SZRXN v Minister for Immigration & Border Protection
[2013] FCCA 1991
•27 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRXN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2013] FCCA 1991 |
| Catchwords: MIGRATION – Review of decision by Independent Protection Assessment Reviewer – whether Independent Protection Assessment Reviewer’s decision was affected by jurisdictional error – whether the Independent Protection Assessment Reviewer breached natural justice requirement in failing to consider whether the applicant met criteria in s.36(2) of the Migration Act 1958 (Cth) – whether the Independent Protection Assessment Reviewer made a real assessment of the applicant’s claim to have been imputed with a political opinion – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5AA, 14, 36, 46A, 195A |
| Cases Cited: SZQXX v Minister for Immigration & Anor [2012] FMCA 415 Tickner v Chapman (1995) 57 FCR 451 NZYJC v Minister for Immigration and Citizenship [2010] FCA 966 Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 75 ALD 630 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Minister for Immigration and Multicultural Affairs v Yousef (2001) 206 CLR 323 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Plaintiff M61/201 v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZRXN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | SYG 2227 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing dates: | 2 July 2013 & 18 November 2013 |
| Date of Last Submission: | 18 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Leonard Karp |
| Solicitors for the Applicant: | D’ambra Murphy Lawyers |
| Counsel for the Respondents: | Reg Graycar |
| Solicitors for the Respondents: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2227 of 2012
| SZRXN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ROGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of conduct leading to the recommendation by the second respondent, being an Independent Protection Assessor (“the IPA”), dated 9 September 2012, that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law.
The applicant claims to be a citizen of Iraq and of Shi’a Muslim faith and to fear harm in Iraq by reason of him being a failed asylum seeker; his actual or imputed political opinion as supportive of the current Iraqi government; and as a member of a particular social group, being a young executive of a wealthy Ba’athist-oriented family, who is considered by Shi’a Islamists as an active sympathiser of the former Ba’athist regime, heightened by going to Australia, a coalition country.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims for refugee status, and a summary of the second respondent’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.
Background
On 27 November 2011, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 23 December 2011, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship (“the Department”).
On 24 February 2012, the applicant made a request for a Protection Obligations Evaluation (“POE”).
On 19 April 2012, an officer of the Department found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
On 24 April 2012, the applicant’s POE was referred for an Independent Protection Assessment, to be conducted by the IPA.
On 9 September 2012, the IPA recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 9 October 2012, the applicant filed an application in this Court seeking judicial review of the IPA’s recommendation.
Legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations
An applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen is an 'offshore entry person' (see s.14(1) of the Migration Act 1958 (Cth) (“the Act”)).
Section 5 of the Act relevantly provides the following definitions:
“excised offshore place" means any of the following:
(a) the Territory of Christmas Island; …
…
"excision time", for an excised offshore place, means:
(a) for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …
Section 5AA relevantly states the following:
“Meaning of unauthorised maritime arrival
(1) For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a) the person entered Australia by sea:
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section; and
(b) the person became an unlawful non-citizen because of that entry; and
(c) the person is not an excluded maritime arrival.
Entered Australia by sea
(2) A person entered Australia by sea if:
(a) the person entered the migration zone except on an aircraft that landed in the migration zone; or
(b) the person entered the migration zone as a result of being found on a ship detained under section 245F and being dealt with under paragraph 245F(9)(a); or
(c) the person entered the migration zone after being rescued at sea.
Excluded maritime arrival
(3) A person is an excluded maritime arrival if the person:
(a) is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
(b) is a non-citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or
(c) is included in a prescribed class of persons.
Definitions
(4) In this section:
"aircraft" has the same meaning as in section 245A.
"ship" has the meaning given by section 245A.””
Section 46A of the Act relevantly provides:
“(1) An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non-citizen.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
…
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.”
Similarly, s.195A of the Act relevantly provides:
“Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.”
As the Protection Obligations Evaluation (previously Refugee Status Assessment) and Independent Protection Assessment (previously Independent Merits Review) processes do not arise from the valid application of a visa, they are not reviews conducted by the Refugee Review Tribunal. Accordingly, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply Instead, the principles of common law procedural fairness apply (see Plaintiff M61/201 v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at [91] (“M61”).
