SZQLV v Minister for Immigration
[2012] FMCA 337
•24 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQLV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 337 |
| MIGRATION – Application to review recommendation by Independent Merits Reviewer – whether reviewer failed to apply the correct legal principles or failed to afford procedural fairness to the applicant – whether unreasonableness, irrationality or illogicality. |
| Migration Act 1958 (Cth), ss.36, 91R, 195A, 424A, 477 |
| Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZONJ and Another (2011) 194 FCR 1; [2011] FCAFC 85 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533; [2002] HCA 7 |
| Applicant: | SZQLV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | ERIKA CORNWELL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1580 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 17 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms T L Wong |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
DECLARATIONS
In recommending that the applicant not be recognised as a person to whom Australia has protection obligations the Second Respondent erred by failing to apply the correct legal principles in that she failed to determine that where persecution is by non-state agents the requirement that persecution be for reason of one of the Convention grounds may be satisfied by the motivation of the state and by failing to afford procedural fairness to the applicant in that she failed to consider the claim that the Iraqi government would fail to provide adequate protection to the applicant from any violence perpetrated by his relatives.
ORDERS
The First Respondent, his servants, officers, delegates and agents be restrained from relying or acting upon the recommendation of the Second Respondent of 17 June 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1580 of 2011
| SZQLV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| ERIKA CORNWELL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant, a citizen of Iraq, seeks review of a recommendation made on 17 June 2011 by Erika Cornwell in her capacity as Independent Merits Reviewer (IMR) that he not be recognised as a person to whom Australia has protection obligations.
The applicant arrived at Christmas Island by boat on 28 March 2010. On 5 June 2010 he requested an assessment of his refugee status by the Department of Immigration and Citizenship (the Refugee Status Assessment or RSA). On 4 October 2010 the Department notified the applicant of its decision that he did not meet the definition of a refugee under the Refugees Convention. The applicant sought Independent Merits Review.
In a statement accompanying his RSA application the applicant claimed to have a well-founded fear of persecution for a Convention reason on the basis that many of his family members (whom he named) were high ranking members of the Ba’athist Party in Iraq, including his father’s uncle (referred to for present purposes as Mr U) and his father’s cousins (referred to as C1, C2 and C3). These persons are referred to by pseudonyms in light of the possibility that their identification could reveal the identity of the applicant. The applicant claimed that in 1989 his father was abducted and executed for being a traitor to the Ba’athist Party with links to Iran. The applicant and his younger brother were taken by their maternal uncles to a refugee camp in Saudi Arabia. According to the applicant there were “grave fears” for their lives because they were the oldest males in their family. He moved with his uncles to another refugee camp in Iran at the end of 1992, where he remained for some eight months. Thereafter he remained in Iran and was joined by his mother and other siblings, who had been living in another part of Iraq.
The applicant claimed that after the fall of the Saddam Hussein regime in 2003 he took his mother and siblings back to Iraq. He started working as a casual painter in Baghdad. He claimed that in 2006, when the Government was recruiting former Ba’athist members, his father’s cousins C1 and C2 were recruited. He claimed that in 2009 “there was an attempt to assassinate” C1 by “people who [were] aware of the atrocities that were committed by him” while he was a member of the Ba’athist Party.
The applicant claimed that at the end of 2006 a distant relative (M), “was at a public gathering where [C1 and C2] were presen[t]” and “overheard messages from them that they were promising [the applicant] that [he] would have the opportunity to see [his] father very soon”. The applicant understood this to mean that they would kill him. He claimed that while he “did not take the message very seriously”, some two months later he received a letter which said he had “better leave Iraq…because no one [could] protect” him. He claimed this letter was signed by the two cousins and there was a bullet in it. The applicant then moved to another place in Iraq. He moved again after three or four months. However he claimed that in around October 2007 his mother found a slaughtered chicken inside their property with a note on it saying “Your destiny is its destiny”.
The applicant also claimed that subsequently, after an argument with his mother, he got into a fight with someone who called him a “Safawi”, which is a derogatory term for Iraqis who live in Iran. He claimed that they were taken to the police station and that he was detained in “a place reserved for accused terrorists” and tortured for 14 days during which time he was questioned “about being a part of the Iranian government”. He claimed that after he was released his “uncles said that they could not protect [him]” so that he had to return to Iran. In Iran he was “arrested and beaten” and “locked up for a week” because he was an Arab. He was subsequently diagnosed with tuberculosis. He remained in Iran for treatment for some seven months.
The applicant claimed he returned to Baghdad in 2008. He worked as an interpreter and then as a painter for a person who had contracts from US companies. He claimed that the painters received “threatening messages from various groups affiliated with either Al-Qaeda or Wahabi, groups that [were] anti-US”. The messages “accused [the workers] of being infidels”. He claimed that one day when he had not gone to work, “a gathering of workers was fired upon by armed men”. A worker was killed and a contractor was injured. He claimed to believe that “one of these groups who had anti-US sentiment” had fired upon the workers.
In 2009 the applicant moved back to Iran. He returned to Iraq for a month to obtain his passport and then commenced his journey to Australia.
The applicant claimed that if he returned to Iraq he would be killed or persecuted “for being Persian as [he had] lived in Iran [for] most of [his] life” and also because he had been and remained “a target” for members of the Iraqi Government “because of [his] father’s political opinions”.
On 31 March 2011 the applicant, through his migration agent, provided a detailed submission to the IMR which set out his claim to have a well-founded fear that if he was to return to Iraq he would suffer serious harm amounting to persecution. He claimed to fear that he would experience “threats, physical assault”, or that he would be “killed by his ex-[Ba’ath] party relatives; and/or anti-Iranian extremist groups within Iraqi society; and/or the Iraqi authorities; and/ or anti-American/anti-West extremist groups within Iraqi society”.
The applicant claimed to fear persecution on the basis of his “[i]mputed political opinion of being” an “opponent of the Ba’ath party and former Ba’ath party members”, and/or “a supporter of the Iranian government”, and/or a “supporter of America and/or the coalition forces and/or the West”. In addition, he claimed to fear persecution as a member of a particular social group constituting “[r]eturnees from a Western country” and/or “[f]ailed asylum seekers returning from a Western country”.
The applicant attended an interview with the IMR in April 2011. He provided a further written submission through his migration agent on 13 April 2011.
In addition, the applicant’s adviser provided the IMR with a copy of a psychological report on the applicant prepared by a psychologist with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors which concluded that “[as] a consequence of the multiple traumas he [had] experienced” in Iraq, Iran and Saudi Arabia he had developed Chronic Post Traumatic Stress Disorder.
The IMR Assessment
In her statement of reasons the IMR summarised the claims made by the applicant in his entry interview and in the written statement provided in connection with his Refugee Status Assessment as well as submissions made on his behalf and the claims made by him at the interview conducted by the reviewer.
The IMR was satisfied that the applicant did not have a right to enter and reside in a safe third country and assessed his claims to fear persecution in Iraq. The reviewer found the applicant to be a credible witness and “did not consider that [his] lack of knowledge about past events or…his father’s family reflect[ed] adversely on his credibility”. The reviewer noted the absence of discrepancies in the evidence provided by the applicant and found that he had not attempted to elaborate on or embellish aspects of his claims in the interview. When asked for more specific details about particular events, the applicant had provided such detail in a way the IMR found was consistent with his previous evidence and in keeping with the request for further detail. While there were “a great number of questions to which the [applicant could] not provide answers”, this was said to be “consistent with [his] circumstances”.
The IMR accepted that “the course of events which led the [applicant] to leave Iraq [was] as he [had] stated”. In particular, the IMR accepted that the applicant’s “tribe was well known for being Ba’ath Party members”, but that his father “never joined the party and spoke out very vocally about the actions and philosophies” of the party. The IMR also accepted that “[s]ome family members on the paternal side [of the applicant’s family] were high ranking within the Ba’ath Party, including [the applicant’s] father’s uncle [Mr U] and [his] father’s cousins [in particular C1, C2 and C3] and [his] extended family”.
The IMR accepted that the applicant’s “father was accused of being a traitor with links to Iran and was executed in November 1989, when [the applicant] was a young child” and that thereafter the applicant’s “maternal uncles took [him] and his brother…to a refugee camp in Saudi Arabia” and in 1982 to a refugee camp in Iran which they were allowed to leave after eight months. The IMR accepted that the applicant’s mother and siblings later went into Iran but that “[a]fter the fall of Saddam Hussein in 2003, the…family returned to Baghdad”.
The IMR accepted that in 2006 C1 and C2 “were both involved with the Iraqi Government” and, moreover, that both remained “prominent in current day Iraq and held high ranks in the Ba’ath party”. In particular, the reviewer accepted that C1 was the Director of a named media organisation, that C2 was Chairman of the board of a named provincial government and that they possessed “the power, connections and means to harm the [applicant]”. The reviewer accepted the applicant’s account of an attempt to kill C1 in 2009. In making these findings the reviewer accepted that, contrary to the findings of the RSA officer, “country information indicate[d] that some senior members of the Ba’ath party were Shia Muslims” as claimed by the applicant.
