SZQHZ v Minister for Immigration

[2011] FMCA 747

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQHZ v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 747

MIGRATION – Review of Independent Merits Review decision in respect of an offshore entry person seeking protection on account of religious and political persecution in Iraq – applicant not believed in certain key respects – applicant’s fear found to be not well-founded – whether the review process was procedurally fair, whether the Reviewer overlooked relevant considerations or took into account irrelevant considerations, or whether the Reviewer failed to determine matters relevant to credibility, considered.

Complementary Protection Act 2011 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.36

Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Plaintiff M61/2010E v Commonwealth (2010) 85 ALJR 133
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZQGA v Minister for Immigration [2011] FMCA 672

Applicant: SZQHZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 1159 of 2011

Judgment of: Driver FM

Hearing date: 28 September 2011

Delivered at: Sydney

Delivered on: 28 September 2011

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Court directs that a copy of the psychological assessment report of the applicant be sent to the Department of Immigration for such action as it considers appropriate.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1159 of 2011

SZQHZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. This is an application to review a decision and recommendation of an Independent Merits Reviewer (“Reviewer”) in respect of an offshore entry person. The Reviewer found that the applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth). The Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Refugees Convention as amended by the 1967 Protocol.

2. The report of the Reviewer was prepared on 21 April 2011 and notified to the applicant by letter dated 4 May 2011.  The following statement of background facts relating to the applicant's claims for protection and the assessment of those claims is derived from the Minister's written submissions filed on 21 September 2011.

3. The applicant is a national of Iraq.  On 1 December 2009, he arrived at Christmas Island on a boat codenamed “Ironbark”.  On 31 January 2010, he lodged a request for Refugee Status Assessment (RSA) (court book “CB” 51).  The applicant was represented in relation to his RSA request by Vrachnas Lawyers (CB 68).

4. In response to questions in his RSA application (CB 61-63), the applicant claimed that he was a Shi’a Muslim who, up until 2006, had lived with his family in Karbala.  His father had been a senior officer in the army of Saddam Hussein, and was a member of the Ba’ath Party.

5. Upon leaving school, the applicant set up a motorcycle shop. 

   
   

   He claimed that in August 2006, members of the Mahdi Army came to the shop and demanded that he give them motorcycles to use; when he refused, he was assaulted.  The men took three motorcycles and left, but they came back to his house the next day to speak to his father, asking for his assistance as a former senior officer, and telling him that they needed the applicant’s motorcycles.  When his father declined their request, telling them that he wanted to live in peace, the men said they would consider him a traitor if he refused, and they gave him a day to reconsider.

6. The applicant claimed that when the men returned the next day, his father confirmed he did not want to help them; three days later, his father’s car was ambushed and his father was shot and killed.  Although the applicant was in the car at the time, he was not injured.  When the applicant reported the incident the following day, the family home was set on fire, with a message left threatening to draw blood from the people living there.

7. Shortly after this incident, the applicant’s older brother and his wife fled to Basra, and the applicant went to Baghdad to stay with a friend.  The applicant claimed that in or about 2008, he received a call from someone who identified themselves as a member of the Mahdi Army and who instructed the applicant to join them or else he would be killed. 

8. In October 2009, the applicant’s younger brother was kidnapped, with the kidnappers telling his mother that they wanted the applicant in exchange and that they were going to kill him.  The applicant and his mother decided that he should leave Iraq; arrangements were made by a friend to arrange for him to travel to Indonesia and, from there, by boat to Australia.

9. By letter dated 6 April 2010, the applicant was notified that following the RSA, the Government had determined that he was not a refugee as defined in the 1951 Convention as amended by the 1967 Protocol (CB 90).  The RSA officer found that the applicant did not have a genuine fear of serious harm and that there was not a real chance of persecution occurring were he to return to Iraq (CB 100). 

10. On 30 April 2010, the applicant, by his agent, submitted a request for independent merits review of the RSA decision (CB 103).  The applicant was also represented on that application by Vrachnas Lawyers.  On 28 May 2010, the applicant’s agent provided a submission to the independent reviewer in relation to the applicant’s case (CB 107-113).

11. By letter dated 7 October 2010, the applicant was notified that the independent reviewer was not satisfied that he was owed protection obligations by Australia under the 1951 Convention as amended by the 1967 Protocol (CB 130).

12. Following the High Court’s decision in Plaintiff M61/2010E v Commonwealth (2010) 85 ALJR 133, the applicant was offered a second independent merits review (CB 146). The applicant accepted that offer. He participated in two interviews with the second reviewer, on 18 March 2011 and 24 March 2011 (see [18] of the reviewer’s decision, CB 154).

