SZGPJ v Minister for Immigration

[2007] FMCA 19

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGPJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 19

MIGRATION – Refugee – Article 1(C)5, s.36(3) and Article 1(A)2 correctly interpreted and applied – no irrational or illogical reasoning – Tribunal accepted a particular social group existed – Tribunal found applicant would not be persecuted because of membership of such social group – no jurisdictional error – application dismissed.

Migration Act 1958, ss.36(3), 91R.

NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373
QAAH of 2004 v Minister Immigration and Multicultural and Indigenous Affairs [2004] FCA 148
NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60
NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 198 ALR 59
NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188
Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Applicant S v Minister for Immigration and Multicultural Affairs (2004) HCA 25
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
Okere v Minister for Immigration and Multicultural Affairs (1998) FCA 112
Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134
Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274; [1999] FCA 165
Mohamad v Minister for Immigration & Multicultural Affairs [1999] FCA 688
Mohamad v Minister for Immigration & Multicultural Affairs [2000] FCA 109

Applicant: SZGPJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1670 of 2005

Judgment of: Nicholls FM

Hearing date: 9 August 2006

Date of Last Submission: 9 August 2006

Delivered at: Sydney

Delivered on: 31 January 2007

REPRESENTATION

Counsel for the Applicant: Mr. L. J. Karp

Solicitors for the Applicant: Legal Aid Commission (NSW)

Counsel for the Respondents: Mr. S. Lloyd

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $7,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1670 of 2005

SZGPJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 28 June 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 3 May 2000 and handed down on 7 June 2005 to affirm the decision of a delegate of the respondent Minister made on 26 August 2004 to refuse a protection visa to the applicant.

Background

1. The applicant is a national of Iraq who came to Australia in November 1999 and was granted a temporary protection visa (“TPV”) on 11 July 2000. On 13 July 2000 he applied to the respondent Minister's Department for a further protection visa (“protection visa”). This was refused on 26 August 2004 and he applied to the Tribunal for a review of that decision on 22 September 2004.

2. The applicant’s claims to protection can be found in his application for a protection visa made on 20 December 1999 (reproduced at Court Book (“CB”) 1 to CB 24, and in particular in an attached statement at CB 25), in supporting submissions (at CB 28 to CB 33) drafted by the applicant’s then migration agent and in his subsequent application for review to the Tribunal (reproduced at CB 98 to CB 101, particularly in an attached statement at CB 102 to CB 103), and in the Tribunal’s account of the hearing that it conducted with the applicant (and the applicant’s various witnesses), reproduced at CB 566.3 to CB 575.

3. The background, briefly, is:

   1)5 November 1999 – applicant arrived in Australia by boat and without relevant immigration travel documentation

   2)20 December 1999 – application for a protection visa

   3)11 July 2000 – applicant was granted a TPV (CB 34)

   4)13 July 2000 – application for a further protection visa (CB 70)

   5)26 August 2004 – application for a protection visa was refused (CB 83)

   6)22 September 2004 – application for review to Tribunal (CB 98 to CB 103)

   7)3 May 2005 – decision refusing this application is signed (CB 555 to CB 596).

Applicant’s claims

1. The applicant is a Shia Muslim from Iraq. His initial claims for protection derived from his family's perceived involvement with a then opposition party in Iraq (one of his brothers was imprisoned and executed, the other was arrested and looked on with suspicion as a result) during the Ba’athist regime of Saddam Hussein. The applicant further claimed that he had been involved in the persecution of Shia Muslims by the then Ba’athist regime, and in particular was fearful of harm as a result of being identified by the authorities as a person of interest because of his attendance at a mosque connected with a particular Imam who had been assassinated, and the subsequent killing of six members of the ruling Ba’athist party in revenge.

2. By August 2004 the applicant (at an interview with the Minister’s delegate) also claimed that while previously he feared Saddam Hussein, he now feared a person identified as “Moqtada al-Sadr” (a political figure). He also claimed that he would be killed if he returned to Iraq because he had been in Australia for five years (he would be regarded as an Australian “agent”). Further he claimed that he feared being kidnapped because he could be perceived as “a rich person”. He feared religious groups and criminal gangs.

3. Before the Tribunal the applicant claimed he also feared harm on return to Iraq because of his “political opinion”. He claimed to support a moderate Shia leadership in a country which was unsafe and unstable. He also feared he would be targeted because he had been outside of Iraq for five years. On his behalf the applicant’s then representatives put forward as the relevant Convention grounds:

   (i)Religion: as a moderate Shia in an increasingly “extremist” situation.

   (ii)Political opinion: support for the moderate Shia leadership.

   (iii)Member of a particular social group:

   (i)A young Shia Muslim male in Iraq who does not want to join, or support, the activities of the militia army of Moqtada al-Sadr and the Mahdi Army, and who has been in a western country for a significant period of time.

   (ii)“Young Shia males in the Iraq”.

   (iii)“Returnees from the West”.

4. The Tribunal’s account of what occurred at the hearing before it (held on 26 November 2004), it’s discussion with the applicant and his adviser about his claims, and the evidence taken from witnesses, is reported by the Tribunal in its decision record at CB 566.3 to CB 575.5.

   The Tribunal’s Findings

5. The Tribunal’s “Findings and Reasons” are reproduced at CB 583 to CB 596.8. The Tribunal:

   1)Proposed to look at whether, in accordance with Article 1C(5) of the Convention (given that he had already previously been recognised as a refugee), the applicant could no longer continue to refuse to avail himself of the protection of his country of nationality (CB 583.3). But it understood that the “ultimate question” for it was whether as at the date of its decision the applicant had a well founded fear of being persecuted for a Convention reason in Iraq. This was with reference to NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373 (at first instance) and QAAH of 2004 v Minister Immigration and Multicultural and Indigenous Affairs [2004] FCA 148 (CB 583.4).

   2)Noted that the Minister’s delegate in granting the TPV had rejected the applicant’s claims based on events following the Imam’s assassination at his mosque, but had accepted that the applicant, having left Iraq illegally, would be imputed with a political opinion critical of the Ba’athist regime upon return (CB 583.8).

   3)Found it difficult to accept that the Ba’athist regime would be re-established in Iraq (CB 584.1), but accepted that the regime was one of the elements fighting the Coalition forces (CB 584.2), however did not accept that the applicant had a well founded fear of being persecuted by elements of the former regime on return to Iraq (CB 584.3).

   4)In relation to the applicant’s claims, that emerged before the Tribunal, to claim to fear harm from Sunni Muslims, and especially Wahhabis, accepted that independent country information available to it indicated that relations between the Sunni and Shia communities had “remained calm” (CB 584.5).

   5)In reference to the applicant’s claims that the al-Sadr group contained former Ba’ath party members who would target people in support of the Coalition forces or who criticised the former regime (CB 584.8), and his claims that he would also be targeted by Islamic extremists (CB 585.2), found on the basis of the evidence before it, that there was not a real chance of the Ba’athist regime being re-established or that the applicant would be targeted by elements of the former Ba’athist regime (CB 585.7).

   6)Found that, as such the circumstances in which he had been recognised as a refugee had ceased to exist (CB 585.9).

   7)In relation to the applicant's “new claims”:

   (i)Noted that the applicant claimed that he feared that Moqtada al-Sadr and his militia would think him an agent for Australia (or the USA) (CB 587.2) unless he joined their cause (CB 587.5).

   (ii)Noted the applicant’s claims about the rise in fanatical or “radicalised”, Shias in Iraq who had attacked moderate Shias (CB 587.6) and the claim that the applicant had a well founded fear of being persecuted as a result of his membership of a particular social group: “A young Shiite Muslim male in Iraq who does not want to join and support the activities of the militia army of Moqtada al-Sadr and/or the Madhi Army and who has been in a western country for a significant period of time.”

   (iii)Referred to the applicant’s evidence that he feared being targeted by the various militia groups, and killed, and that members of his family had been attacked which led them to going into hiding (CB 587.10 to CB 588.1).

   8)In relation to the applicant’s oral evidence at the Tribunal hearing:

   (i)Accepted that the applicant’s father was killed in Kufa as indicated by the death certificate produced, and that his family subsequently fled to Karbala (CB 590.6).

   (ii)Accepted that a lot of people left Najaf (the applicant’s home area) to escape the fighting but, having regard to all the evidence before it, found that Najaf was firmly under the control of the Coalition and Iraqi forces, and that Moqtada al-Sadr had withdrawn and disarmed his forces (CB 591.7).

