MZZEJ v Minister for Immigration

[2015] FCCA 61

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZEJ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 61

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – protection visa application – judicial review – application dismissed.

Legislation:  
Migration Act 1958

Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2014] HCA 27; (2014) 311 ALR 154; (2014) 88 ALJR 775
1102515 [2011] RRTA 487

Applicant: MZZEJ

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1653 of 2012

Judgment of: Judge Riethmuller

Hearing date: 24 September 2014

Date of Last Submission: 24 September 2014

Delivered at: Melbourne

Delivered on: 23 January 2015

REPRESENTATION

Counsel for the Applicant: Ms Karp

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Ms Symons

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Application filed 20 December 2012, the Amended Application filed 4 June 2013 and the Further Amended Application filed 10 September 2014 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1653 of 2012

HAMRIT SINGH JANDU

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant claims to be a citizen of Iraq and seeks a protection visa.  The Applicant arrived by sea, without a visa, on 6 May 2012.

Background

1. The Applicant was not able to provide the delegate with adequate identity documents and provided inconsistent information with respect to his identity documents (see CB182).  The delegate sets out what the Applicant says about how he came to be in Australia at item 3 of the decision, saying:

   In his entry interview he said that [he] had given his National ID card to an unknown person to make him a passport.  He left Iraq in January 2012 through Najaf Airport.  He was given a passport at the airport and a paper that he said was a ticket.  He flew to Dubai and then to Malaysia.  He bought a SIM card for his mobile phone in Malaysia who took him to a hotel and then later to a fishing boat that went to Indonesia.  He was then put into a house for 26 days in Bogor, Indonesia.  He stated at all times he travelled alone or was in a boat with 129 mostly Afghan people and some Sri Lankans.  He was then taken to the beach and boarded a small boat and then a larger boat which took 8 days until an Australian Navy boat intercepted them.  He stated he had no contact with UNHCR en-route to Australia (see folio 76 Q61).  The applicant arrived at Christmas Island on 6 May 2012.  He applied for a Protection (Class XA) visa on 18 June 2012.  Departmental records indicate that the applicant has not departed from Australia since his arrival.

2. The delegate ultimately refused his application on 15 October 2012, after allowing the Applicant further time to provide a report provided by Foundation House in support of his application.

3. On 19 October the Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision, which was refused in a decision made 26 November 2012.

4. The Applicant has now sought judicial review of the decision of the Refugee Review Tribunal.  The hearing of the Applicant was delayed whilst the parties awaited the outcome of the proceedings involving Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2014] HCA 27; (2014) 311 ALR 154; (2014) 88 ALJR 775 in the High Court of Australia.

The Tribunal’s Decision

1. The Applicant’s claims were set out in a statutory declaration made in support of his visa application which appears at CB132.  In substance the Applicant claimed that he had received threats from the al-Mahdi army and had also received information from them seeking to recruit him.  He said that the al-Mahdi Army members had told him to abandon his Sunni faith and become a Shia Muslim.  After a number of incidents alleged by the Applicant, he says his father told him he should leave and come to Australia.

2. The Applicant formulated his case as being based upon religion, imputed political opinion and membership of a particular social group.

3. The Tribunal identified these claims at paras.21 to 26 of the decision, where the Tribunal said:

   22. The applicant’ s claims can be summarised as follows.  He was born in 1994 in Al Raifai District, Al Nasriya Province in Iraq.  He is an Arab Sunni.  His parents and seven siblings still reside in Iraq.  He helped his father transporting sheep and had stopped going to school in 2010.  He left Iraq in or about January 2012 because he had received threats from the Al-Mahdi Army.  They wrote on his family’s fence that “Sunnis are terrorists, Sunnis are sectarians and that Sunnis have no place here”.  They forced his family to put slogans and banners up at the house praising the Shia faith and the Mahdi Army.  His father refused to do this as he is a strict Sunni.  In or about August 2011, the applicant started to receive threats from the Mahdi Army.  A letter was left under the front door of their house.  It stated that they wanted him to join them but he refused to do so.  They also wanted him to leave his Sunni faith and become a Shia.