In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss.46A or 195A of the Act, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IMR recommendation (see M61 at [99-100]). However, an applicant may be able to injunct the first respondent from acting upon a recommendation of an IPA.
The applicant’s request for Protection Obligations Evaluation
On 24 February 2012, the applicant made a request for a POE.
The applicant provided a statement in support of his protection visa application, in which he made the following claims:
a)The applicant’s father is a wealthy business man who owns a number of businesses. After the fall of Saddam Hussein in 2003, the applicant and his family were targeted by gangs for money.
b)On 4 November 2010, the applicant was approached at his office by three men claiming to be from the ‘Anti Crime Bureau.’ He was kidnapped by the men and interrogated and beaten. He was kept for three days and released after his family paid a ransom. The kidnapping was reported to police.
c)After the kidnapping, the applicant received harassing phone calls. The applicant felt unsafe and feared for his life. The applicant fled Iraq and arrived in Indonesia and registered with the UNHCR on 12 January 2011.
d)On 27 March 2011, the applicant travelled via a people-smuggling boat to attempt to come to Australia. The vessel sank off the coast of Indonesia and the applicant was returned to Indonesia and detained.
e)The applicant was harassed and beaten in detention and did not feel safe. He volunteered to return to Iraq rather than stay in detention.
f)On 22 June 2011, the applicant arrived back in Iraq and moved to Baghdad.
g)The applicant was informed by family friends that while he was away, his parents’ house was fired upon. The applicant decided to flee Iraq and return to Indonesia.
h)On 27 November 2011, the applicant boarded a boat to attempt to come to Australia. The boat was intercepted by the Royal Australian Navy and taken to Christmas Island.
On 19 April 2012, an officer of the Department found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
Independent Protection Assessment and conduct leading to recommendation
On 24 April 2012, the POE was referred for an Independent Protection Assessment.
The applicant provided further documents in support of his review application.
On 9 July 2012, the applicant was interviewed by the IPA.
The IPA noted that it had before it the Department’s file and other materials available to it from a range of sources.
On 12 June 2012, the applicant’s adviser sent a further submission to the IPA submitting that the applicant feared persecution on the following grounds:
“ – Religion, as he was a Shi’a Muslim, and radical Islamists regard families that flourished under the old Ba’athist regime as secularised and kafir who deserve liquidation;
- Membership of a particular social group, as a young executive of a wealthy Ba’athist oriented family who is considered by Shi’a Islamists as an active sympathiser with the former Ba’athist regime, heightened by going to Australia, a coalition country; and
- Political opinion, as a secularised kafir and an imputed former Ba’athist supporter he is imputed to be hostile to the radical Shi’a Islamist goal of changing Iraq into a theocracy.”
The applicant’s adviser submitted that the cumulative effects of these claims created a heightened profile that increased the applicant’s risk of persecution in Iraq.
The adviser’s submission also attached a fresh statement from the applicant in which he claimed he was abducted by an extremist religious group on 4 November 2011, and that his family had been accused of being ‘stooges’ for dealing with foreign companies.
The IPA explored the applicant’s claims with him at a hearing in significant detail. The IPA put to the applicant concerns it had about his evidence and noted the applicant’s responses, including the applicant’s new claims.
The IPA also put to the applicant country information which was inconsistent with the applicant’s claims and noted the applicant’s responses.
Ultimately, the IPA found the applicant to be “an unreliable and untruthful witness who lacked credibility.” The IPA accepted that there was a level of generalised violence in parts of Iraq and that such violence potentially involved serious harm to the claimant. However, the IPA found that such violence is not discriminatory or Convention based.
The IPA comprehensively rejected the applicant’s claims to have worked for a foreign company and that his family had any association with the Iraqi Ba’ath party. Further, the IPA did not accept that the applicant would be killed because he was from a wealthy family and had business dealings with foreign companies.
The IPA noted that there was no evidence before it to support the applicant’s claim that being from a wealthy family would mean he would be targeted for killing.
The IPA also found the applicant’s claim that his father was a member of the Ba’athist party to have been fabricated in order to enhance the applicant’s claims.
The IPA comprehensively rejected the applicant’s claims of past harm in any form in Iraq.
The IPA also rejected the applicant’s claim that his family was ever accused of being Kaffir. The IPA found that there was no evidence in support of the applicant’s claim to be supportive of the Iraqi government or of the Modern National Force (“MNF”).
