CB 211).
The impugned findings and premises must be understood, fairly, in light of what precedes them in the Tribunal’s reasoning.
That is, the relevant central claim by the applicant to fear harm was said to arise from his father’s circumstances and his relationship to his father and threats from the militias. The Tribunal rejected that the fathers circumstances, as it had found them to be, and the applicant’s relationship to him, would give rise to a well founded fear of harm.
None of the impugned findings can be said to inform the Tribunal’s rejection of this central claim. To the contrary what follows at [54]–[56] (CB 212) which contains the impugned findings and premises, was informed by what preceded it at [49]–[53]. Not that it in turn informed that part of the analysis.
As set out above, ground 1A directs attention to the faulty IED finding. The Tribunal rejected the claim that a faulty IED had been placed in the applicant’s car by the militias.
As also set out above ground 1B directs attention to the militias finding. The Tribunal rejected the claim that the applicant had been bashed by militias so as to reveal his father’s location.
Both these findings are expressed in [54] (CB 212) which immediately follows [49]–[53] (CB 211).
Given the Tribunal’s findings in relation to the father’s circumstances and the applicant’s background claim, as expressed in [49]–[53] (CB 211), it was reasonably open to the Tribunal, and not illogical or irrational or unreasonable to reject the two factual assertions made by the applicant (the IED finding, and militia finding) which arose and were premised on the applicant’s father having a particular profile, and being of interest to the militias, and the applicant being of such interest to the militias, including that he acted as his father’s bodyguard.
Once the Tribunal rejected the basis for the applicant’s claims, for reasons not now impugned, then the rejection of two specific claims which were consequent on the earlier claims, was reasonably open to the Tribunal.
That is, as the Tribunal made clear at the beginning of [55], given that it had found that the applicant was not his father’s bodyguard (“Given I have not accepted the applicant was a bodyguard…”), in circumstances where the father was not of interest to the militias, then in those circumstances the Tribunal did not accept that an IED was placed on the applicant’s vehicle. A vehicle which the Tribunal otherwise found difficult to accept would have been owned by a 16-year-old, in any event, in the circumstances presented.
The amateurish fashion premise when read fairly was in addition to the reasons given by the Tribunal, and separate to those reasons. This was not part of a cumulative sequence of findings leading to an impugned finding. Rather, the Tribunal rejected the premises on which the IED claim was made as explained above.
This is also the case with the finding rejecting the applicant’s claim that he was bashed by militias when he refused to divulge his father’s location.
Here again, the Tribunal had rejected the claim that the applicant’s father was of interest to the militias. The finding (at [54] CB 212) that the Tribunal did not accept he was bashed flows from what precedes it.
What is relevantly impugned at [56] was a further (“It also lacks credibility…”) reason, in addition to the reasons already stated, for the rejection of that claim.
The applicant’s argument before the Court now, as set out above, focused on two particular findings made by the Tribunal. These cannot be considered in isolation. The decision must be read fairly and contextually.
In context the reasoning underlying those findings was the rejection of the applicant’s central, and core, claims relating to his father’s claimed status and circumstances, his own claimed conduct in relation to his father (for example, “bodyguard”), and what he said he feared from militias as a result of this relationship.
I agree with the Minister that the underlying reasoning for the two impugned findings flowed from the central rejection of the basis of the applicant’s claimed fear, which is not now impugned, nor was it based on the two impugned findings.
What the Tribunal sought to do in the paragraphs containing the impugned findings was to deal, additionally, with two specific factual claims made by the applicant.
Further to what is set out above, and for the reasons also set out below, I do not accept that these findings were defective in the way now urged by the applicant. In any event even if there were some deficiency as alleged by the applicant (which there is not) then I agree with the Minister that in the circumstances jurisdictional error would not be revealed given the rejection, not now impugned, of the central and core aspects of the claim to fear harm (Hossain at [29]–[31]).
In any event, further and separate to what is set out above, I do not accept that the Tribunal’s two impugned findings were based on unwarranted assumptions in the sense as explained by the authorities on which the applicant now relies.
It is not necessary to take into account, as was raised without dispute at the hearing before the Court, that this particular Tribunal member had military experience or expertise in the Middle East.
What can be derived from the evidence before the Court (evidence provided now by the applicant) is what the Tribunal member told the applicant at the hearing (T 5, Line 18 – Line 24):
“Mem: I have a PhD in Arabic Islamic studies, my thesis is on Shia political development. I’m pretty familiar with Shia – interrelationship between Shia and Sunni across the Middle East. I travel to the Middle East regularly. I’ve lived in five countries in the Middle East, I’m pretty familiar with the place. I don’t need history lessons, I don’t need regional lessons. I just need you to tell me who you believe is going to harm you, for what reason they’re going to harm you, and how they’re going to harm you. So who is going to harm you?”
