SZRPV v Minister for Immigration - [2012] FMCA 1012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRPV v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1012

MIGRATION – Review of report and recommendation of an Independent Merits Reviewer in respect of the claims of an offshore entry person – applicant claiming persecution in Iraq as a Faili Kurd – whether the Reviewer erred in consideration of another claim based upon the applicant’s membership of a particular social group of goldsmiths associated with the Sabean-Mandaean community in Iraq considered.

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

Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473
Applicant A v Minister for Immigration (1997) HCA 4; 190 CLR 225
Chen Shi Hai v Minister for Immigration [2000] HCA 19; (2000) 201 CLR 293
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Craig v South Australia (1995) 184 CLR 163
Kanagasabai v Minister for Immigration [1999] FCA 205
Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24
Minister for Immigration v Sarrazola [1999] FCA 1134; (1999) 95 FCR 517
Minister for Immigration v SZQHH [2012] FCAFC 45
Rajaratnam v Minister for Immigration [2000] FCA 1111; (2000) 62 ALD 73

Applicant:

SZRPV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

RODGER SHANAHAN IN HIS CAPACITY AS INDEPDENDENT MERITS REVIEWER

File Number:

SYG 1467 of 2012

Judgment of:

Driver FM

Hearing date:

2 November 2012

Delivered at:

Sydney

Delivered on:

21 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr S Beckett

Solicitors for the Applicant:

Allens

Counsel for the Respondents:

Mr H Bevan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Court declares that the report and recommendation of the second respondent dated 31 January 2012 was not made in accordance with law.
The first respondent is restrained, by himself or by his Department, officers, delegates or agents from relying upon the report and recommendation of the second respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1467 of 2012

SZRPV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

RODGER SHANAHAN IN HIS CAPACITY AS INDEPDENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application for an injunction to restrain the first respondent (the Minister) from relying upon a report and recommendation from the second respondent (the Reviewer). The report is dated 31 January 2012. The Reviewer found that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) (Migration Act). He recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The following statement of background facts is derived from the submissions of the parties.
The applicant is an Iraqi man and a Faili Kurd. Faili Kurds are a known minority within Iraq with a long history of discrimination. The applicant complains of discrimination in education, in work and in citizenship identification.
The applicant’s family established themselves as goldsmiths and practised that trade for some time. The trade is one practised by many minority groups and is dominated by Sabean-Mendaens, a non-Muslim minority in Iraq, but there are also Christian and other non-Muslim goldsmiths. The applicant, as a young man, was steered in that direction and joined the family trade and worked for his family’s business as a goldsmith up until 2009.
The applicant had a history of being harassed by local Iraqi militia, particularly the Jaysh al-Mahdi (JAM) also known as the Mahdi Army. In 2006 he was detained, beaten and harassed by JAM members.
By 2009 the applicant had established a goldsmith business in an area of Baghdad where there were a large number of shops run by Sabean‑Mandaean goldsmiths. The applicant’s business partner was Sabean-Mandaean.
During 2008 and 2009 there were a large number of violent attacks upon Sabean-Mandaean goldsmiths in Baghdad and elsewhere in Iraq. Such attacks often included the stealing of valuable items stored at the relevant businesses. In one attack in October 2009 the business operated by the applicant and his business partner was bombed and the applicant’s business partner was killed.
The applicant went into hiding as a result of the bombing and sold his business. He was fearful that if he continued to work and live in Baghdad as a goldsmith that he would be hurt or killed by the militia. (The family’s association with goldsmithing meant that any attempt by the applicant to leave the trade was academic). He was unable to move North to the Kurdish part of Iraq because Faili Kurds are discriminated against by the dominant Sunni Kurds. He then arranged to escape Iraq, fleeing ultimately to Australia.
The applicant failed in his refugee status assessment (RSA) and was notified of that decision, with reasons, on 4 May 2011. The applicant then sought independent merits review on 12 May 2011. He was interviewed by the Reviewer on 16 November 2011. The Reviewer recommended that the applicant not be recognised as a refugee.

