MZYUJ v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 876
•24 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYUJ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 876 |
| MIGRATION – Review of Independent Merits Review – refusal of a protection visa – no matter of principle – application dismissed – costs. |
| Migration Act 1958 (Cth) |
| SZFYC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1810 Zheng v Minister for Immigration & Multicultural Affairs (2000) FCA 670 C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366; 59 ALD 643 V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355; 55 ALD 629 |
| Applicant: | MZYUJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 54 of 2012 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 24 July 2012 |
| Date of Last Submission: | 24 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 24 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Taylor |
| Solicitors for the Applicant: | Harwood Andrews Lawyers |
| Counsel for the First Respondent: | Mr Knowles |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the Second Respondent |
ORDERS
The Applicant pay the First Respondent’s costs, fixed at $6,471.
The Application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 54 of 2012
| MZYUJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(as revised from transcript)
This is an application concerning a report prepared by an Independent Merits Reviewer with respect to an applicant seeking refugee status assessment. The applicant was a citizen of Iraq and came to Australia through Malaysia and Indonesia. The substance of the applicant’s claims are set out at paragraphs [12] and [13] of the decision, which are as follows:
[12] At an interview carried out on Christmas Island on 25 September 2010, with an Arabic interpreter, the claimant provided the following information:
· He was born on 8 February 1980 in Basra (Al Basrah, Basrah), Iraq where he continued to live until September 2010. His wife, children and mother still live there.
· He attended school up to 2 years into high school in 1994 and then was unemployed until 2008 when he obtained a job as a mechanic.
· He is Arabic and Shia by faith. He is married and has two daughters aged 5 and 2. His mother is still alive but his father was killed in 2006.
· He has a brother and two sisters living in Basra; and two cousins who are Australian citizens.
· His father was an employee of the Southern Petroleum Company, responsible for the company’s fleet of vehicles kept in a large car park. His father was approached by a member of the Thaar (Tha) Allah Party wanting 3 vehicles but he refused to let him have them.
· His father’s manager did not want to get involved and would not arrange a transfer for his father despite a request; His father received an envelope containing a bullet and a note and he stayed away from work for 10 days, but he was ordered to return and he did so for 2 or 3 days.
· After his return to work his father was sitting outside his house when a ute stopped alongside; a man got out and shot him twice in the head and twice in the chest; the claimant was sitting at a shop directly across the road and was threatened with death himself when he ran across the road to help his father.
· The claimant knew the killer to be a member of the Thaar Allah Party.
· The claimant and his brother tried to get jobs with Southern Petroleum, but were told there were told there were no vacancies so they lived on his father’s pension thereafter together with doing some casual work.
· The Thar Allah Party did not do anything more to the family since killing his father because they knew they were scared, but his life became more miserable and he decided “to leave Iraq so that he could live with dignity like anyone else.”
· He does not want to return to Iraq because he has lost everything; he has sold all of his wife’s and sister-in-law’s jewellery (and household furniture); he has two daughters and he wants them to grow up with a future to look forward to.
· Although he is aware that the Thar Allah Party is no longer operational, he is unsure what will happen to him if he returns to Iraq; but he knows his life will be miserable.
[13] In a statement dated 7 November 2010 Mr Itmayish provided the following further information:
· He said he left Iraq on 1 September 2010, because of “constant fears from the Tharrulla (Thar Allah) terrorist group and receipt of a threatening letter with a bullet inserted in the envelope”
· He said his father received phone call on 6 May 2006 demanding the use of two (2) utes from the company’s car yard and a visit the next day at work repeating the demand but his father would not give them the vehicles.
· His father reported the incident and asked for a change in his position. The request was denied but his father took a week’s holiday. He returned to work for one day and was shot dead the next day, when he had returned home for lunch.
· The claimant was 20-30 metres away and saw the whole thing; when he called out the man with the gun fired in the air and said loudly: “Shut up or I will kill you like your father.” This occurred on 16 May 2006 (2007).
· After his father’s death he considered taking his father’s position in the company but he received a threatening letter telling him he would be killed if he did so. The came with a bullet in an envelope.
