MZZQN v Minister for Immigration
[2014] FCCA 2886
•10 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZQN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2886 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – Stateless applicant – s.36(2)(aa) of the Migration Act 1958 (Cth) – no failure to consider an integer of the claim – whether error in the Tribunal asking itself the wrong question – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2)(a), 36(2)(aa) 1951 Convention Relating to the Status of Refugees |
| Applicant: | MZZQN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1273 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 4 September 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 10 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Albert |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Horan |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1273 of 2013
| MZZQN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
As Corrected
By Amended Application dated 1 August 2014, the Applicant sought judicial review of a decision made by the Refugee Review Tribunal (‘the Tribunal’) dated 17 July 2013. That decision affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant a Protection (Class XA) visa to the Applicant.
The three grounds of application are as follows:-
“1. The Second Respondent erred by failing to undertake its statutory task, namely by failing to apply s 36(2)(aa) of the Migration Act 1958 (Cth) to the circumstances of the Applicant, who is stateless.
2. The Second Respondent erred by failing to give genuine and realistic consideration [to] an integer of the Applicant’s protection claim, namely that he would be arbitrarily deprived of life if returned to Iraq.
3. The Second Respondent erred by asking itself the wrong question, namely whether there was a future risk of harm to the Applicant in a country he could not enter.”
The First Respondent sought dismissal of the application and an order for costs.
History
The Applicant was born in Kuwait in 1961 and was expelled to Iraq in 1991. The Applicant is an Arab and follows the Sunni religion. He arrived in Australia on 10 May 2012 as an irregular arrival, and made an application for a Protection (Class XA) visa on 24 August 2012. On 30 November 2012, the delegate refused to grant a Protection (Class XA) visa to the Applicant.
Tribunal hearing
The Tribunal accepted that the Applicant was not an Iraqi national and was Stateless. The Tribunal found that Iraq was the Applicant’s country of “former habitual residence” for the purposes of Article lA of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugees Convention’).[1] Article 1A(2) relevantly defines a refugee as any person who:-
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not have a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
[1] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.
The findings of the Tribunal are accurately set out in the First Respondent’s Written Submissions filed 28 August 2014 as follows:-
a)the Tribunal accepted that the Applicant had lived in Al Batha, a majority Shia area in Iraq[2]. The Applicant claimed that he had been arrested and detained by authorities on two occasions following bombings which occurred in 2010 and 2012. The Tribunal identified numerous inconsistencies in the Applicant’s evidence in relation to these two incidents in his interview by the delegate, and in the hearing before the Tribunal.[3] In addition, the Tribunal described the Applicant’s evidence in relation to the 2010 incident as “vague as to when it occurred or in what season”.[4] The Tribunal did not accept that these discrepancies were explained by the Applicant’s medical condition or medication, nor that the Applicant had been confused when asked about his arrests at the Tribunal hearing;[5]
[2] Refugee Review Tribunal Decision Record dated 17 July 2013 at [80].
[3] Refugee Review Tribunal Decision Record dated 17 July 2013 at [84] to [87].
[4] Refugee Review Tribunal Decision Record dated 17 July 2013 at [88].
[5] Refugee Review Tribunal Decision Record dated 17 July 2013 at [89].
b)the Tribunal found:-
“the inconsistencies in the applicant’s account reflect adversely on his credibility and in addition the country information does not support the applicant’s account. The applicant confirmed that he had no difficulties being Sunni residing in a Shia area between 1991 and 2010. It was discussed with him that sectarian violence was at its worse [sic] between 2003 and 2007 yet nothing happened to him. He maintained that sectarian violence had flared up in 2010”;[6];
[6] Refugee Review Tribunal Decision Record dated 17 July 2013 at [90].
