SZQSS v Minister for Immigration & Anor
[2012] FMCA 31
•20 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQSS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 31 |
| MIGRATION – Review of recommendation of an Independent Merits Reviewer – applicant requested leave to further amend “grounds of review” after the conclusion of the hearing – whether the reviewer’s finding was illogical or irrational – consideration of relocation was not necessary – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 189 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Applicant: | SZQSS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2292 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 1 December 2011 |
| Date of Last Submission: | 1 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Cirillo |
| Solicitors for the Applicant: | Holding Redlich |
| Appearing for the Respondents: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 10 October 2011, and amended on 10 November 2011, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2292 of 2011
| SZQSS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 10 October 2011, and amended on 10 November 2011, seeking review of the decision made by the second respondent, Dr R. Witton, (“the reviewer”) to recommend to the first respondent (“the Minister”) that the applicant in these proceedings was not owed protection obligations by Australia pursuant to the United Nations Convention Relating to the Status of Refugees[1], and should not therefore ultimately be considered by the Minister for the granting of a protection visa.
[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
The application to the Court also seeks injunctive relief, and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14 (“M61/M69”).
Background
The Minister has put a bundle of relevant documents before the Court (Court Book – “CB”). The following, relevantly, can be ascertained.
The applicant arrived in Australia on 10 September 2010. He arrived by boat, without authority under the Migration Act 1958 (Cth) (“the Act”). He was therefore treated by the immigration authorities as an “unauthorised arrival”, or as “an irregular maritime arrival”, and detained under s.189 of the Act.
With the assistance of lawyers, he sought an assessment of his claim to be in need of protection. That is, that he met the definition of “refugee” as set out in Art.1A(2) of the Refugees Convention (CB 66 to CB 106).
On 11 February 2011, an officer of the Minister’s department found that the applicant did not meet the definition of “refugee” (CB 107 to CB 117).
Again with assistance, the applicant requested an “Independent Merits Review” of the initial assessment (CB 118 to CB 154).
The second respondent in these proceedings conducted this review. He found that the applicant did not meet the criteria for a protection visa as set out in s.36(2) of the Act. That is, he did not meet the definition of “refugee”. He therefore recommended that the applicant not be recognised as a person to whom Australia had protection obligations (CB 205 to CB 220).
The Claims to Protection
The applicant claimed to be a Sunni Muslim of Arab ethnicity and an Iraqi citizen by birth. He claimed to fear persecutory harm from Shia extremists, militia and officials if he were to return to Iraq.
This claim was said to derive from his (now former) membership of the Ba’ath Party, his Sunni religion, political opinion imputed to him because of his employment by a British company in 2005, the jealousy of a Shia former work colleague who failed to gain promotion, and because of his status as a returned asylum seeker from “the West” (membership of a “particular social group”).
The applicant relied on three claimed instances of past harm in support of his claim to protection.
First, the applicant claimed that in July 2006 he received a letter with a bullet accompanying it (“the threatening letter incident”). The letter was said to contain the following (CB 92.4):
“This is the destiny of all traitors and those who work for agents from other countries and to all Wahhabis and hypocrites.”
Second, he claimed that on 13 April 2010 he was travelling with two friends on a motorcycle which had been adapted to carry several passengers. On approaching a check-point he realised that he had forgotten his identity documents. He alighted from the motorcycle and got on a bus to pass through the check-point. His two friends continued on the motorcycle and were blown up by a bomb left on the road.
He claimed that after he returned home that night he received a threat over the telephone. The caller said: “This time you have run away. Next time you will not be able to.” This, and subsequent statements from other people, led him to believe that he had been the target of the explosion (“the bomb on the road incident”) (CB 92.5 to CB 93.3).
Third, he claimed that six days later, on 19 April 2010, another attempt was made on his life. While going home with a friend, a car stopped near them, a person got out of the car and fired (presumably a gun) in their direction. His friend was shot and killed. As the applicant was running away he heard “one of them” shout: “…kill the Baathi, kill the Wahhahi” (CB 93.4) (“the shooting incident”).
The reviewer accepted some of the applicant’s claims, namely:
1)He was a member of the Ba’ath Party, albeit on the applicant’s own evidence: “only an ordinary member” ([36] at CB 217).
2)He worked for a British associated company in 2005 to 2006 ([37] at CB 217).
3)Two of his friends were killed on his motorcycle by a bomb on the road ([39] at CB 217).
The reviewer did not accept the other key elements in the applicant’s claims:
1)He found it implausible, and therefore did not accept, that the applicant “happened” to dismount, for the purpose of crossing the border on a bus to avoid document checks, and that the explosion was meant to kill the applicant ([39] at CB 217).