There is authority that supports the proposition that a Tribunal member is entitled to use his or her own knowledge, observations, or experience of the situation or conditions in a particular region or country. (See Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 at [7], [24] and [291], and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [180]).
In NAEH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 927 (“NAEH”) (per Branson J) the Court said at [13]:
“An administrative decision-maker is under no obligation to disregard his or her relevant personal experiences. Indeed, relevant personal experience or expertise may explain an individual’s appointment to an administrative body such as the Tribunal…”
I note also what was relevantly said in BWC15 v Minister for Immigration and Border Protection [2017] FCA 199 (per Bromberg J] at [16], and at [21]:
“16.The primary judge then recorded that the appellant made two further points during the course of the hearing before the Federal Circuit Court. The first, was that the Tribunal's manner was trying to attack the appellant's credibility; and, secondly, that the Tribunal had based its views upon the Tribunal member's own observations, having been in Lebanon from time to time, despite having never actually lived there. The primary judge dealt with that second matter first. He observed that it is permissible for a Tribunal member to use his or her own knowledge of a particular area or country in reviewing a delegate's decision. Support for that proposition, as his Honour recounted, is set out in the judgment of Branson J in NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927. As the primary judge said, what is important if the Tribunal does rely upon his or her observations or experience is that the applicant before it is given an opportunity to respond to those observations. The primary judge regarded the Tribunal as having made clear, in this case, the observation or experience of the Tribunal member relied upon.
…
“21. The primary judge dealt with the use by the Tribunal member of his own knowledge and experience of the situation in Lebanon. I have recounted that already. I see no error in the primary judge’s approach to that issue...”
Before the Court, the applicant did not appear to directly dispute the proposition that a Tribunal member is entitled to rely on his or her own expertise or experience.
However, the argument was that in the current case, there was nothing in the decision record to indicate that the Tribunal member had brought his expertise (which was not apparently otherwise disputed) to bear in mind making the two impugned findings.
That is, what was required was a specific statement by the Tribunal member, in the making of each of the impugned findings, that the basis for the finding relied on the Tribunal member’s own expertise, as it was relevant to the circumstances of the two impugned findings.
As set out above, the Tribunal member made clear to the applicant at the hearing that he was going to bring his own expertise, knowledge, and experience to bear on the consideration of the applicant’s claims.
I note in this regard that in NAEH (see at [13]) which was the basis for the approach relevantly taken by the primary judge in BWC15, and which, on appeal, was found to be absent error, that the expression of the Tribunal member’s application of his or her own observation and experience was made at the Tribunal hearing.
Given the emphatic statement made by the Tribunal member in the current case at the Tribunal hearing, it is, in my view, reasonable to at least infer, that the impugned premises in the current case arose from the Tribunal member’s own knowledge and experience of conditions in the country of claimed persecution at the relevant times. Contrary to the applicant’s submissions now, therefore, there was a probative basis for the two impugned findings.
There can obviously be no dispute that legal reasonableness, and for that matter rational and logical decision making, is an essential factor in a lawful decision. (See Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [80] and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4] and [53]).
In the current case, the applicant relies on two findings of fact made by the Tribunal. He asserts that the findings were irrational or illogical, and unreasonable, because in essence there was no evidence to support these specific findings made by the Tribunal.
For the reasons set out above, I find that on a fair reading of the decision record the IED claim, and the claim of being bashed by the militias who were looking for his father, were not central to the applicant’s claim to fear harm. They were examples of claimed past harm arising from the central claim concerning his father’s circumstances and status, and his relationship to his father.
What was central was the applicant’s father’s circumstances, which were the basis upon which the applicant claimed was consequently the reason for the interest in him by the militias.
The Tribunal found that neither his father, nor the applicant, were of interest to the militias, and that the applicant had not been his father’s bodyguard as claimed. For the reasons that it gave, this was sufficient to dispose of the applicant’s claim to fear harm from the militias.
Whether any legal error existed in the two specific impugned findings was not material to the Tribunal’s ultimate decision. Those findings dealt with two specific matters raised by the applicant, which could only have reasonably assisted the applicant in satisfying the Tribunal as to his need for protection, in circumstances where the Tribunal had not made those central and critical findings.
