SZQPG v Minister for Immigration & Anor [2011] FMCA 978 (19 December 2011)

Last Updated: 21 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQPG v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 978

MIGRATION – Judicial review of Independent Merits Review of refugee claims of offshore entry person – Refugee claims of Iraqi Shia – no error of law or procedural fairness found – application dismissed.

Constitution, s.75(v) Migration Act 1958 (Cth), ss.36(2), 46A, 91R(1), 91R(1)(a), 476, 477

Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 Kalala v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 212, [2001] FCA 1594 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220, [1999] FCA 719 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30 MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 44, [2010] FCAFC 123 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, [2004] FCAFC 263 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 448, [2006] FCA 3 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 SZDWR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 149 FCR 550, [2006] FCAFC 36 SZPZI v Minister for Immigration & Anor [2011] FMCA 530 SZQHC v Minister for Immigration & Anor [2011] FMCA 851 SZQNF v Minister for Immigration & Anor [2011] FMCA 965

Applicant:

SZQPG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

JILL BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1963 of 2011

Judgment of:

Smith FM

Hearing date:

30 November 2011

Delivered at:

Sydney

Delivered on:

19 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr M Gibian

Solicitors for the Applicant (at Hearing on 30 November 2011):

Parramatta Community Justice Clinic

Solicitors for the Applicant (at Judgment Hearing on 19 December 2011):

Michaela Byers, Solicitor

Counsel for the First Respondent:

Mr O Jones

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the amount of $6,240.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1963 of 2011

SZQPG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JILL BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia without travel documents by boat which was taken to Christmas Island in June 2010. On 15 August 2010 he requested an assessment by the Department of Immigration of his refugee status (the “RSA”), under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was notified to the applicant on 30 September 2010, and the applicant then applied for ‘independent merits review’ (the “IMR”) under those procedures. Ms Bartlett was appointed to conduct the review, and interviewed the applicant in the presence of his migration agent at Christmas Island on 5 July 2011.
2. On 9 August 2011, Ms Bartlett recommended that the applicant should not be recognised as a person to whom Australia has protection obligations. The applicant filed his present application to the Court on 2 September 2011, seeking a declaration that Ms Bartlett’s report is affected by legal error, and injunctive relief to prevent the Minister and his Department from relying upon it. No issues arise in relation to satisfaction of the time limit under s.477 of the Migration Act.
3. Throughout the administrative and judicial proceedings, the applicant has been held in immigration detention as an ‘offshore entry person’. The Minister concedes that Ms Bartlett’s report attracts judicial review, and that the present application is within this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 at [51].
4. The applicant received assistance from Melbourne migration agents during the RSA proceedings, and from a Sydney migration agent during the IMR proceedings. In this Court, he was assisted by the Parramatta Community Justice Clinic, who briefed counsel to appear at the hearing. At the time of the hearing, the applicant was in detention in Darwin. His lawyers did not request his attendance at the hearing.
5. Under the judicial review jurisdiction upheld in Plaintiff M61, it is the function of the Court to consider whether Ms Bartlett’s report reveals any error of law or denial of procedural fairness in its reasoning or in the procedures followed before its making. The relief sought in the present application can only be contemplated, if I am satisfied that Ms Bartlett made such an error. It is not the function of the Court to engage in merits review of Ms Bartlett’s findings as to the risks which might face the applicant if he returns to Afghanistan, nor to consider whether the applicant should be permitted to reside in Australia.
6. When examining Ms Bartlett’s reasons for legal error, I consider that the Minister’s instructions as to the contents of his report make it appropriate to examine the report on the same principles as are applied to a statement of reasons given by a migration tribunal (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]-[13]). These principles include the obligation not to read Ms Bartlett’s statement of reasons “minutely and finely with an eye keenly attuned to the perception of error”, but to adopt a ‘benign approach’ when attempting to understand ambiguous or poorly explained reasoning (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 and 291).