c)the Tribunal found that the applicant was not arrested and detained in 2010 and 2012.[7] The Tribunal had regard to country information as to security incidents in the Al Batha area in the past four years,[8] and concluded the:-
“applicant’s account does [not] accord with the country information. He claims to have been rounded up when there were major incidents in his area, yet the country information indicates that on one occasion when he claimed to be arrested there was no major incident and at times when there were major incidents he was not targeted”;[9]
d)in relation to the major security incident in Al Batha in June 2009, following which the Applicant did not claim to have been arrested, or otherwise targeted, the Tribunal did not accept the Applicant’s explanation that he had gone to Basra at this time to escape harm;[10]
e)the Tribunal found that the Applicant had never been targeted by the Mahdi Army or its affiliations, or by the Dawa party or the Supreme Iraq council.[11] The country information indicated that the Mahdi Army was no longer operating at that time at which the Applicant claimed to have been arrested by them.[12] Further, the Tribunal did not accept the Applicant’s claim that the Mahdi Army had come to his home searching for him and arrested his son in late 2012;[13]
f)the Tribunal found that the Applicant had never been targeted for being a Sunni and had been able to practice his religion in Iraq;[14]
g)the Tribunal acknowledged that Sunnis living in predominantly Shia areas of Iraq could suffer discrimination and violence.[15] However, after considering country information in relation to sectarian violence and attacks against Sunnis, the Tribunal found that:-
“Weighing all this information and taking into account the fact that the applicant has not been harmed in the past for reason of his religion despite residing in a majority Shia areas (sic) and the fact his family continue to reside in this area and none of his family members have suffered [any] harm the Tribunal finds that, based [on] the applicant’s individual circumstances that he does not face a real chance .of serious harm, now or in the reasonably foreseeable future in Iraq for reasons of his religion and his fear of persecution is not well-founded”;[16]
h)the Tribunal found that stateless Bidoon were not systematically ill-treated in Iraq, and that there was no real chance that the Applicant would be persecuted in the reasonably foreseeable future for reasons of being a stateless Bidoon who was born in Kuwait,[17] nor for reasons of being a stateless Arab.[18] The Tribunal found that the Applicant had not in the past suffered significant economic hardship that threatened his capacity to subsist; the denial of access to basic services that threatened his capacity to subsist; or the denial of capacity to earn a livelihood that threatened his capacity to subsist.[19] The Tribunal did not accept that there was a real chance that the Applicant would suffer such serious harm for reasons of being a stateless Bidoon in the reasonably foreseeable future;
i)the Tribunal did not accept that there was a real chance that the Applicant would be seriously harmed in the reasonably foreseeable future for reasons of having applied for asylum in a western country or for being a returnee from the West,[20] nor for reasons of being imputed with a pro-Ba’athist political opinion;[21] and
j)in relation to the “complementary protection” criteria, the Tribunal found that Iraq was not a “receiving country” for the purposes of s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’), on the basis that the Applicant had no right to enter Iraq and that he would not be removed from Australia to Iraq.[22] However, notwithstanding this finding, the Tribunal proceeded to assess the Applicant’s claims “in the alternative” on the basis that Iraq was the “receiving country” in which the Applicant had been habitually resident.[23] While the Tribunal accepted that the Applicant had been subjected to some discriminatory treatment as a stateless Bidoon in Iraq, it did not accept that such discrimination amounted to significant harm. Accordingly, the Tribunal was satisfied that there were no substantial grounds for believing that there was a real risk that the Applicant would suffer significant harm as a necessary and foreseeable consequence of being returned to Iraq.[24]
[7] Refugee Review Tribunal Decision Record dated 17 July 2013 at [106].
[8] Refugee Review Tribunal Decision Record dated 17 July 2013 at [92] to [94].
[9] Refugee Review Tribunal Decision Record dated 17 July 2013 at [95].
[10] Refugee Review Tribunal Decision Record dated 17 July 2013 at [94] and [106].
[11] Refugee Review Tribunal Decision Record dated 17 July 2013 at [106].
[12] Refugee Review Tribunal Decision Record dated 17 July 2013 at [96] to [101].
[13] Refugee Review Tribunal Decision Record dated 17 July 2013 at [104] to [105] and [106].
[14] Refugee Review Tribunal Decision Record dated 17 July 2013 at [106].
[15] Refugee Review Tribunal Decision Record dated 17 July 2013 at [107].
[16] Refugee Review Tribunal Decision Record dated 17 July 2013 at [113].
[17] Refugee Review Tribunal Decision Record dated 17 July 2013 at [122].