Findings of the Reviewer

The Reviewer made the following relevant findings:
·the applicant is an Iraqi citizen[1];
[1] [58]
·the applicant is a Faili Kurd[2];
[2] [66]
·the applicant does not have a well-founded fear of persecution for reasons of race as a Faili Kurd[3];
[3] [66]
·goldsmiths in Iraq constitute a particular social group in accordance with the criteria set out in Applicant S v Minister for Immigration[4] as “this occupation has attracted minorities to it from Ottoman times”[5];
[4] (2004) 217 CLR 387
[5] [73]
·membership of the particular social group of goldsmiths is not the essential and significant reason for the claimed persecution[6];
·if gold is “haram” (forbidden) it is not plausible that JAM would provide protection for goldsmiths, extort money or confiscate gold for their own use[7];
·if any targeting of the applicant were to occur it would be based on extracting ransom money, rather than because of perceptions surrounding his profession[8];
·“If the essential and significant reason for targeting is the person’s wealth, then he cannot be considered to be persecuted for membership of the particular social group and hence for a Convention-related reason”[9];
·there was no country information that goldsmiths or jewellers are, as a profession, subject to targeting by militia groups[10];
·the applicant does not have a well-founded fear of persecution for reasons of membership of a particular social group as a goldsmith[11];
·the applicant was detained in 2006 by JAM for wearing shorts but he was not beaten or shaved[12];
·the incident in 2006 where he was detained for wearing shorts was not serious harm, was isolated and there was no real chance of repetition[13];
·the bombing of the applicant's business partner occurred as the result of generalised violence and was not targeted at the applicant's business partner “for any Convention-related reason”[14]; and
·the applicant does not have a well founded fear of persecution in Iraq for a Convention reason now or in the future, and does not satisfy the definition of refugee[15].
[6] [74]
[7] [75]
[8] [76]
[9] [77]
[10] [78]
[11] [78]
[12] [82]–[83]
[13] [85]
[14] [87]
[15] [91]

The judicial review application

These proceedings began with a judicial review application filed on 5 July 2012. The applicant now relies upon a further amended application filed in court by leave on 2 November 2012. The grounds in that application are:
1) The second respondent misapplied s.91R(1) of the Migration Act 1958 by limiting the essential and significant reasons for Convention based persecution to only one reason;
2) The second respondent failed to take into account that there were, or might be, multiple essential and significant reasons for the persecution one of which is Convention based;
3) The second respondent, in determining the reason or reasons for the asserted persecution of the applicant, failed to take into account a relevant consideration namely that goldsmiths, Sabean Mandaean goldsmiths or jewellers, or non-Muslim goldsmiths or jewellers generally, being particular social groups, were subject to targeting by militia groups in Iraq;
4) The second respondent, in purporting to apply Article 1A(2) of the Refugees Convention, failed to consider that the particular social group was also those who were, or were perceived to be, Sabean Mandaean or non-Muslim goldsmiths;
5) The second respondent failed to consider whether the persecution feared by the applicant was due to a perception that [the applicant’s] religion was Sabean Mandaean or non-Muslim; and
6) The second respondent failed to afford the applicant procedural fairness by not indicating to him the case against him, namely, that the extortion of money by Jaysh al-Mahdi (JAM), protection afforded to goldsmiths by JAM and confiscation of gold by JAM contradicted his assertion that gold, and the practice of goldsmithing, was contrary to gold being ‘haram’ (forbidden) for JAM and that his fear of persecution was not for a Convention reason.
I received as evidence the book of relevant documents filed on 25 July 2012. I also received the applicant’s tender bundle of documents filed on 24 October 2012. In addition, I have before me three affidavits by Kathlyn Cynthia Anandajayaskeran made on 7 September 2012, to which are annexed transcripts of the initial entry interview conducted with the applicant on 15 October 2010, an interview by the RSA officer on 17 February 2011 and the interview conducted with the applicant by the Reviewer on 16 November 2011.
The application raises the following issues for determination:
a)whether the Reviewer erred by restricting himself to only one “essential and significant reason” for the asserted persecution;
b)whether the Reviewer considered direct evidence of persecution of goldsmiths;
c)whether the particular social group referable to the applicant was Sabean-Mandaean goldsmiths;
d)whether the Reviewer considered appropriate and available evidence of the persecution of the correct particular social group;
e)whether the Reviewer considered whether the applicant was a member of the particular social group.

Consideration

I accept the applicant’s submissions concerning the general legal principles applicable to this case.
The task for the Reviewer was to make a recommendation to the Minister as to whether Australia has a protection obligation to the applicant, following his failed initial assessment. Section 36(2) of the Migration Act sets out that the relevant criterion:
A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol
Article 1A(2) of the United Nations Convention on the Status of Refugees 1951 amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Convention) provides that a “refugee” is a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Article 1A(2) must be read with s.91R of the Migration Act:
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.