The applicant’s refugee claims

7. In his statutory declaration submitted with his RSA application, the applicant claimed to be a citizen of Iraq and a Shia Muslim.
   He presented three reasons for fearing persecution if he returned to Iraq:
   • 2. My main reasons for seeking the protection of the Australian Government are based on my fear of returning to Iraq because I will face persecution from tribal groups who want to kill myself and my family. I also fear Islamic militant groups who may harm me due to my association with the occupying forces in Iraq. As a Muslim Shi’a I also fear harm from Islamic extremist groups who seek to persecute us.
8. He explained his fear of harm “from tribal groups”, by reference to a history in which three of his older brothers were murdered during the regime of Saddam Hussain after being accused of being members of an opposition political party. After the fall of the regime, the family was told the identity of five persons who were responsible, and he described them as members of a government “safety committee”, “supporters of Saddam Hussain’s Baath Party”, and members of three identified tribes. The applicant’s family decided to respond by legal means, but unknown persons kidnapped and killed the five informers in 2006. In 2008, this led to the retaliatory killings of two relatives of the applicant, and threats to the applicant’s father from “the tribal groups” of the five informers, that “they needed to kill another three people to makes amends”. Threats were made by phone, and the applicant’s family took evasive measures. However, the applicant believed that he was still at risk.
9. The applicant’s separate fears arising from “my association with the occupying forces in Iraq”, was explained by reference to employment which he held in 2009 and 2010, delivering food to an organisation associated with the US Forces. The applicant claimed that this came to the attention of militant opposition groups, and that shots were fired at him when driving home in April 2010. This event was “the last burden for me and I decided to flee Iraq”.
10. The applicant’s general fears as a Shia Muslim were explained shortly:
    • 16. I further fear the activities of Islamic militant groups which seek to harm Muslim Shi’a. There have been many incidents in which Shi’a have been targeted and I fear I may be harmed or killed in such an incident.
11. After interviewing the applicant, the RSA assessor decided that the applicant did not meet the Refugees Convention definition of refugee. On reasoning which it is unnecessary to examine, she did not accept the truth of the applicant’s claims of threats from “the families of these Ba’ath Party ex-members”, nor that the applicant had been imputed with pro-American opinion and shot at because of his food deliveries. She did not specifically address his religious claim, but thought that the applicant could avoid risks arising from “the current insecure environment in Iraq”.
12. In support of the applicant’s IMR request, his agent lodged a lengthy written submission. It addressed only the applicant’s second and third claims, which it summarised:
    • 1. There can be no doubt that he has have genuine fears of suffering severe persecutory harm
      • on the grounds of religion as a Shia Moslem now regarded as an infidel because he has collaborated with the US occupation forces and the new Iraqi government and has refused to show loyalty or obedience to the Islamist Shi’ite ex-militia groups, now transformed into political groups.
      • on the grounds of membership of a particular social group: Iraqis performing services to the new Government and the US occupation forces and therefore regarded as a collaborator. He has compounded this being seeking haven in the Coalition country Australia.
      • on grounds of political opinion imputed to him as a secularised Shia Moslem collaborator of being hostile to the religious extremists’ goals of the imposition of an Islamic regime in Iraq.
    • 2. The cumulative effect of these creates a heightened profile for him which realistically and appreciably increases the risk of severe persecutory treatment against him as a secularised Shi’ite collaborator with the US occupation forces and the Iraqi government, at the hands of lslamist sectarian extremists, if he has to return to Iraq.
    • 3. To paraphrase a succession of post-2003 Refugee Review Tribunal decisions, the chance that [the applicant] will be persecuted is extremely high, because of his perceived religious status, membership of a particular social group, his imputed political opinion and now because he has been in the Coalition country, Australia. No reasonable person, therefore, can discount the possibility that he will be killed nor can they exclude the chance of this occurring as remote and insubstantial.
13. The submission then cited legal authorities on the Convention definition, and country information concerning the situation in Iraq. The sources it cited, both in general terms and with some quotations, included the UNHCR eligibility guidelines of April 2009 in relation to Iraqi asylum seekers, a UNHCR ‘update’ note of 10 July 2010, and “other respected international sources such as the U.S. State Department’s Human Rights Report: Iraq, Human Rights Watch and Amnesty International”. Copies of the lengthy UNHCR documents were presented, and are compressed and reproduced in 170 pages of the Court Book.
14. The applicant also submitted a further statement explaining his employment duties, and attaching various documents purporting to corroborate his employment and that bullets were fired at him after he was threatened by ‘a terrorist group’. The documents also included the threatening letter which he claimed to have received.

The IMR report

15. In her report, Ms Bartlett recounted the evidence given by the applicant in writing and at various interviews. She also included a brief description of ‘country information’, which I shall extract since it is relevant to several of the grounds of review:
    • Country Information
      • 60. Independent information from a range of sources is that:
      • (i) Article 14 - Iraqis are equal before the law without discrimination based on gender, race, ethnicity, nationality, origin, colour, religion, sect, belief or opinion, or economic or social status.
        • Article 15 - Every individual has the right to enjoy life, security and liberty. Deprivation or restriction of these rights is prohibited except in accordance with the law and based on a decision issued by a competent judicial authority1;
      • (ii) Progress in the security environment remains steady, with security incidents remaining near the lowest levels in more than five years despite a spike in attacks during the March 7, 2010 election. [...] Religion, nationalism, and attempts to destabilize Iraq to discredit the GoI motivate a small number of Sunni groups who conduct attacks either to expel U.S. Forces or reduce the influence of the GoI in their area. These groups include the 1920 Revolutionary Brigade, the Mujahidin Army, Ansar al-Sunna (AAS), JAI, Hamas al-Iraq (HaI), Jaysh al-Rashidin (JAR), and the JRTN, an insurgent group affiliated with the Iraqi Ba’ath party that conducts operations throughout the central and northern regions of Iraq. Additionally, there is some level of violence attributable to common criminal activities, personal grudges, or tribal rivalries, making it difficult to differentiate between insurgent and criminal activities. These acts of violence often have no specific motivation other than greed, interpersonal relationships, or general discontent with the current situation2;
      • (iii) 2. Baghdad Governorate 193. While, in recent years, Baghdad accounted for the highest number of security incidents and civilian casualties, 2008 was the first year that more people were killed outside the capital. Violence levels in Baghdad have significantly fallen since the last quarter of 2007 as a result of several factors, including the “freeze” of JAM activities the “surge” forces deployed by the MNF-I the establishment of the SoI in many Sunni-dominated neighbourhoods and improved ISF capabilities. The sources of instability in Baghdad continue to be Shi’ite militia groups, including JAM and a range of splinter and “Special Groups” and a persistent, albeit weakened, presence of predominantly Sunni insurgents, including AQI and other groups, often loosely affiliated with AQI. The targets of armed groups are, in particular, members of the ISF/MNF-I and the SoI as well as government and party officials. They also continue to target civilians, often in populated places such as markets, mosques, bus stations or restaurants. Shi’ite and Sunni extremists also share responsibility for indirect fire attacks against the International Zone (IZ), the Baghdad International Airport (BIAP) and MNF-I bases around the city. For example, on 15 January 2009, an attack on the IZ close to the UN Residential Compound resulted in the injuring of three private security company guards3;
      • (iv) 15. It is not possible to set down with absolute precision the types and patterns of claims that will continue to be made by Iraqi asylum-seekers from those parts of the country. However, the detailed analytical information provided further below in the paper highlights some of the key groups from which those who are most at risk of harm are drawn. Without implying that each and every member of these groups is actually the target of risk, they include, in particular:
        • — Iraqis affiliated with political parties engaged in power struggles
        • — Government officials and other persons associated with the current Iraqi Government, Administration or Institutions
        • — Iraqis (perceived to be) opposing armed groups or political factions
        • — Iraqis affiliated with the MNF-I or foreign companies
        • — Members of religious and ethnic minorities
        • — Certain professionals (academics, judges, doctors, etc.)
        • — Journalists and media workers
        • — UN and NGO workers, human rights activists
        • — Homosexuals
        • — Women and children with specific profiles4.
          