2)Further, he did not accept “that a bomb on the road in the midst of the traffic could be detonated with sufficient precision to kill” the applicant ([39] at CB 217).
3)On the basis of (1) and (2) above, the reviewer found that while his friends were killed in this manner, the applicant “fabricated” his claimed actions to “create evidence that he was being targeted” ([39] at CB 217) (“the bomb on the road incident”).
4)In light of the finding that he fabricated his claim that he managed to avoid the bomb blast, the reviewer was not satisfied that there was a second attempt on his life (“the shooting incident”) ([40] at CB 218).
5)Similarly flowing from his finding as to fabrication, the reviewer found that no threatening letter was left under his door ([40] at CB 218) (“the threatening letter incident”).
While the above findings primarily constitute the area of dispute between the parties, it is important to note the following findings:
1)As there was no evidence that the applicant continued to support the Ba’ath party there was no real chance he would be targeted for this reason ([41] at CB 218).
2)There was no real chance he would be targeted by police or troops because he was a Sunni ([42] at CB 218).
3)The claim to fear harm from a fellow employee lacked credibility and was not accepted ([43] at CB 218).
4)While the reviewer accepted that sectarian conflict (Sunni/Shia) continued in Iraq on a random basis, arising generally from the applicant’s evidence, there was not a real chance he would suffer “serious harm” for this reason (as this term is relevantly understood) ([44] at CB 218).
5)Having regard to the applicant’s own circumstances, the reviewer did not accept he would suffer harm on return as a failed asylum seeker from a Western country ([45] at CB 219).
6)With reference to the applicant’s circumstances, the reviewer found that he would not suffer harm for reason of membership of a “particular social group” of persons previously employed by Western companies ([46] at CB 219).
7)The reviewer was not satisfied there was a real chance that the applicant would suffer serious harm for a Convention reason in light of the continuing conflict in Iraq ([47] at CB 219).
The reviewer also found that if the applicant had a subjective fear of living in Basra he could relocate to Salah al-Din (a Sunni city) where, on his own evidence, he had lived and worked safely ([48] at CB 219).
The Amended Application
The amended application before the Court advances one particularised ground:
“1. In recommending to the first respondent that the applicant was not a person to whom Australia owed protection obligations, the second respondent made an error of law in that the second respondent’s recommendation was irrational or illogical.
Particulars
a. The second respondent found that the applicant had ‘fabricated’ his claim that a roadside bomb that killed the applicant’s friends was intended to kill the applicant. There was no logical or rational basis for drawing the inference that the applicant had ‘fabricated’ this claim given that there was no evidence before the second respondent that the applicant fabricated any facts that were reasonably within the applicant’s knowledge in recounting the roadside bomb incident.
b. It was therefore illogical or irrational for the second respondent to use the finding of fabrication referred to in (a) above as a basis for declining to give independent consideration to other fundamental aspects of the applicant’s factual claims and adequately articulating reasons for rejecting the claim.”
At the hearing of this matter, Ms S Cirillo of counsel appeared for the applicant. Mr O Jones represented the Minister. In addition, written submissions were made by both parties.
The Applicant’s Arguments
The applicant asserts that the reviewer made an illogical or irrational finding that the applicant fabricated his involvement in the roadside bomb incident. The use that the reviewer made of that finding in rejecting the other critical aspects of the applicant’s factual claims (the threatening letter incident and the shooting incident) impugns the reviewer’s state of satisfaction that the applicant was not a person to whom Australia owed protection obligations.
To assert jurisdictional error in the reviewer’s decision, the applicant relies on the test for illogicality or irrationality as expressed in the joint judgement of Crennan and Bell JJ (with whom Heydon J, for another reason, formed the majority) in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) at [131]:
“What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. 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, a decision cannot be dais by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
The applicant’s submissions ranged over a number of matters. These included the lack of evidence to found the reviewer’s finding of fabrication, the lack of proper articulation of the reviewer’s reasoning, and the lack of independent consideration (that is, in the assessment of the shooting and letter incidents in, and of, themselves).
It is important to note that while any one, or all of those, may have led to jurisdictional error being found in their own right (so to speak), I did not understand the applicant’s case to be put on any alternative basis.
Rather, the attack was that these were factors that were involved in, and revealed irrationality or illogicality in, the reviewer’s reasoning, thus impugning the level of satisfaction reached, and thereby revealing that the decision was affected by jurisdictional error.
Consideration
While the applicant relies on SZMDS at [131] per Crennan and Bell JJ, as the expression of the test for illogicality and irrationality, what their Honours said at [130], in my respectful view, informs the understanding and application of that test:
“In the context of the Tribunal’s decision here, ‘illogically’ 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.”
That last sentence was echoed by Greenwood J in SZOXJ v Minister for Immigration and Citizenship [2011] FCA 922 at [44] in that the Courts “ought not lightly” find that a decision made was not so open to be made by the relevant decision-maker.