   23. Prior to receiving the first letter the Mahdi Army sent the applicant messages through friends and acquaintances.  They said he was Sunni and sectarian and had to join them.  At that point he did not take it seriously.  However they threw a small bomb at the front of the house which demolished the front fence, door and windows and he became scared.  They reported this to the authorities and they attend the scene, took photos and laughed and did nothing to help.  After receiving the first letter, the Army would follow him when he went out.  They wanted to kill him but he kept running away.  He listened to music when he was out and the Mahdi Army did not like this.  On one occasion they were carrying sticks and hit him.  He then received a second letter from them and he ran away to live in the remote desert.  He stayed there for more than a month and then returned home and stayed in hiding.

   24. The area the applicant lives in is predominately Shia and other Sunni families received threats and were compelled to leave.  Many who refused to join the Mahdi Army died as a result.  In May 2012, the applicant contacted his brother, Muhammad who told him that the Mahdi Army had been to their house and bashed his father and hit his nephew on the head.  The nephew is now paralysed.  The house has been confiscated by the Mahdi Army and the family is now living on rural land.

   25. The applicant claimed that he practiced his religion at home but that he did not attend mosque because the Army attacked the Al Abrar Mosque in 2011 and killed the Iman.  At the delegate’s interview, the agent submitted that the applicant was a risk for his membership of a particular social group consisting of “those people targeted to be forcibly recruited by Mehdi Army”.

   26. An agent’s submission dated 19 November 2012 was forwarded to the Tribunal.  Inter alia, it was claimed that the fact that the applicant left Iraq and sought protection from a Western country may mean that he will be viewed as “westernised” and a supporter of the west.  It was submitted that he was a member of two particular social groups consisting of “failed asylum seeker from the West” and “minority Sunnis living in Shia neighbours”.

4. The tribunal member did not find the Applicant to be a credible witness with respect to his claims, addressing this issue in some detail, saying:

   56. I have considered carefully the applicant’s claims but find that he is not a credible witness.  I do so for the following reasons:

   ·   The applicant gave inconsistent evidence on a variety of significant matters.  For example, at the hearing he stated that his father had not previously had any problems with the Mahdi Army which was in contrast to his claim in his statutory declarations that they had written things on the front fence of their home.  When I then asked him whether they wanted his father to do anything he said he did not know.  This was inconsistent with his claim in his statutory declaration [that] his father had refused their demand to put up pro Shia and Mahdi Army banners.  The applicant gave no explanation at hearing as to these inconsistencies.  The applicant also gave inconsistent information concerning threats prior to the letters.  At the hearing he stated that it was only one person who had passed on threats from the Mahdi Army.  However, this contrasts markedly with his claim in his statutory declaration that “the Al Mahdi Army also sent messages through my friends and people I knew”.  Again, he was able to offer no reason for this inconsistency.

   ·   Despite claiming to have received threats through an associate and a direct threat from the Mahdi Army in the form of a letter and having his family house badly bombed, the applicant did not move away to the family property in the country to avoid danger until after another threatening letter was received.  When he was asked why he did not, he said it was because the building did not have electricity or amenities other than a small kitchen.  However, the applicant claims that he moved there and lived there for three months after the further letter.  I find it farfetched that faced with such a serious danger to the lives of himself and his family, the applicant would not have taken immediate steps to protect himself and diminish the risk of further targeting of his family after such a dangerous bombing attack.  I do not accept that a lack of electricity or amenities in the farm building is an adequate reason for the applicant not to have taken this action in his claimed circumstances.

   ·   The applicant gave vague and undetailed evidence concerning a number of matters.  For example, he referred to the bashing and shooting of a friend who prayed with him in the mosque but he was unable to say when this event occurred (other than “a long time ago”) despite the dramatic nature of it and that it concerned a friend.  He also claimed that persons used to come to the Al Abrar mosque and throw stones and bash people.  Again, he was unable to remember how often this occurred other than that “it happened a lot”.