   (iii)Did not accept that there was a real chance that the applicant would be forced to join the militia of Moqtada al-Sadr if he returned to Najaf-Kufa now or in the foreseeable future, or persecuted for the reasons of his membership of any of the “particular social groups” (CB 592.1).

   (iv)Considered that independent information suggested that there was no evidence that returnees from western countries would automatically be said to have collaborated with Iraqi or other foreign authorities (CB 593.4).

   (v)Did not accept that the applicant would be targeted for a Convention reason by followers of Moqtada al-Sadr, ex-Ba’athists, or other “fanatics”, or “the terrorists” if he returned home (CB 593.6).

   (vi)Did not accept that there was a real chance that the applicant would be persecuted as a result of any political opinion imputed to him on the basis of his family's opposition to Saddam Hussein's regime, or to Moqtada al-Sadr and his followers, or his identification as a moderate or “quite open-minded” Shia (CB 593.7).

   (vii)Did not accept that the applicant would be targeted by extremists, or Sunnis, or Wahhabis for reasons of his religion as a Shia if he were to return to Najaf-Kufa (CB 594.6).

   (viii)Found that if criminals targeted people who were perceived to be wealthy this did not mean that the essential and significant reason for targeting such individuals is one of the five Convention grounds (CB 595.6).

   Based on the above the Tribunal concluded that it was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if he returned to Iraq and was not a person to whom Australia owed protection obligations under the Refugees Convention.

   Representation

6. At the hearing before the Court Mr. S. Lloyd appeared for the respondent Minister, and Mr. L. J. Karp appeared for the applicant.

   
   

   Mr. Karp read into evidence, without objection, the affidavit of Mr. Bill Gerogiannis, a solicitor in the employ of the Legal Aid Commission of New South Wales, the applicant's solicitors, affirmed on 28 March 2006 and attaching a transcript of the hearing before the Tribunal.

   Applicant’s Amended Application

7. He was also granted leave (following no objection) to file in Court a further amended application which claims that:

   “… the decision of the Tribunal was invalid and constituted a failure to exercise the power vested in it by law because the Tribunal:

   (1) erred in purporting to apply Article 1C(5) in circumstances where it:

   a)wrongly approached the matter on the basis that it needed to consider whether, as at the date of the decision, the Applicant had a well-founded fear of being persecuted for a Convention reason in his country of nationality such that is justification for his being unable or unwilling to avail himself of the protection of that country: see CB 583 & 585.

   b)failed to recognise that the changes in Iraq must be profound and durable and failing to recognise those changes must lead to effective and available protection such that it was no longer reasonable for the appellant to refuse to avail himself of that protection.

   c)failed to make detailed findings that would enable it to answer those questions and failing to give proper consideration to the extent of ongoing Ba’ath Party activity; the stability of the interim government and the degree of control it exercised and was likely to be able to continue exercising in relevant parts of Iraq; the adequacy of administrative infrastructure and the human rights situation in the country, all the time bearing in mind that changes must be durable and effective as well as profound.

   d)focussed on the fact that the Ba’ath Party had been removed from power in April 2003 and that there was not a real chance the Ba’ath regime would be re-established in the reasonably foreseeable future at the time of the decision; CB 584-585.

   (2)erred in law in finding that in order to determine the eligibility of Applicant for a further protection visa, that had to be done by reference to s.36(3) of the Migration Act, in circumstances where the provision had no relevant operation; CB 586.

   (3)erred in law in purporting to assess the circumstances of the Applicant against the requirements of Article 1A(2) of the Convention, after holding that s.36(3) precluded the grant of a further protection visa; CB 586.

   (4)failed to consider whether the government of Iraq was both willing and able to provide the necessary level of protection to the Applicant against threats of persecution by non-State agents, including the Ba’ath party.

   (5)drew a distinction between those Iraqis who materially assisting the interim government and western agencies, and those who voice support for the western occupation of Iraq – such as distinction being arbitrary, irrational, illogical or lacking a basis on finding or inferences of fact support on logical grounds.

   (6)failed to consider the nexus between the extortion feared by the applicant and the Convention ground of “particular social group” according to law.

   Particulars

   (a)Failure to assess whether on the evidence before the Tribunal considered in a common sense way, there was a sufficient nexus between the extortion feared and the fact that the applicant would be seen as having returned from Australia.”

   Applicant’s complaints

8. The applicant’s complaints therefore can be summarised as:

   1)Misinterpretation of Article 1C(5), and s.36(3) of the Migration Act 1958 (“the Act”) and Article 1A(2) of the Refugees Convention.

   2)The arbitrary, irrational and illogical distinction drawn by the Tribunal between those who assisted the interim government in Iraq, and those who voiced support for the western occupation of Iraq.

   3)The Tribunal’s failure to consider the nexus between the extortion feared by the applicant and the Convention ground of “particular social groups”.

   Article 1(C)5, Section 36(3) and Article 1(A)2

9. The applicant's first set of complaints concern alleged misinterpretation of Article 1C(5) of the Refugees Convention and s.36(3) of the Act. By the time of the hearing before the Court both cases which were relied on at first instance by the Tribunal had been the subject of consideration by Full Federal Courts. Mr. Karp conceded that this Court was bound by the Full Court decision in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60 (“NBGM”) and made a formal submission at the hearing before the Court that NBGM was incorrectly decided. In this regard I understood Mr. Karp in particular to refer to Black CJ., in NBGM at [25] of that Judgement:

   “The members of the Full Court have reached differing conclusions both as to the outcome of the appeal and as to the reasons for the outcome. As a majority would dismiss the appeal, that will be the order of the Court. Given the practical importance of the case, I think it appropriate to observe that whilst there are two lines of reasoning leading to the majority conclusion that the appeal should be dismissed, there is a common conclusion about the task to be performed by the decision-maker on an application for a permanent protection visa where the relevant circumstances are said to have changed since the appellant was granted a temporary protection visa. The majority would agree that s 36 mandates that the decision-maker must be satisfied that, at the time the decision is made, the applicant for a permanent protection visa then has a well-founded fear of persecution for a Convention reason. The circumstance that a previous decision-maker was satisfied that the applicant had such a fear when a temporary protection visa was granted is not sufficient to establish what s 36 requires.”

10. Since the hearing of this matter before this Court the High Court handed down its Judgements in NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54 and Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 which do not assist the applicant in the, albeit formal, submission that NBGM in the Full Court was incorrectly decided. The question that the Tribunal is required to answer is whether there was, at the time of its decision or in the reasonably foreseeable future, a well founded fear of persecution for a Refugees Convention reason should the applicant be returned to the country of persecution. The Tribunal in the matter before me has addressed this question and the applicant’s complaints, in light of the relevant binding authority, set out in grounds 1 to 4 of the further amended application are not made out.

    Ground: “Illogical” Reasoning

1. The applicant's second complaint is, in essence, that in drawing a distinction between those in Iraq who assisted the interim government and western agencies, and those who voiced support for the western occupation of Iraq, the Tribunal acted in an arbitrary, irrational, and illogical manner, and made findings, or drew inferences of fact, not supported by logical grounds. The illogical, or absurd, aspect of the distinction was said to be that the Tribunal found that those who worked for the western coalition were in danger, while those who supported it were not.

2. Mr. Karp took the Court to relevant parts of the Tribunal's decision record which I reproduce below for ease of presenting an understanding of his argument (CB 591.6 to CB 592.3):

   “As the Tribunal noted in its letter dated 2 March 2005, I consider it relevant that the elections on 30 January 2005 proceeded peacefully in Najaf with an estimated turnout of 85 per cent of registered voters according to the Independent Electoral Commission (Thanassis Cambanis, ‘For Shi’ite Najaf, a new direction’. The Boston Globe, 31 January 2005, downloaded from accessed 1 March 2005). Having regard to all of the evidence before me I find that Najaf is firmly under the control of the Coalition and Iraqi forces, that Moqtada al-Sadr has withdrawn from Najaf and that he has disarmed his militia. I also give weight to the advice of the Australian Department of Foreign Affairs and Trade to the effect that no evidence emerged during its inquiries of people being forced to join militia groups anywhere in Iraq (DFAT Country Information Report No. 6/05, dated 9 January 2005, CX111338). I do not accept that there is a real chance that the Applicant will be forced to join the militia of Moqtada al-Sadr known as the Mahdi Army if he returns to his home in Najaf-Kufa now or in the reasonably foreseeable future. I do not accept therefore, that there is a real chance that the Applicant will be persecuted for reasons of his membership of any of the ‘particular social groups’ for the purposes of the Convention postulated by the Applicant’s representatives in this context such as young Shiite Muslim males in Iraq who do not want to join or support the activities of the militia army of Moqtada al-Sadr and/or the Mahdi army who have been in a Western country for a significant period of time, young Shiite males in Iraq or returnees from the West.”