Further, in the current case the applicant’s attack focused only on the actual reasoning presented by the reviewer. The applicant did not refer to that part of [131] of SZMDS which distinguished that approach from the test for illogicality and irrationality:
“What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. 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…”
While Heydon J found it was not necessary in the circumstances of SZMDS to determine the questions of law, his Honour’s approach to the resolution of the appeal in SZMDS, in my respectful view, provides direction and instruction in the current circumstances. Particularly as to how his Honour found that the decision-maker’s analysis and reasoning in that case was not illogical (SZMDS at [87]).
First, Heydon J found it desirable in considering whether the Federal Court (whose judgment was the subject of the appeal) was “wrong” in “… characterising the reasoning of the Tribunal as having ‘simply no basis’, as being ‘completely unsustainable as a piece of logical analysis’, and as ‘based squarely on an illogical process of reasoning’...” (at [57] of SZMDS) “… to consider the nature of the persecution that the first respondent claimed to fear, and the reactions of the Tribunal member to the first respondent’s claims in respects other than the two particular issues on which the appeal turns, before going to those two issues.” (At [59] of SZMDS.)
This underpins the Minister’s submissions in the current case, that consideration of whether the reviewer fell into error by way of illogical or irrational analysis requires regard to be had to all of the reviewer’s consideration in relation to all of the claims advanced, as they informed the ultimate conclusion as to the state of satisfaction. That is, the decision as a whole (see SZMDS at [130] per Crennan and Bell JJ).
Second, in addressing the Federal Court’s reasoning as to how the decision-maker in SZMDS was said to have reasoned illogically, Heydon J said (at [78]):
“The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could be said to reveal an absence of any basis whatsoever for her conclusion.”
In my respectful view, the reference here to “minds might differ” is sympathetic to what was said by Crennan and Bell JJ at [131].
What is immediately apparent in the applicant’s attack, in particular, is that the attack is based on a reading of parts of the reviewer’s analysis, read in isolation, and not necessarily in context. A reviewer’s record is not one to be read over zealously with an eye finely attuned to error (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 (“Wu Shan Liang”)). A fair, and holistic, reading is required.
However, I will return to other aspects of the totality of the decision below. In the meantime, for the reasons that follow, I agree with the Minister that even in the specific instances put forward by the applicant, no irrationality or illogicality can (as understood in light of the whole) be made out.
The applicant says there was no probative or circumstantial evidence before the reviewer to found the finding that the applicant’s claimed actions and beliefs (dismounting the motorcycle, and that the bomb was meant to kill him) were a fabrication.
The obvious answer to this is that there was the applicant’s evidence, both specific to the bomb on the road incident, and generally.
The reviewer’s findings need to be understood in context of the analysis as a whole. He accepted that the applicant had been a former member of the Ba’ath party, albeit “an ordinary member”, and that he had been briefly detained by police following violence ([36] – [37] at CB 217).
The reviewer also accepted that sectarian violence continued in Iraq, and that “… both Shi’a and Sunni adherents of Islam continue to be killed, often in random violence.” The reviewer also noted the applicant’s evidence that some “… individuals whose photos appeared in the document, have been killed…” ([44] at CB 218).
Within these circumstances, the reviewer found as plausible, and accepted, that two of the applicant’s friends were killed on the motorcycle by a bomb on the roadway.
What the reviewer could not accept, what plainly he found unbelievable, was that anyone who sought to kill the applicant, that is, by specifically targeting him, would seek to do this by leaving a bomb on the road at a checkpoint just prior to the applicant coming along on his motorcycle at that time.
Further, what was found to stretch the level of plausibility to implausibility, was that great chance would have it, the applicant had forgotten his identity documents, and happened to alight at the most critical of moments.
The reviewer’s approach in this regard mirrors the test ultimately imposed as to the likelihood of serious harm or persecution. The test of chance is that of a “real chance” (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan Yee Kin”)). A remote chance is not sufficient to make a fear well-founded.
This is echoed in the analysis of the reviewer in relation to the factual findings specific to the bomb on the road incident.
The use of the word “implausible” explains the reviewer’s thinking and reveals the very evaluation of, and assignment of weight to, the evidence before him, which is central to the reviewer’s task.
Implausibility is not an absolute. It is a reflection of the difficulty in accepting the totality of the applicant’s evidence in relation to the bomb on the road incident. It reflects the difficulty in accepting as true that, in the circumstances, people would try to kill him by targeting him in the manner claimed, and that he had just happened to alight from the motorcycle at such a critical moment. The reviewer’s thinking was that while this was not impossible, it was improbable or implausible.