[18] Refugee Review Tribunal Decision Record dated 17 July 2013 at [123].
[19] Refugee Review Tribunal Decision Record dated 17 July 2013 at [116].
[20] Refugee Review Tribunal Decision Record dated 17 July 2013 at [124].
[21] Refugee Review Tribunal Decision Record dated 17 July 2013 at [125].
[22] Refugee Review Tribunal Decision Record dated 17 July 2013 at [131].
[23] Refugee Review Tribunal Decision Record dated 17 July 2013 at [132].
[24] Refugee Review Tribunal Decision Record dated 17 July 2013 at [133] to [134].
At the outset of the hearing of this matter, Counsel for the Applicant conceded that the matter should only be remitted to the Tribunal for rehearing if the Applicant was successful on grounds one and two. The Court notes that ground two of the Applicant’s application is pivotal to the success of either ground one or ground three. For convenience sake, the Court shall firstly consider ground two of the Applicant’s application.
Ground two
In the Applicant’s submissions, the Applicant claims the Tribunal failed to consider a “substantial, clearly articulated claim relying on established facts”[25] as put before it by the Applicant, and thus failed to consider an integer of the Applicant’s claim. The Applicant claims that the Tribunal analysis of the claim amounted to a bare conclusion, absent analysis and reasons in its conclusion:-
“… there are no substantial grounds from (sic) believing if returned to Iraq that he would be arbitrarily deprived of his life...”[26]
[25] As required by the decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
[26] Refugee Review Tribunal Decision Record dated 17 July 2013 at [133].
The Court finds however the Tribunal did give “meaningful” consideration to a claim that the Applicant would be arbitrarily deprived of his life if returned to Iraq. The Tribunal clearly and in detail, contrary to the claim by the Applicant, considered the Applicant’s claim to fear arbitrary deprivation of life in Iraq, and to fear risk of being injured or harmed as a result of Sectarian violence in Iraq.
The Applicant put before the Court numerous pieces of country information that were before the Tribunal to the effect that there is increasing Sectarian violence in Iraq between Sunnis and Shias, and that the country has a lack of security and increased acts of violence. That country information was used by the Applicant in the context of both the Refugee Convention claim, and the complementary protection claim. The Court finds the Tribunal did adequately deal with the claim as put, and made findings of fact in the context of the Refugee Convention claim that were consistent with the finding made in relation to complementary protection.
The Tribunal’s findings were as follows:-
“107. The Tribunal acknowledges that Sunnis who live in predominantly Shia areas of Iraq can suffer discrimination and violence. The most recent International Religious Freedom report notes that ‘Sunnis in Shia-dominated neighborhoods… reported receiving anonymous death threat letters demanding that they leave their bomes’. Similarly, UNHCR Guidelines stated:
While open sectarian violence between Arab Sunnis and Arab Shi’ites ended in 2008, armed Sunni groups continue to target Shi’ite civilians with the apparent aim of reigniting sectarian tension. Sectarian-motivated violence includes: mass-casualty attacks targeting Shit’ite civilians and pilgrims; threats against Sunnis in Shi’ite majority areas and Shi’ites in Sunni majority areas; as well as targeted killings of both Sunni and Shi’ite clerics and scholars
Both Sunnis and Shi’ites living in or returning to areas in which they would constitute a minority may be exposed to targeted violence on account of their religious identity. Both Shi’ites in Sunni dominated neighbourhoods and Sunnis in Shi’ite-dominated neighbourhoods have reportedly been subjected to threatening letters demanding that they vacate their homes. In cases where individuals do not comply, there are reports of violence or harassment, including killings[.]
108. The incidents however referred to in those report[s] occurred in Baghdad. Al Batha is reportedly ‘filled with Shiite Muslim tribesmen who formerly lived in Kuwait’. No reports were found of attacks targeting Sunnis in Al Batha or the province of Thi Qar.