The IPA also rejected the applicant’s claim that he would be charged as a terrorist simply because he would be considered a stranger in Baghdad, on the basis that such a claim was vague and unsupported by any evidence, including any country information.
In relation to the applicant’s claim of having a fear of persecution because of his religion, the IPA noted that the applicant had never raised any issue of community interest in his or his family’s religious status prior to the rejection of his claim by the Delegate.
The IPA rejected several of the applicant’s new claims made subsequent to the Delegate’s decision as fabrications. The IPA considered the applicant’s explanation for failing to mention these claims and found it to be “entirely unconvincing”.
In relation to the applicant’s claim to have been kidnapped, having regard to the applicant’s overall credibility issues and the applicant’s inconsistent evidence relating to the kidnapping incident, the IPA found that the kidnapping incident was fabricated.
It also weighed on the mind of the IPA that the applicant had returned to Iraq on two occasions (from Iran and Indonesia) even though he claimed to fear being tortured and killed in Iraq. The IPA rejected the applicant’s explanation that he faced physical harm from a person in Indonesia as a fabrication to explain why he voluntarily returned to Iraq.
In relation to the applicant’s claim to be a member of a particular social group of young executives of wealthy Ba’athist oriented families considered by Shi’a Islamists as active sympathisers with the former Ba’athist regime, the IPA rejected the applicant’s claim of being a member of that group. The IPA found the applicant’s claim that his father was a member of the Ba’ath Party to be fabricated and that there was no indication that either the current government or any Shi’a militia have singled out either the applicant or his family for persecution.
In relation to the applicant’s claim to fear harm as a member of a particular social group of failed asylum seekers returning to Iraq, the IPA found that no such risk existed based on country information before it in light of its findings.
In relation to complementary protection, the IPA found that because the applicant has never been kidnapped or targeted for any reason by militia groups and is not considered a Ba’athist supporter or a Kaffir, the IPA was not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of the applicant’s claims.
Accordingly, the IPA was not satisfied that the applicant met the refugees criterion under s.36(2)(a) or that he met the complementary protection criterion under s.36(2)(aa) of the Act.
The proceeding before this Court
The applicant was represented before this Court by Mr Leonard Karp of counsel.
Mr Karp confirmed that the applicant relied on the grounds contained in a Further Amended Application filed on 24 July 2013. The grounds relied on are as follows:
“2. The reviewer breached the requirements of natural justice in failing to consider whether the applicant fell within s.36(2)(a) and/or 36(2)(aa) of the Migration Act because of a danger of his being kidnapped as a result of his being wealthy, or a member of a wealthy family in Iraq.
Particulars
(a) The reviewer failed to consider that danger in the light of his finding that kidnappings for financial gain do occur in Iraq and in the light of the information before him that such a danger existed.
3. The reviewer engaged in a purported, but not a real, assessment of the applicant’s claim to have been imputed with a political opinion supportive of the Iraqi government.
Particulars
(a) The reviewer failed to consider the primary evidence of the applicant’s claim, namely a letter from the South Oil Company (with ‘Ministry of Oil’ written on the letterhead) stating that the applicant was ‘Engaged to our Ministry’.”
Ground 2 – IPA breached natural justice in failing to consider whether applicant met criteria in s.36(2) of the Act because of a danger of being kidnapped as a result of being wealthy or from a wealthy family in light of country information before the IPA
At the heart of Mr Karp’s submissions was a contention that the following finding by the IPA was not open to it having regard to country information before it. That finding is as follows:
“142. I have regard to all of the claims both individually and cumulatively. Because I have found that the claimant has never been kidnapped or been targeted for any reason by militia groups, is not considered a Ba’athist supporter or a kaffir, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of his claims as outlined in the complementary protection criterion in s.36(2)(aa).”
Mr Karp submitted that the IPA had made a finding that because nothing had happened in the past to the applicant by way of kidnapping, he was not at risk in the future.
Mr Karp submitted that the IPA accepted that the applicant was from a wealthy family and accepted that he worked in the oil industry in Iraq. Mr Karp submitted that there was country information before the IPA to the effect that people from wealthy families were in danger of being kidnapped. Mr Karp submitted that the IPA should have specifically considered the risk of the future kidnapping of someone in the applicant’s position.