13. By letter dated 4 May 2011, the applicant was notified that the result of the second review was the same as the first, namely he was not found to be owed protection obligations by Australia (CB 146).

14. The reviewer accepted that the applicant was a national of Iraq, and a Shi’a Muslim (at [97], CB 168).  However, the reviewer did not accept that the applicant was a reliable, credible or truthful witness, finding that he had tailored his evidence at various times to suit his needs (at [102], CB 169). 

15. In reaching this conclusion, the reviewer considered that the applicant had been inconsistent in relation to a number of aspects of his claims, including his membership of the Ba’ath Party, and as to fatwas having been issued for the killing of the applicant, his father or his family. 

16. The reviewer accepted that the applicant’s father was killed on

    
    

    22 August 2006, but she was not convinced that the reasons for his death were as the applicant described them.  She did not accept the applicant’s claims as to the incidents at his motorcycle shop, or as to what had happened to his father, and, consequently, she did not accept that the applicant would be branded an infidel or a traitor for those reasons.

17. The reviewer also did not accept that the applicant would be targeted by Sunni insurgents were he to return to Iraq.  The reviewer observed that Shi’a Muslims who were targeted were those who went on pilgrimages to holy sites, and the applicant did not claim to have been involved in such events.

18. In relation to the applicant’s claim that he would be at risk as a returnee from Australia, the reviewer did not accept that claim, noting that the country information before her did not support it.  As the reviewer did not accept that the applicant would suffer harm arising from the general violence in Iraq, or any other harm arising from his political opinion, religion or profile, the reviewer concluded that the applicant’s fear of persecution was not well founded (at [127], CB 173). 

The present application

1. These proceedings began with an application filed on 7 June 2011. 

   
   

   I incorporate in this judgment the grounds set out in that application:

   That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.

   1. The second respondent did not afford procedural fairness to the applicant by failing to bring to the applicant’s attention material from which adverse conclusions were reached thereby preventing the applicant from being heard in relation to such material (“the material”).

   Particulars: (ie material not provided to applicant; extracted from paragraph 94 of the decision)

   ·   Note on the Continued applicability of the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers, UNHCR, July 2010.

   ·   UK Home Office, Country of Origin Information Report: Iraq, 10 December 2009, align="left">·   US State Department, 2009 Human Rights Report: Iraq, 11 March 2010 align="left">·   Amnesty International Report: Iraq 2010, align="left">·   UNHCR call for European states to cease deporting Iraqis, 3 September 2010 report Crisis Group, Iraq’s Civil War, the Sadrists and the Surge, Middle East Report No 72 – 7 February 2008, The second respondent did not afford procedural fairness to the applicant by displaying actual or apparent bias in respect of the applicant’s position during the interview process.

   3. The second respondent fell into jurisdictional error by … forming a generalised view that the applicant lacked credibility without actually determining … all of the matters pertinent to the application.

   4. The second respondent fell into jurisdictional error by failing to take into account a relevant consideration and or by taking into account an irrelevant consideration.

   Particulars

   The second respondent took into account a finding that the applicant was not at risk due to his religious affiliations thereby taking into account an opinion not based one evidence (which was an irrelevant consideration) and/or not taking into the applicant’s actual situation in this respect by not asking him about it (which would have been a relevant consideration).

   5. The second respondent fell into [jurisdictional] error by failing to form an opinion about the death of the applicant’s father.

2. It is apparent from the face of the application form that the application was prepared with the benefit of legal assistance.  The applicant was, at the time this matter first came before me on 21 June 2011, legally represented.  However, the applicant's advocate filed a notice of withdrawal on 14 September 2011.  I am satisfied that the withdrawal was made in compliance with the Federal Magistrates Court Rules 2001 (Cth). Nevertheless, the withdrawal of the applicant's legal representative, especially at a late stage, has left the applicant at a disadvantage.

3. I have attempted to ameliorate that disadvantage by ensuring as far as practicable that the applicant understood the legal issues arising in the case and that he had an opportunity to put to me whatever he wished. 

4. I received as evidence the court book filed on 12 July 2011, the affidavit of Judith Buss filed on 28 July 2011 to which is annexed a transcript of the Review hearings conducted on 18 February 2011 and 24 February 2011, and a STARTTS[1] report on the applicant made on

   
   

   30 July 2011.

   [1] Service for the Treatment and Rehabilitation of Torture and Trauma Survivors

5. The applicant raised some issues extraneous to the grounds of review advanced in the application.  He is concerned about the general security situation in Iraq and fears to return there.  He is concerned about his detention in Australia both in principle and in particular because of the duration of it.  He is concerned about the fairness and consistency of detention decisions as well as the assessment and review decisions.  He is concerned in particular that some reviewers have a reputation among detainees as being favourable or unfavourable to asylum seekers. 