      • 1 National Legislative Bodies Constitution of the Republic of Iraq (Unofficial translation) 15 October 2005 - https://www.usip.org/ruleoflaw/projects/unami_iraq_constitution.pdf
      • 2 US Department of Defence Measuring Stability and Security in Iraq, June 2010 – http://www.defense.gov/pubs/pdfs/June_9204_Sec_Def_signed 20_Aug_2010.pdf
      • 3 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum Seekers April 2009
      • 4 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum Seekers April 2009
16. Ms Bartlett then made findings and explained her adverse conclusions under the heading “Findings and Reasons”.
17. Ms Bartlett accepted that the applicant is an Iraqi citizen of Arab ethnicity and Shi’a Muslim faith born in Baghdad. She also accepted the history involving the deaths of his three brothers, the killing of the five informers, and retaliatory actions including the killing of two of his relatives. She noted country information that prior to 2008 Baghdad “experienced extremely high levels of violence, general insecurity and civilian deaths”, and she accepted that the applicant’s family “suffered the harms he has claimed”.
18. However, she characterised the applicant’s fears arising from this history as not coming within the Convention definition as adopted by the Migration Act. She said:
    • 63. ... [The applicant’s] evidence provided at his entry interview that neither he nor any members of his family have been associated with or involved with any political groups is also accepted. Based on the available information pertaining to [the applicant’s] family’s particular circumstances (death of brothers during a politically turbulent period which has since ended, criminal harm against family members with no political associations and / or property owned by them during a period of high levels of generalised violence and lawlessness against civilians), the reviewer finds [the applicant] has been subject to serious harm by non State agents (tribal or family members of deceased former informants) for the essential and significant reason of criminally motivated revenge and self interest, and not for one or more Convention reasons as required by subparagraph 91R(1)(a) of the Migration Act 1958.
19. Ms Bartlett said that she accepted the applicant’s description of his employment as a delivery driver before leaving Iraq. However, she rejected his claims of being threatened and fearing persecution as a result of that employment. Her conclusion in this respect was expressed at the start and end of her discussion of this claim:
    • 65. After careful consideration of the totality of [the applicant’s] oral and documentary evidence, the reviewer does not accept as credible his claims of receiving a threat letter with a bullet and his being shot at whilst driving his vehicle, for the following reasons.

...

• 68. The reviewer is not affirmatively satisfied [the applicant] received the threat letter with a bullet from League of the Advocates of Right in Iraq, or that he was the victim of a shooting whilst driving his vehicle on 24 April 2010, or that people in his suburb believe he is a spy / informant / collaborator because he works as a delivery driver for [named] Company. Whilst the reviewer accepts the [named] Company has a business association with a local government body which has the responsibility of providing foodstuffs to the Iraqi army and multinational forces, the reviewer does not accept [the applicant’s] employment of itself gives rise to him having an association with the City Council beyond that of a vehicle driver for a private food transport company. Accordingly, the reviewer finds there is not a real chance [the applicant] would be persecuted, now or in the reasonably foreseeable future, for any Convention reason such as religion (perceived as an infidel collaborator with the US forces and new Iraqi government instead of an allegiance to Islamist Shi’ites), imputed political opinion (secularised Shi’a Muslim collaborator hostile to religious extremists goals of imposing an Islamic regime in Iraq) or membership of particular social group (Iraqi’s performing services to the new Government and US occupation forces) on the basis of his employment with the [named] Company.