The IMR also accepted that, as claimed by the applicant, at the end of 2006 his friend and distant relative, M, had told him “he had been to a public gathering and had overheard [C1 and C2] talking about their plans to kill” the applicant and that approximately two months later the applicant “received a signed letter from [C1 and C2] with a bullet in it” which “told him to go back to Iran because there was no one to protect him in Iraq”. The reviewer accepted that the applicant moved with his family from one part of Baghdad to another, but that in October 2007 his “mother found a slaughtered chicken in the front yard of their home with an unsigned death threat”.
The reviewer accepted that the applicant was “involved in a physical fight in a public place”, detained and tortured for 14 days and “questioned about his links to Iran” and that he subsequently returned to Iran where he “was arrested, detained and beaten because he was an Arab” and that he returned to Iraq in 2008 despite being afraid, “because his mother needed assistance” and “his identity documents had expired”. The IMR also accepted the applicant’s claims about his work as an interpreter and as a painter, that the painting contractor and his workers had received threats because they worked for American or coalition companies and that fellow workers were shot at and injured. Finally the IMR accepted the applicant’s claims about his departure from Iran.
The IMR summarised the applicant’s fears as follows:
The claimant fears:
· being targeted by [C1 and C2] because he is the eldest son of an opponent they had killed and because they fear the claimant may take action against them when life returns to normal in Iraq;
· being targeted from members of the government because of his father’s political opinions;
· being targeted and harmed by [C1 and C2], on account of being imputed as opposing the Ba’ath Party and ex-Ba’ath party members. The claimant argues that his father’s cousins fear he will expose them and jeopardise their current positions of power. They have imputed him as being strongly opposed to Ba’ath Party and ex-Ba’ath party members and on this basis they wish to harm him. There is no effective state protection in Iraq. There is still a real risk despite the fact that the government may be opposed to the Ba’ath party. This does not eliminate the possibility that Ba’ath party members or ex-Ba’ath Party members, namely his father’s cousins, seek to harm him;
· he is at risk from being targeted by anti-American groups because of his imputed political opinion of being a supporter of American/Coalition forces. He has worked for an employer who undertook contract work for the Americans. This employer and his employees have been targeted in the past;
· serious harm from the Iraqi authorities because of his imputed political opinion of being a supported of the Iranian government; and
· serious harm as a failed asylum seeker returning from the West.
The IMR did “not accept that the [applicant was] a target from members of the [Iraqi] government because of his father’s political opinions (as distinct from being a target of [C1 and C2])”. The reviewer found that there was no evidence that would support a claim that the applicant was “targeted by the government”.
The IMR had regard to the fact that, as clarified in submissions, the applicant was not claiming simply to be “at risk from anonymous Ba’ath Party / ex-Ba’ath Party members”, but rather to be at risk of harm from “his father’s cousins, in particular”. The reviewer accepted that “members of [the applicant’s] father’s family, in particular [C1 and C2], [were] seeking to harm him”, but found that while the applicant had mentioned the involvement of C1 and C2 in the death of others (apart from his father), at interview he had asserted that C1 and C2 “fear[ed] exposure by him for [their] involvement in his father’s death, rather than [for] crimes generally”. The reviewer also had regard to the post-hearing submission in which it was claimed that persecution would result from the applicant’s “imputed opposition to Ba’ath party and ex-Ba’ath party members”, that he had “been imputed as being strongly opposed to Ba’ath party and ex-Ba’athists and [that] for this reason [C1 and C2] fear[ed] he may use his knowledge of past events to cause [them] problems” and hence they wanted to harm him.
However the IMR found that on the material presented “there is no clear evidence as to why [the applicant’s] father’s cousins want to kill him”. The IMR found that the evidence from M was “not conclusive”. Further, while the applicant had referred to the involvement of C1 and C2 “in countless deaths” and there was “some evidence that [C1 had] lost his government post because of protests [about] offences he had committed under Saddam Hussein” and had been the victim of an attempted assassination, the reviewer found “no clear evidence [as to] why [the applicant’s] father’s cousins wish[ed] to harm him”. The reviewer acknowledged that the applicant had “speculated that they [were] afraid he [would] expose them for their part in his father’s death” but found that she could “not be satisfied on the material available [as to] what the essential and significant reason [was] for [C1 and C2] wanting to kill” the applicant. The IMR observed that a “well-founded fear must be based on probative evidence and not mere speculation”.
The IMR was of the view “that the most likely reason that [C1 and C2] want[ed] to kill the [applicant was] because they fear[ed] he may bring to light their involvement in the death of [his] father, and that this may adversely impact on them” and that they perceived the applicant “to be a threat to their ascent in political life by exposing their involvement in his father’s death”. The reviewer found however that the Convention reason “must be the essential and significant reason for the harm” and that this was “a personal reason and not a Convention reason”.
While the IMR found that the applicant’s “fear of serious harm/ death by his father’s relatives [was] well-founded”, she was “of the view that they [had] not killed him before now or attempted to do so because they [were] trying to scare him out of the country”.
The reviewer accepted that if the applicant returned to Iraq his life would be at risk from C1 and C2 “as non-state agents”, but did not accept that this was for a Convention reason. She found on balance that “the risk of serious harm [arose] because of a private plan by members of [the applicant’s] father’s family to silence” him. The reviewer was satisfied that should the applicant return to Iraq there was “a reasonable chance the threats [would] continue and in the foreseeable future an attempt [would be] made on [the applicant’s] life”, but found that “the serious harm which [the applicant] fear[ed was] not for Convention based reasons but for a personal reason”.
The reviewer then considered “whether the state may persecute the claimant for any other Convention-based reasons” in particular “his imputed political opinion of being a supporter of the Iranian Government”. She had regard to the fact that the applicant had “lived in Iran for approximately 12 years”, and was “fluent in Farsi”, that he had previously been “detained and tortured because he was imputed to be a supporter of Iran” and also the fact that after his involvement in a fight he had been questioned by police “about his links to Iran” and “later tortured”.
The IMR found “no evidence that [the applicant] was specifically targeted by police”. Rather, she was of the view that he “became caught up in the [fight] incident and after police detained him, they questioned him about his links to Iran”. The reviewer was “not satisfied that [the applicant] would be detained again by police in the reasonably foreseeable future”, finding that the “circumstances that led to [his detention in the past] were a chance event and there [was] no evidence that a similar set of circumstances would occur in the foreseeable future”. The IMR found no evidence “that people who [had] spent some years in Iran [faced] serious harm when they return[ed] to Iraq”.
The reviewer considered whether the applicant may be “targeted because of his perceived support of American/Coalition forces because he [had] worked for a man who took contracts from Coalition forces”. While the reviewer accepted the applicant’s claims about what had occurred to his previous employer and his fellow employees, she found that the applicant had only worked for that employer “for about two months”, that he had “not himself receive[ed] personal SMS threats” and that there was “no evidence that [he] was personally identified or recognised or known to those who sent messages to his ex-employer or who shot at the work group”. The reviewer was “satisfied that [the applicant] would not be personally targeted” on this basis and therefore found that “the chance [was] remote that he [would] be seriously harmed for having a connection with [that] employer”.
The reviewer also considered the applicant’s contention that in Iraq “he would have little choice but to work for the Americans again or for international companies because [this was] the only painting work available”, but found that there was no evidence to support his claim “that 90% of the painting work available [was] through contract work with the Allies or that this [was] the only type of work [the applicant] would be able to obtain”. The IMR was “not satisfied that [the applicant] would be forced to work for companies [that worked for] the Americans/International forces”.
The reviewer then addressed the claim made at the IMR interview that the applicant “was a target [of] the government because of his father’s political opinions”, but in the absence of evidence to support this claim did not accept it. The reviewer “was not satisfied that [the applicant] had been targeted by the government for this reason or that [he had] a well-founded fear of being persecuted on this basis”. Based on independent country evidence the IMR was “not satisfied that [the applicant] was at risk of serious harassment, detention, serious ill-treatment or disappearance on return to Iraq for this reason”.
In relation to the adviser’s submission that the applicant “had a fear of persecution as a returnee from a Western country and/or failed asylum seeker returning from a western country”, the reviewer found that while the “overall security situation in Iraq [was] very dangerous for everyone”, there was “no evidence that returnees from the West or those who [had] sought asylum [were] singled out”.
The IMR concluded that she did “not accept that the [applicant] will be persecuted for a Convention reason and that he has a well-founded fear of returning to Iraq”, and reiterated her conclusion that the serious persecution that the applicant “would suffer in the form of threats to his life and liberty and significant physical ill-treatment [was] for personal reasons and not for Convention-based reasons”. She found that he did not meet the criteria for a protection visa.
Having concluded that the applicant did not meet the criterion for a protection visa in s.36(2) of the Migration Act 1958 (Cth), the reviewer went on to address humanitarian and compassionate grounds and found that there were “unique and exceptional circumstances” in the applicant’s case, that he would be at risk of serious harm from his relatives if he were to return to Iraq and that “[t]hose relatives ha[d] some influence in Government spheres because of the positions they hold”. The reviewer also found in this context that “Based on the country information available, the government could not afford [the applicant] the necessary protection against the harm he would suffer at the hands of his paternal relatives”.
The reviewer also identified serious humanitarian concerns should the applicant be returned to Iraq arising out of the applicant’s “mental health difficulties” and the high level of violence in Baghdad and requested the Minister’s consideration pursuant to s.195A of the Migration Act. It would appear that this request has not met with favourable consideration.
The reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention as amended by the Protocol relating to the Status of Refugees.
Whether Extension of Time Necessary
The applicant sought review by application filed in this court on 26 July 2011. The application was filed one day outside the 35 day period provided for in s.477(1) of the Migration Act. The applicant sought an extension of time under s.477(2) of the Act on the basis that the person from the Legal Aid office who attempted to file the application (on the last day within the stipulated period) mistakenly understood that such an application had to be filed in a Federal Magistrates Court registry in Goulburn Street, Sydney, rather than in the Law Courts Building, Queens Square, Sydney. This confusion led to the application not being filed before the Registry closed on that date. The Minister did not oppose such application.
It is understandable that confusion may be caused to litigants and, indeed, to legal practitioners, by the fact that the registry for general federal law matters in Sydney is not in the same location as the Federal Magistrates Court courtrooms, particularly as there was for a brief period a registry in John Maddison Tower in Goulburn Street and there is a separate family law registry in the Family Court building in Goulburn Street. Were it necessary to determine I would have been satisfied that it was in the interests of the administration of justice to extend the time for making the application up to and including 26 July 2011. However in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 the Full Court of the Federal Court made it clear that the s.477 time limit is not applicable to an application of the nature in issue in these proceedings and hence no extension of time is required.
The applicant now relies on an amended application filed on 3 November 2011. There are six grounds in the amended application, although ground three was not pressed. Grounds one and two were addressed together in submissions.
Motivation for the harm feared by the applicant and availability of state protection
The first ground in the amended application is that the IMR:
failed to apply the correct legal principles, in that she failed to determine that the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.
The particulars to this ground are as follows:
1.1 The [IMR] found that the Applicant had a well founded fear of being seriously harmed by his relatives, [C1 and C2].
1.2 The [IMR] decided that the reason that harm would be inflicted on the Applicant was private in nature and not for a Convention reason.
1.3 The [IMR] failed to consider whether the Iraqi government or its agents would, for a Convention reason, condone or tolerate any harm inflicted on the Applicant by his relatives, [C1 and C2].
Ground two is that the IMR:
failed to afford procedural fairness to the Applicant, in that she failed to consider the Applicant’s claim that the Iraqi government would fail to provide adequate protection to the Applicant from any violence perpetrated by his relatives, [C1 and C2].
The particulars to this ground are as follows:
2.1 The [IMR] found that the Applicant had a well-founded fear of being seriously harmed by his relatives, [C1 and C2].
2.2 The [IMR] decided that the reason that harm would be inflicted on the Applicant was private in nature and not for a Convention reason.
2.3 The [IMR] failed to consider whether the Iraqi government or its agents would, for a Convention reason, condone or tolerate any harm inflicted on the Applicant by his relatives, [C1 and C2].
The applicant submitted that the reviewer had failed to apply the principles set out by the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18 (and also see Minister for Immigration and Multicultural Affairs v Khawar and Others (2002) 210 CLR 1; [2002] HCA 14 at [21] per Gleeson CJ and at [61] – [62] per McHugh and Gummow JJ and Horvath v Secretary of State for the Home Department [2001] 1 AC 489; [2000] UKHL 37).
Counsel for the applicant acknowledged that the State was not required to provide an absolute guarantee of protection, but contended that there must be a reasonable willingness and ability by the State and its agents to invoke its laws and mechanisms against the perpetrators of violence (S152/2003 at [26] – [27]). It was pointed out that if the State or its agents condoned or tolerated the criminal conduct concerned, then the requirement that the persecution be for reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the State (Minister for Immigration and Citizenship v SZONJ and Another (2011) 194 FCR 1; [2011] FCAFC 85 at [32] – [33]).
The applicant submitted that the determination by the IMR that the persecution feared by him was for personal reasons and not for Convention-based reasons was insufficient to dispose of his claims, particularly in circumstances where his migration agent had submitted that there was no “effective State protection in Iraq because the state is both unable and unwilling to protect him.” It was pointed out that in her findings and reasons in relation to whether the applicant had a well-founded fear of persecution for a Convention reason, the IMR did not make any finding on the adequacy of the state protection provided by the Iraqi Government or address the issue of whether the requirement that persecution be for reason of one of the Convention grounds had been satisfied by the motivation of the state in condoning or tolerating violence towards the applicant. It was submitted that this issue was of particular relevance in circumstances where, as the IMR accepted, the applicant had been tortured by the police because he was imputed to be a supporter of the Iranian Government. It was also submitted that while the IMR had held that the applicant did not have a well-founded fear of harm by reason of that imputed political opinion, there was evidence before the IMR that demonstrated, or could be said to demonstrate, that the state condoned or tolerated violence towards persons said to be supporters of the Iranian government.
It was submitted that in circumstances where the applicant had experienced serious harm at the hands of the Iraqi authorities and where that harm was acknowledged to have been for a Convention reason, namely his imputed political opinion as a supporter of the Iranian Government, it was difficult to see how a claim that the state was unwilling to protect the applicant for a Convention reason did not arise clearly on the material before the reviewer in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263.
Thus, it was said that in circumstances where the IMR held that the applicant had a well-founded fear of persecution from non-state agents, the IMR had fallen into error by failing to consider whether the Iraqi government was complicit in the sense that it encouraged, condoned or tolerated violence against the applicant and/or by failing to consider the applicant’s claim that there was no effective state protection available to him to protect him from persecution by his relatives (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24] and [95] and Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 85 ALJR 133; [2010] HCA 41 at [90]). The alleged failure of the IMR was said to have resulted in an error of law and a breach of the requirements of procedural fairness.
Counsel for the first respondent contended that these grounds failed because there was no claim or suggestion by the applicant that the Iraqi government would withhold protection or tolerate or condone persecution in relation to the applicant’s fear of his relatives for a Convention reason and that this issue did not arise on the material before the reviewer in such a manner as to require consideration (cf NABE). It was submitted that it could not be said in this case that there was a “substantial, clearly articulated argument relying upon established facts” in the sense considered in NABE at [55] – [68] that the Iraqi state would not protect the applicant for a Convention reason such that the reviewer had to address it.
The first respondent submitted that Khawar could be distinguished because in that case there was a substantial case presented to the Refugee Review Tribunal that the Pakistani police had failed to protect women because they were women (at [25], [53] and [94] – [97]). However it was submitted that in this case there was at most an assertion that the Iraqi state was incapable of offering protection, and that the principles in Khawar had no application (see SZONJ at [33]).
Insofar as the applicant’s submission was to the effect that the Iraqi state was incapable of providing protection, the first respondent acknowledged that this was accepted by the reviewer, but submitted that this did not give rise to a requirement that the reviewer consider whether this indicated the requisite Convention motivation or unwillingness to provide protection for a Convention reason (see SZONJ at [17] and [33]).
Counsel for the first respondent submitted that there was no articulation in connection with the application to the IMR of any Convention reason for any asserted inability or unwillingness of the Iraqi state to provide protection to the applicant. Reliance was placed on the remarks of the Full Court of the Federal Court in SZONJ at [33] as follows:
Thus, where there is persecution by a non-state agent for a reason that has no Convention nexus, and that conduct is condoned or tolerated by the state for a Convention reason, the victim may be a refugee within the meaning of the Convention. However, where there is persecution by a non-state agent for a reason that has no Convention nexus and that conduct is not prevented by the state by reason only of the inability of the state to prevent it, such that there is no Convention reason that motivates the state or prevents the state from intervening, the test will not be satisfied.
It was submitted that if it could be said that the applicant had asserted that there was an unwillingness (and not simply an inability) on the part of the Iraqi state to provide protection, it was incumbent on the applicant or his advisers to spell out exactly how they said that this arose. However there was said to be no explanation in the material from the applicant or his adviser of the basis for any such alleged unwillingness.
In the alternative, the first respondent submitted that if it could be said that a claim arose on the material before the IMR that the Iraqi state was unwilling to protect the applicant because he was a long-term resident of Iran, such claim must be taken to have been rejected by the reviewer’s finding that there was nothing to indicate that those who had been long-term residents of Iran were more at risk than others. Similarly, it was said that the reviewer had dealt with any claim that may have arisen on the material before the IMR about the motivation of the Iraqi state for condoning or tolerating harm to the applicant because he was a returnee from a Western country or a failed asylum seeker from a Western country, in finding that the overall security situation in Iraq was very dangerous for everyone but that there was no evidence that returnees from the West or those who had sought asylum were singled out. Hence, the first respondent submitted that even if it had been implicitly claimed that there was an unwillingness on the part of the Iraqi state to protect the applicant for such reason or reasons any such claim had been addressed insofar as was necessary on the material before the reviewer.
Finally, while the first respondent acknowledged that the IMR reasons did not address all possible reasons for any unwillingness on the part of the State to provide protection to the applicant, it was submitted that in the absence of a clear articulation of such a reason by the applicant or his advisers it could not be said that the reviewer had fallen into error by failing to speculate as to other possible reasons why the State may be unwilling to provide protection.
The issue of state protection may be relevant in a number of respects in considering the definition of refugee in the Refugees Convention. Thus, the inability or unwillingness of the state to provide effective state protection “may be relevant to whether a fear is well-founded, and to whether the conduct giving rise to the fear, persecution; to whether the [the putative refugee] is unable or unwilling to avail himself of the protection of his home state” (see Horvath v Secretary of State for Home Department referred to with approval in Respondents S152/2003 at [21]).