3. But it was the Tribunal's reasoning in the following, as seen against the background dealt with above, that Mr. Karp submitted revealed the flaw in its analysis:

   “I consider that the current situation in Najaf-Kufa is likewise relevant to the Applicant’s claimed fears that he will be attacked by followers of Moqtada al-Sadr, by ex-Ba’athists or by other fanatics or terrorists because he will be viewed as a collaborator with the Coalition forces or an agent for Australia or the USA as a result of the time he has spent in Australia, because his family participated in a demonstration against Moqtada al-Sadr and the Mahdi Army in which they called for the disarming of the Mahdi Army and Moqtada al-Sadr’s supporters and for the Coalition forces to control the city again, because he will be viewed by radical Shiites as a moderate or ‘open-minded’ Shiite and a supporter of a moderate or ‘open-minded’ Shiite leadership, because the Applicant’s father was well-known for speaking his mind and opposed fighting and the use of force in politics, saying that they should let the Americans stay to reform the country, because the Applicant’s family were active in opposing the regime of Saddam Hussein or because the Applicant himself is a supporter of the US and Coalition forces in Iraq.” (CB 592.3 to CB 592.5)

4. In particular the Court was asked to note that while there were an “enormous number of claims being dismissed”, in the extract quoted above, relevant to the applicant's case now is the Tribunal's rejection of the claim that the applicant would be persecuted because his father was well known for speaking his mind and saying that the Americans should stay in the country and that the applicant himself is a supporter of the US and Coalition forces in Iraq.

5. Mr. Karp emphasised that the Tribunal's reasons for that finding is in what follows:

   “As I put to the Applicant in the course of the hearing before me, the evidence available to me suggests that the Islamic extremists in Iraq target Iraqis working for the Interim Government, Western companies or the Coalition forces…” (CB 592.5 to CB 592.7)

   He submitted that the implication that arises from this is that Islamic extremists do not target Iraqis who speak out in favour of the presence of the Coalition forces and that this is an “absurd”, “irrational”

   
   

   and “arbitrary” finding for the Tribunal to have made such that as against relevant authorities reveals jurisdictional error on its part.

6. The relevant authorities relied on by the applicant that are said to establish the availability of this ground of review are:

   1)Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 198 ALR 59, which it is submitted, supports the proposition that “irrationality” is a ground of review. See in particular:

   “Jurisdictional error

   [34] The appellant submits in the application for constitutional writs that the Tribunal’s decision displays jurisdictional error. This is said to be because its determination that the condition upon which depended the power (or duty) to grant him a protection visa was not met was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds. In framing the issue that way, the appellant relied upon what had been said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 656-7 [145]; 162 ALR 577 at 611.”

   [37] Without further consideration of what was said in Melbourne Stevedoring, the formulation of the criterion which is relied upon by the appellant may be accepted for present purposes.”

   (This part of the Court's Judgement is in the joint Judgement of McHugh and Gummow JJ., who were part of the majority in that case. I also note that the majority did not consider that the factual basis of the case before it was made out such as was contended by the applicant in that matter).

   2)NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 (“NADH”). See:

   (i)At [12]:

   “The existence in any given case of arbitrary unreasoned conclusions made without a scintilla of evidence may lay a foundation for an argument that the decision-maker moulded his or her fact finding to reach a particular result. Such may also lay the foundation for argument that the decision reached was capricious, arbitrary, made according to humour or private opinion rather than reason and justice, or that it was unreasonable: see R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, 189; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 430; Bankstown Municipal Council v Fripp (1916) 26 CLR 385, 403; Foley v Padley (1984) 154 CLR 349, 353, 370; Buck v Bavone (1976) 135 CLR 110, 118-19; Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135, 150. “Unreasonableness” in this context may be seen as embodying, at least, what Starke J said in Boucaut Bay Co (In liq) v The Commonwealth (1927) 40 CLR 98, 101, approved by Windeyer J in Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28, 57. See also Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, 360. The perceived absence of findings by the Tribunal so characterised does not, however, exhaust the enquiry as to whether there was apprehended bias, as appears to have been the approach of the primary judge. (I leave to one side at this point whether there was an absence of such findings.) The Full Court in WAEJ [WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188] was not stating an exhaustive test for apprehended bias of administrative decision-makers.”

   (ii)Mr. Karp invited the Court to read paragraphs [129] to [134] of the Judgement of Allsop J. in that case, with whom Moore and Tamberlin JJ. agreed, as to an alternative way of dealing with the “irrationality ground”.

   (iii)Further, I note what His Honour said at [135]:

   “It is unnecessary to dispose of this case to decide this issue. Nevertheless, there is much to be said for the proposition that the case could be decided on the well-known High Court authorities referred to at [12] above which are reflected in the necessity of this Tribunal to act judicially in the sense referred to by Gleeson CJ in Applicant S20 and Lord Halsbury LC in Sharp v Wakefield. The Tribunal was required to reach its state of satisfaction in a reasoned fashion (even if, for the purposes of this discussion, exhibiting a degree of illogicality). It was obliged not to act capriciously, that is, it was obliged not to reach an opinion arbitrarily or by whim or, with the exception of proper credit findings, by intuition.”

   3)Mr. Karp also referred the Court to paragraph 22 of his written submissions, and in particular the reference to what was said by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 at [34]:

   “The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6. Sections 476(1)(g) and 476(4) appear to have been intended to give effect to such principles.”

7. With this background of authorities in mind, Mr. Karp submitted that what the Tribunal said (at CB 592.5), in drawing the distinction between working for the Coalition forces in Iraq, and being vocally in support of them, can really be seen to be no difference between these two positions. The distinction that the Tribunal purports to draw is one that does not contain a difference, because the imputation would clearly be, in either case, that there is political opinion in favour of the Americans and the Interim Government of Iraq.

8. The second aspect of this complaint is that the documents which the Tribunal used to supporter this “inferred” finding do not in fact support the finding. This was a reference to the document referred to by the Tribunal in its decision record. The first is at CB 592.7 (and described as “CX99690” and is reproduced at CB 787 to CB 817). The submission is that this large document, apart from a paragraph at CB 788 (under the heading of “Security Situation – General Overview”), has nothing relevant to the issue raised by the Tribunal. Mr. Karp did refer the Court to the following extract from this document (at CB 788.7):

   “The daily lives and activities of civilians (the main victims of this situation in all parts of Iraq) are severely affected by the situation, although only the most spectacular of these attacks or those involving foreign nationals are generally reported upon by the international press. Furthermore, intellectuals, medical staff, doctors, journalists, artists, as well as anyone associated with or seen to be supporting the new Interim Iraqi Government are increasingly becoming targets of both harassment and attacks. In particular, members of the Iraqi police force as well as potential police recruits are often the victims of such attacks.”

9. The applicant’s position is that there is nothing in this “evidence” to distinguish between those who worked with the Interim Iraqi Government or the Coalition forces, and those who supported it. The Tribunal's reliance on this document therefore is “unfounded”.

10. In relation to a second document referred to by the Tribunal, described as “CX99140” (reproduced at CB 929 to CB 931), Mr. Karp referred to CB 930.3:

    “His killers were followers of Moqtada al-Sadr, the rebel cleric who holds sway among many impoverished Shia, but “collaborators” have also been attacked by Sunni extremists loyal to Saddam Hussein and foreign terrorists who have imported their jihad to Iraq.

    More than a hundred government officials have been assassinated in Iraq since the end of Saddam's regime, including at least 57 in Baghdad.”

    Further at CB 931.4:

    “There have been indications that women associated with Americans and British are especially vulnerable because they are often accused of having sexual relations with non-Muslims.”

11. The third document referred to by the Tribunal (in this context) is reproduced at CB 932.2 to CB 937 (this is the document referred to as “CX104735”). Mr. Karp especially referred to CB 933.8:

    “Shop owners who used to welcome foreign reporters with tea now politely but firmly ordered them out. “I’m sorry, it's not you,” one shop owner explains. “I’m just scared someone will target must store because they see foreigners here.”

12. Mr. Karp's submission therefore was that, with reference to the documents relied on by the Tribunal and with particular reference to those parts of those documents dealing with the targets of extremists in Iraq, there is nothing to support the distinction drawn by the Tribunal in its finding which is now complained about. Mr. Karp conceded that it is in “rare” circumstances that an administrative decision maker would make a decision which could be called irrational, illogical, or arbitrary. But he argued that the Tribunal made this particular finding based on evidence which in fact contained nothing to support the finding. Thus the irrational, arbitrary and illogical complaint is made out. The Tribunal has used evidence of “one thing as evidence of another” and there is no rational basis of the connection that it purports to make. (With reliance in particular to NADH).