20. In the intervening discussion, Ms Bartlett considered the applicant’s evidence about receiving threats, and the documents he presented. She said: “the reviewer considers it objectively unlikely [the applicant] would be accused of being a collaborator as a consequence of his being a mere employee food delivery van driver, and the doubtfulness of the genuineness of [the] threat letter further detracts from [the applicant’s] credibility on this matter”.
21. Some additional explanation for her adverse conclusion on the credibility of this claim is also found in Ms Bartlett’s subsequent discussion, which examined the applicant’s evidence about his dealings with police following the shooting incident. She said this evidence about his dealings was “internally inconsistent”, and that his “oral and documentary evidence about the police response lacks plausibility”.
22. Notwithstanding her opinion that the applicant’s fears of persecution from ‘tribal groups’ was not related to the Convention, and her rejection of the truth of the applicant’s claims to have been threatened in relation to his employment, Ms Bartlett proceeded to discuss whether the applicant would receive State protection in relation to both of these claimed fears. She commenced this discussion with the statement:
    • 69. However, in case the reviewer is wrong about the lack of credibility of [the applicant’s] claims of being accused as a collaborator, receiving death threats by letter with a bullet and phone calls, and being shot at whilst driving his vehicle, the reviewer will proceed to consider whether there is a real chance in the reasonably foreseeable future he will be persecuted by non State sectarian and / or insurgent actors for Convention reasons in addition to the non Convention harm he fears from tribal / family members of deceased informants.
23. Her conclusion in relation to the availability of State protection was expressed in the following paragraph:
    • 80. Regarding the telephone threats of revenge for the deaths of the Saddam Regime informants, the reviewer accepts [the applicant’s] oral evidence that he did not inform the police of the identity of the people threatening him because he believed tribes people may have been in the police and / or the police may tell him they only have power to enforce regulations. Regarding his fear of harm related to his employment with the [named] Company, the reviewer accepts (despite concerns with [the applicant’s] evidence detailed in preceding paragraphs), that he informed the police of the threat letter and incident occurring on 24 April 2010. The reviewer also accepts the independent information at subparagraphs 60(i) and (ii) that the Constitution of Iraq prohibits violence and discrimination against individuals and levels of insecurity have been at their lowest for the past five years, and does not accept [the applicant’s] claim that the police and / or authorities have, or will in the reasonably foreseeable future, be unable or unwilling to protect him against the harm he fears from non State actors in relation to his employment with the [named] Company. The reviewer also does not accept State protection would be withheld from or denied to [the applicant] for a Convention reason for his fear of criminally motivated harm from tribal or family members of deceased former informants. Accordingly, the reviewer finds there is an appropriate level of State protection available to [the applicant] in Iraq against the harm he fears from the [three named] tribes people, and the League of the Advocates of Right in Iraq who [the applicant] claims have threatened him in relation to his employment with the [named] Company. For these reasons the reviewer finds [the applicant’s] fear of persecution in the reasonably foreseeable future, in relation to past events he claims have occurred and / or in relation to his employment with [named] Company, are not well founded in the Refugee Convention sense.
24. Ms Bartlett then addressed the applicant’s claims relating to his religion and fears from Islamist Shi’ites. As I have noted, these claims had been elaborated by the applicant’s agent, so as to invoke Convention grounds of religion, perceived political opinion, and membership of particular social groups. Ms Bartlett’s discussion attempted to grapple with these complexities, including in a paragraph which is the subject of one of the grounds of review:
    • 86. As the reviewer does not accept that the agent’s posited groups (Iraqis performing services to the new Government and the US occupation forces and Iraqi’s affiliated with the Occupying Forces or foreign companies) are of a social character, but rather are of a political character given membership entails a common characteristic of service to or affiliation with government or foreign interests, the reviewer does not accept any such particular social groups exist in Iraq. For this reason the agent’s submission that [the applicant] has a profile of being associated with the government or affiliated with the Iraqi army and multinational forces, which is compounded by his act of seeking asylum in Australia, is not accepted as heightening his risk of being persecuted in the Refugee Convention sense. The reviewer finds there is nothing in [the applicant’s] profile which brings him within any of the UNHCR specified groups as set out in subparagraph 60(iv).
25. She then addressed his religion-related claims in a more direct fashion:
    • 87. [The applicant] claims he fears harm from Islamic extremist groups, and the reviewer accepts the evidence he provided at his entry interview that he is of the Shi’a Muslim faith and is not a member of any religious group. The reviewer notes [the applicant] has not provided any evidence of past harm he has personally experienced because of his Shi’a Muslim religion, nor has he provided evidence or claims of any impact his fear of persecution for this reason has had upon his life in Iraq. Rather, his oral evidence concerns fears pertaining to militant groups and he cites the example of targeted violence at religious festivals. Information at subparagraphs 60(ii) and (iii), which is accepted, is that religion, amongst other factors, motivates Sunni attacks to either expel US forces or undermine the government, and civilians in Baghdad continue to be targeted often in populated public areas. Subparagraphs 91R(1)(a), (b) and (c) of the Migration Act 1958 require one or more Convention reasons to be the essential and significant reason for systemic and discriminatory conduct which involves serious harm. On the available evidence pertaining to [the applicant] who is of the Shi’a Muslim faith, the reviewer finds there is nothing more than a remote chance, now and in the reasonably foreseeable future, that he will be subject to deliberate harm for the essential and significant reason of his Shi’a Muslim religion.
    • 88. [The applicant] claims he also fears harm because there is no stable ministry, explosions occur regularly, armed groups are scattered everywhere, and Sunni terrorist groups such as Al Qaeda are still active. [The applicant’s] agent also refers to the current Department of Foreign Affairs and Trade advice which states, in part, we strongly advise you not to travel to Iraq because of the extremely dangerous security situation and very high threat of terrorist attack ... Terrorist attacks can occur at any time, anywhere in Iraq. As subparagraph 91R(1)(a) of the Migration Act 1958 requires serious harm to be for the essential and significant reason of one or more Convention grounds, and it has been found there is not a real chance [the applicant] will be targeted for reasons of imputed political opinion and / or his Shi’a Muslim religion, the reviewer finds any harm to [the applicant] from such sources is not persecution in the Refugee Convention sense. Whilst the reviewer notes Iraq continues to be a country facing significant challenges, the Convention definition does not encompass those fleeing generalised violence or internal turmoil (see for example MIMA v Haji Ibrahim [2000] HCA 55; [2000] 204 CLR 1 at [141]).
26. Ms Bartlett concluded her report:
    • Conclusion
      • 89. As it has been found there is an appropriate level of State protection available to [the applicant] for the harm he fears from the [three named] tribes and League of the Advocates of Right in Iraq (or any other non State actors), it follows that his fear of being killed by such persons is not well founded. As it is not accepted there is a real chance [the applicant] will be subject to any harm for the essential and significant reasons of imputed political opinion and / or his religion or that there is a particular social group of which [the applicant] is a member, the reviewer finds [the applicant’s] fear of Refugee Convention protected harm is not well founded. For these reasons the reviewer finds [the applicant] does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958.
    • RECOMMENDATION
      • 90. I recommend that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as provided by the 1967 Protocol relating to the Status of Refugees.