Grounds 1 and 2 – Did the Reviewer err by limiting his consideration of the reasons for the asserted persecution of the applicant?

By Grounds 1 and 2, the applicant contends that the Reviewer erred by applying an incorrect test, specifically, by “limiting the essential and significant reasons” under s.91R of the Migration Act to “only one reason” and by failing “to identify whether there were numerous reasons for the persecution asserted”[16].
[16] applicant’s submissions (AS) at [23]
The applicant says that this error is revealed in sentences that begin the Reviewer’s paragraphs at [76]-[77][17]. The Minister in contrast relies on the following passage:
The country information available to me indicates that some professions may be targeted, such as academics, judges and lawyers, doctors and other medical professionals as well as athletes for the reasons of (perceived) political opinion, religion or ethnic background, their social status as well as for criminal motives. Given that I can find no country evidence that supports the claim that goldsmiths or jewellers are, as a profession, subject to targeting by militia groups, I believe that such targeting, if it does or may indeed occur, is due to what the claimant may, or may be perceived to own. As such, I do not accept that the claimant has a well-founded fear of persecution for reasons of membership of a [particular social group] as a goldsmith either now or in the reasonable foreseeable future.”[18] (emphasis added)
[17] CB 233
[18] CB 233 [78]
I prefer the applicant’s submissions on these grounds. Article 1A(2) of the Refugees Convention requires that the person seeking protection must have a well-founded fear “for reasons of” the enumerated Convention grounds. The article allows, as a matter of logic, for multiple reasons as the basis or bases for the persecution. A person who had a well-founded fear of persecution because of his or her race and because of his or her religion would, of course, still fall within the definition. It also follows that a person who feared persecution for a Convention based reason and a non-Convention based reason would also qualify as a refugee under Article 1A(2). There is no basis upon which the Article could be interpreted so that one non-Convention reason effectively cancelled a Convention reason. The proper way to interpret the Article is that one reason provides the acceding State with an obligation but the other (the non-Convention reason) does not.
It is in that context that s.91R(1) must be read. Section 91R(1) narrows the degree to which the Refugees Convention is incorporated into domestic law in the ways set out at (a), (b) and (c) of the sub-section. Paragraph (a) requires that the Convention reason for the persecution must be “the essential and significant reason”. Where there are multiple Convention reasons then the provision requires that they must be “the essential and significant reasons”. Clearly, if there is one Convention based reason but it is not the essential and significant reason, then it will not satisfy s.91R(1)(a). By referring to the essential and significant reasons in the plural Parliament has acknowledged that there may be multiple reasons for such persecution. Further, it acknowledges that two or more reasons may individually and severally be essential and significant. Accordingly, persecution may be feared (for example) for the essential and significant reason of race and for the essential and significant reason of religion.
However, s.91R(1) says nothing about where there are two essential and significant reasons, one of which is Convention based and the other is not.
The High Court has recognised that in the context of the obligation to afford protection to refugees there may be multiple reasons for persecutory conduct. In Chen Shi Hai v Minister for Immigration[19] at 315 Kirby J stated that:
... many acts lend themselves to ready assignment to different ‘reasons’. Human conduct is rarely, if ever, uni-dimensional.
[19] [2000] HCA 19; (2000) 201 CLR 293
The relevant authorities concerning persecution comprising extortion and other criminal acts were considered by the Full Federal Court in Minister for Immigration v Sarrazola[20] per Einfeld, Moore and Branson JJ[21]. The following passage from Branson J in Kanagasbai v Minister for Immigration[22] adopted in Sarrazola at [15] is particularly apt:
… the Tribunal's finding that the motivation of those who harassed the applicant was to obtain money is not necessarily inconsistent with a finding that the applicant was harassed for reasons of her race or political opinion. It is, of course, the case that extortion based on a perception of the victim's personal wealth, or otherwise aimed at the victim as an individual, will not amount to persecution for a Refugees Convention reason (Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565 at 568-9). However, in this case there was material before the Tribunal capable of supporting a finding that the applicant was selected as a target for extortion by reason of her race or political opinion. That is, it was open to the Tribunal to find that whilst the aim of the harassers was to obtain money from the applicant, the true reason why she was selected for harassment was her race or political opinion.
[20] [1999] FCA 1134; (1999) 95 FCR 517 at 522 [13] to [17]
[21] see also Rajaratnam v Minister for Immigration [2000] FCA 1111; (2000) 62 ALD 73 at [46]
[22] [1999] FCA 205 at [20]
The Reviewer appears to have conceived of his task as binary. That is, one of choosing between two reasons for the feared persecution: either persecution of (Iraqi) goldsmiths because they comprise a particular social group or persecution of goldsmiths because they possessed valuable goods. This is revealed in the sentences that begin at [76] and [77] of the Reviewer’s report. I do not read anything in [78] as overcoming that impression.
The better reading of the Reviewer’s task in applying Article 1A(2) together with s.91R is that, first, the reasons for the well-founded fear of persecution must be identified. There may be multiple reasons for the feared persecution. Secondly, the Reviewer must then identify whether one or more of those reasons is a Convention based reason as set out in Article 1A(2). Thirdly, he or she must then determine whether the Convention based reason is the essential and significant reason or, where there are multiple Convention based reasons, whether they are essential and significant reasons for the feared persecution.
The Reviewer, in applying the task as a binary one misapplied the statutory test. He failed to identify whether there were numerous reasons for the persecution asserted. He was required to consider the likelihood that there were two equally compelling reasons for the persecution. Instead he chose between the two. He also failed to determine whether persecution of goldsmiths was, in itself, an essential and significant reason.
Additionally, and following the same argument accepted in Kanagasbai and Rajaratnam, the Reviewer did not consider whether the attempt to obtain wealth from goldsmiths was in turn due to a Convention based reason namely, membership of the particular social group found by the Reviewer. Applying Branson J’s formula above, the adoption of a binary approach led him to exclude the possibility that the selection of the applicant (and his business) for bombing was by reason of his membership of the particular social group of goldsmiths. In truth it is difficult to divorce one from the other.