In this case the reviewer accepted that the applicant had a well-founded fear of serious harm constituting persecution based on the conduct of his relatives. However the reviewer did not accept that the relatives were motivated for a Convention reason (cf Respondents S152/2003 in which the harm feared from private citizens was for a Convention reason) and did not consider whether the requirement that persecution was for a Convention reason was satisfied by the motivation of the State.
Hence both Grounds one and two raise the issue of whether, having ultimately decided that the serious harm that the applicant feared from relatives was for personal or private reasons, the reviewer had to consider whether the Iraqi government or its agents would, for a Convention reason, condone or tolerate any such harm inflicted on the applicant.
As Gleeson CJ stated in Khawar at [31].
Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state. In relation to the case which Ms Khawar seeks to make out, the decision in Ex parte Shah in this respect is directly in point. If her contentions, as to which no findings have yet been made, are correct, then Ms Khawar was being abused by her husband and his relatives for personal reasons, but her likely subjection to further abuse without state protection is by reason of her membership of a particular social group, if it be the case that women in Pakistan may be so described. (footnotes omitted)
This was described as the Khawar principle in SZONJ at [7] (also see Khawar at [120], [121] and [155]). It must be borne in mind that, as the Full Court of the Federal Court observed in SZONJ at [31]-[32].
…when the question concerns whether a Convention nexus has been established, there is no suggestion by Gleeson CJ that mere inability on the part of the state to prevent persecution is sufficient. Rather, it must be shown that the failure on the part of the state or state agents to prevent the relevant conduct is the result of toleration or condonation, not simply inability to prevent the conduct.
Thus, where there is persecution by a non-state agent for a reason that has no Convention nexus, and that conduct is condoned or tolerated by the state for a Convention reason, the victim may be a refugee within the meaning of the Convention. However, where there is persecution by a non-state agent for a reason that has no Convention nexus and that conduct is not prevented by the state by reason only of the inability of the state to prevent it, such that there is no Convention reason that motivates the state or prevents the state from intervening, the test will not be satisfied.
However the fact that mere inability of the state to prevent conduct does not establish a Convention nexus does not determine whether the decision-maker is obliged to consider whether the state would, for a Convention reason, condone or tolerate feared harm by non-state agents that was private in nature. It is necessary to consider whether, in the circumstances of this case where the reviewer found that the applicant had a well-founded fear of persecution by his relatives for a reason that had no Convention nexus, she was obliged to consider whether the conduct feared would be condoned or tolerated by the Iraqi state for a Convention reason in determining whether the applicant met the criteria for a protection visa.
The reviewer made no finding about the availability of state protection in the findings and reasons addressing the applicant’s claims to be a refugee. There was no finding in this part of the decision that the persecution feared would not be prevented by the state by reason only of the inability of the state to prevent it. The discrete finding that the applicant would not be “targeted” by the government because of his father’s political opinion cannot be said to encompass the issue of whether the state would condone or tolerate harm to him by his relatives for a Convention reason.
In the context of addressing humanitarian or compassionate considerations (not in the consideration of the applicant’s claim to be a refugee) the reviewer accepted, based on country information, that the Iraqi government could not (that is, was unable to) afford the applicant the necessary protection against the harm he would suffer at the hands of his relatives. However this did not amount to a finding that the feared conduct would not be prevented by the state by reason only of the inability of the state to prevent it (cf SZONJ).
The reviewer’s acceptance that the government could not afford the applicant “the necessary protection against the harm he would suffer” at the hands of his relatives did not address the question of whether the government would condone or tolerate such harm for a Convention reason. Indeed, in considering whether there were humanitarian and compassionate grounds the reviewer accepted that the applicant’s relatives (in relation to whom he had a well-founded fear of serious harm/death) “have some influence in government spheres because of the positions they hold. The claimant would be at risk of serious harm from those relatives. Based on the country information available, the government could not afford him the necessary protection against the harm he would suffer”.
What is in issue is whether an argument that the Iraqi government would condone or tolerate violence towards the applicant by his relatives for a Convention reason was sufficiently raised so as to require the reviewer to address it in the findings and reasons relating to the applicant’s claim to be a refugee. Such an argument will be sufficiently raised if the material before the reviewer raises a “substantial, clearly articulated argument relying upon established facts” (as considered by Gummow and Callinan JJ in Dranichnikov at [24], Hayne J agreeing at [95], or if it can be said that such a claim arises on the material before the reviewer in the sense considered in NABE at [61].
Thus, in Khawar, there was material before the Tribunal put forward by Ms Khawar that she could not obtain police protection in respect of domestic violence at the hands of her husband and material that McHugh and Gummow JJ found (at [80]) would tend to show a systematic failure by Pakistani police authorities to investigate or to lay charges in respect of complaints by women of domestic violence against them. Ms Khawar complained that the selective enforcement of the law constituted discrimination by the State amounting to persecution of her by the state as a member of a particular social group. In other words there was said to be a substantial case presented that the Pakistani police failed to protect women because they were women (Khawar at [25], [53], [78] and [94] – [97].
A judgment that a decision-maker such as an IMR “has failed to consider a claim not expressly advanced is not lightly to be made” as such a claim “must emerge clearly from the material before” the IMR (NABE at [68]). The reviewer (like the Refugee Review Tribunal) is required to deal with the case raised by the material or evidence before it. However, as the Full Court of the Federal Court stated in NABE at [58] in relation to the Tribunal, the decision-maker “is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated”, that is, if an unarticulated claim is raised “squarely” or “clearly” in the sense of being “apparent on the face of the material” before the reviewer, it must be addressed. That is so notwithstanding that the applicant does not “pick the correct Convention label” (see NABE at [58] – [63] and Dranichnikov at [78] per Kirby J).
I have considered the claims made by the applicant and the material before the IMR. The applicant did not expressly claim that the Iraqi government would condone or tolerate the serious harm he feared from his father’s relatives and that any such state action (or inaction) would be for a Convention reason. This may be seen as reflecting the fact that his primary contention was that the relatives were motivated by a Convention reason. He did expressly raise the issue of the availability of state protection.
The applicant’s initial claims in his statutory declaration of 8 June 2010 were put on the basis that his fear of his relatives was a fear of “members of the government” (as his father’s relatives had been “enlisted” by the government in 2006) “because of his father’s political opinions” (and hence, impliedly, his political opinions). He claimed that he had received a warning letter from his relatives that he “better leave Iraq at this time because no one can protect you in Iraq, go back to Iran so someone can protect you”. He also claimed to fear persecution in Iraq as a long-term resident of Iran based on what had occurred when he was detained by the police after a fight with a person who called him a derogatory term for an Iraqi who lived in Iran and on the basis that he would be seen by anti-American groups as an “infidel”.
The RSA did not accept the applicant’s claims about his relatives, in particular that the relatives held prominent positions in the Iraqi government, and did not accept that the applicant had a well-founded fear of persecution by his father’s relatives, the Iraqi government or groups such as Al Qaeda or Wahabi.
After the applicant sought review by the IMR, his migration agent made a detailed written submission on 31 March 2011 in which incidents of past harm and several bases for the applicant’s fear of persecution on Convention grounds were canvassed. The applicant was said to fear harm from his ex-Ba’ath party relatives on account of his imputed political opinion of being an opponent of the Ba’ath party and former Ba’ath party members. In that context it was claimed that the applicant feared persecution at the hands of his father’s named cousins who were former members of the Ba’ath Party and held influential positions in current-day Iraqi politics. In other words, the material before the decision-maker included claims about the influence of the feared relatives within the Iraqi government. Thus, an aspect of the applicant’s claim was that notwithstanding that the relatives were senior members of the Ba’ath Party, they had been enlisted into the current government (one of them being the Chairman of the Board of a provincial government and the other being influential in Iraqi politics). They were said to possess “the power, connections and means to harm” the applicant. He also claimed that one of these relatives was affiliated with the Islamic party established by former Ba’athists and was part of the current Iraqi government.
Consistent with the primary contention that the applicant’s father’s relatives were motivated to harm the applicant for a Convention reason (his imputed political opinion) and that there was no effective state protection, the applicant’s adviser’s submission did not expressly address the possibility that the harm feared could be seen as at the hands of non-state agents for a personal reason with a Convention motivation to be found in the state’s condonation or tolerance of such harm. The failure to contend expressly that the Iraqi government would withhold protection in relation to private harm for a particular Convention reason is to be seen in light of this contention. Nonetheless, it was claimed that the applicant was at risk of serious harm at the hands of his father’s cousins given that they were former members of the Ba’ath party who held “significantly influential positions in Iraqi politics and/or society”. The submission elaborated on the power, influence and connections of the applicant’s father’s cousins and their means to harm the applicant and may be seen as raising a claim based on political opinion.
Further, it was claimed that the applicant was unable to avail himself of effective state protection in Iraq because the state was “both unable and unwilling to provide effective protection to him”. The claims made by the applicant did raise an argument that the state would withhold protection from harm by his relatives who included the Chairman of the Board of a provincial government and another prominent director of a media organisation who was said to be influential in Iraqi politics. In addition the applicant claimed that he feared persecution for a Convention reason from the authorities as a supporter of Iran. He further claimed to fear “persecution at the hands of state and/or non-state agents, who act with impunity throughout the country”. His adviser also claimed that the applicant feared he would be “targeted” by the authorities on other bases, in particular as a supporter of Iran.