The specific finding of fabrication arose out of this evaluation. The “logic” of the reviewer’s analysis is plain. If the applicant’s account and claimed belief, in the circumstances, was so implausible then he must have made-up this part of his evidence so as to enhance his refugee claims.
What is important to also note is that part of the reviewer’s analysis was ignored by the applicant’s submissions. In making his finding of fabrication the reviewer specifically said that he ([39] at CB 218):
“... considered the claimant’s evidence that such bombs have been used to kill other people but finds that while this does indeed occur, it is typically when a high profile person with precise movements is involved, as was the case of the ‘highly ranked person’ in the example cited by the claimant in his oral evidence to the reviewer.”
In other words, what also made the applicant’s account implausible, and therefore a fabrication, was that he did not fit the profile of persons who have been killed by bombs on the road such as to have made his account plausible in that sense.
The applicant’s reliance on authorities from which to draw principles to be relevantly applied in the context of fabrication do not assist for at least two reasons.
The applicant relied on Firuzibakhsh v Minister for Immigration & Multicultural Affairs [2002] FCA 982 (“Firuzibakhsh”) per Mansfield J, and WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 (“WAEJ”) at [55] per Lee, Hill and Marshall JJ.
First, as is clear, both authorities were concerned with findings by decision-makers that documents provided in corroboration of claims were “fabrications”.
In the case of WAEJ the consideration (at [55]) was directed to a situation of a “bare assertion”. That is, that the decision-maker in that case would have acted in “an arbitrary and unreasoned” way if the conclusion reached was “unsupported by a scintilla of material”.
Such occurrence may arise where a decision-maker, having expressed some concerns with the credibility of an applicant’s claims, but not to the extent as allowed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (“S20/2002”), then goes on to reject corroborating documentary evidence with simply a mere assertion.
This situation is not analogous to the current circumstances. The reviewer did not make any unsupported arbitrary rejection of the genuineness of a document put in support of a claim.
Further, as is clear in Firuzibakhsh, what these authorities were directed to was the difficulty in evaluating the genuineness of documents. As Mansfield J said (at [42]) in that context “… it would be an exceptional circumstance that direct evidence of fabrication of such a document were available.” Therefore, in these circumstances, that is in the absence of such direct evidence, it is the circumstantial evidence to which regard must be had.
These considerations are not analogous to the current circumstance.
Second, even allowing that even if some analogy can be drawn, that is, (respectfully paraphrasing what is said in Firuzibakhsh at [42]), the need, in coming to a conclusion that evidence or claims have been fabricated, that regard must be had to the circumstances present, of the appearance or presentation of the relevant evidence, its context, its content, its timeliness, its delivery, and the other evidence surrounding it. This is precisely what the reviewer did in the current circumstances.
The applicant also asserts in submissions that the part of the reviewer’s decision record relevant to the bomb on the road incident ([39] at CB 217, see also [49] above) had been written “with a distinct lack of clarity”.
I understand the attack to be that there was nothing at [39] (at CB 217) to say what was “implausible” about the applicant’s relevant account.
The applicant’s stated cautionary note said to arise from Wu Shan Liang, and Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 162 ALR 577, about how such decision records are to be read (not to be construed minutely), and the weight to be given to evidence, and the use to be made of it, is an exercise within jurisdiction, appears to have been otherwise ignored in his submissions, notwithstanding the note made of them.
As set out above, the reviewer’s analysis when read fairly, holistically, and in context, does reveal the reasoning for the finding of implausibility. While the weight attached to, and the use made of, the applicant’s evidence is plainly not to the applicant’s liking, this does not make the analysis irrational or illogical. It is simply an example of where “minds might differ”.
The applicant’s charge that the reviewer failed to identify with sufficient clarity what part of the applicant’s evidence was implausible, and a fabrication (with reliance on SZGLP v Minister for Immigration & Citizenship [2008] FCA 1198 at [21] and [25] per Gordon J) must, in light of the above, be rejected.
The applicant also submits that the reviewer’s analysis did not make clear, nor was any finding made, whether the applicant was present, or near the road, when the bomb exploded.
At best this appears to be an attempt to challenge the facts found by the reviewer, and to say, in the absence of other “facts” about which he should have made a finding, that the reviewer’s conclusion as to implausibility, and hence fabrication, was illogical.
I understood the argument to be that having accepted that the applicant went to Damascus from January 2008 to January 2009 ([38] at CB 217), the reviewer accepted that he then returned to Basra ([39] at CB 217).
Given other evidence before the reviewer, it was unclear whether the applicant permanently returned to Basra following his time in Damascus, or that the applicant returned to Basra from his time in Zubair (see the claim at CB 59, where the applicant’s evidence at the time of being interviewed on arrival by an officer of the Minister’s department was that the bomb on the road incident occurred on a trip from Zubair to Basra).
