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SZQIQ v Minister for Immigration & Anor [2012] FMCA 46 (1 February 2012)

Last Updated: 3 February 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQIQ v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegations that the Reviewer asked himself the wrong question, failed to take a relevant consideration into account, made findings for which there was no evidence and failed to provide the applicant with adverse material.


Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 85 ALJR 133
Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306
MZXGK v Minister for Immigration & Multicultural Affairs [2006] FMCA 1469
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594

Applicant:
SZQIQ

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:
SYG 1217 of 2011

Judgment of:
Cameron FM

Hearing date:
8 September 2011

Date of Last Submission:
16 September 2011

Delivered at:
Sydney

Delivered on:
1 February 2012

REPRESENTATION

Counsel for the Applicant:
Mr M. Hall

Solicitors for the Applicant:
Gilbert & Tobin

Counsel for the First Respondent:
Mr J. Smith

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1217 of 2011

SZQIQ

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant is a citizen of Iraq who arrived at Christmas Island as an unauthorised boat arrival on 16 April 2010. On 6 July 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). It may be presumed that at all relevant times following his arrival at Christmas Island, the applicant was in immigration detention. On 20 August 2010 he was assessed by an officer in the department administered by the first respondent Minister (“Minister”) as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 3 May 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
  2. The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He has sought a declaration that it is affected by legal error as well as an injunction restraining the Minister from relying on that recommendation.
  3. The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island, which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
  4. It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 85 ALJR 133 at 143 [49]. In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
  5. For the reasons which follow, the application will be dismissed.

Background facts

  1. The recommendation made by the Reviewer was supported by written reasons which have been reproduced in the bundle of Relevant Documents (“RD”) at pages 142-172. The facts alleged in support of the applicant’s claim for protection were set out by the Reviewer in his reasons. Relevant factual allegations are summarised below.

Entry interview

  1. The applicant made the following claims during his entry interview on 8 May 2010:
    1. in March 2007 American forces came to his neighbour’s house. His neighbour was not at home at the time so the applicant approached the Americans who then asked if they could search his home instead, which they did. While nothing was found, the applicant was asked to go to the police station for further questioning. He was detained for a period of days and was later told that there was a court order against him. Eventually, he was transferred to Bucca prison in Basra;
    2. he was placed with other Shia Muslims in Bucca prison, including people from the Mahdi Army who were always demonstrating and causing trouble. Not wanting to get involved, he and other prisoners asked to be moved, which they were. This made the Mahdi Army people angry;
    1. his wife was assaulted while he was in prison. The man responsible was caught by the police and was later sentenced to a term in gaol. The man’s relatives subsequently threatened the applicant while he was in prison and, after his release, tried to kidnap his son. They also shot three bullets into his house. He decided to move his family from Baghdad to Najaf; and
    1. he left Iraq because of these events and because of continued threats from the Mahdi Army.

RSA application

  1. The applicant made the following additional claims in a statement which he submitted in support of his application for an RSA:
    1. he was detained by American forces without charge at the Booka detention centre for approximately eleven months;
    2. while he was in detention, members of the Mahdi Army attacked the centre from within. Because he did not participate in the attack, he was accused by the Mahdi Army of being an American informer and agent. They also threatened him;
    1. one of the leaders of the Mahdi Army was a particular sheikh who was based in his home area in Baghdad;
    1. he would be killed by the Mahdi Army if he returned to Iraq because of the accusations made against him;
    2. the assault on his wife took place in July 2007 while she was travelling in a taxi. The taxi driver, a Sunni Muslim, tried to rob her at knifepoint but she escaped by jumping out of the car. A police officer who saw what had happened arrested the taxi driver. He was later sentenced to nine years in prison;
    3. shortly before the taxi driver was sentenced, a group of Sunni men approached the applicant and his wife and told them to drop their case against the driver. They threatened to kill the applicant. In July 2009 the same group shot at his house and attempted to kidnap his son; and
    4. he feared that if he returned to Iraq he would be killed by Sunni gangs and members of the Mahdi Army.
  2. The applicant essentially repeated these claims at his RSA interview on 10 July 2010.