While the applicant’s adviser did not expressly contend that the Iraqi government would withhold protection from the applicant in relation to the harm he feared from his father’s cousins for a Convention reason, the submission referred to independent country information about the failure of the authorities to take effective action to protect those at risk. In particular, an April 2010 report of Amnesty International on “Civilians Under Fire” which was cited in the context of addressing the applicant’s claim to fear harm as a supporter of the West stated that “the authorities [had] failed to conduct thorough and impartial investigations into many attacks on and other violent crimes against civilians” and that “a climate of impunity continues to prevail”. Relevantly, this information was referred to in support of the proposition that the government was not only unable, but also unwilling, to provide effective protection to the applicant. Particular reference was made to information about a lack of transparency and significant widespread corruption at all levels of government, the government’s failure to investigate human rights abuses by non-state actors and the rarity of arrests following murder or other crimes or actions in circumstances where there was large scale corruption pervading the government and there were widespread and systemic human rights abuses by both state and non-state agents which occurred with relative impunity.
Moreover, in a statement made in support of his application for IMR assessment, the applicant addressed in some detail the evidentiary basis for his claim that (contrary to the findings of the RSA) his family members were still influential in Iraqi politics, as well as the negative attitude of the authorities to Iraqis who had lived in Iran.
A claim that the state was unwilling to protect the applicant from harm by third parties or non-state agents (or, impliedly, that the state would condone or tolerate such harm) because he was a long-term resident of Iran (or because he was a returnee from the West, or a failed asylum seeker) emerges from the material before the reviewer. In addition, the fact that the applicant’s claims to fear direct persecution by the state on this basis was rejected by the IMR left open the possibility and in this sense raised a case that the state would condone or tolerate harm to him as such a person from those with positions of influence in the government.
Furthermore, in the interview with the IMR the applicant agreed that his claim was that his father’s cousins had so much power that they could come after him in Iraq (transcript p26, lines 25-26). In particular, he claimed that one of the cousins (the director of a named media organisation) was “taken care of by the government” (transcript p24, line 10) and that another was “chairman” of a provincial council (transcript p26, line 15) as well as claiming that his father’s cousins had “people everywhere, from Baghdad and down to the south” (transcript p30, lines 18-19) and would kill him. The applicant told the IMR that such action would prove the loyalty and commitment of his relatives to the Ba’ath Party (transcript p33). In the course of claiming that he would not be safe anywhere in Iraq (including Baghdad) the applicant stated (transcript p37, line 9):
Well, when you get such an important position in the government, it’s not necessary for you yourself to do the job. Because you’re in the government or the regime, you can get someone else to do the job for you. It’s not necessary for you to do it. The furthest area from them in which I could live was Baghdad, yet they were able to get their threat to Baghdad
Subsequently the reviewer sought to clarify the basis for the applicant’s claim insofar as it may have raised a claim to fear being “targeted” by the government (whether because of his father’s political opinions or otherwise). Towards the end of the interview the reviewer raised a number of issues with the applicant’s adviser, including the fact that she was not clear whether the claims that the applicant was a target because of his father’s anti-Ba’ath political opinion and also a target from his father’s cousins were being argued together or separately (transcript p41) in circumstances where “having an anti-Ba’ath political opinion might stand you in good stead” with the government (transcript p42, lines 1-2). However the question of whether the applicant was directly targeted by the state is not the same as the question of whether the state would condone or tolerate (and in that sense be unwilling to provide protection) the harm the applicant feared from his influential relatives.
Nonetheless, it is relevant that the applicant reiterated that many former Ba’ath Party members had regained prominent positions, that extreme government corruption “enable[d] people to do everything” and “when you are wealthy and in the government, you have money, you are capable to do anything” (transcript p43, lines 22-36).
In a post-interview written submission the adviser sought to clarify the applicant’s fear of persecution on account of his imputed political opinion of being an opponent of the Ba’ath Party and former Ba’ath Party members. The adviser also addressed the applicant’s claim to fear being targeted by the Iraqi authorities on account of his imputed political opinion of being a supporter of the Iranian government. The adviser repeated that the applicant’s father’s cousins wielded political power and that there was no effective state protection.
Apart from the applicant’s claims and evidence, the IMR accepted that the relatives held the positions claimed, that they were prominent in current day Iraq and that they had the power, connections and means to harm the applicant. The reviewer also considered country information and found at [85] that “These reports indicate that many former senior Ba’athists are involved in current-day Iraqi politics and some even hold senior positions in the Government”. The IMR set out extracts from the US State Department Report on Human Rights Practices in Iraq for 2010 including: “Extremist violence, coupled with weak government performance in upholding the rule of law resulted in widespread and severe human rights abuses” and “Although the law provides criminal penalties for official corruption, the government did not implement the law effectively” and “officials sometimes used the ‘de-ba’athification’ process to pursue political and personal agendas”. The IMR then concluded that it was “still extremely dangerous for the whole of the population”. This country information before the IMR may be seen as providing support for the general proposition that the Iraqi state is unwilling or unable to afford protection to civilians where officials pursue personal or political agendas.
In my view the applicant’s claim and submissions and the facts accepted by the IMR sufficiently raised the issue that the Iraqi state may condone or tolerate the persecution that he feared from his relatives such as to oblige the reviewer to deal with the issue whether the Iraqi state would, for a Convention reason, condone or tolerate any harm inflicted on the applicant by his relatives. As Madgwick J pointed out in SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 150 FCR 448; [2006] FCA 3 at [51]:
It would be strange if a claimant of refugee status were to be denied a right to have the substance of her claim considered, including the different ways in which the Convention might apply to her, because she had failed clearly to analyse those ways in her application and supporting material, although she had clearly enough delineated facts that might attract the salvation of the Convention. It is not likely that the Full Court in NABE intended such a thing. The Full Court was absolving the Tribunal from any duty to engage in subtle teasing out of hypotheses that only abstrusely arise from an applicant’s account of the circumstances that have led to the claim of refugee status…
In my opinion, nothing in NABE was intended to deny, nor can it be denied, that to determine whether a claim ‘clearly arises’ on the material before a decision-maker, the decision-maker must fully understand the claim being made. That, in turn, may in some cases make it necessary for the decision-maker to analyse what the appellant has said in terms of possible Convention categories. That was the position here.
Similarly, this is a case in which the reviewer was obliged to analyse what the applicant claimed in terms of possible Convention categories. She did not do so. There was no consideration of whether state protection in relation to the harm the applicant feared from persons the reviewer regarded as non-state actors might be withheld (or the harm condoned or tolerated) for a Convention reason.
While a claim as to mere inability on the part of the state to prevent persecution would not raise the issue of a Convention motivation (SZONJ at [32]), in this case the material before the IMR sufficiently raised a claim that the failure on the part of the Iraqi state to prevent or provide effective protection against the acts of non-state agents such as the applicant’s father’s cousins would be “the result of toleration or condonation, not simply inability to prevent the conduct” (SZONJ at [32]).
Moreover while the IMR did consider whether the applicant would be “targeted” by the Iraqi government because of his father’s political opinions (as distinct from being a target of his father’s cousins) and rejected such claim, this did not encompass and hence avoid the need to consider a Convention motivation on the part of the government for condonation or tolerance of harm occasioned by those with positions of power in the government.
In her findings and reasons in relation to the Refugees Convention the reviewer did not address the availability of state protection in relation to the well-founded fear of persecution she found the applicant had of his father’s relatives. Her subsequent finding that the government would be unable to protect him from the risk of serious harm from those relatives did not address the issue of unwillingness of the state to protect him or its condonation or tolerance of such harm for a Convention reason.
In conducting the review the reviewer was bound not only to afford procedural fairness to the applicant but also to “act according to law by applying relevant provisions of the Migration Act and decided cases” (Plaintiff M61/2010E at [8] and [89] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Whether analysed as a failure to apply the correct legal principles or a failure to accord the applicant procedural fairness, the reviewer’s failure to consider whether the Iraqi government or its agents would, for a Convention reason, condone or tolerate any harm inflicted on the applicant by his relatives, amounted to a reviewable error such as to warrant the relief sought by the applicant.
I have nonetheless, for the sake of completeness, considered the other grounds relied on by the applicant.
Whether error in considering motivation of the applicant’s relatives
Ground three in the amended application is not pressed. The fourth ground in the amended application is that the IMR failed to apply the correct legal principles in concluding that the applicant’s fear of harm from his relatives (C1 and C2) was not Convention-related. The particulars to this ground are as follows:
4.1 The [IMR] found that the Applicant had a well-founded fear of being seriously harmed by his relatives, [C1 and C2].
4.2 The [IMR] held that the motivation for [C1 and C2] wanting to harm the Applicant was personal and not political or Convention related, despite holding that [C1 and C2] were motivated to harm the claimant because they perceived him to be a threat to their ascent in political life.
4.3 In doing so, the [IMR] created a false dichotomy between political and personal motivations and failed to consider whether private action taken by [C1 and C2] to improve their political position still sat within a political context sufficient to demonstrate that the Applicant had a well-founded fear of persecution for a Convention reason.