Nor did those impugned findings lack logical or rational thought, or were unreasonable in the requisite sense.
When fairly read the IED finding, (and the basis for it), arose from the Tribunal’s rejection of the applicant’s claim to have been his father’s bodyguard. A claim later apparently modified by the applicant himself.
Putting to one side the Tribunal member’s stated expertise, it was not illogical, irrational, or unreasonable of the Tribunal to reason and find that an untrained and inexperienced (the applicant gave no evidence of any experience or expertise) 16 year old boy could have detected an IED placed on his vehicle. Further, in the Tribunal’s reasoning the applicant still left unexplained why, in the circumstances otherwise presented a 16 year old, would have his own car.
The reference to the phrase “amateurish fashion” is simply, when read fairly, not a comment about how expert the militias may have been, but rather to emphasise the implausibility of a 16 year old (who without explanation claimed to own a car), who lacked any relevant experience or expertise, would be able to find this IED.
The applicant’s elevation of the IED claim, based on what was said to be an unfounded premise of how the militias may have operated in placing such devices, is derived from an unfair reading of how the Tribunal reasoned.
This also applies to the claim that he was bashed by the militias who wanted to locate his father. When read fairly what the Tribunal reasoned was that if the militias were so intent on finding his father, repeatedly bashing the applicant when he went to the market, and then releasing him, would not have achieved this purpose.
What lacked credibility in the applicant’s claim, in the Tribunal’s view, was that the militias, who were said to be intent on finding his father, and from whom he otherwise said he feared such great harm that on return they would kill him, would continue to act in the same unsuccessful fashion, without seeking to try further, even harsher, and more effective means of advancing their intention.
The Tribunal’s findings in this regard were not illogical, or irrational, or unreasonable, in the requisite sense. The Tribunal did give real, genuine, and proper consideration to the claims as made. The applicant’s claim now that it did not do so is, in the circumstances, is an attempt to cavil with the Tribunal’s findings of fact. In all, grounds 1A and 1B are not made out.
Consideration: Ground 1C
Ground 1C, as set out above, asserts that, with reference to SZBEL, the Tribunal denied the applicant procedural fairness, because the Tribunal failed to put the applicant on notice at the hearing that the premises identified in grounds 1A and 1B were important issues in the review.
The applicant’s contention is that neither of these premises identified in grounds 1A and 1B were a part of the delegate’s reasons for refusing the grant of the visa, and the applicant was not otherwise put on notice by the Tribunal at the hearing of their importance in the review.
The delegate’s decision is reproduced in the Court Book at CB 77-CB 93. Before the delegate, the applicant’s claims to fear harm can be broadly seen as claims arising from his father’s circumstances, and some instances of harm directed to him personally.
While, as set out above, the two impugned findings and premises were addressed by the Tribunal in the context in which they were presented and arose, the findings themselves focused on specific claims of past harm said to have been perpetrated on the applicant personally. That is, an IED was placed on his car and the militias bashed him.
In her decision record, the delegate summarised the applicant’s earlier statement as to why he said he feared harm (CB 79.8 – 80.9) (see also above). The delegate specifically recorded that the applicant had claimed that in 2005 a faulty IED had been affixed to his car, and he subsequently received threatening telephone calls, and that he feared harm in Iraq from a particular man he encountered in 2013 “who had previously threatened him in 2007”.
For current purposes I note that one of the Tribunal’s impugned findings (the IED finding) was in relation to a claim raised in the applicant’s statement, and recorded by the delegate in her decision record.
To that extent therefore, that matter is relevant to the circumstances outlined in the particulars to ground 1A, and on which ground 1C in part relies.
As is set out above the applicant also claimed in his statement that after his father left Iraq in 2006, he was bashed by the militias whenever he went to the market. Because they wanted him to reveal his father’s location as they believed him to still be in Iraq.
It is also important to note that the applicant claimed that this targeting took place because of his father’s position, and due to the family’s background (CB 53.9).
In addition to the claim of being repeatedly bashed while on his way to the market, the applicant claimed that in January 2007 his home was attacked. He fled Iraq in February 2007, but returned later. In 2013 he saw one of the people who had “threatened us before” (CB 54.5). In context this appeared to be one of the people who attacked his house in 2007.
Ground 1C as stated, and as set out above, relies on the matters identified in grounds 1A and 1B. In this light therefore, the 2013 incident, and as it related to the January 2007 attack on his house, does not appear to be part of the applicant’s complaint in ground 1C. Nor were the applicants submissions necessarily directed to this in relation to ground 1C.