The import of this is said to be that if the reviewer had accepted that the applicant was travelling with his two friends to Basra, then it cannot be logically said that the applicant fabricated his account to have escaped the bomb. The “logic” being that if he was present, then his account explains why he was not affected by the bomb blast.
Putting to one side that this now enters into the realm of speculation, and is a usurpation of the role and task of the reviewer, the answer to the question implicit in the submission may be, amongst many others, that he was present on the bus and that his friends were on the modified motorcycle.
But this simply illustrates the deficiency in this line of attack. It is not for the Court, nor the applicant, to seek to substitute or make “additional” findings of fact. That, as the applicant otherwise appears to accept, is the very task jurisdictionally reserved for the reviewer.
The reviewer is not required to deal with every piece of evidence before him in his decision record. He must deal with each claim and aspect of the claim. To fail to do so would, in the circumstance, be a denial of procedural fairness as found in M61/M69 at [90]:
“Second, failing to address one of the claimed bases for the plaintiff's fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. The failure to deal with the claim was a denial of procedural fairness.”
[Footnote omitted.]
The reviewer dealt with the applicant’s claim that he feared persecutory harm on return to Iraq, amongst other things, because in the past he had been specifically targeted by Shia militias and militants. The bomb on the road was one such example of having been targeted.
The reviewer found that the applicant’s account of the circumstances of the bombing, his being specifically targeted, and his action in avoiding it, were implausible in the circumstances, and therefore rejected this critical part of his claim as fabrication.
Whether the applicant was physically present or not, in these circumstances, is irrelevant. That there may have been evidence before the reviewer that may have suggested that he was physically present, is a matter for the reviewer in his evaluation of the claim presented.
That the reviewer did not refer to this particular evidence, in the circumstances, must be seen as the reviewer’s assessment that it was not necessary to the disposition of the claim made. The decision record, after all, at the point now impugned by the applicant, was concerned with the findings made in relation to the applicant’s claim to fear persecution, and the reasoning in making these findings, and assessing the totality of those findings as they relate to the requisite level of satisfaction as to whether the applicant would have a well-founded fear of persecutory harm on return to Iraq.
The applicant’s ground now, it must be remembered, is not that the reviewer failed to deal with an aspect of his claims, but rather that the failure to make, or express, other findings, leaves the reviewer’s analysis illogical and irrational.
In the circumstances set out above, such a charge is not made out in relation to whether the applicant was physically present or not. He claimed he was physically present at the bombing. The reviewer found his explanation as to how he avoided the explosion and how it was meant for him implausible. The finding of fabrication was not directed to, nor said to arise from, whether he was physically present at the bombsite. It was directed to the implausibility of the events, and the sequence of events, claimed by the applicant.
In the circumstances, this was reasonably open. The failure to articulate any of the findings that the applicant says should have been made does not reveal irrationality or illogicality as explained in SZMDS.
Similarly, the applicant’s attack that if, on the other hand, the reviewer did not accept that the applicant was travelling to Basra then he failed in his jurisdictional task in not considering what was recorded on a video “alleged to be possessed by the applicant”, and which could have been corroborative of his claim to have been on the road to Basra on the relevant day, fails for the same reasons as set out above in relation to whether the applicant was, or was not, present at the bombing. It was not relevant to dispose this example of persecutory harm as actually made in support of the claim of persecutory harm.
The applicant’s charge that by not turning his mind to the video the reviewer fell into jurisdictional error, has not been pleaded as a ground, or particular. The sole ground was one of illogicality and irrationality.
Further to what is set out above, the applicant’s submissions appear to also assert error on the basis that the reviewer declined to consider “potentially” corroborative evidence. The argument is that it, and would only, have been open to do so in circumstances where, given other findings, no amount of corroboration could have assisted the applicant’s claim (S20/2002 at [70] per McHugh and Gummow JJ). Given that the reviewer made no such finding then he was obliged to consider the video.
The difficulty now for the applicant, whether this is asserted in support of the sole ground of the amended application, or in support of some other complaint, is that no such video was ever given to the reviewer, or any other relevant person. Nor for that matter, is there any evidence to suggest that it was ever offered.
The reviewer noted in his decision record at [33] (CB 217) that:
“Following the interview, the representative stated that the claimant has stated he has a video that he filmed himself of the incident when his bike was destroyed by an improvised explosive device.”
The applicant has made no attempt to explain why he, or his representative, did not provide this to the reviewer, despite the opportunity offered to them. The applicant’s representative made written submissions on his behalf. No mention was made of the video, nor how it could support the applicant’s case.
It is not for the reviewer to make out an applicant’s case for him. It is for the reviewer to provide a reasonable opportunity for the provision of claims and relevant evidence and argument. This occurred.