The grounds of review

27. Counsel for the applicant made submissions addressing a plethora of separate grounds of legal error and failures of procedural unfairness. This approach to IMR matters has become characteristic in this Court, and I would not encourage it. It leads to protraction of hearings and judgments in cases which deserve expedition, and, more importantly, has a tendency to obscure rather than clarify the applicant’s best arguments. Perhaps counsel see a forensic advantage in trialling arguments which they can abandon on appeal, but I doubt whether this assists their clients or the appeal court. It certainly makes the work of the primary judge more onerous. My experience both at the bar and as a judge is that applicants for judicial review are best served if counsel endeavour to isolate their best ground of judicial review and to present it with completeness and precision, abandoning other less attractive grounds even if they appear arguable. It is the nature of the relief sought in judicial review of administrative action, that only one ground of material error needs to be established.
28. However, these concerns notwithstanding, it is my duty to decide all the grounds which were relied upon by the present applicant’s counsel. They were set out in an amended application filed on 18 November 2011:
    • Grounds of application
      • 1. The Independent Merits Reviewer misconstrued 91R(1)(a) of the Migration Act 1958 in relation to the motivation for persecution in paragraph 63 of the decision record and thereby misconstrued the test for determining whether the applicant was a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Refugees Protocol 1967.
      • 1A The Independent Merits Reviewer failed to consider whether the threat of harm from persons seeking revenge for the death of five informants in relation to the execution of his brothers amounted to a harm based upon the imputed political opinion of the applicant and thereby failed to exercise its jurisdiction by failing to determine all of the essential integers of the applicant’s claim.
    • [Grounds 2 and 3 deleted]
      • 4. The Independent Merits Reviewer misconstrued independent country information extracted at paragraph 60 of the decision record relating to military security in Iraq and misconstrued the test of determining if there was adequate State protection in making her findings at paragraphs 80 and 89 that there is an appropriate level of State protection for civilians such as the Applicant in Iraq and thereby misconstrued the test for determining whether the applicant was a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Refugees Protocol 1967.
      • 5. The Independent Merits Reviewer misconstrued the element or character of the Convention reason of membership of a particular social group at paragraph 86 of the decision record and thereby denied the Applicant natural justice.
        • PARTICULARS
        • (i) [86] As the reviewer does not accept that the agent’s posited groups (Iraqis performing services to the new Government and the US occupation forces and the Iraqi forces affiliated with the Occupying Forces or foreign companies) are of a social character, but rather are of a political character given membership entails a common characteristic of service to or affiliation with government or foreign interests, the reviewer does not accept any such particular social groups exist in Iraq;
        • (ii) McHugh J in Applicant A v MIEA [1997] HCA 4 (24 Feb 1997) stated:
          • The use of the term ‘membership’ in conjunction with ‘particular social group’ connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them.
        • (iii) Work is an activity, that is social and not political in character and the Applicant’s work in delivering food stuffs to the new Government, US and Iraqi Forces is an element or characteristic that unites him with all other such workers and makes them identifiable to Iraqi society.
      • 6. The Independent Merits Reviewer erred in the finding at paragraph 89 of the decision record that there is an appropriate level of State protection in Iraq available to the applicant for the harm he fears from any other non-State agent without identifying who the any other non-State agents are or the Independent Country Information that supports such a finding without putting anything to the Applicant for comment and thereby denying the Applicant procedural fairness and natural justice.
      • 7. The Independent Merits Reviewer denied the Applicant procedural fairness by failing to afford him an opportunity to deal with information contained in independent country information which was relevant and significant to the decision.
        • PARTICULARS
        • (i) At paragraph 60 of the decision record, the Independent Merits Reviewer relies upon the independent country information ‘National Legislative Bodies Constitution of the Republic of Iraq (Unofficial translation) 15 October 2005’, the ‘US Department of Defence Measuring Stability and Security in Iraq, June 2010’ and the ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum Seekers, April 2009’ in her findings. However, the Independent Merits Reviewer failed to put to the Applicant, that independent country information which she relied upon in making an adverse finding with respect to the Applicant’s claims.

Grounds 1 and 1A

29. These grounds attack Ms Bartlett’s reasons for deciding that the applicant’s fears arising from the retaliatory threats of ‘tribal groups’ did not concern persecution for a reason protected by the Refugees Convention. I have above extracted the relevant part of her paragraph 63.
30. Section 91R(1)(a) of the Migration Act qualifies the adoption in s.36(2) of the Refugees Convention definition of refugee, by requiring that the feared persecution must be for a Convention reason or reasons which is or are “the essential and significant reason, or ...reasons” for the persecution.
31. Counsel for the applicant accepted that, when reporting to the Minister, Ms Bartlett was obliged to apply this statutory test as to the applicant’s qualification for a protection visa if he were permitted to apply for one. He accepted that Ms Bartlett framed a conclusion at the end of paragraph 63 of her report which reveals no overt error of understanding of s.91R(1)(a) or other error of law. However, he submitted that I could infer error of law or denial of procedural fairness from her reasoning in this paragraph read in the context of the claims made by the applicant.
32. In his written and oral submissions, counsel, in effect, isolated Ms Bartlett’s error as “misunderstanding or misconstruing a claim advanced by the applicant” (c.f. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 at [63]). A failure in this respect is undoubtedly an error warranting a declaration of the type made in Plaintiff M61, whether characterised as error of law, failure of procedural fairness, or jurisdictional error (see Plaintiff M61 at [90]).
33. Counsel for the applicant submitted that the applicant’s fears of retaliatory harm from tribal groups was “clearly capable of constituting a claim to fear harm on the basis of the imputed political opinion or imputed political position of the applicant”. He took me to references in the applicant’s evidence to the political background to the events, showing their origin in the political murders of his brothers, followed by retaliation against the informers who were members of the former Ba’ath party. I accept that this evidence was given by the applicant, although in my opinion the applicant’s evidence gave more emphasis to the informers’ tribal connections, and he clearly attributed tribal motives, rather than overtly political motives, to the persons who currently threatened the applicant’s family.
34. It is unnecessary for me to detail the references in the evidence to the political background to the deaths of the brothers and (perhaps) also to the killing of the five informers, since the Minister’s representative conceded that they were enough to raise a duty on Ms Bartlett to consider whether the persecution currently feared by the applicant could itself be characterised as having a political complexion such that it had a sufficient Convention nexus.
35. However, I accept the submission of the Minister’s representative that Ms Bartlett’s reasoning in paragraph 63 shows that she was aware of that issue and addressed it when applying s.91R(1)(a). Her earlier narration of the applicant’s evidence certainly shows that she was aware of his references to the five informers having Ba’ath party associations (for example at paragraph 41). Her concluding reasoning which I have extracted above also shows, in my opinion, that she then considered whether the retaliatory threats to the applicant, as a member of a family held collectively responsible for the deaths of the five informers, was motivated by or related to a perception of their political opinions or background. This is shown in her weighing of the evidence that the applicant disclaimed any association or involvement by himself or his family in a political group. She also assessed evidence suggesting a level of lawlessness following the downfall of the previous regime. She then concluded that the current fears of the applicant were “for the essential and significant reason of criminally motivated revenge and self interest”, thereby indicating that she had excluded the Convention reason of “political opinion”.
36. Counsel for the applicant challenged the expression and reasonableness of this part of Ms Bartlett’s reasoning, seeking to raise an inference of legal error. However, I consider that his arguments dealt only with the merits of a characterisation of the feared persecution, upon which minds might differ, but which was open to Ms Bartlett as a matter of law on the evidence before her.
37. I therefore was unable to detect any error of law made by Ms Bartlett when addressing the applicant’s refugee claim based on the history of threats of retaliation on members of the applicant’s family by tribal groups.
38. I also do not accept that Ms Bartlett failed to address whether the persecution feared by the applicant would result from his or his family’s perceived political opinions. In my opinion, she probably did consider this hypothesis, but rejected it.
39. Grounds 1 and 1A are therefore not made out.
40. Grounds 2 and 3 are no longer pressed.