4.4 The [IMR] failed to apply the correct legal test when determining that [C1 and C2] did not impute a political opinion to the Applicant, or in the alternative, did not consider the Applicant’s claim that [C1 and C2] imputed a political opinion to the Applicant that he was someone opposed to the Ba’ath Party and ex-Ba’ath party members.
The fourth ground can be considered together with the fifth ground which is that:
The [IMR’s] failure to be satisfied that [the applicant] had a well-founded fear of persecution for a Convention reason was unreasonable, irrational, illogical and not based on findings or based on findings or inferences of fact supported by logical grounds, or further or in the alternative, was a decision to which no rational or logical decision maker could arrive on the same evidence.
The particulars to this ground are as follows:
5.1 The Second Respondent found that the Applicant had a well-founded fear of being seriously harmed or killed by his relatives, [C1 and C2].
5.2 The Second Respondent held that the motivation for [C1 and C2] wanting to harm the Applicant was personal and not political or Convention related, despite holding that [C1 and C2] were motivated to harm the claimant because they perceived him to be a threat to their ascent in political life.
5.3 In circumstances where the Second Respondent had held that [C1 and C2] were motivated to harm the Applicant in order to further their political objectives, the finding of the Second Respondent that such motivation was personal and not political was unreasonable, irrational and illogical and not based on findings or inferences of fact supported by logical grounds, or further or in the alternative, was a decision to which no rational or logical decision maker could arrive on the same evidence.
These grounds involve a contention that the IMR failed to apply the legal principles expounded in Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533; [2002] HCA 7. In Singh the applicant had participated as a member of a political organisation in the killing of a police officer in that he had supplied information and intelligence on the police officer’s movements to facilitate his killing by other members of the organisation. A majority of the High Court held that the Refugee Review Tribunal had erred in law in determining that the suspected crimes were “non-political”. As Gleeson CJ stated at [18] that “Revenge is not the antithesis of political struggle; it is one of its most common features”. His Honour went on to state at [19] that:
There was no evidence to warrant a conclusion that the police officer was killed for reasons of personal animus or private retribution. On the [visa applicant’s] account, which the Tribunal evidently accepted, the police officer became a "target" because he had tortured a KLF member. That can be described as a form of vengeance or retribution, but, if it were accepted that one of the political objectives of the KLF was to resist oppression of Sikhs, it is not vengeance or retribution of a kind that is necessarily inconsistent with political action in the circumstances which the [visa applicant] claimed existed in India. For the Tribunal to say, even by reference to the facts of the case, that such retribution cannot be political, was wrong.
The applicant submitted that Singh demonstrated that it could be an error of law to approach the question of whether there was a Convention basis for persecution by applying a dichotomy between a personal action and a political action or politically motivated action and that this was what had occurred in the present case.
Counsel for the applicant submitted that there was evidence before the IMR to demonstrate that the genesis of the motivation of C1 and C2 to kill the applicant was his father’s opposition to the Ba’athist party. There was no evidence that either of the father’s cousins had ever met the applicant or that they had any personal animus towards him. However the IMR accepted that the father’s cousins “perceive[d] the claimant to be a threat to their ascent in political life by exposing their involvement in his father’s death”. This was said to support the conclusion that the essential and significant reason for the persecution was Convention related.
It was pointed out that while s.91R of the Migration Act required that the reason for persecution be the essential and significant reason, it was not necessary that it be the sole reason. As Gaudron J stated in Singh at [44]:
In the absence of anything in the text of the Convention to suggest otherwise, there is no reason why the political purpose should be the sole or, even, the dominant purpose of the crime, so long as it is a significant purpose.
Singh’s case concerned a different aspect of the Refugees Convention (in relation to political and non-political crimes). However the applicant referred to the fact that the principles in that case had been applied in relation to the criteria for a protection visa in SZJRI v Minister for Immigration and Citizenship and Another (2008) 103 ALD 176; [2008] FCA 1090 by Gilmour J. In SZJRI the Tribunal had found that the sole and dominant motivation for harming the applicant, a citizen of Nepal who claimed to have received death threats from Maoist insurgents and to fear revenge by the Maoists, was merely a personal grudge against him by the Maoists and was not for his imputed political opinion. Gilmour J referred to what had been said by Gleeson CJ in Singh at [19] in finding that the Tribunal had erred in law in failing to consider all of the relevant evidence necessary to enable it to find whether the revenge threatened arose from one or both of the Convention reasons relied upon (at [31]). The Tribunal was said to have proceeded on the basis of “an artificial antithesis between political action and revenge” (SZJRI at [12] per Gilmour J). Gilmour J pointed out that even “where revenge is the immediate purpose or motive…it can nevertheless sit within a political context, sufficient to attract the protection of the Convention” (also see Kirby J in Singh at [141] and Gleeson CJ at [22]). In SZJRI Gilmour J found that as in Singh in substance the Tribunal had implicitly concluded that vengeance was incompatible with a political motive and that this had led it to sidestep the question of the political nature of the Maoist insurgents operating in Nepal.
It was contended that in this case in considering why applicant’s relatives wished to harm him the IMR had applied an artificial antithesis between personal objectives and political motives that would satisfy the requirements of the Refugees Convention and that “the IMR was required to consider whether private action taken by [the father’s cousins] to improve their political position still sat within a political context sufficient to attract the protection of the Convention”.
It was submitted that the approach taken in Ramirez v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514; [2000] FCA 1000 could be distinguished because in that case the Tribunal had found that there was “no political dimension” to the actions in question (at [43]) whereas in this case the reviewer had found there was a political component as the applicant was a threat to the father’s cousins’ ascent in political life in circumstances where one of the cousins was a Chairman of a provincial government and hence held a political post.
On this basis the applicant submitted that when determining that the applicant’s two relatives did not impute a political opinion to him the IMR did not apply the correct legal test as set out in Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22 at [570] – [571] (and also see Tanji v Minister for Immigration & Multicultural Affairs [2001] FCA 1100) that the reviewer erred in failing to consider such a claim notwithstanding that, as the IMR recognised, the applicant’s claim to fear persecution may be seen as resulting from his imputed opposition to the Ba’ath Party.
The applicant also submitted that such a failure could be seen as a failure to observe the requirements of procedural fairness in the sense considered in Dranichnikov on the basis that the IMR had failed to consider the applicant’s claim that his father’s cousins imputed to him a political opinion that he was opposed to the Ba’ath Party and ex-Ba’ath Party members.
In particular, counsel for the applicant submitted that the IMR finding that the motivation of the applicant’s relatives for harming him was due to their perception that he was “a threat to their ascent in political life” amounted to a finding that the father’s cousins had imputed to the applicant an opinion that he was opposed to their political beliefs consistent with the political view that had been held by the applicant’s father. Hence it was submitted that in this context the finding that the serious harm faced by the applicant was not for a Convention reason, but for a personal reason, was irrational and illogical and not based upon findings or inferences of fact supported by logical grounds in the sense considered in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16.
Reliance was placed on the fact that there was evidence before the reviewer that the applicant’s relatives wished the applicant to “meet” his father (who was dead), that his father had been persecuted and killed because of his opposition to the Ba’ath Party, that the two relatives were former members of the Ba’ath Party, that they themselves held political positions in the Government as at 2006, that one of them continued to hold a political position as Chairman of a Provincial Council and that the IMR had found that the applicant was “a threat to their ascent in political life”. In addition there was said to be an absence of any evidence that there was any personal connection with the applicant such that the relatives could be said to hold a grudge or grievance against the applicant as a personal matter. It was submitted that in these circumstances the finding that the relatives were motivated for a personal reason was not based on probative evidence or logical grounds.
As the first respondent contended, and as recognised by the Full Court of the Federal Court in Ramirez the existence or otherwise of a Convention motivation is a question of fact for the decision-maker. In Ramirez the applicant had claimed to fear that a particular guerrilla group (the ELN) would kill him if he returned to Colombia. The Tribunal found that the motivation for any harm feared was not the applicant’s imputed political opinion or any Convention nexus. Relevantly, the court stated at [38]:
In this case the Tribunal accepted that criminal extortion can be persecutory in certain circumstances. However it found that the ELN were "motivated by profit" and that their actions were "criminal and not political in nature". This was a finding of fact, not a general statement to the effect that criminal activity cannot also be politically motivated.
The Full Court in Ramirez rejected a submission that the Tribunal had failed to recognise that a person may be motivated to persecute for more than one reason and, relevantly, went on to state (at [43]) that “[had] the ELN’s activities had a political dimension, as [the applicant had] submitted to the Tribunal, then mere acts of resistance to the organisation might have been taken to manifest a contrary political opinion” attracting the attention and protection of the Convention. However their Honours observed at [43] that “the Tribunal's finding that there was no political component in the ELN's actions precludes such a conclusion in this case.”
In this case the reviewer dealt with the issue of the motivation of the applicant’s relatives at some length. She found that there was “no clear evidence as to why [the applicant’s] father’s cousins want[ed] to kill him”, referring to the evidence before her and the applicant’s speculation that the relatives were “afraid he [would] expose them for their part in his father’s death”. The reviewer found (at [120]) that she could not be satisfied on the material available as to what the essential and significant reason was for the relatives wanting to kill the applicant, pointing out that a “well-founded fear must be based on probative evidence and not on mere speculation”. The IMR then suggested that the most likely reason was because the relatives feared that the applicant may bring to light their involvement in the death of his father and that this may adversely impact on them in circumstances where they perceived him to be “a threat to their ascent in political life by exposing their involvement in his father’s death”. According to the reviewer such a likely reason was a personal reason and not a Convention reason.