Nor is this a situation, in all the circumstances, where there was any duty or obligation on the reviewer to make inquiries about the video (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429). In any event, there is nothing to show that the video was critical to the disposition of the applicant’s claims in the review. As set out above, whether he was actually present at the bombsite or not, does not assist his charge of illogicality or irrationality.
Finally, in this regard the applicant asserts that the reviewer’s “characterisation” of the applicant’s claim as implausible, without more, “cloaks the failure” of the reviewer “to weigh up the possibility that the applicant’s claims might be true”. (The applicant relies here on SZIAY v Minister for Immigration and Citizenship [2006] FMCA 1680 at [55] per Smith FM.)
How this line of attack reveals illogicality or irrationality in the reviewer’s decision was not made clear. In any event, in the circumstances, there was no obligation on the reviewer to proceed on the basis that the applicant’s claim in this regard may have been true.
That eventually may have arisen if the reviewer’s relevant findings were not made with sufficient confidence. In that circumstance, the reviewer may have needed to consider the possibility that his initial findings were incorrect, and then to proceed to determine whether the applicant’s fear was well-founded in that light (see Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567 (“Guo”), Wu Shan Liang and Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1 (“Abebe”)). However, it cannot be said that the reviewer’s findings were attendant with any such doubt or lack of confidence.
In all therefore, I cannot see error in the reviewer’s reasoning as asserted by the applicant now in relation to the bomb on the road incident. This means that an important plank in the applicant’s ground is not made out.
To the extent that the applicant asserts, as an important part of his attack, that irrationality and illogicality arise from the findings made in relation to the shooting incident, and the threatening letter incident, and that the reviewer’s findings in relation to these two was made in light of the finding of fabrication in relation to the bomb on the road incident, then given that that finding was not arrived at illogically or irrationally, it is not available to the applicant to say this so infects the subsequent findings.
The second plank of the attack in relation to these two incidents is that the reviewer did not give “independent” consideration to them, but merely applied the earlier finding of fabrication to them.
What is said to be illogical in the reviewer’s approach is that having made the finding of fabrication the reviewer used this finding and avoided any independent consideration of the other two incidents. This was said to have occurred in circumstances where a logical or reasonable mind may have adopted different reasoning. This means the reviewer did not properly arrive at the requisite state of satisfaction as to whether Australia owed protection to the applicant.
It is not correct to say that the reviewer simply relied on the earlier finding of fabrication to reject the two other instances of claimed harm. Plainly the earlier finding of fabrication was important in the disposition of the two other matters. But the reviewer expressly made reference, in regard to the other two incidents to other elements of the applicant’s circumstances as presented.
What plainly sits at the heart of the reviewer’s analysis (when read fairly and holistically) was a concern as to why the applicant would be singled out by Shia militants, above and beyond any other Sunni Muslim in Iraq, to be the individual target of their attempts to threaten and kill him.
In rejecting the applicant’s claim to have been the subject of a threatening letter, and the shooting incident, the reviewer specifically had regard to the applicant’s lack of political profile, or other characteristics, so as to make him the subject of the claimed, repeated, and targeted serious attempts on his life.
This is clear with the specific reference set out at the latter part of [40] in the reviewer’s decision record (CB 218) (see also the extract at [49] above):
“… In making these findings, the reviewer has taken into consideration that the claimant was only ever an ‘ordinary member’ of the Baath (sic) Party and has never advanced any argument that he was an active adherent of the Sunni faith such that he might be pursued as a ‘Wahhabi’.”
But it must also be understood in light of the totality of the evidence presented.
The shooting incident, given its temporal proximity to the bomb on the road incident (13 and 19 April 2010), was seen by the reviewer as part of the same claim, and sequence, to have had attempts made on his life. A fair reading reveals that the reviewer applied the fabrication finding made in relation to the first attempt to “a second attempt made on his life” ([40] at CB 218).
The applicant did not present these as unconnected incidents. The claim was that he feared persecutory harm from Shia militias and militants and that within a period of six days in April 2010 they had tried to kill him on two occasions. It is not illogical or irrational to find that the claimed second attempt did not occur given the first alleged attempt was a fabrication. Particularly in circumstances where no real explanation had been advanced as to why the applicant was singled out in April 2010 above and beyond other Sunni Muslims.
The applicant seeks to also impugn the reviewer’s finding in relation to the threatening letter by pointing to the reviewer’s acceptance ([37] at CB 217) that the applicant was “threatened” in 2006 when he worked for the British company, and thereafter fled to Salah al-Din, a Sunni city.
This, and the subsequent finding about the letter, needs to be understood in context. The applicant’s evidence was that the people who tried to kill him in 2010 were also the same people (generally Shia militants) who threatened him in 2006. The threats were made because he had worked for a British company from 2005 to 2006 and because he had been in the Ba’ath party (see [20] – [21] at CB 215).