   ·   Despite the claim of an attack in 2011 on the Al Abrar mosque and the murder of the Iman and another person, I have not identified any country information that supports that this event occurred.  Nor has the applicant’s agents provided any.  It has been submitted that thus may not have been reported because it had taken place at a time when the government was trying to say that the Mahdi Army was not there.  I do not accept this explanation as there exists plenty of reporting of incidents in Iraq by non-government and foreign government sources as evidenced by the country information set out above.

   ·   The applicant’s claims are also inconsistent with country information (Al Arabiya News) that indicates that the Mahdi Army has not been active in Nasiriya since being expelled from the city by the Iraqi military in 2008.  Whilst there have been very recent bombings attacks in the city these have been undertaken by Sunni extremist group ISI not by Shia groups who the applicant claims to fear.  It has also been recently reported (by Sam Wyer) that southern cities, including Nasiriya had few recent security incidents and that insecurity has little impact on civilian life.  Whilst there are reports of a Shia extremist group Suyuf al-Haq undertaking activities in Nasiriya in July 2010 this is not the group that the applicant has claimed was targeting him and no reports have been located of attacks being carried out by them since then.  I do not accept the submission that the lack of reports of attacks on Sunnis by the Mahdi Army or other Shia groups in Nasiriya is due to a link between the government and the Mahdi Army as there exists plenty of reporting of incidents in Iraq by non-government and foreign government sources as evidenced by the country information set out above.

5. Ultimately the tribunal member concluded:

   60. Considering the country information overall and the past lack of history of targeting of him and his family, I find that the applicant does not face a real chance of persecution on account of his religion, imputed political opinion, membership of a particular social group of “minority Sunnis living in Shia neighbourhoods” in the reasonably foreseeable future if he were to return to his home area in Iraq at the hands of the Mahdi Army, any other Shia group or the state.  Given my findings, I do not accept that he is a member of any particular social group consisting of “those people targeted to be forcibly recruited by the Mahdi Army”.  It should also be said that such a purported group could not be a particular social group as it is defined by the act of persecution.  Considering the country information overall and the past lack of history of targeting him and his family, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq that there is a real risk of suffering significant harm at the hands of the Mahdi army, any other Shia group or the state.

   61. It has been submitted that the applicant would also be in danger because he was a failed asylum seeker from a Western country and because [he] will be perceived as “westernised”.  It was submitted that because the Mahdi Army was against foreign forces and Australia was allied to the USA that this would give ground to his fears.  However, as put to the applicant for comment at the hearing, I have not come across any information that indicates that such persons are at risk upon their return.  Further the country information also indicates that very large numbers of persons are returning to Iraq (over 260,000 in 2011).  Given this information and the lack of reports, I do not accept that the applicant faces a real chance of persecution on account of being a failed asylum seeker from a western country or a failed asylum seeker from Australia or because of perceptions that he is westernised in the reasonably foreseeable future.  Considering this country information and lack of reports, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq that there is a real risk of suffering significant harm on this basis.

6. The Applicant sets out in his further amended application (filed 10 September 2014) four grounds of review, as follows:

   a)The Second Respondent failed to ask itself a relevant question, namely whether the Applicant belongs to ‘a particular social group’ comprised of people in Iraq who listen to music in public, and whether he had a well-founded fear of persecution as a member of that particular social group.

   b)The Second Respondent failed to ask itself a relevant question, namely whether the Applicant faced a real risk of significant harm as a person who listens to music in public.

   c)The Second Respondent failed to ask itself a relevant question, namely whether the Applicant had a well founded fear of persecution as a Muslim perceived to be insufficiently devout.

   d)The Second Respondent failed to ask itself a relevant question, namely whether the Applicant faced a real risk of significant harm as a Muslim perceived to be insufficiently devout.

Grounds 1 and 2

Ground 1

1. In support of ground 1, the Applicant argues that the tribunal member failed to ask themselves a relevant question, namely, whether the applicant belonged to a particular social group, which it is said consists of people in Iraq who listen to music in public.