6. Consistency is, of course, a desirable objective in decision making.  However, the matters raised by the applicant are matters of general administration and are beyond the parameters of this case.  To the extent that the applicant's complaints about the quality and consistency of Independent Merits Reviews bear on the allegation of bias, I have taken those submissions into account.  I accept that the applicant genuinely fears to return to Iraq.

7. The Reviewer herself recognised that the general security situation in Iraq presents risks for the applicant.  She was, however, unable to find that that risk constituted a well-founded fear of persecution for a Convention reason.  At [126] of the Reviewer's reasons at CB 172-173 she said:

   In the course of considering the claimant’s claims, I have carefully considered and weighed a range of independent material relating to sectarian violence and the general security situation in Iraq, including material provided by the claimant’s adviser.  As I put to the claimant at interview, the evidence before me confirms that the security situation in Iraq remains very unstable; with widespread acts of violence and destruction being perpetrated by a range of insurgent and extremist groups, as well as criminals.  While there was evidence of direct targeting of security and government institutions and officials, as well as Shi’a pilgrims to holy shrines, the violence in Iraq was indiscriminate and affected Iraqis in general.  In this context, I do not accept that the claimant faces persecution on the grounds of his political opinion and religion, as claimed, or that he has a particular profile which would make him the target of serious harm for a Convention reason on his return to Iraq.

8. I understand that the Complementary Protection Act 2011 (Cth) has been passed by the Australian Parliament.  Whether the applicant would have any entitlement to seek protection under that Act I do not know.  It is a matter, however, on which the applicant could appropriately receive information and advice from the Minister's Department.  I also accept that the applicant has developed mental problems including post traumatic stress disorder, depression and anxiety as a result of his experiences, including his lengthy detention in Australia.

9. As noted above at [22], I accepted as evidence a psychological assessment report of the applicant prepared by Mariano Coello, a psychologist with the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.  It is of particular concern that the psychologist identified some suicidal tendencies in the applicant.  These are matters that those responsible for the detention and care of the applicant should take into account.  I have marked the report as exhibit A1 and I will direct that a copy of that report be provided to the Minister's Department for such action as the Department considers appropriate. 

10. The report was prepared on 30 July 2011 and accordingly was not available to the Reviewer.  It has no bearing on the assessment of the validity of the Reviewer’s report. 

11. The grounds in the application are addressed in the Minister's submissions which were read to the applicant.  The applicant made no submissions bearing in any particular way on those grounds.  I agree with and adopt the Minister's submissions on the grounds advanced in the application.

Ground 1: alleged denial of procedural fairness

1. The first ground of review alleges that the Reviewer denied the applicant procedural fairness by failing to bring to his attention material from which adverse conclusions were drawn, relying on the list of material at [94] of the Reviewer’s decision (CB 167).

2. There are two difficulties with this submission.  First, the Reviewer lists the material at [94] as the particular material she has relied upon, in considering country information that was “detailed in the RSA Officer’s assessment, provided by the claimant’s adviser”.  The RSA Officer listed a number of items of country information that were before him, including the UK Home Office Report, and the US State Report which are listed at [94] of the Reviewer’s decision (CB 167).  These references would have put the applicant’s adviser on notice that they may have application to the applicant’s case on review: see SZQGA v Minister for Immigration [2011] FMCA 672 at [8] per Raphael FM.

3. A number of items in the list were also expressly referred to in the agent’s submission to the first Reviewer in support of the applicant’s claims.  For example, the applicant’s agent referred to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum Seekers, which he noted were still in force (CB 111), and to the US State Department Report in relation to human rights in Iraq in 2009 (CB 112).  In the course of the hearing on 24 February 2011, the applicant’s agent referred to the Note on the Continued Applicability of the April 2009 Guidelines (p 31.25).  The contention that the Reviewer failed to accord procedural fairness in respect of materials relied on by the applicant to his advantage cannot be sustained: see SZQGA at [9].

4. The second difficulty with this ground is that in so far as it constitutes a contention that the Reviewer was required to put specific pieces of country information to the applicant, it is misconceived.  The Reviewer was only required to put to the applicant the substance of any adverse information: see Plaintiff M61 at [91]. In paragraph [78] (CB 163) of the Reviewer’s reasons, the Reviewer summarised the substance of the country information that she raised with the applicant as potentially adverse to his claims, and at [79] she summarised his response (CB 163-164). The transcript of the hearing on 24 February 2011 supports the Reviewer’s summary, in light of which it is apparent that the applicant and his representative were on notice of the substance of the Reviewer’s concerns in relation to the applicant’s claims, in light of country information, and that the applicant and his agent responded to those concerns (see pp 17-32).