In considering the country information, Mr Karp submitted that the IPA was required to engage in an active intellectual process directed at the applicant’s submission of a fear of kidnapping if returned to Iraq (see Tickner v Chapman (1995) 57 FCR 451 at 462). Mr Karp submitted that a failure to consider evidence which would have the potential to change the outcome is a denial of natural justice as propounded by Jessup J in NZYJC v Minister for Immigration and Citizenship [2010] FCA 966 at [11].
Mr Karp read the affidavit of Kerry Murphy, affirmed 22 May 2013, who annexed extracts from country information referred to by the IPA.
Mr Karp referred to country information that the IPA claimed to have considered that disclosed that in Iraq the majority of kidnappings and disappearances appeared to be financially motivated, that religious minorities and children were often the target of such kidnappings and that kidnappers who did not receive a ransom often killed their victims. In particular, Mr Karp referred to country information that disclosed that professionals remain at risk of being targeted in Iraq, with persons perceived to be wealthy and their children at risk of being kidnapped and held for ransom. Mr Karp referred to other passages in the country information to a similar effect.
A fair reading of the IPA’s decision does not support Mr Karp’s submissions.
The IPA specifically stated that it had referred to and considered the country information. Indeed, the IPA accepted that kidnappings of persons from wealthy families do occur in Iraq.
I accept the submission of the first respondent that the critical findings of the IPA in relation to the kidnapping issue are as follows:
“10.1. The Reviewer found the Applicant to be “an unreliable and untruthful witness who lacked credibility” (at CB 252 [108]);
10.2. while the Reviewer accepted that kidnappings solely for the purpose of financial gain do occur in Iraq, he did not accept the Applicant’s claim that he had been kidnapped, finding instead that he had fabricated the incident he relied on (at CB 245 [128]);
10.3 the Reviewer did not consider that the Applicant was at risk of being kidnapped as someone who had returned to Iraq from the west on the basis that he had not had the opportunity to build up financial resources to justify his targeting (at CB 247 [140]); and
10.4 Because the Reviewer had found that the Applicant had never been kidnapped or targeted by militia groups, was not considered a Ba’thist supporter or a kaffir, the Reviewer was “not satisfied that there were substantial grounds for believing that there is a real risk of significant harm on the basis of his claim to complementary protection” (at CB 247 [142]).”
The IPA found that the applicant would not be targeted in Iraq for kidnapping as a “returnee”, having rejected the applicant’s claim to have been kidnapped at all, and the fact that there was no independent information specifically about the applicant as a potential target. Further, as stated above, the IPA had rejected the applicant’s claim to have any family affiliation with Ba’athists or be a Kaffir.
However, the IPA is required to respond to a claim articulated by the applicant or which squarely arose on the material before the reviewer (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [22]-[24] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[61]).
I accept the counsel for the first respondent’s submission that in order for the applicant’s contention to succeed, the IPA must have been required to make a finding about the general future risk of kidnapping, based on the country information about kidnappings for ransom, notwithstanding other findings that might have been made by the reviewer.
The country information is to the effect that Iraqis of wealthier backgrounds are at more risk of kidnapping. There was no legal requirement on the IPA to make an express finding in relation to the future chance of harm of this possibility in respect of the applicant. It is well established that a decision maker such as the IPA is not required to make findings not considered material in statutory obligations (see Minister for Immigration and Multicultural Affairs v Yousef (2001) 206 CLR 323 at [5]-[10] per Gleeson CJ, at [33] per Gordon J, at [68]-[69] per McKew, Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [32] per French CJ and Keifel J, at [62] and [69] per Gummow J).
I accept the first respondent’s submission that if the statutory obligation does not extend as far, it is difficult to see how a non-statutory recommendation to the first respondent about whether the first respondent should lift the bar under s.46A of the Act is subject to some higher duty. (See M61).
In the case before this Court, as stated above, the applicant claimed to fear harm as a member of a particular social group being “young executives of wealthy Ba’athist oriented families considered by Shi’a Islamists as active sympathisers with the former Ba’athist regime.” The IPA accepted only that the applicant was from a wealthy family. Further, the IPA also found that the applicant’s actions subsequent to his alleged kidnapping, being his return to Iraq on two occasions, does not reflect the conduct of a person who claims to fear being kidnapped in the future if he was to return to Iraq.