2. The tribunal member referred to the claim that the Applicant listened to music in public at para.23 of the decision, as set out above.  This was supported by a statutory declaration by the Applicant prepared by his lawyers on 15 June 2012 (see CB133).  At CB142 it appears clear that the method by which the Applicant was listening to music in public was utilising an mp3 player (see CB142).  Importantly, however, the Tribunal (at para.58) did not accept that the applicant received any threatening letters from the Mahdi army, nor that he was followed by the Mahdi army, nor that he was hit on the leg on one occasion, which he associates with a time when he was listening to music outside.

3. The Applicant argues that as a person who listens to music in public he’s a member of a particular social group.  The Applicant relied upon the decision of the RRT reported as 1102515 [2011] RRTA 487.  In that case, however, the particular social group was Iraqi musicians considered infidels by the Islamists in Iraq, which was found to be recognised “by their musicianship and the fact that their music is considered by fundamental Islamists in Iraq to be opposed to the teachings of Islam” (see paras.1 to 2).  In that case the Applicant was a well-known musician.

4. In this case the Applicant’s claims were put on the basis of persecution due to his religion, apparent Westernisation, and implied political views.  At no point was the claim advanced on the basis that a listener to music on an mp3 player in public placed him in a specific social group.  The facts in this case are significantly different to those in the RRT decision referred to above.

5. At p3 of the Applicant’s advisers’ submissions (see CB273) the authors state:

   The applicant fears persecution based on his membership of a particular social group.  We submit that the applicant can be considered a member of at least two particular social groups, namely as a failed asylum seeker from the West and minority Sunnis living in Shia neighbourhoods.

6. It does not appear to me that on the case as put it was seriously contended that the Applicant as a person who listened to an mp3 player outside his home was in a particular social group.  Even if I be wrong in this regard, it appears clear that the Tribunal rejected the evidence that there was any adverse interest in the Applicant by the Mahdi army or any other Shia group, and in particular rejected the incident where the Applicant said he was hit on the leg at a time when he was listening to music.  In these circumstances the Applicant could not have succeeded on this ground.

Ground 2

1. This ground suffers the same difficulty as ground 1, in that the claim that the Applicant listened to music was part of his generalised claims of fear based upon his religion, which was rejected in any event on the basis that no finding of risk of persecution was made.

2. In the circumstances I do not find that the Applicant has established either of the first two grounds.

Grounds 3 and 4

1. These grounds proceed upon the basis that the Tribunal failed to turn its mind to the question of whether or not the Applicant would be persecuted on the basis that he was perceived to be insufficiently devout as a Muslim.  In support of this claim the Applicant relies upon the information that appears at Part B of his irregular maritime arrival entry interview (CB64):

   …Why did they want to recruit you [to] the Mehdi army?  Because I am from a Sunni family and they wanted me to work for them.  Because I am the young man in the family.  Maybe because at that time I was not really religious man and hanging out with friends and maybe because of this things they wanted me to work with them.

2. This ground developed into one based upon a complaint about failing to take into account the alleged letters from the Mahdi Army.  However, the Tribunal dealt with this at para.37:

   37. I asked the applicant through the interpreter what the untranslated document at f.34 of the DIAC file was.  It was the first letter from the Mahdi Army and stamped and addressed to the applicant.  It said they had received information that he was from a sect hating Shias and he was from the non-believers.  It said it was the first message that he should become a Shia and join the Mahdi Army.  It was dated 9 August 2011.  The untranslated document at f.35 was similar and dated 14 September 2011.  It said he had been told before and did not listen and they were announcing that they were going to get rid of him and that wherever he was in Iraq they would kill him.  I asked the applicant why they would send these letters to him rather than his father who was the head of the household and he said his father was old and ill and that he was the oldest sibling there.

1. The difficulty for the Applicant in this ground is that all of the evidence that points to any risk to him was rejected, and that the Tribunal dealt with generalised claims at para.59 of the decision and the general findings at para.60.

2. It appears to me that the Applicant is therefore unable to succeed on these grounds and that the Application must therefore be rejected.

Costs

1. As discussed at the hearing, the parties agreed that the costs should follow the event.

2. I therefore dismiss the applications and order that the Applicant pay the First Respondent’s costs, fixed at $6646.00.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller.

Associate: 

Date:  23 January 2015