5. It is not enough for the applicant to point to the documentation identified at [94] of the Reviewer’s reasons and contend that by reason of the applicant not having or being provided with a copy of those documents (a factually incorrect premise so far as his agent was concerned, as demonstrated above) the Reviewer did not accord the applicant procedural fairness.  In the present case, the substance of the information to which the Reviewer had regard was put to the applicant. 

6. I reject this ground of review.

Ground 2: Alleged actual or apparent bias

1. This ground of review does not articulate the basis on which the applicant alleges that the Reviewer’s decision was affected by actual bias, or the basis on which it could reasonably be inferred that the Reviewer was not bringing an impartial mind to the resolution of the applicant’s review application. 

1. The transcript of the two review hearings indicates that the Reviewer was fair in her approach to assessing the applicant’s claims.  There is nothing in the transcript which could sustain a finding of actual or apprehended bias, consistently with the principles in Minister for Immigration v Jia Legeng (2001) 205 CLR 507. To the contrary, the transcript indicates that the Reviewer was aware of her obligation not to have a closed mind. At the outset of the hearing, for example, the reviewer stated (p 2):

   I think it’s important that you understand that I’m not [putting country information adverse to the applicant’s claims as a refugee] because I have already made up my mind, but in order to give you the opportunity to make a comment about this information so that I can take that into consideration when deciding how much weight to give it.

2. The mere fact that the reviewer tested the applicant’s claims in the course of the hearing does not give rise to an apprehension of bias. 

   
   

   As Gleeson CJ, Gaudron and Gummow JJ stated in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30]:

   Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously.  Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.

3. The fact that some unnamed independent merits reviewers may have a favourable or unfavourable reputation among detainees says nothing about the outcome of this review.  The record of the Reviewer's decision supported by the transcript of the hearings conducted by the Reviewer point to a particularly thorough review process.  The applicant expressed concern about the length of the two hearings conducted by the Reviewer, but that simply points to the particularly thorough approach taken by the Reviewer.

4. The applicant had complained that on the earlier review he had not had a sufficient opportunity to present all of his claims.  It was desirable that the Reviewer ensure that the applicant was given that opportunity.  It was also desirable, and probably necessary, that the Reviewer test at the hearings those elements of the applicant's claims about which the Reviewer had credibility concerns.

5. This ground of review is without foundation and I reject it.

Ground 3: alleged error in approach

1. The third ground of review alleges that the Reviewer formed a generalised view that the applicant lacked credibility “without actually determining … all of the matters pertinent to the application”.  However, the applicant does not identify what “matters pertinent to the application” have not been considered.  In light of the detailed consideration of the applicant’s claims undertaken by the Reviewer, as indicated by her reasons, and in the absence of any articulation of what matters have not been considered, this ground of review cannot be substantiated.

Ground 4: alleged failure to take into account relevant considerations and/or taking into account irrelevant considerations

1. Although formulated as an allegation of jurisdictional error, the particulars to this ground of review indicate that the applicant’s complaint is with the merits of the Reviewer’s factual findings.  The ground appears to take issue with the reviewer’s conclusion that whilst Shi’a Muslims who go on pilgrimages to holy sites were targeted, the applicant had not indicated that he was so devout a Shi’a as to be involved in such activities (at [124], CB 172). 

2. The Reviewer’s conclusion in this regard was based on an evaluation of the applicant’s evidence.  It was open to the Reviewer to reach it, having put to the applicant that the main targets in Iraq in terms of the Shi’a faith were those who went on pilgrimages (TS p 20) and received no information from the applicant, in his otherwise extensive response, to suggest that he fell within that category.  There is nothing in the Reviewer’s approach that is indicative of error on her part in the manner alleged in this ground.

3. I reject this ground of review.

Ground 5: failure to form an opinion about the death of the applicant’s father

1. This final ground of review proceeds on the misconception that the Reviewer had to definitively determine who had killed his father.  However, the precise circumstances of his death did not have to be positively determined because the Reviewer did not accept the applicant’s claims regarding the circumstances leading up to that event.  Had the Reviewer accepted that the Mahdi Army engaged with the applicant or his father in the way he claimed, and that they had refused express demands made by the Army, the circumstances of the applicant’s father’s death may have taken on additional significance.  In the absence of that acceptance, however, the identity of those who were ultimately responsible for killing the applicant’s father was immaterial. 

2. I reject this ground of review.

Conclusion

1. In my view, the Reviewer followed best practice in the conduct of the review, including the hearing, and in the preparation of her reasons.  That conduct and her statement of reasons could usefully serve as a guide to others. 

2. I conclude that the report and recommendation of the Reviewer is free from any jurisdictional error.  I will order that the application be dismissed.

3. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant referred to his impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  6 October 2011