In adopting the approach that he did the Reviewer misapplied the statutory test set out in ss.36(2) and 91R of the Migration Act which if accepted by the Minister would lead him into jurisdictional error[23].
[23] Craig v South Australia (1995) 184 CLR 163 at 179
I find that these grounds have been established.

Grounds 3, 4 and 5 – Did the Reviewer otherwise err in his consideration of the applicant’s claim as a goldsmith or Sabean-Mandaean goldsmith?

By Grounds 3, 4 and 5, the applicant contends that the Reviewer erred in his assessment of the applicant’s claims to have a well-founded fear of persecution based on his membership of a particular social group.
In the further amended application, the “particular social group” is identified, variously, as:
·goldsmiths;
·Sabean-Mandaean goldsmiths or jewellers;
·non-Muslim goldsmiths or jewellers generally;
·Sabean-Mandaean or non-Muslim goldsmiths.
It is also said[24] that a claim arose that the applicant would be perceived to be a member of a particular social group being an “adherent to the Sabaen-Mandaean religion”.
[24] AS [35]; cf the articulation of this in Ground 5
I acknowledge the need to recall Gleeson CJ’s observations in Appellant S395/2002 v Minister for Immigration[25]:
… Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.[26]
[25] (2003) 216 CLR 473
[26] Appellant S395 (at 478 [1], at 479.4), footnote omitted
I nevertheless accept the applicant’s submissions in relation to these grounds. The construction of the characteristics of a particular social group is notoriously difficult. Whether the asylum seeker is ultimately recognised as a refugee may well depend upon the degree of abstraction adopted. For example, is the particular social group “electricians”, or “male electricians” or “male electricians living in a particular area”? All are potentially particular social groups under the Convention. Conception of the particular social group then directs attention to the evidence in support of the claim of persecution.
The appropriate test is that found in Applicant A v Minister for Immigration[27] per Dawson J at 241.5: a particular social group under the Convention is a collection of persons who share a certain characteristic or elements which unites them to be set apart from society at large. McHugh J in Applicant A considered that the particular social group must be defined as a distinct social group by reason of some characteristic, attribute, belief, interest or goal that unites them[28]. Persecution may not be a defining characteristic[29].
[27] (1997) HCA 4; 190 CLR 225
[28] at 264.8
[29] at 263-264
As I have already mentioned, the Reviewer determined that the relevant particular social group was goldsmiths (in Iraq)[30]. He then turned to the evidence in support of persecution and found that[31]:
I can find no country evidence that supports the claim that goldsmiths or jewellers are, as a profession, subject to targeting by militia groups …
[30] at [73]
[31] at [78]
I accept that this statement reveals a failure to consider a relevant consideration, namely evidence of such “targeting”. The RSA officer had considered at length the persecution of goldsmiths and Sabean-Mandaean goldsmiths in particular[32]. She states that:
[t]here have been several reports of incidents in Baghdad in recent years where goldsmiths have been targeted and killed.
[32] CB 105-106
Following that statement is a UK newspaper account of 12 gold shops in one area of Baghdad being the subject of armed robbery and 15 people being killed, including by the explosion of a bomb.
The consideration of material that establishes persecution of a particular social group is a relevant consideration within the meaning of that term in Minister for Aboriginal Affairs v Peko-Wallsend[33]. In failing to do so the Reviewer fell into reviewable legal error which, if accepted by the Minister, would amount to jurisdictional error[34].
[33] (1986) 162 CLR 24 per Mason J at 39, Brennan J at 56
[34] Peko-Wallsend at 39-40
Given the flexibility necessary in determining the relevant particular social group it was incumbent upon the Reviewer to also consider a refined particular social group, namely Sabean-Mandaean goldsmiths. Such a group is not identified by persecution but instead by religious affiliation and occupation.
In the same part of her reasons as quoted at [38] above the RSA officer considered persecution of Sabean-Mandaean goldsmiths (as well as Mandaeans generally). She came to the following conclusions based on “country information” contained in Department of Foreign Affairs cables:
In Baghdad, Mandaean goldsmiths, silversmiths and jewellers have been targeted for theft and murder at much higher rates than their Muslim colleagues. …
Since 2003, about 800 members of our community have been killed because we have nobody to protect us. They have been killed by Al-Qaeda, other militias or mobsters. … Their skill as goldsmiths has also made them targets. In April 2009, armed heists on two Sabean run jewellery shops in Baghdad left seven dead, including three Sabeans. …