At the interview with the reviewer, the applicant gave an account of his claimed difficulties during this time. The applicant’s account was, that in addition, he had been promoted at work, and that this drew the enmity of a Shia person who was not promoted. He further claimed that other people in the company whom he knew, and who were “related” to the Ba’ath party, were killed at that time.
It is in this latter context that the reviewer accepted that he had been threatened and fled from Basra. That is, that at that time he was threatened as part of the threats directed to all the members of the Ba’ath party, and who also worked in the company in which he was employed.
The reviewer specifically rejected the claim that he would be targeted by the disgruntled former fellow employee as being a claim lacking credibility in circumstances where it was raised for the first time before him. This was seen as another example of a fabrication designed to strengthen his refugee claims ([43] at CB 218).
What was left, therefore, from the events of 2006 was that the applicant left Basra because he was threatened, in concert with others, in light of his membership of the Ba’ath party and perceived “Western” connection.
The threat emanated from, and the instigators of the claimed instances of harm were always said to be, Shia people.
The reasoning of the reviewer in relation to the threatening letter must be seen in the context of who the applicant said was consistently threatening him and seeking to kill him. That is, Shia people.
It was in context of his rejection of the applicant’s claim to have been the target of these people in the bomb on the road incident, which was found to be a fabrication, and in the context that no reason had been advanced (beyond the fellow employee matter which was otherwise rejected) as to why the Shia would target him specifically, as opposed to being generally threatened in 2006 along with other Sunni employees as a result of his employment (which was otherwise found to be at a “very low level” ([46] at CB 219)), that the reviewer could not accept that he had been the specific target of a threatening letter left under his door. This was reasonably open to the reviewer to find in the circumstances. No illogicality or irrationality arises here.
I cannot see that the applicant’s ground, as particularised in the amended application, and as explained in submissions, is made out. On this basis alone, the application should be dismissed. I will make an order accordingly.
Further Submissions
It should also be noted that at the hearing of this matter I did consider the question, relevant if the applicant’s ground were to be made out, as to whether the reviewer’s additional finding that the applicant could relocate to Salah al-Din, away from Basra, would serve as an independent basis for upholding the reviewer’s decision. The question was posed in light of VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 (“VBAP of 2002”).
I gave both parties leave to file further written submissions on this question and made clear that leave was confined to whether, in the event that the applicant’s ground at hearing was made out, the finding of relocation justified dismissal of the application, as amended, in light of VBAP of 2002.
Both parties filed such submissions.
It is the case that the applicant’s submissions have gone far beyond the limited scope of the leave granted. The applicant appears to recognise this (see at [19] of the supplementary submissions), and seeks leave to (further) amend the “grounds of review”. This is apparently put on the basis that the paragraph in which the reviewer’s relocation consideration is set out ([48] at CB 219) is said to be itself impugned, in addition to not providing an independent basis for the decision under review.
The applicant’s request for leave is denied. It is not appropriate that such leave be granted at a late stage, well after the final hearing of the matter. The applicant had ample and reasonable opportunity, being represented by counsel and a firm of solicitors, to have raised whatever grounds he wanted in the amended application.
Indeed, the Court can take judicial note that in matters of this type, represented applicants are often granted leave to amend their application at the commencement of the final hearing. It is not appropriate that it should be done after a final hearing in circumstances where an applicant’s legal representatives have failed to appreciate perceived opportunity in the ample time available to have done so.
But of equal strength is that I cannot see that any such reopening of the applicant’s case, even at this stage, is of any assistance to him. Even putting to one side any prejudice occasioned to the Minister were the Court otherwise minded.
First, for the reasons set out above, the applicant’s sole ground is not made out. Even if any error were to be found in the relocation finding, the reviewer’s decision would stand supported by that finding. That is, the applicant did not have a well-founded fear of persecution if he were to return to Iraq in the foreseeable future, and as it related to the whole of Iraq (see further below).
Second, the question posed in light of VBAP of 2002, is whether the finding as to relocation was a separate and independent basis for the reviewer’s decision (VBAP of 2002 at [25]).
I agree with the Minister that it was. The reviewer makes clear that ([48] at CB 219):
“The reviewer does not have any doubt regarding the findings relating to his situation in Basra, but has decided for the sake of completeness to make a further finding regarding relocation. This finding is made on an alternative basis only and is not indicative of any element of doubt in the mind of the reviewer…”
That alone is sufficient to dispose of this matter.
Why decision-makers in refugee matters often feel the need to go on and consider such matters as relocation and, to a lesser extent, state protection in circumstances where they have made an unequivocal finding that there is no well-founded fear of persecution for a Convention reason as it related to the whole of the country of claimed persecution, is not clear.