What remains therefore, is whether the two impugned findings, and what are said to be the premises underlying them, can be said to be issues in the review, and if so, whether the applicant was on notice of these issues as a result of the delegate’s decision, or as a result of what was discussed at the Tribunal hearing.
Some care needs to be taken between what can be said to be what the Tribunal considered to be issues in the review, and the factual matrix within which those issues reside.
As was, in my respectful view, made clear in SZBEL it is those issues dispositive, or determinative of the review, in respect of which the applicant should have notice. Further, this does not include that each and every detail which forms part of the substratum of the issue needs to be discussed at the hearing (SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 and SZIMM v Minister for Immigration & Anor [2008] FMCA 34).
A further note of caution is required in the current case. In considering ground 1C (and what are “issues” in the review) the distinction between what are said to be claims arising from the father’s status and circumstances, and claims relating to acts of past harm perpetrated on the applicant personally, can lead to a misunderstanding of the nature of the applicant’s claims, and therefore what are the issues dispositive of the review.
On any fair reading of his claims, the applicant’s reasons for being unable to return to Iraq all stem from his Sunni background, and his father’s circumstances and past position.
As the applicant made clear at the Tribunal hearing the claim to fear harm on return to Iraq was from “…a group of the militia who are monsters…” (T 4, Line 37). He explained that they were from the “…Shia religion…” and he and his family were “…from the Sunni religion…” (T 4, Line 46).
His claim to fear harm from this group was heightened because “… all these people have joined the Iraqi government” (T 5, Line 26). In short: “They are going to kill me because I am Sunni” (T 5, Line 31).
The second basis for the applicant’s claimed fear was said to arise from his father’s circumstances (T 6, Line 13 –T 9, Line 36).
What relevantly emerges from the delegate’s decision is as follows. Noting that the relevant test for both the delegate, and the Tribunal, involved one of the reasonable foreseeability of future harm.
One, the claim that he would suffer harm because of his father’s circumstances (CB 88.7):
“It would appear from the reports above that the risk of harm to Iraqis who assisted with the US military occupation has faded with the passage of time since the fall of the Saddam Hussein Regime in 2003 and the emergence of IS. No information could be found to support the Applicant’s claim that families of former Baath Party members or supporters are currently facing ongoing persecution from Shia militias. I find this, supported by the recent DFAT assessment, to adversely affect the credibility of the Applicant’s claim. Of particular significance, I also find that the Applicant’s father’s and brothers’ ability to reside permanently in Baghdad, bar a six month period spent in Syria in 2007, without harm or incident, to be adverse to the credibility of this claim.
Following careful consideration I am not satisfied that if the Applicant returns to Iraq now or in the reasonably foreseeable future, there is a real chance that he would face serious harm on account of his father’s prior membership of the Ba’ath Party. This is because his father’s membership ceased at least 15 years ago, and extracts from DFAT reports above concluded that only those persons with high level Party links face high levels of official and societal discrimination. At its highest, the chance of persecution of the Applicant for imputed political opinion arising from his father’s past membership of the Ba’ath Party and the Iraqi military and the US occupation forces is remote.”
The applicant therefore, would have been squarely on notice that all of his claims, and his factual account of past harm, as they were said to arise from his father’s past circumstances were at issue.
Two, as to the credibility of his claims arising from his family circumstances (and again, properly, with a focus on the future), the delegate found (CB 90.3):
“The Applicant has provided information on the historical security situation in Iraq which is consistent with authoritative sources. I acknowledge that the Applicant has described acts by non-State agents against his father which are consistent with country information reports about the antipathy towards individuals perceived to have supported the former Saddam Hussein regime by virtue of their employment. However, I find that the Applicant has vastly overstated his claims of harm and the severity of the situation he faces for the purposes of his Protection visa application. Of particular relevance to this assessment is the Applicant’s evidence that his family, consisting until recently of his parents and five siblings, have remained p e r m a n e n t l y in Iraq. That his father left Iraq in 2007 and returned from Syria after a brief period of only seven months, and lived in Iraq until his death in 2016, is a strong indication that despite the many difficulties in that country, including, the security situation, politico- ethnic rivalries and instability, his family has maintained a continued presence in Iraq. Of particular significance to this assessment of the Applicant’s claims that he will be targeted is the fact that his father, a former military officer in the Iraqi military and participant in the US military occupation forces, remained in Iraq without any reported incidents of harm until he died in 2016. In making my assessment I have taken into account the following information provided to the Department by the Applicant and from authoritative sources…”
Three, as to the claimed incident in 2007 see what is set out at [63] above and when read with what is relevantly set out at [53] above.