109. Reports were found indicating that Sunni Muslims - primarily those linked to the government or opposed to Sunni extremist groups - continue to be the target of attacks in Iraq. In its 2011 Country Human Rights Practices 2011: Iraq report, the US Department of State noted an increase in al-Qaida in Iraq (AQI) attacks against Sunnis cooperating with the government, the Sons of Iraq (SOI) and Sunni tribal leaders. In its 2012 Annual Report, the US Commission on International Religious Freedom similarly stated:
There also continued to be attacks in 2011 targeting Sunni worshippers, particularly those linked to the government or opposed to Sunni extremist groups.
110. The applicant has not claimed that he is linked to the government or Sunni extremists and the Tribunal finds that he does not fall within this risk category. The report lists the following attacks against Sunni Mosques during 2011:
• On 28 August 2011, a suicide bomber detonated himself in the Umm al Qura Mosque - the largest Sunni mosque in Baghdad - killing 28 people including a member of parliament.
• On 15 August 2011, gunmen dressed in military uniforms and identifying themselves as members of the al-Qaeda-linked Islamic State of Iraq group stormed a Sunni mosque in Yusifiya in Baghdad Province during Ramadan evening prayers, killing seven men affiliated with Sons of Iraq groups.
• On 3 June 2011, a suicide bomber detonated himself in a Sunni mosque in a government compound in Tikrit during Friday prayers. Another suicide bomber detonated himself at the hospital where the wounded were taken. A total of 21 people were killed and 70 injured.
• On 28 April 2011, a suicide bomber blew himself up in a Shi’a mosque in the Diyala Governorate where Shi’as and Sunnis were holding an interfaith gathering; people were killed and 30 wounded.
111. None of these attacks occurred in the areas from which the applicant originates.
112. The applicant claimed that there was now a secular war taking place between the Sunnis and Shias and that things are getting very bad in Nasiriya where they lived and they could not go outside at the moment. On 5 January 2012, sectarian violence broke out to the west of Nasiriyah. According to CNN, a suicide bombing targeting Shiite pilgrims near Nasiriyah killed 36 and wounded 72 others. The attack formed part of a series of strikes across Iraq, including blasts in Baghdad that reportedly left between 24 and 27 people dead. The Tribunal accepts that recently there has been some sectarian attacks but the violence has not reached the levels of 2005 to 2008. The Tribunal does not accept that there is a secular war.
113. Weighing all this information and taking into account the fact the applicant has not been harmed in the past for reason of his religion despite residing in a majority Shia areas and the fact his family continue to reside in this area and none of his family members have suffered and (sic) harm the Tribunal finds that, based [on] the applicant’s individual circumstances that he does not face a real chance of serious harm, nor or in the reasonably foreseeable future in Iraq for reasons of his religion and that his fear of persecution is not well-founded.”[27] (footnotes omitted).
[27] Refugee Review Tribunal Decision Record dated 17 July 2013 at [107] to [113].
The above findings, coupled with the findings that:-
a)the Tribunal did not accept the Applicant’s claims that he had been arrested and detained on two occasions in 2010 and 2012, and found that he had never been targeted for being a Sunni Muslim; and
b)the Tribunal did not accept that, as a stateless Bidoon, the Applicant would be imprisoned and interrogated on his return to Iraq. Further, at the hearing before the Tribunal, the Applicant disclaimed any submission that Bidoons or people with Kuwaiti backgrounds were targeted in any way more than the general Sunni population. Based on the Applicant’s evidence and country information, the Tribunal found that “stateless Bidoon in Iraq are not systematically ill-treated in Iraq”[28];
support the finding, as submitted by Counsel for the First Respondent, at paragraph 133 of the Decision Record being:-
“The tribunal has accepted that he (sic) applicant is a stateless Bidoon who has been subjected to some discriminatory treatment in Iraq. However based on his past experiences and those of his family the reviewer does not accept that in the applicant’s case this has amounted to significant harm within the meaning of s.5 or s36(2A) of the Act. Severe pain and suffering has not been inflicted upon him or any pain and suffering that could be regarded as cruel and inhuman in nature. He had not been subjected to extreme humiliation or other significant harms set out in s5 and s 36(2A) of the Act. Based on this evidence before the tribunal is satisfied that there are no substantial grounds for believing that there is a real risk this would occur on return to Iraq. Further there are no substantial grounds from believing if returned to Iraq that he would be arbitrarily deprived of his life or that the death penalty would be carried out on him.”[29]
[28] Refugee Review Tribunal Decision Record dated 17 July 2013 at [122].