Proceedings before the Reviewer

  1. Following his request for an independent merits review of his RSA, the applicant submitted a statement to the Reviewer dated 2 March 2011 in which he claimed the following:
    1. when the American soldiers asked if they could search his house, he told them that he did not have any weapons. He said that he was an important and influential man in the area and had recently been offered the “high position” of “Mokhtar” but had turned it down. The Americans ignored him and searched his house nonetheless;
    2. he was a well-known supporter of Ali al Sistani, a political leader from Najaf. Other members of his mosque, in particular two sheikhs, supported Moqtada al Sadr. He often spoke out against one of those sheikhs and his supporters;
    1. he was moved to Camp Bucca in March or April 2007, as were the two sheikhs from his mosque who supported Moqtada al Sadr;
    1. within the first week of the applicant’s arrival at Camp Bucca, a young man, Haydir Sousa, was attacked and killed by members of the Mahdi Army because of his association with the Americans;
    2. at around the same time, one of the two sheikhs from his home mosque told the applicant that demonstrations had been planned against the Americans and demanded that he be involved. When he refused, he was told that he would be killed after his release;
    3. he and the other detainees who did not want to participate in the demonstrations started to be harassed by supporters of the principal of the two sheikhs from his mosque. After the demonstrations were over, they were attacked by the Mahdi group for being “traitors” and “American agents”;
    4. he was released from Camp Bucca in January 2008 and returned to his house in Baghdad which was located in a Sunni-majority area;
    5. about one or two months after his release, Sunni supporters of the taxi driver who attacked his wife came to his house on two occasions demanding that they drop their case against the taxi driver. When the applicant refused they said that they would kill him or kidnap his son. The taxi driver was sentenced in July 2008;
    6. the two sheikhs were released from Camp Bucca at the end of 2008. Shortly afterwards, one of them began spreading a rumour that the applicant had been released from Camp Bucca early because he was an American agent. The applicant later noticed that his street was being watched by the Mahdi group;
    7. in July 2009 the “Sunni gang” that had previously threatened him in relation to the taxi driver tried unsuccessfully to kidnap his son. They were targeting his family because of their Shia religion;
    8. he moved his family to Najaf to keep them safe, although his mother, his brother and the latter’s family remained in the family home in Baghdad;
    1. in late 2009 while living in Najaf he was followed by men from the Mahdi Army. He realised that it was not safe for him anywhere in Iraq and began making arrangements to come to Australia;
    1. after he left for Australia members of the Mahdi Army looked for him at his sister-in-law’s house in Najaf. His brother-in-law had told them that he no longer lived there; and
    2. in August 2010 his mother told him in a telephone conversation that she had met the mother of the principal of the two sheikh’s from his mosque who said they would “catch him not [sic] matter what”.
  2. The applicant was interviewed by the Reviewer on 4 March 2011.