Ground 4

41. I have above extracted Ms Bartlett’s reference to ‘country information’ in paragraph 60 of her report, and her reasoning at paragraphs 80 and 89 which made reference to that information.
42. As I understood counsel’s submissions, he contended that her reliance on the information cited in paragraphs 80 and 89 was so illogical or unreasonable as to allow the inference that she misunderstood the tests of adequate State protection explained by the High Court in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1.
43. Counsel cited Madgwick J’s discussion of Respondents S152 in SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 448, [2006] FCA 3 at [37], which I would not regard as inconsistent with the later statement of the Full Court in SZDWR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 149 FCR 550, [2006] FCAFC 36 at [18], that the standard of adequate protection is “that of a reasonably effective police force and a reasonably impartial system of justice” (citing Respondents S152 at [19], [26], and [28]).
44. Counsel submitted:
    • 17. The approach of the Independent Merits Reviewer was to determine the question of the adequacy of State protection solely by reference to formal Constitutional guarantees and country information as to the general level of violence. What is missing from the recommendation of the Independent Merits Reviewer is:
      • (a) Any analysis of the efficacy of formal Constitutional guarantees in actually providing a reasonable level of protection for the applicant or a person in the position of the applicant.
      • (b) Any analysis of how evidence of the general level of violence was relevant in assessing whether the applicant would be provided with a reasonable level of protection from the specific threats he identified.
    • 18. Having regard to the matters put forward by the applicant as to the capacity of the police in Iraq to provide protection from revenge attacks and militant violence, it was incumbent upon the Independent Merits Reviewer to consider whether the applicant himself would actually receive reasonable State protection.
      • (citation omitted)
45. However, I am unpersuaded that any error of law is shown in Ms Bartlett’s consideration of the availability of State protection to the applicant against the serious harms which the applicant claimed to fear if he returned to Iraq arising from his claimed history. Her expression might have been improved, and she might have given more extensive reasoning, but applying a benign approach to the consideration of her report I am unpersuaded that it raises an inference of legal error.
46. In this respect, I would not read the significant sentence in the middle of paragraph 80, as showing that the sole reasons why she did not accept that authorities would “be unable or unwilling to protect him against the harm he fears from non State actors” were her two findings in the first section of this sentence, i.e. “that the Constitution of Iraq prohibits violence and discrimination against individuals” and that “levels of insecurity have been at their lowest for the past five years”. Such reasoning would, indeed, be superficial, illogical, and prima facie insufficient to support the stated conclusion as to the availability of State protection.
47. However, I consider that Ms Bartlett probably meant that she was satisfied that the Constitutional guarantee was being implemented, and that she considered that the level of violence had reached a lower stage where it allowed a finding of adequate protection. It was very relevant for her to consider whether the lawlessness to which she had attributed the violence directed at the applicant’s family in 2008 had diminished. I think that in the first part of this sentence she was saying no more than that she was satisfied by country information that this had occurred. I do not consider that in her references to “subparagraphs 60(i) and (ii)” she meant to imply that she had not brought to bear on her judgment as to the adequacy of State protection other background information which she did not expressly cite.
48. Ultimately, I consider that counsel’s arguments failed to establish such unreasonableness or manifest illogicality in Ms Bartlett’s reasoning concerning State protection as to cause me to infer legal error. I consider that her expression of her conclusions sufficiently shows that she was probably aware of the relevant legal tests. I am not persuaded that her conclusions on the availability of State protection were not open to her, as a matter of law, on the evidence which was before her.
49. I have therefore not found any ground for relief established under Ground 4.
50. This conclusion leaves it strictly unnecessary for me to address the Minister’s contention that any error in relation to Ms Bartlett’s reasoning concerning State protection was immaterial to the outcome of her report, and that relief should therefore be refused even if Ground 4 were made out (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28], [55]-[59], [91]).
51. In support of this contention, the Minister’s representative submitted that the topic of State protection in relation to the threats of persecution from ‘the tribal groups’ and his fears arising from his employment was immaterial, because Ms Bartlett had earlier found that the former claim did not have a Convention nexus, and that the latter claim was untrue.
52. The Minister’s contention was not accepted by counsel for the applicant, who argued that Ms Bartlett was obliged under the ‘real chance’ test of whether the applicant’s fears were ‘well-founded’, to address the issue of State protection, at least in relation to the claimed employment-related threats. He cited Federal Court judgments which followed the High Courts’ disapproval in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 of previous jurisprudence requiring refugee decision-makers to consider historical claims upon the hypothesis that they were true, even if the decision-maker was not satisfied as to their truth. Under the current Federal Court jurisprudence, decision-makers make no legal error if they do not address that hypothesis, unless their reasoning discloses that their lack of satisfaction as to the factual claims of the refugee claimant was attended by ‘real doubt’ (see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220, [1999] FCA 719 at 239–241, Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]–[14], MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 44, [2010] FCAFC 123 at [95]).
53. Counsel for the applicant then invited me to analyse Ms Bartlett’s reasons for disbelieving the applicant, and to conclude that this “does not show that [Ms Bartlett] ‘had no real doubt’ (using the terminology of Guo) that claimed events had not occurred or that [she] regarded the ‘probability’ of such events as so low as to be negligible” (citing North and Madgwick JJ in Kalala v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 212, [2001] FCA 1594 at [26]).
54. Such an analysis of Ms Bartlett’s reasoning, assuming that it is required on the correct understanding of Guo, is not easily performed in the present case. On the one hand, Ms Bartlett’s findings against the applicant’s credibility in relation to his employment-related claims are expressed with confidence, with numerous supporting findings and reasons, and without any apparent doubt. On the other hand, she did, in fact, proceed to explore further issues “in case the reviewer is wrong about the lack of credibility ...”, and (at paragraph 80) on an assumption that in fact the applicant had encountered these threats and had reported them to the police.
55. I am inclined to conclude that Ms Bartlett included discussion about State protection in relation to both the ‘tribal group threats’ and the ‘employment threats’ claims, without being required to do so as a matter of law. Her adverse conclusions on the applicant’s credibility in relation to his employment claims do not, in my opinion, exhibit such doubt as to require this, and her conclusion on the tribal group claim certainly exhibit no doubts in her characterisation of the threats as lacking Convention nexus. Moreover, the compression of parts of her subsequent reasoning might suggest that she dealt with issues of State protection due to a, perhaps misguided, thoroughness, rather than because she thought that this was essential.
56. If necessary, I would therefore have upheld the Minister’s contention that any error falling within Ground 4 would have been immaterial to Ms Bartlett’s ultimate recommendation to the Minister as to the applicant’s refugee status.