13. In relation to this ground Mr. Lloyd’s submission for the Minister was that he did not seek to argue this case on the basis of the ambit of judicial review for “irrationality”. He saw this as “an unresolved question”, and that even if it was a valid ground for review “something quite extraordinary” would be required. But his submission was that whatever the situation as to the ambit of the relevant law, and whatever is available as a proper basis for judicial review, the facts of this case do not come close to showing irrational, or illogical, reasoning. He summarised Mr. Karp’s arguments as essentially being based on the Tribunal's decision being irrational in the sense that whatever the Tribunal did was capricious and arbitrary. That is, that it drew a particular inference from the material before it, which was not available to it on the evidence, and came to a conclusion being without basis, was therefore arbitrary and irrational in that sense.

14. Mr. Lloyd's submission in support of the Tribunal’s decision not being irrational, arbitrary or capricious, relied on a holistic reading of the relevant parts of the Tribunal's decision record. In particular noting that:

    1)The applicant in this case made a number of different, but closely related, claims about different fears he would have, or different reasons as to why he would have fear in relation to his return to Iraq.

    2)The Tribunal addresses these in its decision record at CB 591.7.

    3)Ultimately, the Tribunal found (at CB 591.10):

    “I do not accept that there is a real chance that the Applicant would be forced to join the militia of Moqtada al-Sadr known as the Mahdi Army if he returns to his home in Najaf-Kufa now or in the reasonably foreseeable future.”

    4)In relation to that part of the Tribunal's decision, at CB 592.3 to CB 592.5, which was relied upon by Mr. Karp (see paragraph 17 above), Mr. Lloyd sought to emphasise the first sentence of that paragraph:

    “I consider that the current situation in Najaf-Kufa is likewise relevant to the Applicant’s claimed fears that he will be attacked by followers of Moqtada al-Sadr, by ex-Ba’athists or by other fanatics or terrorists because he will be viewed as a collaborator with the Coalition forces or an agent for Australia or the USA as a result of the time he has spent in Australia, because his family participated in a demonstration against Moqtada al-Sadr and the Mahdi Army in which they called for the disarming of the Mahdi Army and Moqtada al-Sadr’s supporters and for the Coalition forces to control the city again, because he will be viewed by radical Shiites as a moderate or ‘open-minded’ Shiite and a supporter of a moderate or ‘open-minded’ Shiite leadership, because the Applicant’s father was well-known for speaking his mind and opposed fighting and the use of force in politics, saying that they should let the Americans stay to reform the country, because the Applicant’s family were active in opposing the regime of Saddam Hussein or because the Applicant himself is a supporter of the US and Coalition forces in Iraq.”

    5)The essence of what the Tribunal says in that paragraph, that the situation in Najaf-Kufa is under the control of the authorities, is a relevant factor to all of the applicant's claims which are then referred to subsequently in that paragraph.

    6)Ultimately, this leads to the finding at the end of the paragraph:

    “As I put to the Applicant in the course of the hearing before me, the evidence available to me suggests that the Islamic extremists in Iraq target Iraqis working for the Interim Government, Western companies or the Coalition forces…”

    7)That at that point the Tribunal did not make a finding that the applicant was one of the people referred to in that sentence, but that in what follows (until CB 593.7) that the Tribunal was seeking to highlight the relevant evidence before it. The Tribunal clearly states at CB 593.7:

    “I do not accept, having regard to the evidence referred to above regarding the situation in Najaf-Kufa and to the advice of Dr Tripp and  the Australian Department of Foreign Affairs and Trade, that fear is a real chance that the Applicant will be targeted for a Convention reason by followers of Moqtada al-Sadr, by ex-Ba’athists or by other fanatics or terrorists if he returns to his home in Najaf-Kufa now or in the reasonably foreseeable future.”

    8)As against this background, and in this context, the Tribunal accepted that Islamic extremists in Iraq were targeting Iraqis working for the Interim Government, Western countries and Coalition forces. That is the import of what it was saying at CB 592.7.

    9)In relation to what is set out in the document “CX99140” (at CB 929) (see paragraph 24 above) what appears at CB 929.6 is in fact exactly what the Tribunal reflects in its decision record at CB 592.7. That is, that insurgents in Iraq were increasing their attacks on Iraqis, and in particular those that they accused of “collaboration”, which is a term that includes anyone who works for the new Interim Government, Western companies or Coalition forces. The complete extract is:

    “Insurgents in Iraq are increasing their attacks on Iraqis they accused of “collaboration”, a term that includes anyone who works for the new interim government, western companies or coalition forces.”

    10)In Mr. Karp’s referral to what is set out at CB 930.3 (see paragraph 24 above) relating to the followers of Moqtada al-Sadr killing a chairman of the district area council, and also that “collaborators” have also been attacked by Sunni extremists loyal to Saddam Hussein and foreign terrorists who have imported their Jihad to Iraq, the use of the term “collaborators” at CB 930 in the same document is a “reference back” to the use of the word “collaboration” at CB 929.

    11)In all therefore, this document, in Mr. Lloyd's submission, was evidence that supported the view that that group, that is, those who collaborate (a term which includes anyone working for the new Interim Government, Western companies, or Coalition forces) were being targeted and were in danger and this is exactly what the Tribunal said that it put to the applicant in the course of the hearing before it.

    12)In relation to Mr. Karp’s reference to the document “CX99690” (at CB 788) (see paragraph 22 above) and what the document says (at CB 788.5) is consistent with this same proposition put forward by the Tribunal:

    “While these attacks appeared initially to directly target only members of the Coalition Forces, it has become apparent that insurgents hope to dissuade any foreign national or country from participating in the reconstruction in Iraq (e.g. kidnappings of Pakistanis, Filipinos, Indians, etc). Iraqi employed by the UN, NGOs and foreign contractors as foreigners who work for any of the above are also at risk.”

    13)Further, the next sentence in this extract indicates what makes their daily lives difficult. Then the next sentence:

    “Furthermore, intellectuals, medical staff, doctors, journalists, artists, as well as anyone associated with or seen to be supporting the new Interim Iraqi Government are increasingly becoming targets of both harassment and attacks. In particular, members of the Iraqi police force as well as potential police recruits are often the victims of such attacks.”

    14)All of this supports the proposition that the Tribunal had accepted the evidence, that Islamic extremists in Iraq were targeting Iraqis working for the Interim Government, Western companies or the Coalition forces.

    15)In all therefore, the evidence supports the proposition that a person is targeted if in Iraq that person supports the Interim Government, works with that Interim Government, Western companies or Coalition forces, even though there is also some additional threat. 

    16)There was also evidence before the Tribunal to the effect that returnees from western countries were not automatically presumed to be collaborators with the Iraqis, or foreign authorities. This is with reference to what is set out in document “CX111338”, and in particular as reproduced at CB 984.5:

    “There is no evidence that returnees from western countries are automatically presumed to be collaborators with Iraqi or other foreign authorities.”

    This is directly reflected in what the Tribunal recorded in its decision record at CB 593.3:

    “… that there was no evidence that returnees from Western countries were automatically presumed to be collaborators with Iraqi or other foreign authorities…”

    17)Further, the Tribunal had evidence before it that returnees from the West would not be of particular interest if returning to the Shia south, and such evidence noted that many Shias had been in western countries during the Saddam Hussein regime. This is with reference to what the Tribunal said in its decision record at CB 593. This evidence is at CB 476 and was specifically referred to by the Tribunal in a letter that was sent to the applicant’s then representative seeking the applicant's comments (see CB 475 to CB 477).

    18)The Tribunal also had evidence that Najaf (the applicant's home town) was firmly under the control of the Coalition and Iraqi forces. The Tribunal at CB 591 refers to the relevant evidence on which it relied.

    19)The Tribunal had before it evidence that there had been a substantial turnout at the recent election in Najaf, which had proceeded peacefully (see CB 477, and the Tribunal's decision record CB 591).

    20)The Tribunal also had evidence before it that many people had attended a demonstration, at which the applicant’s family also had attended, opposing Moqtada al-Sadr and supporting the Coalition forces.

1. Mr. Lloyd’s submission in all, therefore, was that the Tribunal was required to assess in light of all of the evidence that was available before it, whether the applicant’s fear of harm for the reasons that he advanced was well founded. While it may have been open for a different Tribunal, or indeed even for this Tribunal, to have made different findings on the evidence, the relevant issue is whether it was open on what was before it for this Tribunal to have made the finding that it did.