· He tried to get on with life but was constantly scared. Members of the group “were hanging around my area and every time they stared at me in a suspicious and fearful manner”.
· The group had an established network in the country and he felt he could be located at any time. The group had government connections.
· He was constantly reminded of what had happened to his father and he did not want to bring up his family in those circumstances. He felt his life was at risk.
· He made his way to Malaysia through Iran and Dubai and then to Indonesia.
These claims were expended upon before the Reviewer. In this case, the decision of the Reviewer was against the applicant. The Reviewer was not satisfied that the applicant was at real risk of harm, nor was the Reviewer satisfied that the applicant’s risks would be within the terms of the convention, that is, the convention nexus.
There are, in substance, three grounds relied upon by the applicant. Firstly, that he was denied procedural fairness with respect to country information, secondly, that he was denied procedural fairness as a result of some comments made by the Reviewer during the course of the interview and thirdly, that the Reviewer erred in dealing with the question of convention nexus in not concluding that he ought to have an imputed political opinion with respect to the events that took place. These are numbered grounds 3, 4 and 6 respectively in the amended application. Ground 5 of the amended application is relied upon to the extent that it relates to ground 6. There is no ground 2 and ground 1. This is simply a generalised ground, pursued only and to the extent that it is dealt with in the specific grounds.
The applicant filed a transcript of the hearing before the Reviewer, which was referred to in evidence today. I note that the Minister had sought time to respond to that transcript if need be. However, my views of the case as it has unfolded is that it won’t be necessary.
With respect to the first ground that was argued (ground 3 in the application), the applicant complains that country information relied upon by the Reviewer at paragraphs [47] to [49] of the decision, which comes from Iraq Report 9 of the Institute of the Study of War in June 2008, was not put to the applicant. The substance of that information is that there was a campaign referred to as a Saulat al-Forsan to address the difficulties caused by the political party relevant in this case. The result of that campaign was summarised by the Reviewer at paragraph [49]. Where the Reviewer said:
[49] The long term success of Saulat al-Forsan is very difficult to judge as it is clear that the operation involved much more than a military/policing activity; it was accompanied by diplomatic manoeuvring and humanitarian assistance. It is likely that members of formerly sectarian militias were given positions within the state security authorities, including police, in exchange for limitations on their independent operations.
At paragraphs [80] to [82], the Reviewer sets out their findings and with respect to this campaign in the area as follows:
[80] Country information set above indicates that the success of the Saulat al-Forsan operation was substantially based on the integration of extremist groups into the main stream of security operations in Basra. Indeed the ability of Maliki to form a government in Iraq as a whole depends on the alliance he has reached with the Shi’a extremist Muqtada Sadr.
[81] I accept that the authorities responsible for security in Basra, including the police and military are partly comprised of significant numbers of former members of the Shi’a militias that were subjugated in the Saulat al-Forsan operation and its associated political manoeuvrings. Those members still harbour the extremist views they had prior to subjugation and their influence may determine the attitude the authorities take to protection in accordance with those views.
[82] As a result of the influence of former members of extremist groups I am satisfied that the above authorities cannot or will not protect members of the community in Basra if those members of the community are seen to hold values contrary to theirs. In a religious sectarian context a contrary religious view will give rise to an imputation of a contrary political opinion.
It seems to me that this is substantially in accord with the case that the applicant put. In particular, summarised at paragraphs 8 and 9 of the decision as dot points to paragraph 25, the reviewer had said:
· The party Thar Allah no longer exists but has merged with other parties and the people involved are still in the area. He knows that they are Shi’a but he does not know what parties they have merged with as there are many parties in the area; he knows they were Thar Allah from their uniform of a black t-shirt and army’s uniform was all black and the Badr militia wore suits.
· The claimant does not belong to a political party himself, has never belonged to a political party, nobody in the family has belonged to a political party, and he has not been asked to join any political party. He has never carried a gun.
· He did not tell the police about the attack because he believes that ¾ of the police are linked to political parties and would not protect him. In fact they will do nothing to protect Iraqi people in general unless they belonged to political parties. Political parties are beyond the reach of the law “whatever they are after they will get it”.
