MZYVY v Minister for Immigration and Anor and; MZYVZ v Minister for Immigration and Anor
[2013] FMCA 48
•31 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYVY v MINISTER FOR IMMIGRATION & ANOR and MZYVZ v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 48 |
| MIGRATION – Review of Independent Merits Review – refusal of a protection visa – procedural fairness – failure to consider a relevant consideration – relief granted by declaration of legal error. MIGRATION – Review of Independent Merits Review – refusal of a protection visa – procedural fairness – Reviewer misunderstood a claim by the Applicants – relief granted by declaration of legal error. MIGRATION – Review of Independent Merits Review – refusal of a protection visa – procedural fairness – Reviewer made findings of fact that were illogical – relief granted by declaration of legal error. |
| Migration Act 1958 (Cth) |
| Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248 |
| Applicant: | MZYVY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | MLG 233 of 2012 |
| Applicant: | MZYVZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | MLG 234 of 2012 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 25 July 2012 |
| Date of Last Submission: | 25 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 31 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr McKenna |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Ms Burchell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
MLG 233 of 2012
The Court declares that in recommending to the Minister that Applicant MZYVY was not a person to whom Australia had protection obligations, the Second Respondent erred at law.
MLG 234 of 2012
The Court declares that in recommending to the Minister that Applicant MZYVZ was not a person to whom Australia had protection obligations, the Second Respondent erred at law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 233 of 2012
| MZYVY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
MLG234 of 2012
| MZYVZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The proceeding MLG234/2012 – MZYVZ v Minister for Immigration & Anor was heard together with proceeding MLG233/2012 - MZYVY v Minister for Immigration & Anor. The Applicant MZYVY is the Wife of the Applicant MZYVZ.
The Applicants arrived in Australia on 9 October 2010, seeking protection under the Refugee Convention. They were unsuccessful in a refugee status assessment and applied for review by an ‘Independent Merits Reviewer’. The Applicants now seek judicial review of the decision made by the Reviewer.
The Applicants’ claim was based on 3 grounds, ethnicity and religion, imputed political option and that they would potentially be returning as failed asylum seekers if returned to Iraq.
The Applicants set out a very sad history of life in the Middle East, as the Reviewer recorded:
12. The claimant’s wife was born on [June 1977] in [K], Iraq. She says that when she was 2-3 years of age her father was deported to Iran. She claims that he was executed by Saddam Hussein in 1983. She attended primary school for 3 years between 1984 and 1986 and has never been employed. Her mother and one sister live in Iran. Her father is deceased and her other sister resides in Syria. Another brother travelled with the claimant and his wife from Indonesia to Australia. He has submitted his own claims for asylum based on his Iranian citizenship and will be assessed separately.
13. The claimant has 2 brothers in Iraq, 2 brothers in London and a sister in Kuwait. In Iraq the claimant worked as a tailor, shoemaker and for past seven years as a clothing wholesaler. He would purchase clothing from the bazaar in Baghdad and sell it in Karbala. The claimant states that the reason they left Iraq was due to threats made after the murder of his wife’s uncle who had helped him obtain his job. He was warned to cease delivering clothes to the market in Al Karbala. He claims not to know the reasons behind the threats but that they were made b people he worked with in the markets.
…
18. The claimant’s wife said that her mother had told her that accusations that her father had been a member of Al Dawa were false. She also said that her father was imprisoned by Saddam Hussein in 1980 and executed in 1983. Three of her brothers were also executed. Following the execution of her father the family was cared for by her mother’s brother. This uncle, a pharmacist was later killed in his own pharmacy. She maintained that her family was well known in Baghdad and that they were constantly under pressure because they were Shia.
Importantly, at para.34, the claim that the authorities and the people of Iran still view the Applicants as pro-Iranian has resulted in the killing of the extended family of the Applicant Wife (MZYVY).
At para.57, the Reviewer again summarised part of the claim, saying:
57. The claims for refugee status relate to the claimants’ country of nationality, namely Iraq. The claims of persecution are based on religion and imputed political opinion as supporters of the regime in Iran. It is claimed that both claimant’s fathers and other relatives, were executed because of their alleged associations with the Al Dawa party, an organisation that was then perceived to support the Iranian regime.
This is again reinforced at para.63, where the Reviewer says:
63. In his Statutory Declaration the principal claimant maintains that “the authorities and people in Iraq” suspected his and his wife’s family as affiliated with Iran from the time when his father was captured and later executed during the reign of Saddam Hussein. He claims that his “wife’s family is a very famous family in Baghdad as they have been accused of working with the Iranian authorities. Due to this, many have been killed as have their extended family”.
Importantly, the Reviewer generally accepted the versions of the Applicant Husband, as outlined at para.66, where the Reviewer said:
66. The reviewer acknowledges that, in assessing an asylum seeker’s credibility, one must be sensitive to the difficulties faced by claimants in presenting their claims. The Reviewer is however, not obliged to accept uncritically any and all claims made by a claimant. As the UNHCR Procedures state, “the applicant’s statements must be coherent and plausible and must not run counter to generally known facts”. I generally found the claimant to be a credible witness and accept his account of his capture along with his brother and father, the interrogation and torture during their eight month imprisonment and his father’s execution. However of the reasons which follow, I do not accept all of his claims.