If it is done in some attempt to “add some insurance” if the matter comes before the Court, then this is to be discouraged. As in this case, it may serve to unnecessarily complicate matters and protract proceedings before the Court, with possible attendant costs for the unsuccessful party.
If, on the other hand, it is some attempt to give “comfort” to an unsuccessful applicant that they can return safely to their own country, albeit to some particular part, then I cannot imagine that applicants in these circumstances find that a comfort.
It is important to be reminded of relevant basic principles. The purpose of the Refugees Convention is to provide a mechanism by which those who claim to fear persecution in their home country may seek protection in another country (at whose border they have arrived), and to have that claim to protection assessed and determined according to a recognised definition of the elements of a “refugee”.
The purpose of recognising a person as a refugee is to provide protection to that person in circumstances where that protection is not available in their country of nationality, or if stateless, country of former residence.
The import of this is that in determining that a person is in need of protection, relevantly Australia’s protection, a decision-maker must look to the circumstances in the country of claimed persecution as a whole. This was made clear in the relevant test for relocation, that of “reasonableness” as expressed in Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 (“Randhawa”) per Black CJ, and see also SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634 (“SZATV”).
That is, whether it is unreasonable in all the circumstances to expect an applicant to relocate to another part of his country of nationality to avoid persecutory harm. In Randhawa at [14] per Black CJ:
“… a person’s fear of persecution in relation to that country [of nationality] will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person…”
[Emphasis added.]
In short, Black CJ relevantly stated that the focus of the Convention is upon protection in the county of claimed persecution as a whole. This was because (at [8]):
“… If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.”
It is the case that if a fear of localised persecution is well-founded, in the circumstances, the availability of protection elsewhere in the country must be considered (Randhawa).
However, it is not necessary to consider relocation where the
decision-maker has found that there is no well-founded fear of persecution (Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 at [13] per Whitlam, Lehane and Gyles JJ).
There is no need for the decision-maker, as in the current case, to consider relocation where any such consideration, and subsequent finding, is irrelevant in circumstances where there is a separate independent basis for the decision to affirm the initial assessor’s decision. Noting of course that, on its own, there is no real error in doing so.
For a fear to be well-founded requires both a subjective and objective element. As was said by Dawson J in Chan Yee Kin at [16]:
“The phrase ‘well-founded fear of being persecuted’… contains both a subjective and an objective requirement. There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear…”
(See also Wu Shan Liang at [263].)
In the current case, it cannot be said that there was any finding of a well-founded fear of persecution as it related to Basra, or indeed anywhere else in Iraq.
The reviewer specifically turned his mind to relocation on the basis that: “If the claimant has a subjective fear of living in Basra…” ([48] at CB 219) then he could relocate elsewhere in Iraq. The “local” fear therefore was not a well-founded fear as it lacked any finding by the reviewer that the fear was objectively made out. A necessary requirement to satisfy a finding of persecutory harm.
Further, the use of the word “if” makes it equivocal as to whether the reviewer accepted that he even had any such subjective fear.
Where that leaves the subsequent consideration and finding of relocation is unclear. It may be reasonable and practicable for the applicant to relocate to another part of Iraq, but that consideration was not done in the context of a fear that was otherwise, and with a local focus, found to be well-founded. In that light, the consideration of “relocation” was plainly unnecessary. But no legal error is revealed simply by the reviewer making this further finding.
As to the remainder of the applicant’s submissions, they also do not assist his case.
Contrary to the applicant’s assertions now, whatever the context for the reviewer’s consideration of “relocation”, what is clear is that he was not proceeding on any “what if I am wrong?” basis (with reference to Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [62] per Sackville J, see also Guo, Wu Shan Liang at [293] per Kirby J, and Abebe).
The reviewer was express and unequivocal in his central finding (as at [47] (at CB 219)). There was no uncertainty.
I also agree with the Minister that on any plain reading of the decision record the independent and separate character of the relocation finding to that previously found, means that were the applicant to have succeeded in his ground (which he has not) then, subject to what is said below, and requiring resolution of the “subjective” basis for it, the relocation finding in itself would otherwise stand alone in support of the decision.
In this regard SZATV at [26] does not assist the applicant. Rather, the reviewer has acted in conformity with the test for relocation as explained in relevant authorities (SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51; (2007) 237 ALR 660 at [14] per Gummow, Hayne and Crennan JJ, Randhawa and SZATV).
In all the circumstances, the reviewer properly applied the test of “reasonableness”. He dealt with all of the applicant’s objections to relocation (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
Conclusion
In any event, given the conclusion reached at [111] above, the application is to be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 20 January 2012
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Jurisdiction
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Costs
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