2. In Mr. Lloyd's submission there was evidence before the Tribunal that those working actively for the Interim Government, or Coalition forces, were being actively targeted, and that there was no suggestion that people were targeted for having lived in the west or in voting for the new Iraqi parliament. Further, that there was evidence that the applicant's home area was firmly under the control of Coalition forces and that his open support, as a moderate Shia, for the government was similar to many other people in his area who had also attended demonstrations where by doing so they had openly shown their support for this same government. Mr. Lloyd emphasised that there may have been another view that could have been open to the Tribunal, but the issue is that the Tribunal's assessment that the applicant’s fears were not well founded was a conclusion reached on its merits and was open to the Tribunal on the evidence before it. But merely having a situation where an alternative conclusion may also have been available does not put this Tribunal decision in the category of capricious, or arbitrary, or that its conclusion was illogical in light of the evidence.

   Consideration

3. Mr. Karp invited the Court, with specific reference to what the Tribunal said at CB 592 (see paragraph 17 to 19 above), to find that the Tribunal was looking at the applicant's claims that he was in danger of persecution because his father had been outspoken in support of the Americans and that he supported the Americans. He noted that “immediately following” (the sentence that deals with that) the Tribunal said:

   “As I put to the Applicant in the course of the hearing before me, the evidence available to me suggest that the Islamic extremists in Iraq target Iraqis working for the Interim Government, Western companies or the Coalition forces…”

   The submission then is that it was the Tribunal itself that sought to answer the applicant's claims to fear harm because of his outspoken support of the Americans and the Coalition when it made reference to evidence that suggested that the Islamic extremists target those working for the Interim Government, Western companies or the Coalition forces. Mr. Karp submitted that this was implied in the way the Tribunal dealt with this claim by drawing on evidence relating to those working for the Coalition government, Western companies or the Interim Government, not about those who supported the Coalition forces in Iraq, and the Americans. Mr. Karp’s submission was that

   
   

   Mr. Lloyd's reference to the “global approach” (holistic reading) to understanding what the Tribunal has done, that is, by going through the relevant parts of its analysis does not really deal with this specific issue which demonstrates the irrationality.

4. I do not agree with Mr. Karp’s invitation to read a Tribunal decision with reference to one specific part of its analysis in its decision record in isolation from everything else that surrounds it. In my view Tribunal decisions, in particular the construction of its thinking and the presentation of its findings, need to be read in a holistic way to reveal a proper understanding of its ultimate conclusion. As the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”), a Tribunal's decision record should not be read with an eye attuned to discerning error. Nor on any plain reading of the Tribunal's decision record does this part of its analysis, the basis of this complaint, (at CB 592), stand alone as a distinct and separate finding which, by itself, supports the Tribunal's ultimate conclusion. This is not a decision record in relation to the applicant’s latest set of claims, as is sometimes seen where there are two, or more, distinct and separate bases for the ultimate finding on the disposition of the application for review. That part (albeit integral) of the Tribunal’s decision complained of now is only a part of the Tribunal’s reasons for finding that on his latest set of claims, the applicant does not have a well founded fear of persecution if he were to have returned to Iraq, at the time of its decision, or in the foreseeable future. Plainly, in this case the applicant made a number of claims and the Tribunal's analysis reveals an assessment against a number of pieces of evidence in the form of country information available to it. I agree with Mr. Lloyd that the Tribunal's analysis needs to be viewed as, and understood in, a totality.

5. However, and importantly, nor do I see that even with specific reference to what occurred at that part of its analysis, (at CB 592 which is particularly complained of), that it reveals any irrational or illogical approach or thought. The Tribunal, in the entire paragraph beginning at CB 592.3, focused on the applicant's claim that he could be attacked by followers of Moqtada al-Sadr and other extremists because he would be viewed as a collaborator with the Coalition forces as a result of the time that he spent in Australia, and his family’s participation in demonstrations against Moqtada al-Sadr and because he would be seen as a supporter of moderate Shia leadership. I cannot see that it is illogical, irrational, capricious, or arbitrary, for the Tribunal to note that it had put to the applicant at the hearing that there was evidence before it that suggested that the Islamic extremists were targeting those Iraqis who were working for the Interim Government, Western companies or Coalition forces. Particularly as there was such evidence before the Tribunal to enable it to justifiably do so. There was also other evidence before the Tribunal as to the situation in the applicant's home area, and that there were other people in that area who were moderate Shias, who were in support of the government, and the Coalition, and furthermore had openly participated in demonstrations in a show of support.

6. But, even further, what cannot be avoided is that a line cannot be drawn at the end of that paragraph (CB 592) in understanding what the Tribunal has done and how its thinking developed. The issue, at the beginning of that paragraph focused on by the Tribunal is the applicant's claim of harm for a number of reasons if he were to return to Iraq. The Tribunal's consideration of this issue does not end at the end of that paragraph. It continues in the following paragraph where the Tribunal looks at evidence of Iraqi refugees who had returned voluntarily from Australia. The Tribunal’s analysis of different aspects of that same claim continues until CB 594.1.

7. I agree with Mr. Lloyd that a different Tribunal may indeed have come to different conclusions on the same evidence before it. But the issue for the Court to consider, and apply here, (without at first going into the exact scope of the authorities on what may constitute the relevant ground of review) is whether there was a rational and logical basis for the Tribunal's thinking, such that its conclusion would not be said to be arbitrary or capricious.

8. In my view, for the reasons set out above, it was open to this Tribunal to come, not only to the ultimate conclusion that it did in rejecting the applicant's application, but to also deal with the applicant's claim as set out at the beginning of the paragraph under complaint (at CB 592.3), with a reference to evidence before it that suggested that the targets of the Islamic extremists in Iraq were predominantly those who worked for the Interim Government, Western companies or Coalition forces, none of which applied to this applicant. That there may have been other evidence before the Tribunal, to which Mr. Karp referred the Court, is of course a matter for the Tribunal to have decided. The weight that it accords to each piece of evidence before it is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).

9. Given that its statement in its decision record (at CB 592), confirming and relating what it had put to the applicant during the course of the hearing, was based on actual evidence before it, then it cannot be said that the Tribunal’s relevant finding lacked foundation, such that it could be described as arbitrary or capricious. This Court plainly cannot engage in merits review (Wu Shan Liang).

10. But even further, the “illogical” flaw, on which the applicant now says he relies, is not actually derived from a finding made by the Tribunal. The flaw is said to be that the Tribunal found that the extremists did not target those who speak out in favour of the interim government but did target those who worked for it. A plain reading of the Tribunal’s decision record in my view reveals that the Tribunal dealt with the applicant’s claims as ultimately put by him (and his then adviser). The applicant did not claim to have worked for the interim government. This does not mean however that it was illogical in itself to refer to evidence that indicated that extremists targeted those who did. The Tribunal itself said it put this to the applicant at the hearing, in my view in circumstances where it was clearly saying to the applicant that it had evidence that the extremists were targeting those who worked for the interim government. This meant that as he did not so work for the government he would not therefore be targeted for this reason. But significantly, the Tribunal also had before it other evidence directed to the situation of those who were supporters of the interim government and coalition forces, such as the applicant and his family. On the basis of this evidence the Tribunal found the various iterations of the applicant’s claims and circumstances would not lead to a well founded fear. In my view, the reliance on what, even at best, was said to be an implication arising from one very small part of the Tribunal’s analysis is to misrepresent what the Tribunal has actually done.

11. The Court cannot engage in merits review. Nor even in the light of subsequent events in Iraq which report a worsening of the situation in that country. On the evidence before it, and to which it referred, the Tribunal made findings which were open to it, and it gave reasons for those findings. I cannot see that it was illogical, or irrational in its analysis, or arbitrary, or capricious, such as this Court should consider the extent of authority for such a ground of review to apply to this case. I agree with Mr. Lloyd that whatever is available to the applicant by way of a ground of complaint in this regard, this Tribunal's analysis falls far short of any such situation. This complaint is not made out.

    Applicant’s Complaint: Particular Social Group

12. Mr. Karp’s second ground of complaint on behalf of the applicant is that the Tribunal failed to consider the nexus between the extortion feared by the applicant, and the relevant Convention ground of “particular social group”. Mr. Karp referred the Court to the Tribunal's decision record at CB 594.9 to CB 595.8. His submissions were that:

    1)The Tribunal referred to certain evidence before it which was essentially about the danger to people returning to Iraq from abroad particularly those who fall victims of criminal attack because of their perceived wealth.