With respect to the Applicant Wife, the Reviewer rejected part of her evidence relating to telephone calls (see para.69 of the Reviewer’s decision) of the basis that it was sketchy and unconvincing.
Most importantly, the Reviewer concluded:
72. It was claimed that the claimant’s wife’s family had similarly been suspected of affiliations with Iran. There was no evidence that she or members of her family had been threatened or experienced any particular problems until the death of her uncle [K].
At paras.78 and 79, the Reviewer ultimately rejected the claim, saying:
78. In my assessment I have given careful consideration to the claimant’s claims and evidence in light of the available country information in my assessment of their refugee status. Although the reports suggest a current uncertain and turbulent security situation in Iraq, this does not form the basis for a finding that a claimant is a refugee under the Convention. For the reasons outlined above I do not fine their claimed fear [of] persecution on the basis of an imputed political opinion on account [of] their family’s suspected affiliations with the Dawa party or their relationship with the wife’s uncle, [K] to be well founded.
79. The claimants have claimed that they fear harm from sectarian violence because they are Shia Muslims. It is my finding on the basis of the evidence as to the particular circumstances of the claimant and his wife, that their place of residence is in [K], a mainly Shia populated city, that they would not be the subject of targeted violence on return to Iraq. There is no evidence that either of them possesses a particular profile that would place them at serious risk of harm. I do not consider that the evidence establishes that there are any particular factors that would place either the claimant or his wife at additional risk over that which applies to the civilian population generally such that either of them would face a real chance of persecution for an imputed political opinion or any other convention reason.
Appeal to the Federal Magistrates Court of Australia
Ground 1
At the hearing of the matter, the Applicant Husband did not press ground 1.
Ground 2
Ground 2 of the application is as follows:
2. The decision of the Reviewer was affected by legal error in that [the] Reviewer failed to consider a relevant consideration, being a claim, or an integer of a claim, made by the Applicant.
Particulars
i) The claim of the Applicant and his wife included a claim, or an integer of a claim, that the father of the applicant’s wife and three of his brothers had been executed in Iraq (the claim).
ii) The claim went to the issue of whether the applicant had a well founded fear of persecution by reason of an imputed political opinion.
iii) The claim was a relevant consideration for the Reviewer.
iv) The Reviewer was bound to consider and determine the claim.
v) The Reviewer noted the existence of the claim but failed to:
a. determine the claim;
b. make any findings as to the veracity of the claim; or
c. consider the claim when determining whether the applicant’s genuine fear was well founded, or by reason of an imputed political opinion.
At para.57 of the decision, the Reviewer identifies this aspect of the claim.
In considering the claim, the Reviewer erred at the outset by referring to 3 of the Applicant Wife’s brothers being executed, at para.18 of the decision. In fact, the claim was that 3 of her uncles (brothers of her father) were executed, as appears at p.77 of the court-book (CB) in her statutory declaration.
In stating at para.72, that there was ‘no evidence’ that she or members of her family had been threatened or experienced any particular problems until the death of her Uncle [K], the Reviewer is overlooking the claim that her father and 3 uncles were executed.
Ms Burchell of Counsel, on behalf of the Minister, argued that the decision of the Reviewer should be read on the basis that the language is loose and that it implicitly accepts the death of the Wife’s father and uncles. She said that the error in para.18 is simply an error of fact and should not be the basis of setting aside the decision.
Whilst Counsel for the Minister acknowledged that there was no finding as to whether or not the Wife’s claim with respect to the death of her father and uncles was accepted or rejected, Counsel for the Minister argued that such an error, as occurred in para.72, does not go to jurisdiction. Counsel relied specifically on the comments on the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248, where the High Court said:
130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
It does not appear to me that this is a case about whether or not the Reviewer acted logically or illogically but rather a case where the Reviewer has failed to deal with a central aspect of the claim; namely that the Wife’s father and 3 brothers had been executed. In stating that there was ‘no evidence’ that the Wife’s family had been threatened or experienced any particular problems prior to the death of her Uncle [K], without rejecting the Wife’s evidence, shows that the Reviewer failed to have regard to the evidence before them.
If it were to be argued on the basis of illogicality, the statement that there ‘no evidence’ of such a proposition when clearly there is evidence would also appear to be illogical.
It appears to me that the claim by the Applicants is substantially different, with respect to imputed political opinion, if it is seen as a claim based on long-term persecution of extended family, rather than a claim of events since 1987. To suggest that the execution of a person’s father and 3 of their uncles, based on actual or imputed political opinion, does not significantly alter the claim of fear of persecution for imputed political opinion due to family connections cannot possibly be correct.
I therefore find that the Applicants must succeed on this ground.
Ground 3
The substance of ground 3 is taken up in ground 2 and I need not repeat it.
Ground 4
Again, the substance is taken up in ground 2, namely that the findings of a lack of evidence of any problems experienced before the death of the Wife’s Uncle [K] was clearly wrong, and illogical.
I therefore find that the Applicants must succeed on this ground.
Conclusion
In the circumstances, the application must be allowed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 25 January 2013
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