Notwithstanding that another decision-maker might have reached a different conclusion on the same facts or even if the court might disagree with it, the IMR’s findings in this respect were findings that were open to the IMR. Without more such findings do not manifest any error of law or failure to apply the correct legal principles as contended in ground four (Also see SZDJQ & SZDJR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 533).
The applicant failed in this part of his claim because he did not satisfy the IMR that the essential and significant reason for the feared harm was a Convention reason. Such a conclusion was open to the reviewer. This does not give rise to the same sort of error as was found in Singh or SZJRI. Nor is this error apparent in the IMR’s further conclusion that the risk of serious harm arose because of a private plan by members of the applicant’s father’s family to silence him, such that the harm feared was not for a Convention reason but for a personal reason.
It has not been established that the reviewer applied a false dichotomy between revenge and political motivation. Rather, she came to a finding on the evidence concerning the motivation of the applicant’s father’s cousins that was open to her, even if such finding is read as a rejection of the applicant’s claim that his father’s cousins imputed an anti-Ba’ath Party political opinion to him and even if a different decision-maker may have reached a different conclusion on the same evidence.
The reviewer addressed the claim that the relatives imputed a political opinion of opposition to the Ba’ath Party and Ba’ath Party members. She found that there was speculation but no clear evidence as to why the relatives wanted to kill the applicant and could not be satisfied on the material available what the essential and significant reason was for the relatives wanting to kill the applicant. After this finding, the reviewer expressed the view that the most likely reason was because they feared he may bring to light their involvement in the death of his father and that this may adversely impact on them and that they perceived him to be a threat to their ascent in political life. In that context the reviewer stated “This is a personal reason and not a Convention reason”. Subsequently the reviewer appeared to firm up in her views, concluding that the risk of serious harm to the applicant arose “because of a private plan by members of his father’s family to silence [him]”. This was found to be for a personal reason and not for a Convention-based reason.
Counsel for the applicant submitted that in circumstances where the IMR had held that the relatives were motivated to harm the applicant to further their political objectives the finding that such motivation was personal and not political was unreasonable, irrational and illogical and was not based on findings or inferences of fact supported by logical grounds or was a decision to which no rational or logical decision maker could arrive on the same evidence (SZMDS). It was submitted that even if the IMR was reasoning from the “most likely reason” for the persecution being the elimination of threat to their political life, this was consistent with a Convention rather than personal reason.
However it has not been established that the reviewer’s finding was unreasonable, irrational or illogical such as to constitute or demonstrate reviewable error within the principles discussed in SZMDS or otherwise. The reviewer had found that the father’s cousins may wish to silence the applicant as he may in future be able to seek redress for his father’s death. This finding and the subsequent conclusion were open to the IMR given the applicant’s own evidence. As a criminal motivation does not necessarily involve a “political” motivation, it cannot be said that the finding was not based on findings or inferences of fact supported by logical grounds or so unreasonable that no rational or logical decision make could arrive at it. It was open to the IMR to see the likely motivation as one of self-protection rather than the frustration of any political ideal or otherwise for reason of the applicant’s actual or imputed political opinion.
It is necessary to bear in mind the limits on the error of the nature contended for by the applicant. As Crennan and Bell JJ stated in SZMDS at [130] (albeit in relation to the Refugee Review Tribunal):
In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case (Emphasis added).
Their Honours continued at [131]:
The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In this case it cannot be said that it was not open to the reviewer to engage in the process of reasoning she engaged in or to make the findings she made on the material before her. This is not a case in which only one conclusion was open on the evidence. Nor can it be said that the findings made by the reviewer were not open on the evidence or that there was no logical connection between the evidence and the inference drawn by the reviewer. While the reasoning is not as clear as it might be, it cannot be said that the reasons are unintelligible, or that the IMR made a critical finding by inference that was not supported on logical grounds. (SZMDS at [53] per Gummow CJ and Kiefel J) or that there was absence of any logical connection between the evidence and the reasons for the findings in question (see SZMDS at [132] – [136] per Crennan and Bell JJ). Even if other reasoning on this issue would have been open which may have led to the opposite conclusion, this does not establish that the decision was so unreasonable that no reasonable decision-maker could have arrived at it (see Minister for Immigration and Citizenship v MZYCE and Others (2010) 116 ALD 156; [2010] FCA 767). Ground five is not made out.
Opportunity to comment upon adverse information
The sixth ground in the amended application is that the IMR “failed to afford procedural fairness to the Applicant, in that she failed to provide the Applicant with the opportunity to comment on critical information which formed part of the reasons of the Second Respondent for making a finding that the Applicant did not meet the criterion for a protection visa.” The particulars to this ground are as follows:
6.1 The [IMR] found that the Applicant had a well-founded fear of being seriously harmed or killed by his relatives, [C1 and C2].
6.2 The [IMR] held that the motivation for [C1 and C2] wanting to harm the Applicant was personal and not political or Convention related.
6.3 The [IMR] did not give the Applicant the opportunity to comment on the issue of whether the risk of serious harm arose because of a private plan by members of the Applicant’s father’s family to silence the Applicant.
6.4 The [IMR] did not give the Applicant the opportunity to comment on the issue of whether the serious harm feared by the Applicant was for personal reasons and not for Convention based reasons.
6.5 The [IMR] did not give the Applicant the opportunity to comment on the US State Department Report on Human Rights Practices in Iraq for 2010, published on 11 April 2011, which the IMR considered may bear upon the claims made by the Applicant.
It is not in dispute that an IMR is bound to afford procedural fairness to a person whose claim is being reviewed as acknowledged in Plaintiff M61/2010E in which the High Court stated at [91]:
… procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. … The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made.
Nor is it in dispute for present purposes that this standard differs from that provided for in s.424A of the Migration Act which is not applicable in this case (also see SZQEK v Minister for Immigration & Anor [2011] FMCA 628 at [27] – [31]).
The applicant submitted that the obligation on the reviewer to afford procedural fairness was confirmed by the Guidelines for Independent Merits Review of Refugee Status Assessments in force at the time of the review (which are in evidence before the court). These state that the reviewer will “provide the claimant with an opportunity to comment on adverse information which is credible, relevant and significant to the review” and “manage the interview process to provide the claimant with an opportunity to comment on any inconsistencies or adverse information” (at pp11 and 17). Attachment D to the Guidelines provides that:
…if new credible relevant and significant information becomes available that is adverse to the claimant, the information, along with written reasons why it may be adverse to the claimant, should be provided to the claimant through their agent for comment.
The IMR was said to have failed to accord procedural fairness to the applicant by failing to give him the opportunity to comment on certain country information and on certain “issues”.
In particular, it was said that there was country information known to the IMR which the IMR considered may bear upon the claims made by the applicant in the US Department of State Country Report on Human Rights Practices in Iraq for 2010 dated 8 April 2011.
The IMR referred to the discussion of security and human rights issues in Iraq in this Report (at paragraph [99]) of the reasons as follows:
Iraqi security forces (ISF) reported to civilian authorities, but continuing violence, corruption, and organizational dysfunction undermined the government's ability to protect human rights…
Extremist violence, coupled with weak government performance in upholding the rule of law, resulted in widespread and severe human rights abuses. Terrorist groups, such as al-Qaida in Iraq (AQI), and other extremist elements continued to launch highly destructive attacks, attempting to influence the elections and government formation process, fuel sectarian tensions, and undermine the government's ability to maintain law and order. Extremist and AQI attacks continued against ISF and government officials. AQI and other extremists also conducted high-profile bombings targeting urban areas, Shia markets, and mosques, and Shia religious pilgrims.
During the year there were press reports and personal accounts that the government or its agents committed numerous arbitrary or unlawful killings connected to its security operations. These numerous accounts and press reports accused government security forces of being responsible for unlawful deprivation of life. The outcome of official investigations was often unpublished, unknown or incomplete.
With the increased exercise of central government authority over security forces, widespread and confirmed unauthorized government agent involvement in extrajudicial killings largely ceased, although there were reports of individuals using their security positions to settle personal grievances and grudges. (Emphasis added by the IMR)
Violence against the civilian population perpetrated by terrorist groups remained a problem during the year, and bombings, executions, and killings were regular occurrences throughout all regions and sectors of society.
Although the law provides criminal penalties for official corruption, the government did not implement the law effectively. Large-scale corruption pervaded the government, and public perception of government corruption and impunity continued to be strong. Intimidation and political influence were factors in some allegations of corruption, and officials sometimes used the "de-Ba'athification" process to pursue political and personal agendas.
Anticorruption institutions were fragmented, and their interaction was hampered by a lack of consensus about their role, partly due to a lack of effective legislation as well as to insufficient political will to eliminate widespread corruption. Lack of accountability continued to be widespread, reinforced by several statutory provisions, unclear regulatory processes, and limited transparency.