… [T]he most recent incident was on June 9, 2010 where four gunmen killed three Sabean Mandaean goldsmiths and injured four others during a robbery of three shops in the city of Basra. …
Accordingly there was specific evidence of the existence of the particular social group of Sabean-Mandaean goldsmiths (as well as specific evidence of their persecution). The Reviewer wrongly excluded consideration of that particular social group and was thereby led into error.
I adopt the inference that none of the material considered by the RSA officer and quoted above was explicitly or implicitly considered by the Reviewer. If it had been considered I would have expected to see some discussion of:
a)whether Sabean-Mandaean goldsmiths constituted a particular social group; and
b)whether there was evidence of persecution of Sabean-Mandaean goldsmiths.
It remains to consider the applicant’s membership of the particular social group. While he was not an adherent to the Sabean-Mandaean religion the material before the Reviewer supported a conclusion that he would be perceived to be a member of that particular social group. The High Court in Applicant A accepted that perceived membership of a particular social group is an allowable extension of the group[35]. It is not necessary for the members to have the relevant characteristics as long as they are perceived to have them.
[35] Dawson J at 240.8, McHugh J at 265.2, Gummow J at 284.4
I particular, I note the following: the applicant and his family are goldsmiths by trade; Iraqi goldsmiths are commonly Sabean-Mandaean goldsmiths; the applicant was in partnership with a Sabean-Mandaean goldsmith; the applicant’s shop was co-located with other Sabean-Mandaean goldsmiths; and there is a high degree of likelihood that violence towards other Sabean‑Mandaean goldsmiths such as bombings would have involved violence against him.
The Reviewer, not having identified Sabean-Mandaean goldsmiths as a relevant particular social group, did not as a result turn his mind to whether the applicant was a member or perceived to be a member of that particular social group. In failing to do so the Reviewer was led into reviewable legal error, which if accepted by the Minister, would amount to jurisdictional error.
The Minister seeks to avoid these conclusions by asserting that, insofar as the applicant’s contentions concern a particular social group of “Sabean-Mandaean goldsmiths”, a claim based on membership of that particular social group was not made[36], and hence no obligation arose, based on the material before the Reviewer, to consider such a claim.
[36] See, for example the way in which the applicant advanced his claims, as set out by the Reviewer at CB 224 [13], 225 [22]-[23], 225 [25], 226 [29], 227 [36], 228 [46] and 229 [56]
Secondly, and in any event, to the extent that the applicant made a claim based on his associations with people identified as Sabean‑Mandaens, that claim was, in the Minister’s submission, considered and rejected.[37]
[37] CB 234 [80]
With respect to the Minister, I do not accept those objections. First, there was abundant material available to the Reviewer to establish that because gold is forbidden to male Muslims,[38] the trade of goldsmithing in traditional Islamic countries (including Iraq) is carried on by non Muslims and, in Iraq in particular, by Sabean-Mandaeans. That material tends to support the proposition that goldsmiths in Iraq represent a particular social group with links to the Sabean-Mandaean community. There is no doubt that the applicant believed he was at risk of serious harm because of his association with that community.
[38] It appears that the prohibition is not Koranic in its origin but stems from Muslim tradition and scholarly writings
Secondly, the Reviewer’s statement at [80] of his report does not constitute a clear rejection of the applicant’s claims. The Reviewer said[39]:
Similarly, his evidence relating to persecution because he consorted with religious minorities lacks detail. He claimed during his IMR interview that he had received warnings from various militia groups and groups since he opened his shop and began working with Mandeans and Christians. His evidence regarding those warnings was only given during the IMR interview and lacked any details as to what the warnings were about – he also claimed that these warnings were mainly from JAM when it was put to him that he had blamed a variety of groups for these acts.
[39] CB 234
In that paragraph the Reviewer was expressing concern about the vagueness of the applicant’s evidence concerning where the threats against him were coming from, rather than the more general proposition that he was subject to threats by reason of his position as a goldsmith associated with Sabean-Mandaeans.
I find that these grounds have also been established.