    2)The Tribunal specifically failed to ask whether returnees to Iraq from overseas constitute a “particular social group”, with reference to the elements constituting this phrase as identified in Applicant S v Minister for Immigration and Multicultural Affairs (2004) HCA 25 (“Applicant S”).

    3)In relation to the applicant’s claimed fear of kidnapping, extortion, and other harm as a person returning to Iraq from a western country, the Tribunal did not take issue with this claim. For example it said at CB 595.3:

    “Amnesty International Australia in its compilation of country information likewise suggested that if criminal gangs discovered that someone had returned from a Western country they might see him as a wealthy person and target him or his family for money.”

13. Therefore, the complaint is that the Tribunal rejected the claim that such persecution (harm on return from the West) would be for reason of membership of a particular social group. The submission is that the Tribunal likened the applicant's situation to that of Sikhs returning to the Punjab from a foreign country, and referred to Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (“Ram”) and drew on what was said in that case by Burchett J., at 569:

    “Plainly extortionists are not implementing a policy; they are simply extracting money from suitable victims. Their forays are disinterestedly individual.” (CB 595.6)

14. Mr. Karp referred to more recent authority of Okere v Minister for Immigration and Multicultural Affairs (1998) FCA 112 (“Okere”), and to the High Court in Applicant S:

    1)In particular at [16]:

    “The appellant's primary ground of appeal in this Court is that the majority of the Full Court erred in requiring that there be evidence that Afghan society perceived young able-bodied men to comprise a particular social group, before the Tribunal was obliged to consider whether the appellant was a member of that group. The appellant contended that Afghan society's perceptions of whether there is a particular social group is relevant to the question of whether there is such a particular social group, but it is not a requirement. That submission should be upheld. We turn to indicate why this is so.”

    2)And further, in dealing with how the submission should be upheld at [36]:

    “Conclusions as to ‘particular social group’

    Therefore, the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand.”

15. Mr. Karp submitted that the Tribunal did not consider whether the applicant, or rather Iraqis returning to that country from abroad, belonged to a particular social group. In his submission this was “an absolutely essential pre-requisite” to the consideration as to whether they would be persecuted for reasons of their membership of a particular social group.

16. He emphasised this point with reference to what was said by the Full Federal Court in Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134 (“Sarrazola”).

    At [21]:

    “Where an applicant for a protection visa bases his or her claim on a fear of persecution for reason of membership of the relevant social group the first issue to be determined by an Australian decision-maker is that of the identification of the relevant social group.”

    At [23]:

    “It is only after the relevant particular social group, if any, has been identified that a decision maker can sensibly give consideration to the question whether the applicant has a well-founded fear of persecution for reason of his or her membership of that particular social group. As was pointed out by Dawson J in Applicant A at p240:

    ‘The words `for reasons of' require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution. It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution’.”

17. According to Mr. Karp, the heart of the complaint, which the authorities establish, is that if a Tribunal is seeking to consider the nexus between persecution and members of a particular social group it must first identify the particular social group and the persecution feared. This Tribunal has not done so, and this can be seen because it “moved directly” from the evidence of people being persecuted to what was said in Ram and left out “several steps in the middle”.

18. He referred the Court to Ram [at 568 at about point D]:

    “Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word “persecuted”, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is “membership of a particular social group”. If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon “membership of a particular social group”.”

19. Mr. Karp sought to emphasise that there was a distinction between what happened in Ram, and with what has occurred in the case before the Court now. His position was that in Ram the relevant decision maker found that the applicant would be targeted simply because of perceived wealth and that anybody who was perceived to be wealthy in Punjab at the time could be a victim. There was not necessarily a connection to the applicant's travel overseas. In his submission however, in the case before the Court now, the situation is different. The Tribunal appears to have accepted evidence that people who did return from overseas were considered to be wealthy as a result of their being overseas (see CB 594.10 to CB 595.2). Therefore, the essence of the complaint is that the Tribunal could not draw a dichotomy between the proximate cause of the persecution, that is, the perception that the applicant is wealthy, from the reason as to why the person in the proposed particular social group was wealthy, that is, that they have returned from overseas. In essence one leads directly to the other. Mr. Karp’s submission was that had the Tribunal been cognisant of what was required in terms of making a lawful decision it may have considered the issue as “a matter of common sense”. This was with reference in particular to Okere.

20. By way of background Okere was a matter where the applicant was a Catholic from Nigeria who had been selected by his tribal group to perform certain rights inconsistent with Catholicism. He feared that if he did not perform those rights he would be killed. The Tribunal found that this was something individual to the applicant and it was not related to the Refugees Convention. Mr. Karp referred the Court to the Judgement of Branson J. (at 117 at about point G):

    “… However, I find nothing in the ordinary meaning of Article 1A(2), considered in the light of the context, object and purpose of the Refugees Convention, which suggests against the question of whether an individual has a well-founded fear of persecution for reason of his or her race or religion being answered by "applying common sense to the facts of each case" (cf. March v E. & M.H. Stramare Pty Limited (1991) 171 CLR 506 per Mason CJ at 515). I appreciate that the March v Stramare test is a common law test of causation, but having regard to the principles of interpretation of treaties referred to above, it reflects, in my view, an appropriate approach to the construction of this aspect of Article 1A(2) of the Refugees Convention. It is, in my view, only to put the same test in different words to invite the identification of the true reason for the persecution which is feared (cf. Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 per Deane and Gaudron JJ at 176-177 and Dawson J at 184).

    In this case the RRT did not, in my view, seek to apply common sense to the facts of the case when it concluded:

    ‘In the present case it is clear, in my view, that it is because of what he has done as an individual, in refusing to lead the followers of traditional religion in his village, that the Applicant faces harm; it is not for reason of his race or his religion.’

    The above conclusion of the RRT was, I consider, based on a false dichotomy: that is, that within the meaning of Article 1A(2) of the Refugees Convention the applicant either faces harm for reason of his religion or he faces harm by reason of what he has done as an individual. The Refugees Convention does not, in my view, require the imposition of such a dichotomy upon the facts of any particular case. The RRT was required in this case, in my view, to ask itself whether, applying common sense to the facts which it accepted, the applicant has a well-founded fear of persecution the true reason for which is his religion.”

1. The allegation therefore is that the Tribunal in the case before the Court now, even if it had accepted that the applicant was a member of the particular social group, does not appear to have sought to draw a connection between the persecution feared and the membership of the group. It simply applied, what in Mr. Karp’s submission were, the “inapplicable facts of Ram” to the facts of this case, and that was its error of law.

2. Mr. Karp gave by way of example of what the Tribunal has done what happened in the case of Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274; [1999] FCA 165 (“Perampalam”) where at [16] the Court said:

   “… Extortion directed at those members of a particular race from whom something might be extorted cannot be excluded from the concept of persecution within the Convention, and Ram does not suggest it can.”  

   Mr. Karp submitted that if there was a substitution to the word “race” by “particular social group” in that sentence then this is exactly what has happened in the case before the Court now.

3. The applicant therefore complains that the Tribunal failed to consider the connection between the extortion feared by the applicant if he were to return to Iraq and the Refugees Convention ground of a particular social group. The essence of the complaint is that the Tribunal specifically failed to ask whether returnees from overseas constitute a particular social group and to consider a number of different formulations as to what may be a relevant “particular social group” in the circumstances of the facts presented by the evidence provided by the applicant.

   Respondent’s Reply: Particular Social Group

4. Mr. Lloyd's submissions in response were essentially that the Tribunal did ask itself the correct question, which was to look at the essential and significant reason for the targeting (and this was with reference to s.91R of the Act). It was not satisfied, for any of the Refugees Convention reasons, that the applicant had a well founded fear arising out of his circumstances as, relevantly, being a returnee to Iraq from overseas. The essence of his submission was that the Tribunal had “basically assumed” that there are particular social groups fitting the circumstances relating to the applicant, but the Tribunal did not accept that the targeting of returnees was for any of the Refugees Convention reasons.

5. Mr. Lloyd submitted that, to the extent that Mr. Karp relied on Applicant S to support his complaint, Applicant S is a case about what elements form a particular social group and that this was therefore of no “great assistance” in this matter because the Tribunal did not reject the applicant's assertion in this regard. The Tribunal ultimately disposed of the application on the basis that the applicant's membership of a particular social group was not the essential and significant reason as to why he would have been at risk of being kidnapped etc, that is, facing harm from anyone in Iraq.