I agree with the Minister that the issues in the review were the applicant’s claims to fear harm because of his father’s circumstances, and what he said had occurred to him personally in the past. These were all at issue as a result of the delegate’s decision.
As set out above the applicant’s ground now relies on the IED finding. This claim was before the delegate (see [4] at CB 53 and CB 80.5). It formed part of the harm claimed by the applicant to have arisen because of his father circumstances, and directed to him personally.
Given the delegate’s decision the applicant would have known that all the instances of claimed past harm were at issue given the delegate’s finding that he had “vastly overstated his claims of harm”, and that his claims of past harm as they arose from his father’s circumstances (as did the IED claim) albeit directed to him personally, did not satisfy the delegate that the requisite level of satisfaction could be reached such that the visa must be granted.
The applicant’s ground 1C also relies on the militias finding. This also was before the delegate (see [8] at CB 54 and CB 79 at the first six dot points).
As with the IED finding this also arose from his father’s claimed circumstances, and directed personally to him. This also was a part of the applicant’s claims of past harm which he said informed his fear of future harm. The delegate’s findings as set out above encompassed this particular matter as part of the matrix of claimed past harm which the delegate found had been greatly exaggerated or overstated. In any event that did not, in all the circumstances, lead to a level of satisfaction such that the visa must be granted.
At the Tribunal hearing the applicant was given the opportunity to explain why he feared harm on return to Iraq, and how the past events informed or sustained that fear (see generally T 4–T 9).
Ultimately the Tribunal asked the applicant:
“Okay. Let’s get on to you, why do you think you’re gonna be killed?...” (T 9, Line 38).
This was the applicant’s opportunity at the Tribunal hearing to provide evidence to the Tribunal as to why he personally would be at risk of harm on return. It was an open ended question.
The applicant’s answer was to raise, for the first time, the bodyguard matter (T 9, Line 44). After being given the opportunity to further explain this, the Tribunal told the applicant (T 10, Line 28–30):
“Mem: No, I’m, just trying to work out why your father would employ a 15 year old boy with no military training or any kind of training as a bodyguard. Seems a bit hard to believe. And I can’t recall you mentioning you being a bodyguard for your father.”
In addition therefore to having been relevantly put on notice by the delegate’s decision, the Tribunal specifically put the applicant on notice that this particular aspect of his claim was also an issue. Noting, as set out above, the relevance of this matter in the Tribunal’s reasoning to the disposition of the IED claim.
The Tribunal hearing continued with the Tribunal seeking to obtain from the applicant his responses as to why he was subsequently targeted by the militias (T 11, Line 6):
“Mem: So why are you going to be killed?”
The applicants answer was (T 11, Line 8–12):
“App: Okay, because back in 2013 I met the person who kicked us out of our house, and that got me really scared and shook me, and that’s why I ran away, and I don’t need to tell you about Iraq, the situation in Iraq is obvious, there is no security, no safety there. If I did not get killed by the …, I would be killed by some other ways due to the kinds of cases happening or the – because of all the pollutions as well.”
The applicant proceeded to attempt to explain this. The Tribunal’s questioning was sufficient to indicate its concerns with his evidence.
The Tribunal continued to question the applicant about claimed events as to why he left Iraq in 2013 and in context, claimed events subsequent to 2007, and his father’s circumstances at that time. The applicant’s answers culminated in the Tribunal stating (T 11, Line 42):
“Mem: So, why did Khaled threaten you? I don’t understand.”
The Tribunal is not required, at the hearing, to specifically tell an applicant what details of his account it accepts, and what it does not. The Tribunal is not obliged to provide a running commentary on the applicant’s evidence (SZBEL at [88]).
The Tribunal’s obligation, to fulfil the procedural fairness requirement arising from s.425, requires it to raise the issues in the review, and to give the applicant a fair opportunity to answer. That is, issues that are not already live issues in the review as a result of the delegate’s decision.
As set out above the applicant would have been on notice as a result of the delegate’s decision that the basis for his claims (his father’s circumstances and what happened to him as a result) were all at issue. On the matters raised for the first time at the Tribunal hearing, the transcript reveals that the applicant would have been on notice of the Tribunal’s concerns. He was given the opportunity to explain. In all ground 1C is not made out.
Conclusion
The sole ground of the application, in all its iterations, is not made out. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 26 July 2019
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