As a result, I am not persuaded that the findings that the Reviewer has made with respect to the country information were adverse to the case as put by the applicant. In substance, they appear to accord with the applicant’s case. For these reasons, I am not persuaded that there has been a lack of procedural fairness in this case and therefore this ground cannot succeed.
Turning then to the second ground that was argued. The applicant points to a comment made by the Independent Merits Reviewer at page 25 of the 26 page transcript, which is as follows:
[Reviewer]: I think we can assume the threat is still here. I think we can assume there is a threat we can assume it’s a genuine threat and we can assume it still exists but is it based on anything more than the fact that he is a witness to a crime.
The applicant argues that this indicates that the Reviewer had led the applicant to believe that the Reviewer accepted these things as the state of affairs and therefore, by making findings contrary to that, the Reviewer had failed to accord the applicant procedural fairness. It is convenient at this point to note the findings that were actually made by the Reviewer. These are set out at paragraphs [88] to [92] of the decision as follows:
[88] I am satisfied that [the applicant] had been the subject of concern by the former members of Thar Allah that were responsible for his father’s death for fear that he may identify them.
[89] Whilst past experience of serious harm may be a useful guide to the likelihood of further harm in the reasonably foreseeable future should the claimant return to his country of reference, it is not determinative and I must consider any change in circumstances since the past experience of harm.
[90] The claimant has not been harmed, or directly threatened with harm, since he received the threatening letter of 7 July 2007, which itself was directed to warning him against taking his father’s job. His family has not been threatened. There has been a subsequent major military operation aimed at subjugating the criminal gangs and militia operating in Basra. Sayed Yussef Sinawee al Mosawi has been executed and the Thar Allah mosque has been destroyed.
[91] The only threats of death received by the claimant are the letter he received warning him against taking his father’s job and the shouted threat at the scene of his father’s murder, waning him to shut up. If those that wish the claimant harm wanted to kill him, they had three years in which to do so, and in that period he did not give evidence to the police or take his father’s job.
[92] Having regard to the above I do not accept there is a real chance that the former members of Thar Allah responsible for the death of the claimant’s father, if they are still alive, are willing or able to harm the claimant should he return to Basra in the reasonably foreseeable future and I do not accept that the claimant has a well founded fear of persecution by remnants of the Thar Allah party, or any other criminal gang, terrorist group or militia.
It seems that these findings are not necessarily inconsistent with the comments in brief summary form by the Reviewer at page 25 of the transcript, that is, that it was a genuine threat that was made by perpetrators of the criminal act, and that it is based upon the fact that he was a witness to the crime. It is a threat, it seems, that still exists. Even if it be wrong in that regard, it is also clear that the substantial part of the interview had already taken place, before this court even leading up to the following exchange:
[Reviewer]: Ok so do you need any more opportunity or is that everything you have to say?
[Representative]: I think again that my client has given all of his claims and those legal issues you were asking him about we have already addressed.
[Reviewer]: OK
The Reviewer went on to discuss the question of convention nexus at the bottom of page 24 and the exchange between him and the representative leading up to the comment complained about was as follows:
[Representative]: And the RSA obviously found that there was no convention link but obviously we reject that and made a submission on how that does relate to the convention.
[Reviewer]: Yep right. Ok alright.
[Representative]: So at least after today we hope you take into account those submission.
[Reviewer]: Well yes yes I have all of those submission and I will definitely take them into account. There was an error in the submissions which I have the wrong, at page in the paragraph about the situation in southern Iraq the paragraph starting “the April 2009 guidelines” – at the top there, just above the situation in souther, these are the, the ones of the 23rd of August, the April 2009 guidelines it says there “that our client is in Baghdad and falls within the number of groups defined” I think that’s not right is it Basrah.
[The claimant]: Actually I am from Basrah but my father was born in Baghdad.
[Reviewer]: Right.
[Representative]: All of the central provinces, yep I can clarify on that issues but why they think that’s relevant,
[Reviewer:] I don’t know whether it makes much difference it might, we’re still directing Iraqi’s openly political or Iraqi’s political parties at risk of being threatened, kidnapped or killed tribal or religious leaders, journalists, activists, or other professionals, well he’s not any of those.