Ground 5

57. This ground sought to identify error of law in Ms Bartlett’s obscurely expressed paragraph 86, which I have extracted above. In the first part of this paragraph, she rejected the submission of the applicant’s agent that the applicant was a member of a ‘particular social group’ within the meaning of the Refugees Convention definition, described as either “Iraqis performing services to the new Government and the US occupation forces” or “Iraqis affiliated with the Occupying Forces or foreign companies”. She did so because these “posited groups ... are [not] of a social character, but rather are of a political character given membership entails a common characteristic of service to or affiliation with government or foreign interests”.
58. The applicant’s counsel submitted that this reasoning exhibits error of law, being a misconception of the reference to ‘social group’ in the Convention definition. It suggests that Ms Bartlett raised a false dichotomy by thinking that a ‘social group’ could not be constituted by persons distinguished in society by their actual or perceived political affiliations or actions. Counsel submitted that such a dichotomy was not only illogical, but was also inconsistent with the High Court’s interpretation of the term ‘particular social group’. This was summarised by Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 at [36]:
    • 36 Therefore, the determination of whether a group falls within the definition of ‘‘particular social group’’ in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a ‘‘social group’’ and not a ‘‘particular social group’’. As this Court has repeatedly emphasised, identifying accurately the ‘‘particular social group’’ alleged is vital for the accurate application of the applicable law to the case in hand.
      • (citations omitted)
59. I accept the applicant’s submissions that there is no reason to conclude from the language of the Convention definition, or from any judgment of the High Court, that a group of people cannot meet the test of ‘distinguished from society at large’ by reason only of a “common characteristic of service to or affiliation with government or foreign interests”. I also accept that this sentence in Ms Bartlett’s report appears to reveal error of law in this respect.
60. However, I accept the submissions of the Minister that Ms Bartlett’s misunderstanding of the concept of ‘particular social group’ was not material to her ultimate adverse recommendation. This is because, essentially, the applicant’s agent’s submission invoking the two ‘posited groups’ as providing a Convention nexus, amounted to no more than a different formulation of the applicant’s claim to have incurred persecution in the past, and to fear it in the future, by reason of his employment in 2009 and 2010 and the reactions which he claimed to have encountered. As I have explained above, Ms Bartlett rejected those claims for several reasons, of which her lack of satisfaction as to the existence of the posited ‘social groups’ was but one. In particular, the claim also failed because of her findings (i) that the claimed history of threats related to employment did not occur, and (ii) if it did occur, then the applicant received and would receive adequate State protection. The first of these conclusions is not challenged by the applicant, and I have found above that the second was not attended by any legal error. It appears to me also that the last sentence of paragraph 86 of Ms Bartlett’s report may provide an additional reason why she did not accept the submission of the applicant’s agent concerning ‘particular social group’ nexus to the applicant’s ‘employment threat’ claims.
61. I therefore consider that the error of law raised by Ground 5 was not material to the outcome of Ms Bartlett’s report to the Minister, and that any declaration as to that error would lack utility, since it would not have the consequence that the Minister should direct a further IMR review of the applicant’s refugee status, or should not rely upon Ms Bartlett’s recommendation. I would therefore decline to give this species of relief, or any other head of relief sought by the applicant in relation to Ground 5.