6. Mr. Lloyd submitted that the applicant's reliance on Sarrazola needs, first, to be looked at in the context that it preceded the introduction of s.91R to the Act, which was introduced in 2001 (Act No.131) and Sarrazola was of course decided in 1999. Second, that Sarrazola was relied on by Mr. Karp for the proposition that a Tribunal is required first to identify the particular group, and only after such identification has taken place then persecution for reasons of membership of that group can be assessed. Mr. Lloyd's submission was that the Tribunal identified a different reason, a reason which was not a Refugees Convention reason, as the essential and significant reason for the harm said to be feared. This was therefore sufficient to address what it was required to consider.

7. Mr. Lloyd also referred to:

   1)Ram, again as illustrative of the pre-s.91R situation.

   (i)At 568:

   “The point can be illustrated from history. In the infamous Reign of Terror during the French Revolution, men, women and children were guillotined because they belonged to a class seen as dangerous to the emerging democratic State. Similarly, in Cambodia under Pol Pot, teachers, lawyers, doctors and others who were seen as having, by their education and status, a capacity to influence public opinion, were regarded as potentially dangerous to the new order, and were therefore eliminated. These were textbook examples of persecution for membership of a social group. In neither case was the motivation what a particular individual possessed or had done. Of course, many of the people murdered did have greater wealth than the average, but others did not. Some probably had greater capacity, if they chose, to act against the State than the average citizen, but many were quite helpless. The fact is that it was the whole class which, in each instance, was attacked. Individuals were not persecuted for what they had done as individuals, nor for what they possessed as individuals.”

   (ii)Then at 569 at about point B:

   “When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is "for reasons of" his membership of that group.”

   2)Okere, with particular reference at 117 at about point A:

   “As the above passages from the judgments in Ram's case and Applicant A's case make clear, "membership of a particular social group" is to be distinguished from the other four Convention reasons: the notion of "membership" is a crucial aspect of "membership of a particular social group", but that notion has no part to play in the other four reasons. As Burchett J explained in the passage from his reasons for judgment in Ram's case set out above, persons are persecuted for reasons of their membership of a group when they are seen as "jointly condemned [with other members of the group] in the eyes of their persecutors". It is in this sense that they are persecuted for reason of their membership of the group rather than for reason of what they as individuals have done (see the reference by Dawson J in Applicant A's case to Morato v Minister of Immigration, Local Government and Ethnic Affairs (No 2) per Black CJ, with whom French J agreed, at 404-405).

   It does not logically follow that individuals are not persecuted for reason of their race or religion, to take two of the other four Convention reasons, if they are persecuted for reason of what they as individuals have done…”

   3)Perampalam, with specific reference to Mr. Karp’s submission that, if the words “membership of a particular social group” are substituted for the word “race”, what occurred in Perampalam is exactly what has happened in the case before the Court now. However, Mr. Lloyd’s submission was that what Branson J. said in Okere is that such a substitution cannot be made because, “for reasons of race”, is different to “for reasons of membership of a particular social group”. Membership of “the particular social group” has the emphasis on the membership of the group itself because the persecution is being directed at a person because they are a member of the group.

   4)Mr. Lloyd also submitted that this point is further made in Mohamad v Minister for Immigration & Multicultural Affairs [1999] FCA 688 at first instance, and then by the Full Court on appeal; Mohamad v Minister for Immigration & Multicultural Affairs [2000] FCA 109:

   (i)At first instance, at [7] Emmett J., said:

   “The second contention was formulated in a manner with which I had some difficulty. Counsel for the Applicant put it in this way. It was part of the claim by the Applicant that he feared persecution as a member of the Abrahim group sub-clan because it was perceived that the Abrahim were weak and that they could not defend its members. It was said that the Tribunal accepted the contention that there may be a perception that the Abrahim are weak. The Applicant then said that there was evidence that the Applicant feared persecution by virtue of his membership of the Abrahim clan which was perceived, as a group, to be a "soft target". The only reason that a persecutor would know that the Applicant is a `soft target' is by virtue of his membership of a weak clan. The Tribunal correctly asked the first question, but did not consider the issue of how somebody would be identified as a "soft target".”

   (ii)This was addressed at [30]:

   “The persecution of small or weak groups is not per se persecution for a Convention reason. For a successful claim, an Applicant would need to establish that the relevant attacks were because the persecutors were aiming at destroying or damaging the members of the persecuted by reason of their membership of the particular clan - see Hussein v The Minister for Immigration & Multicultural Affairs [1999] FCA 288 at paragraph 24.”

   (iii)Then further at [32]:

   “If, coincidentally, all of the weak in a particular circumstance happen to be members of a particular social group there is no persecution for a Convention reason by that circumstance alone. It is only if the persecution is because of their membership of the particular group, as distinct from the fact that they have a resource or territory which is sought by the persecutors, that a Convention reason would be involved. Accordingly I do not consider that this ground succeeds.”

   (iv)The Full Court per Whitlam J. at [20]:

   “I need only say that I entirely agree with Emmett J and think that what his Honour said is a complete answer to the second point argued in this appeal.”

   (v)Mathews J. at [22] and Gyles J. at [23] agreed with Whitlam J. 

8. The essence of Mr. Lloyd's submission was that the Tribunal did not fall into any error by not declaring a specific finding that the applicant was a member of any, or all, of the particular social groups which were put before it, because from its analysis such membership by the applicant was assumed. Nor did it make an error by finding that the targeting of wealthy people by criminals does not reveal any of the Refugees Convention reasons.

   Consideration

9. The applicant claimed to fear his return from overseas to Iraq by fearing that he would be kidnapped, and that ransom would be demanded. The applicant's claim first appears to have specifically emerged as follows:

   1)The applicant was interviewed by the Minister's delegate in relation to his application a protection visa on 4 August 2004 and the relevant report provided (at CB 86.4):

   “At interview the applicant reiterated that he feared the generalised violence that continues in Iraq and the ongoing violence in his home city of Najaf-Kufa. He fears the militia of cleric Moqtada Al-Sadar, the Mahdi Army and other criminal gangs because they would perceive him as being wealthy, having lived outside Iraq for a number of years and would rob him and kidnap him in order to receive a ransom. The applicant also claimed that he believes he could be killed by the Mahdi Army because they would perceive that as he had lived in Australia for the past five years he is an agent for Australia and the United States.”

   2)The Tribunal noted this in its presentation of the applicant’s evidence in its decision record:

   (i)At CB 563.4:

   “He said that he would be killed if he returned to Iraq because he had been in Australia for five years and the group of al-Sadr or his militia would think if he returned that he was an agent for Australia or the USA.  He said that he was also afraid of all the kidnapping that was taking place over there.  He said that if they thought you were a rich person they would kidnap one of your family members and hold them for ransom.”

   (ii)At CB 563.7:

   “The Applicant said that he knew of Australian citizens of Iraqi origin who had been here for ten years or more who had had the same experience when they had gone back to visit Iraq.  Their family members had been kidnapped and held for ransom.  He said that as long as you came from outside the country you were considered a rich person and that was when kidnappings took place.” 

   3)In submissions dated 23 November 2004 made by the applicant's then representatives to the Tribunal (CB 108 to CB 121 – enclosures CB 122 to CB 126). In particular where the representatives set out the reasons for the fear of persecution (reproduced at CB 118.9 to CB 119):

   “It is submitted that Mr [applicant] will be persecuted for reason of:

   ·    Religion:  He is a moderate Shiite

   ·    Political opinion: He supports a moderate Shiite leadership in Iraq.

   ·    Membership of a particular social group: A young Shiite Muslim male in Iraq who does not want to join or support the activities of the militia army of Moqtada Al-Sadar and/or the Mahdi Army and who has been in a western country for a significant period of time.

   ·    Membership of a particular social group: A young Shiite Muslim male in Iraq who does not want to join or support the activities of the militia army of Moqtada Al-Sadar and/or the Mahdi Army.

   ·    Other formulations of membership of a particular social group:

   Young Shiite males in Iraq

   Returnees from the West.”

   4)The Tribunal reported this in its account of the applicant’s evidence:

   (i)At CB 564.8 and in particular at CB 564.10:

   “They said that the Applicant also feared that he would be targeted because he had been outside Iraq for over five years and would be seen as a supporter of the USA and of the Coalition forces.”

   (ii)Further at CB 565.10:

   “They said that alternative ‘particular social groups’ were ‘young Shiite males in Iraq’ or ‘returnees from the West’.  They submitted that young Shiite Muslim males in Iraq were a social group in Iraqi society and as such could become targets of militia groups like ‘the Moqtader Al-Sadr group or the Mehdi army’ who wished to recruit them for combat against the Coalition forces.  They further submitted that such persons ‘who have also been outside Iraq for a significant period of time’ were a cognisable social group in Iraqi society and might be perceived as supporters of the Coalition forces.  They stated that the Applicant was afraid that he would be targeted by the various militia groups and killed. They referred to the Applicant’s evidence that members of his family had been attacked and beaten.”