Ground 6 – Was there a want of procedural fairness?

By Ground 6, the applicant contends that he was denied procedural fairness by the Reviewer not indicating to him that the extortion of money by JAM from the applicant and other goldsmiths was contradictory to his assertion that JAM considered gold haram (or forbidden).
Once again, I prefer the applicant’s submissions on this ground. The Full Federal Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[40] at 590-591 and 591-592:
[40] (1994) 49 FCR 576
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.
…
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.
The Reviewer concluded that the essential and significant reason for the conduct of the militia towards goldsmiths was to obtain wealth held by others[41]. Crucial to that finding was that the Reviewer rejected the applicant’s assertion that gold was haram at [75] for the reasons set out there. The relevant passage of the interview is at page 13 of the transcript. While the Reviewer had difficulty understanding what may have been poor translation (or what may have been an accurate translation of the applicant’s own limited understanding of the doctrinal basis for the prohibition), at no time was it put to the applicant that his account is at odds with JAM extorting money or confiscating his gold or offering protection to goldsmiths.
[41] [77]
The relevant law was further explained in Minister for Immigration v SZQHH[42] at [30] per Rares and Jagot JJ[43]:
… 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.
[42] [2012] FCAFC 45
[43] and see generally Flick J at [66]
It is apparent that there is a strong connection between minorities undertaking the profession of goldsmiths and gold being haram. If gold is haram for Muslims then in Islamic societies it is not unusual that minorities would be attracted to those professions or, more precisely, pushed in that direction. The way in which Christian societies, especially in the middle ages, pushed Jews into money lending is an example of such practices. If the applicant had known that his account of haram as motivation for JAM was to be held against him and it was a key component of the Reviewer’s findings then he should have been afforded the opportunity of rebutting it. The applicant could have led evidence from an Imam or other person expert in Islamic culture to address issues such as women trying on jewellery in male operated businesses.
It was fundamental to the applicant’s claims that the Reviewer understand the significance of the status of gold as forbidden to Islamic males and the complexities resulting from the trade in gold by non Muslims with female Muslim customers. That claim was not undercut by the proposition that JAM confiscated gold from goldsmiths. It is by no means uncommon for extremist religious organisations to commit acts inconsistent with the precepts of their religion (including mass murder) and the proposition that JAM took and used for its own purposes gold confiscated from goldsmiths did not establish logically that there was not a reason for the targeting of non Muslim goldsmiths other than a simple criminal motive. Hypocrisy and religious adherence are common bedfellows.
By failing to ensure that the applicant understood an essential and significant issue upon which the review turned, the Reviewer also committed a reviewable legal error. I find that this ground has been established.

Conclusion

The applicant has succeeded in establishing the grounds in the further amended application. He should accordingly receive the relief he seeks.
I will hear the parties as to costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 21 December 2012