[Representative]: no no but those are general examples.
[Reviewer]: yea, well let me just put it this way, other than, what evidence is there to suggest that there is a difference if we move from simply being the witness of a horrible crime to being an opponent of the political party who happened to commit that crime.
[Representative]: Can you rephrase that again.
[Reviewer]: Ok are you suggesting that simply because the people who committed this crime are members of a political party [the claimant] is imputed with the political opinion that is opposed to that party.
[Representative]: Yeah well if the threat against his life was because he witnessed the murder surely they would have detained him, arrested him or killed him yeah so that threat there is an ongoing basis because they were perceived to have.
It seems that the transcript can also be read as an attempt by the Reviewer to focus the mind of the representative on the point that was then at issue for discussion, which was the convention nexus point, rather than to go back to reconsider or rehear him on points that had been discussed earlier in the interview and ended with the open-ended question about whether there was anything more that he had to say. Experience in running trials makes clear that this is often a difficulty in controlling the running of the hearing and that one needs to be mindful to avoid repetition. In this context, it does not appear to me that it could be said that this has lead to a lack of procedural fairness in this particular case.
Finally, I also note that the comment was made just before the end of the interview. It was not made in circumstances where it seems, on the way in which the interview was conducted, it could be said to have led the applicant to not put his case or part of his case with respect to these issues. He had already had a full hearing on all the matters that he wished to put before the reviewer. For all of these reasons, it appears to me that this is not a ground that can succeed in this case.
Finally, I turn to the third ground that was argued, which was encompassed by grounds 5 and 6 of the application. This relates to the findings by the Reviewer that the applicant’s circumstances did not come within the convention. The relevant findings are at paragraphs [96] and [97], where the Reviewer says:
[96] The characterisation of the claimant’s father’s death as political is understandable but it is difficult to see how a political opinion of opposition to that party can be imputed to the claimant simply because he witnessed the crime. In the absence of any activity by the claimant to attract the suggested imputation, in the minds of his would be persecutors, such as actually giving evidence to the police with a view to harming the Party, even threatening to give such evidence to the police, or taking his father’s job, I do not accept such an imputation can be made.
[97] I accept that there are cases in which an imputation of political opposition may be imputed of a family that has that imputed political opinion. That is not this case however. [The claimant’s] father witnessed his father’s murder and was warned against taking his father’s position. There is nothing to suggest that the family’s involvement went any further than that, and I note in that respect, that the claimant brother has not been threatened.
As relied upon by counsel for the minister, SZFYC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1810 makes plain that the question of whether or not there is a nexus is a question of fact (see paragraph 22 of the judgment of Bennett J). It is also clear that a political opinion can be held or imputed even without membership of a political party and that a political opinion is not necessarily as narrow as what might be described as a political opinion within contemporary Australian society. There is a lengthy discussion in the decision of Zheng v Minister for Immigration & Multicultural Affairs (2000) FCA 670 at paragraphs 13 to 34, including references to C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366; 59 ALD 643and Wilcox Js comments in V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355; 55 ALD 629
In this case, the Reviewer has looked at the circumstances of the applicant. Neither he nor his father were members of a political party, nor engaging in any political activity. This case is not like the corruption cases where the applicant’s conduct is motivated by a political position against corruption. This is a case involving a criminal event which is, in a sense, a one-off event followed with threats to ensure that the applicant did not make complaints to the police or give a statement, which he has not. The fact that it may have been members of a political party who perpetrated the crime, of itself, does not necessarily mean that this is an event that results in an imputed political opinion to the applicant.
It appears to me that the findings of the Reviewer in this regard were open to the Reviewer. The discussion indicates that the Reviewer clearly turned their mind to the circumstances surrounding the events and the conduct and relationship of the parties before making the finding that the Reviewer did. I am not persuaded that this could be characterised as an irrational finding or one that no reasonable decision-maker could make, and having regard to the circumstances of the case and the reasons set out at paragraphs [96] and [97] of the decision. For these reasons, I am not persuaded that the Reviewer has fallen into error in this regard.
In the circumstances, I therefore dismiss the applicant’s application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 22 August 2012
0
5
1