   5)At a hearing conducted with the Tribunal on 26 November 2004 the applicant relevantly said to the Tribunal (at CB 569.10):

   “He said that an Australian citizen who had gone to Iraq had been kidnapped and they had demanded $US50,000 in ransom or they would kill him.  He said that two young men who used to work in Auburn had likewise been kidnapped and they had demanded $US50,000 for their release as well.  He said that if he went back he would definitely be kidnapped too. He said that because he had been in Australia he would be considered a wealthy person and a traitor. He would be in serious danger and he could be killed.  I put to the Applicant that criminals targeted people who they believed would be able to pay the sums of money they were demanding.  This did not mean that he would be targeted for one of the five Convention reasons. The Applicant repeated that he would be in danger from Wahhabis, Sunnis and radical Shiites. He said that fundamentalists and Ba’athists wanted to take revenge against the Shiites.”

   6)The Tribunal further reported:

   (i)At CB 571.2:

   “I referred to the Applicant’s claim that he would be considered a traitor or a collaborator because of the time he had spent in Australia. I put to the Applicant that the evidence available to me suggested that the Islamic extremists in Iraq targeted Iraqis working for the Interim Government, Western companies or the Coalition forces… I noted that I was aware of only one report of Iraqi refugees who had returned voluntarily to Iraq from Australia being targeted by reason of their association with Australia. I noted that this report concerned four former temporary protection visa holders but it did not give their names…”

   (ii)Then at CB 571.5:

   “The Applicant said that I spoke of four but many more had been subject to kidnappings, killings and people firing bullets at them.  I noted that I accepted that there was a lack of security and a lack of law and order in Iraq but there was a need to distinguish between the effects of this and persecution for Convention reasons. I noted that we had discussed the issue of kidnapping already. I put to the Applicant that the information available to me suggested that kidnappers targeted academics, journalists and doctors in particular…”

   (iii)Then at CB 571.7:

   “The Applicant said that this was correct but he repeated that someone who came from Australia would be considered a traitor or a collaborator.  He said that anyone who came from another country was liable to be kidnapped.  There was no safety or security in Iraq.  The two people whom he had mentioned who had been kidnapped for ransom had not been doctors or academics: they had had a small tobacco shop.

   I put to the Applicant that if people were targeted because they were perceived to be wealthy this did not suggest that one of the five Convention reasons was involved. As we had discussed, kidnappers targeted those who they believed would be able to pay their ransom demands. The Applicant said that he feared being subjected to kidnapping and murder. I put to the Applicant that it was difficult to accept on the evidence before me that there was a real chance that he would be targeted by extremists because of perceptions regarding his political opinion or religious beliefs or the fact that he would be returning to Iraq from Australia. The Applicant said that these people were not one group, they were many groups, they were illiterate, not educated, ignorant, not open-minded. He noted that his name indicated that he was a Shiite and that Wahhabis and Sunnis would consider him to be a kafir (infidel). They viewed killing as the easiest way to get rid of the Shiite community.  He said that, besides the explosion in Karbala on the 10th of Muharram and the attack in Najaf which he had mentioned, they put bombs at Shia gatherings for religious occasions in an attempt to eliminate as many of them as possible.”

10. In essence Mr. Karp’s complaint on behalf of the applicant is that the Tribunal did not ask itself the relevant question as to whether returnees from overseas constitute “a particular social group”. Its failure to do so meant that it was therefore not in a position to then ask the question as to whether the applicant would be persecuted for his membership of such a particular social group.

11. I accept Mr. Lloyd's submission that the Tribunal did not need to ask itself that question, specifically or even expressly, because a plain reading of its decision record reveals that it accepted that such a particular social group, in a number of different iterations, existed. The Tribunal dealt with the applicant's claims in relation to the issue of the harm feared because of his return from the West, by looking at the specifics of what the applicant had claimed in the context of its analysis of “new” claims. This analysis commenced at CB 587.1 and relevantly the Tribunal found ultimately at CB 592.1 that:

    “I do not accept, therefore, that there is a real chance that the Applicant will be persecuted for reasons of his membership of any of the ‘particular social groups’ for the purposes of the Convention postulated by the Applicant’s representatives in this context such as young Shiite Muslim males in Iraq who do not want to join or support the activities of the militia army of Moqtada al-Sadr and/or the Mahdi army and who have been in a Western country for a significant period of time, young Shiite males in Iraq or returnees from the West.”

12. In looking at the claims that the applicant had put forward (and what could be said to arise from the circumstances that he had put forward), and the applicant’s representative’s submissions in mind, the Tribunal's analysis (between CB 587 and CB 592.1) focused on his circumstances and the relevant Convention nexus. The Tribunal proceeded in its analysis to consider various aspects of the applicant's claims, for example his family's open support for the Interim Government and Coalition forces (CB 592.3), the return of the Iraqi refugees who had returned voluntarily to arrive from Australia (CB 592.8), the situation of returnees generally from western countries and whether they would be “automatically presume to be collaborators in Iraq with Iraqi or other foreign authorities” (CB 593.4).

1. It then, in the second half of CB 593, made a number of the findings that arose from this analysis:

   1)It did not accept, based on the evidence available to it that:

   “… there is a real chance that the Applicant will be targeted for a Convention reason by followers of Moqtada al-Sadr, by ex-Ba’athists or by other fanatics or terrorists if he returns to his home in Najaf-Kufa now or in the reasonably foreseeable future.” (CB 593.7)

   2)Further, it did not accept, in particular, that:

   “… that there is a real chance that he will be persecuted as a result of any political opinion imputed to him on the basis of his family’s opposition to Saddam Hussein’s regime or to Moqtada al-Sadr and his followers, his identification as a moderate or ‘open-minded’ Shiite and a supporter of a moderate or ‘open-minded’ Shiite leadership…” 

   3)Significantly as it applied to the applicant that:

   “…the fact that he has been living in Australia, a Western country which is part of the Coalition.” (CB 593 .8)

2. However, what follows in the decision record as reproduced at CB 593.9 is, in my view, the answer to the applicant's complaint in this regard:

   “I likewise do not accept that there is a real chance that the Applicant will be persecuted for reasons of his membership of any particular social group for the purposes of the Convention such as young Shiite males in Iraq, returnees from the West, persons who have been outside Iraq for a significant period of time or young Shiite males in Iraq who do not want to join or support the activities of the militia army of Moqtada al-Sadr or the Mahdi Army and who have been in a Western country for a significant period of time.”

3. In my view, a plain reading of the Tribunal's decision record shows that it accepted that returnees from overseas constitute a particular social group. In fact, when the Tribunal's analysis under its “Findings and Reasons” is read, in context with the applicant's claims, which it previously recorded in its decision record, and in particular the claims put forward on his behalf by his then representatives, the almost identical language used by the Tribunal at CB 593.9, and the identification of the different iterations of returnees and particular social groupings as put forward by the applicant's advisers, reinforces the view that the Tribunal accepted that such groups could and did exist.

4. But on the evidence before it the Tribunal did not accept that there was a real chance that the applicant would be persecuted for reason of his membership of any particular social group for the purposes of the Refugees Convention. The plain language of its decision record, relating as it does to the identification of these groupings, or iterations of the group of Iraqis returning from a western country to Iraq, in my view, reinforces the view that the Tribunal accepted what the applicant’s advisers had said in this regard. But it could not accept that there would be a real chance of persecution because of the applicant's membership of this group, or any iterations of this group.

5. In all the circumstances, I cannot see that the Tribunal has acted contrary to what is set out in the relevant authorities. The groups (or iterations of the group of returnees) were identified for it by the applicant's advisers. It did not dispute this. The plain language of its decision record, at the relevant parts, shows that it did not take issue with the applicant’s membership of this particular social group. But did not accept that he could be persecuted for reason of his membership of any such group. I do not see the circumstances of this case as turning on whether the Tribunal properly failed to identify, or articulate, the existence of any particular social group. That was not the issue. The issue found by the Tribunal was that there was no real chance that the applicant would be subject to persecution because of his membership of any such group, which the Tribunal plainly, in context, accepted existed. This ground also does not succeed.

Conclusion

1. In all therefore, I cannot see that the applicant's grounds advanced on his behalf by the Legal Aid Commission (NSW), notwithstanding the skilful arguments put by Mr. Karp, can be made out. I do not see that jurisdictional error can be discerned from the grounds put forward by the applicant now. This application is therefore dismissed.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date:  31 January 2007