Grounds 6 and 7

62. These grounds allege that breach of procedural fairness is shown by Ms Bartlett’s references to specific sources of general country information, and by her reasoning based on unspecified general country information. Counsel for the applicant addressed these grounds together, submitting, as I understood him, that:
    1. There was no earlier reference in the RSA and IMR proceedings to the parts of the 2005 Constitution of Iraq, nor to the passage from the US Department of Defence document of June 2010, cited by Ms Bartlett at subparagraphs 60(i) and (ii) and in her reasoning at paragraph 80.
    2. To the extent that Ms Bartlett relied upon other general country information when forming her assessment that “there is an appropriate level of State protection available to [the applicant]” at paragraphs 80 and 89, this information was never identified by her.
    3. Ms Bartlett failed to particularise and invite submissions from the applicant and his agent on the information cited and relied upon in these paragraphs, and this establishes a failure of procedural fairness.
63. I have very recently explained my understanding of the relevant principles in relation to procedural fairness concerning the use of general background country information in the assessment of refugee claims in SZQHC v Minister for Immigration & Anor [2011] FMCA 851 at [29]-[39]. I have also examined in SZQNF v Minister for Immigration & Anor [2011] FMCA 965 at [54]-[57] the jurisprudence on when a court on judicial review will infer the existence of practical injustice merely from the absence of evidence of an invitation to comment, and without any evidence from an applicant and his agent. These areas of principle were little explored in the submission to me in the present case, and I propose to apply my previous discussion in both of the above cases without repeating it in this judgment.
64. The fundamental difficulty I face in relation to the present ground, is that I was not satisfied by the applicant’s counsels’ submissions that there was anything novel, surprising, or particularly adverse in the country information cited by Ms Bartlett at paragraph 60. Nor am I satisfied that her assessment of the issues of State protection in paragraphs 80 and 89 was not based upon country information which was taken from the general sources which were cited in the RSA assessment or which the applicant’s agent cited in his written submissions to the IMR, including the UNHCR documents.
65. In relation to information taken from the allegedly ‘new’ sources cited at subparagraphs 60(i) and (ii) and referred to at paragraph 80, the Minister submitted that the gist of the information was sufficiently put to the applicant in the course of Ms Bartlett’s interview with the applicant. Prima facie, this appears to me to be correct. The following passage appears in the transcript in the course of discussion about the applicant’s documents purportedly corroborating his making of complaints to the police concerning his ‘employment threats’ claim:
    • CLAIMANT: (INTERPRETER): This is the end of the case. They did not find the offender and that’s why they closed the file. If we found the offender or if you find the offender we can open the case and again take it to the court.
    • REVIEWER: Can I just - it’s the police role to investigate.
    • CLAIMANT: (INTERPRETER): Under an order from the court or by order from the court.
    • REVIEWER: If we can just wait, I need to write this down.
    • CLAIMANT: Okay.
    • REVIEWER: You see [Mr Applicant], you’ve spoken about a very serious incident, you’ve provided documents which you say have been issued by a council and a police department.
    • CLAIMANT: (INTERPRETER): Yes.
    • REVIEWER: The Iraqi Constitution prohibits violence.
    • CLAIMANT: (INTERPRETER): Yes.
    • REVIEWER: And there’s a lot of credible information that the security in Baghdad is relatively stable. That doesn’t mean to say there is no killing but there is a lot less than there was three, four years ago. So on the one hand you’re giving all of this evidence about a very serious criminal activity, but on the other hand you’re saying that the police just said well we can’t do anything, that’s it.
    • CLAIMANT: (INTERPRETER): Yes. Can you give me a chance to explain?
    • REVIEWER: Yes?
    • CLAIMANT: (INTERPRETER): For the Government in Iraq now for three consecutive years there is no stable Minister, no formation of the Ministerial positions, explosions, victims, the militia parade, they are in front of the forces or the American forces, they are in front of the Government forces, Iraqi Government forces and they are not able to do anything for them. Killing and explosions is increasing day after day. It is very tragic situation, and many assassinations have happened but it is not revealed by the media.
    • REVIEWER: Actually there are reports in the media about killings, if there’s bombs in market places or of Government members of parliament. But we’re talking about your situation. You’re an ordinary civilian with a very serious incident, and a statement from the police and from the council, and yet you’re telling me that the police just said we have to close it?
    • CLAIMANT: (INTERPRETER): The role of the police and his duty was taking my statement and raise it to the court. They don’t have the power to reveal the offender, or find the offender. Many peoples like that is being killed. They didn’t find the offender and their files were closed.
    • REVIEWER: Did you take the threat letter to the police?
    • CLAIMANT: (INTERPRETER): Yes. I showed it to the police but the sergeant or the constable response was provocative.
    • REVIEWER: What did he say?
    • CLAIMANT: (INTERPRETER): He said to me ‘Let the Americans protect you. Aren’t you dealing with them?” I spoke there to the American soldiers unit via an interpreter and they said to me the Government, the Iraqi Government, tightened the situation for us. Our role is just to protect the green zone I think. The constable, the police officer, he said that we as police officers as well are not able to protect ourselves from the armed groups and you are dealing with the Americans.
66. No evidence was presented from the applicant or his migration agent of surprise or lack of knowledge of adverse information which was, or might have been, drawn upon by Ms Bartlett in this exchange or when arriving at her conclusions on State protection. Counsel for the applicant could not assure me that he had read the lengthy UNHCR reports which were presented by the applicant’s agent to Ms Bartlett as containing relevant background information, and he could make no submission whether or not they contained information supporting the conclusions which were arrived at by Ms Bartlett.
67. In the circumstances of the present case, I would not be prepared to infer, merely from the absence of a more extensive or precise invitation for comment of the type submitted, that the applicant suffered any injustice amounting to denial of procedural fairness as a result of Ms Bartlett’s assessment of general country information relevant to the issue of State protection.
68. Moreover, as I have found above, Ms Bartlett’s conclusions on the availability of State protection in relation to the applicant’s fears of persecution based on his claimed past history were not the only basis upon which she recommended to the Minister that the applicant was not a person to whom Australia owed protection obligations. She also gave independent alternative reasons, which I have not found to be flawed by any error of law or denial of procedural fairness. I therefore would conclude that any denial of procedural fairness alleged under Grounds 6 and 7 had no bearing on the outcome of her report (c.f. Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30 at [140]).
69. For both of the above reasons, I would not grant any relief in response to Grounds 6 and 7.

Conclusion

70. Since I have rejected all of the applicant’s grounds for seeking relief, I must dismiss the application.
71. It is agreed that an award of scale costs should follow the event.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 19 December 2011