In the circumstances, any future risk of kidnapping was subsumed in the IPA’s finding that he was “not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of [the applicant’s] claims.” (See Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46-47]).
The IPA was obliged to consider whether the applicant met the criterion under s.36(2)(a) of the Act and the alternative criterion in s.36(2)(aa) of the Act.
In relation to s.36(2)(aa) of the Act, the IPA’s finding makes clear that it simply was not satisfied that there were any substantial grounds for believing that there was a real risk of significant harm on the basis of the applicant’s claims, and therefore that the applicant did not meet the complementary protection criteria in s.36(2)(aa) of the Act.
There is nothing to suggest in the context of that finding that the IPA did not give consideration to the country information before it, as it claimed to have done.
In the circumstances, the IPA’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the IPA (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
There was no denial of natural justice as alleged in ground 2 of the Further Amended Application.
Accordingly, ground 2 is not made out.
Ground 3 – Whether the IPA failed to make a real assessment of the applicant’s claim to have been imputed with a political opinion supportive of the Iraqi government by failing to consider a letter from the South Oil Company stating that the applicant was “engaged to our ministry”.
Mr Karp contended that the following finding made by the IPA was not open to the IPA in light of a letter provided by the applicant to the IPA from the Republic of Iraq Ministry of Oil South Oil Company. The finding is as follows:
“120. No evidence was provided in support of his claim to be supportive of the Iraqi government nor of the MNF. Given that the MNF are no longer in Iraq and that he had never claimed to have had contact with them, I find this claim to have no basis in fact.”
The letter which the applicant contends was not considered by the IPA states as follows:
“To whom it may concern,
This is to confirm that [the applicant] is engaged to our ministry to supply certain goods. Our information that was confirmed, states that he was kidnapped in Basrah from his office located at Ashar from 4-7 November 2010.
[The applicant] did not resume supplying the contracted materials to our ministry. He presented a letter detailing the kidnapping that occurred to him the ransom paid and his fear that he still could be endangered again. ”
The substance of the letter upon which the applicant relies is the statement that the applicant “is engaged to our ministry to supply goods.”
Mr Karp submitted that the letter was clear evidence that the applicant may be perceived as having a political opinion supportive of the Government of Iraq. Mr Karp submitted that because the document is clear evidence of a perception of support for the government, the IPA’s finding must have been made without considering the letter.
However, the IPA’s finding above must be seen in the context of other findings made by the IPA. The IPA accepted that the applicant worked for a company involved in the oil industry in Iraq. The IPA did not accept that he worked for, or would be considered to work for, a Western oil company.
The IPA noted the applicant’s evidence which was to the effect that he was a subcontractor for the South Oil Company. The IPA made a specific finding that it did not accept that the applicant’s work as a contractor for the South Oil Company would impute him as working for a foreign company.
The IPA referred to country information that disclosed that employment in a foreign company alone was not likely to be a risk factor.
In the circumstances, the letter referred to above does no more than support the applicant’s claim that he worked as a subcontractor for the South Oil Company. Further, the letter appears to have been relied upon by the applicant in support of that claim.
In the circumstances, it was open to the IPA to find that there was no evidence provided in support of the applicant’s claim to be supportive of the Iraqi government.
Otherwise, a fair reading of the IPA’s decision makes clear that the IPA considered carefully the applicant’s claim to be imputed with political opinion and ultimately concluded that such a claim was not made out.
Those findings were open to the IPA on the evidence and materials before it and for the reasons it gave.
Accordingly, ground 3 is not made out.
Conclusion
A fair reading of the IPA’S decision record makes clear that the IPA understood the claims being made by the applicant; explored those claims with the applicant and his adviser at a hearing in great detail; and, had regard to all material and submission provided in support. The IPA put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The IPA identified in detail independent country information to which it had regard. The IPA also put to the applicant the independent country information before it and invited the applicant to comment upon it.
The IPA then made findings based on the evidence and material before it. Those findings of fact were open to the IPA on the evidence and material before it and for the reasons it gave. A fair reading of the IPA’s decision record makes clear that the IPA reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the IPA’s conduct in recommending that the applicant not be accepted as a refugee was made according to law.
The proceeding before this Court, commenced by way of application on 9 October 2012, should be dismissed with costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 27 November 2013
0
8
0