[29] Refugee Review Tribunal Decision Record dated 17 July 2013 at [133].
These findings of fact were open to the Tribunal on the evidence before it. It is not for this Court to interfere in those findings of fact. These findings also enabled the Tribunal to find there was no complementary protection obligation. That is an end to this application of itself. However, I shall briefly refer to the remaining matters.
Ground three
The Applicant submits that the Tribunal asked itself a wrong question by making an assessment of the risk of future serious or significant harm to the Applicant against country information relating to Iraq in circumstances where the Applicant had no right to enter Iraq, and contends that “the whole of the Tribunal’s analysis concerning harm in the future in Iraq was therefore academic”.[30]
[30] Applicant’s Submissions filed 7 July 2014 at [22].
As the Tribunal noted in its Decision Record, the question whether the Applicant was a Refugee within Article 1A of the Refugees Convention, was required to be assessed against the “country of his former habitual residence”,[31] which the Tribunal found was Iraq. This was not altered by the fact that the Applicant was a Stateless person and had no right to re-enter Iraq. As the Tribunal stated, “[a] legal right to return to a country is not a necessary precondition that must be satisfied before that country can be regarded as a country of ‘former habitual residence’.” Accordingly, the Tribunal’s assessment of the risk of serious or significant harm in Iraq was an essential step in assessing whether protection obligations were owed to the Applicant.
[31] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.
Ground one
Section 36(2)(aa) of the Act is as follows:-
“(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a “receiving country”, there is a real risk that the non‑citizen will suffer significant harm”
“Receiving country” is defined in s.5 of the Act as follows:-
“(a) a country of which the non‑citizen is a national; or
(b) if the non‑citizen has no country of nationality—the country of which the non‑citizen is an habitual resident;
to be determined solely by reference to the law of the relevant country.”
I note in passing, the Applicant also submitted that the Tribunal erred by having regard to only one possible “receiving country” for the purposes of s.36(2)(aa) of the Act, namely Iraq, and submitted that it was possible that Kuwait was a “receiving country” . This submission was inconsistent with the Applicant’s submissions to the Tribunal in relation to the complementary protection criteria, which addressed claimed harm or mistreatment on return to Iraq. No submission was made before the Tribunal in respect of Kuwait being the Applicant’s country of “habitual residence”. Nor further, did the Applicant point to any other country to which he could or would be returned in this context.
The Tribunal found that the Applicant had “resided continuously in Iraq from 1991 until April 2012”, when he departed for Australia. The Applicant had not resided in Kuwait since his expulsion in 1991, and did not claim to have any right to return to Kuwait. The Tribunal referred to country information that “Bidoons who had left Kuwait as a result of the war were not allowed to return and remained stateless in Iraq and other countries”. The Applicant’s mother, brother, four sons and five daughters were still living in Iraq.
Thus, as submitted by Counsel for the First Respondent, it was not open on the evidence and material before the Tribunal to find that, as at the date of the Tribunal’s decision, Kuwait was the country of which the Applicant was an habitual resident.
The Tribunal accepted that the Applicant was not a national of Iraq and was Stateless. It further accepted his country of former habitual residence was Iraq, and that he had no right to enter Iraq. The Tribunal further made findings on alternative bases as to s.36(2)(aa) of the Act. Firstly that Iraq was not a “receiving country” and secondly that Iraq was a “receiving country”. In either alternative, the Applicant did not satisfy s.36(2)(aa) of the Act.
The Applicant needed to establish that he had a well-founded fear of persecution in Iraq. He did not do so. In the context of complementary protection, there is not a reference to former habitual residence as noted by the Tribunal but rather habitual residence. A “receiving country” for a stateless person is the country of which the non-citizen is a habitual resident. This is a question of fact for the Tribunal’s determination.
The application is dismissed and costs follow the event.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 10 December 2014
Corrections
Paragraph 21, line 4 has been amended by deleting the section “36(2)” and inserting the section “36(2)(aa)”.
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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