The applicant submitted that it was apparent that the IMR highlighted part of the 2010 US Department of State Report because it supported the IMR’s subsequent finding that any persecution feared by the applicant from his father’s cousins would be for a personal reason and not a Convention reason. It was submitted that in circumstances where there was evidence before the IMR that one of the relatives in question had a position which involved influence and control over security forces there was a direct link between that issue and the extract from the State Department Report, particularly as the Report also stated that “Intimidation and political influence were factors in some allegations of corruption, and officials sometimes used the “de-Ba’athification” process to pursue political and personal agendas” (emphasis added).
In the findings and reasons part of the recommendation, after accepting that the applicant was a credible witness and accepting that the course of events which led to him to leave Iraq was as he had stated, the IMR also accepted that in 2006 C1 and C2 were both involved with the Iraqi government and held political positions, that both were prominent in current day Iraq and held high ranks in the Ba’ath Party and, importantly, that one of those relatives was Chairman of the board of a particular Provincial government. In other words the reviewer accepted that the applicant was a credible witness and had a fear of harm from those relatives and also that those relatives would have the means and power to execute their threats against the applicant.
The applicant submitted that the reviewer’s finding that the motivation for the relatives wishing to harm him was personal and not for a Convention reason was a critical and highly important part of the reviewer’s reasons for decision. It was contended that the only basis upon which the reviewer determined that the threat of harm from the applicant’s relatives did not give rise to a well-founded fear of persecution for a Convention reason was that the serious harm that was feared was not for a Convention reason but for a personal reason. In this context it was submitted that the country information in question from the 2010 US Department of State Report was information which the IMR considered may bear upon the applicant’s claims and that it had to be put to him as a matter of procedural fairness.
In addition, it was submitted that the obligation to provide an opportunity to the applicant to comment extended not only to country information but also to any critical issue or factor upon which the decision was likely to turn, consistent with the approach of the High Court in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19] and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at [29] – [35].
It was submitted that Saeed provided support for the proposition that procedural fairness required the IMR not only to provide the applicant with an opportunity to comment on adverse information, but also on issues significant to the resolution of the application, having regard to the fact that the joint judgment of French CJ, Gummow, Hayne, Crennan and Kiefel JJ referred (at [19]) with apparent approval to what had been said by both Brennan and Mason JJ in Kioa and Others v West and Another (1985) 159 CLR 550; [1985] HCA 81 as follows:
Brennan J in Kioa v West said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is "credible, relevant and significant". That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs. Mason J in Kioa v West went further. In his Honour's view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J's approach would not deny that this may be necessary in a particular case. (Footnotes omitted)
Furthermore, it was pointed out that in SZBEL Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ had referred with approval (at [32]) to the remarks of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 at [27] that:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material... (Emphasis added by the High Court)
The applicant submitted on the basis of these principles that the IMR had erred in failing to give him the opportunity to comment or make submissions in relation to the critical issue of whether the motivation for his relatives harming him was personal and not political.
The transcript of the applicant’s interview with the IMR is before the court. It was submitted for the applicant that while the reviewer had been quite assiduous in putting a number of other matters to the applicant and his migration agent for consideration, this was not one of those matters. Thus there was said to be no occasion on which the IMR had raised with the applicant that the motivation for harm had nothing to do with the fact that one of his relatives was Chairman of a provincial government or that he was trying to protect his political position or the fact the applicant was the son of someone opposed to the Ba’ath Party or, more generally, that all he feared was harm from private individuals acting as non-state agents which had no Convention nexus.
It was submitted that the fact that the applicant raised with the reviewer the possibility that he might be able to sue his relatives did not mean that the applicant had himself raised this issue, as this did not explain the motivation or imputed motivation of his relatives or what the relatives understood would be the applicant’s motivation for bringing such proceedings. It was submitted that the possible threat of litigation against the relatives by the applicant did not take away from the fact that the relatives may have imputed to him a political reason for wishing to harm them as the son of someone who was an opponent of the Ba’ath party.
The applicant acknowledged that the IMR had explored with him the reasons why his relatives may wish to harm him, but submitted that she had erred in failing to put to him that the motivation for these individuals wishing to harm him was personal and not political or Convention-related.
It was submitted that insofar as it may be said that it was not apparent that it had occurred to the reviewer at the time of the interview that this might be a basis upon which she would find against the applicant because the US Department of State Report which allegedly raised the issue as to whether the motivation may be personal rather than political was published after the interview, the fact that an issue was not apparent to the decision-maker at the time of the interview was not an answer to the proposition that the IMR was required to put matters that were critical to the resolution of the application to the applicant for comment. It was submitted that this could be done at a later point in time, whether in writing or by way of a further interview.
It is clear that such information was not put to the applicant for comment at the interview. The 2010 report was not published until 11 April 2011, which was after the interview on 4 April 2011. There is no suggestion of any subsequent communication by the IMR with the applicant after the interview and no evidence that the IMR put the State Report to the applicant for comment. I also accept that there is no suggestion in the evidence before the court that any other country information of similar content was put to the applicant for comment.
As the first respondent submitted, M61 reflects the previously understood law of procedural fairness as determined in cases such as Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22. Hence it is necessary to consider whether there was a failure to accord the applicant procedural fairness.
Particular 6.3 to ground six involves an assertion that the reviewer denied the applicant the opportunity to comment on whether his relatives wished to “silence” him to protect themselves from the possibility that in future he may seek redress for his father’s death. However in the course of the interview the applicant had himself suggested this as a motivation. The reviewer was not obliged to inform the applicant (either during the interview or otherwise) that she might find that this circumstance did not establish a Convention nexus. Procedural fairness does not require that the IMR give the applicant a running commentary on what she thought of his evidence or to set out her ultimate conclusions for his consideration (see SZBEL at [48] and Re Minister of Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 77 ALJR 1969; [2003] HCA 60 at [54]).
The issue of the need for a Convention nexus was addressed at the interview and raised with the applicant’s adviser who was given opportunity to make post-interview submissions. There is no basis to suggest that the reviewer had formulated a view in that respect at the time of the hearing. The reviewer discussed with the applicant his claim that his relatives wanted to harm him because he could sue them when democracy came to Iraq. It cannot be said that procedural fairness required that the reviewer warn the applicant that his evidence in this respect (and whether it established a Convention reason for the harm feared) may not be accepted.
To the extent that the IMR had to consider whether the evidence she accepted gave rise to a Convention nexus, that ultimately was a part of the reviewer’s thought processes. Under normal principles (see SZBEL) such a conclusion would not have to be put to an applicant unless it was one that was not obviously open (see Alphaone). It has not been established that it was not obviously open to the reviewer to find that there was no Convention nexus, or not to be satisfied that a Convention reason was the essential and significant reason for the harm feared, particularly having regard to the fact that this issue had been addressed at length in both oral and written submissions to the IMR.
Nor has it been established that there was an expectation created by the reviewer that the particular claim that the applicant’s relatives were motivated by Convention reasons (such as the applicant’s imputed political opinion) would be accepted or that the reviewer was under an obligation to give advance warning of her conclusions to comply with procedural fairness in the manner contended for in ground six, particulars 6.3 and 6.4.
Insofar as it was contended that the reviewer erred in not giving the applicant the opportunity to comment on the US Department of State Report on Human Rights in Iraq, as Rares and Jagot JJ stated in Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45 at [30]:
However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.
The information that the applicant contended had to be put to him for comment was information contained in the 2010 US Department of State Report. The reviewer set out an extract from the Report in its reasons. The applicant submitted that this Report was relied on in support of the reviewer’s finding that the applicant’s claimed fear of harm was for a personal reason rather than a Convention reason, in particular, information that persons in “security positions” were using their positions to “settle personal grievances and grudges”. However it is not clear from the reasons what adverse conclusions, if any, the reviewer drew from this particular report. The fact that the words “although there were reports of individuals using their security positions to settle personal grievances and grudges” in the US Department of State Report were emphasised in the extract from that material included in the IMR reasons indicated that this was of some significance to the decision. However this does not establish that it was of significance in a way that was adverse to the applicant on the basis of the reviewer’s observation that it was most likely that the relatives were motivated by personal rather than Convention reasons such that this constituted a critical matter that needed to be disclosed to the applicant. Even if the relatives could be described as in “security positions”, the passage emphasised in the US Department of State Report did not state that anyone in a security position who used that position to settle a grievance was necessarily motivated by a personal, as opposed to a Convention reason. Rather, as the first respondent submitted, it was posited that people in security positions may seek to abuse those positions by pursuing personal grudges, rather than legitimate matters. This was consistent with the applicant’s own claims. The passage in question did not suggest that such “personal”, as opposed to legitimate, grievances may not thereby fall within the Refugees Convention, as this was not an issue addressed by the Report.
There is nothing in the reviewer’s reasons, read fairly, to suggest that the Report was regarded as adverse to the applicant or to suggest that the reviewer regarded what was said in it in the manner contended for by the applicant (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272; [1996] HCA 6). Indeed in one sense this part of the Report could be seen as corroborative of the applicant’s claims to fear harm from his relatives, a claim which the reviewer accepted. It has not been established that the passage in the Department of State Report had to be disclosed to the applicant for comment (see Miah at [141] per McHugh J).
Ground six is not made out. However, as it has been established that the recommendation was not made in accordance with law on the bases contended for in Grounds one and two the orders sought by the applicant should be made.
I certify that the preceding one-hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 24 April 2012
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