Reviewer’s findings and reasons

  1. After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:
    1. the Reviewer found that the applicant had, both personally and through his adviser, consistently exaggerated the power of Moqtada al Sadr and his militia;
    2. while the Reviewer accepted that Moqtada al Sadr was a significant figure in the Iraqi political landscape, he noted that there were others who were more significant including the Grand Ayatollah Ali al Sistani whom the applicant – and most Shia – supported. Consequently, the Reviewer did not accept that there was a real chance that the applicant would suffer harm amounting to persecution on the basis of his support of Grand Ayatollah Ali al Sistani, whether that support was political, religious or of any other character;
    1. the applicant’s response when asked by the Reviewer why anyone would wish to harm him in 2011 because he declined to participate in a demonstration in Camp Bucca in 2007 was unconvincing. Further, it did not appear from his evidence that any others who had similarly declined to participate had suffered harm as a result of their actions. For these reasons, the Reviewer did not accept that there was a real chance that the applicant would suffer harm from any source as a result of his actions or inaction while detained at Camp Bucca;
    1. the Reviewer was prepared to accept that the principal of the two sheikhs from the mosque in the applicant’s home area in Baghdad was still associated with that mosque and that, not being a follower of Moqtada al Sadr, the applicant had a political opinion different from his. However, given that this was a difference many Iraqi Shia had, the Reviewer did not accept that al Sadr or his supporters would react to that difference by acting violently against the applicant;
    2. in relation to the applicant’s home area in Baghdad, the Reviewer noted that according to his own evidence the applicant’s mother, brother and sisters had been living there without any security problems. Further, according to country information which the Reviewer accepted, the applicant’s home area in Baghdad was a Shia or mixed area, not a Sunni area as he had claimed. Consequently, the Reviewer did not accept that the applicant would encounter any problems were he to return to his home area in Baghdad;
    3. the Reviewer did not accept that a fellow-detainee had spread false rumours about the applicant alleging that he was an American agent or that his house had been watched by the Mahdi Army as a result, noting that:
      1. the applicant was not the only person in Camp Bucca who had been moved away from the trouble-makers;
      2. most of the occupants at Camp Bucca were Sunni;
      3. in the Reviewer’s view, the applicant’s release without charge after more than a year’s detention could hardly be called “early”;
      4. there was no evidence linking the applicant with security forces, whether American or otherwise, and any such allegation “would die a natural death” even if given credence for a short time; and
      5. the Reviewer did not accept that there was a real chance that these rumours would be revived in any form were the applicant to return to Iraq; and
    4. as to the attempted abduction of the applicant’s son, the Reviewer found that there were too many uncertainties about the origin and purpose of the attempt to be definitive as to its implications, if any, for the future. While the applicant seemed to suggest that the incident was a message from the Mahdi Army, his exaggeration of the power and policies of the army was such that this claim lacked credibility.
  2. For these reasons, the Reviewer did not accept that the applicant had been directly or indirectly threatened by the Mahdi Army or by the principal of the two sheikhs from his mosque either in Baghdad or in Najaf. He found that there was not a real chance that the applicant would suffer harm amounting to persecution from the Mahdi Army or from the sheikh for any Convention reason. Nor did the Reviewer accept that the applicant would be harmed by Sunni extremists given that his family had been able to live in his home area in Baghdad without incident. As to his wife’s encounter with a criminal Sunni taxi driver, the Reviewer saw no Convention nexus in that situation. Moreover, the incident affected the applicant’s wife, not the applicant, and she had been able to live safely in Baghdad and Najaf while the applicant had been in Australia. As such, the Reviewer did not accept that there was a real chance that the situation would bring harm to the applicant for any Convention reason.

Proceedings in this Court

  1. The grounds of the application commencing these proceedings were pleaded as follows:
  2. After the hearing, further submissions were filed concerning the necessary content of an independent merits reviewer’s reasons for recommendation. However, this matter can be decided without reference to those submissions.

Reviewer asked himself the wrong question

  1. The first ground of the application was particularised as follows:
  2. The applicant submitted that rather than dealing with his particular circumstances the Reviewer found that his political difference with the principal of the two sheikhs from his mosque was “a difference very many Iraqi Shia have”. The applicant submitted that the Reviewer then considered the general or abstract questions of Moqtada al Sadr’s activities and demeanour, finding that “Moqtada has clearly changed his approach” and from that general finding dismissed, in the following terms, his specific claims without further reasoning:
  3. The applicant submitted that the Reviewer classified Iraqi Shias into those who supported the al Sistani position and those who supported the al Sadr position and, having determined that the level of risk which the Mahdi Army posed to Iraqi Shias who did not support it had fallen, concluded that the applicant did not have a well-founded fear of persecution for a Convention reason. He submitted that this was a flawed approach because the Reviewer had failed to give detailed consideration to why he was not just any other Shia opposed to Moqtada al Sadr but instead had many specific, detailed and compelling reasons to fear that he, more than others, would be and had been the subject of attack.
  4. He submitted in this regard that the Reviewer had failed to engage with the specifics of his claims and that in coming to his conclusion the Reviewer did not consider his particular circumstances including evidence of:
    1. his status in the community. In particular, the applicant submitted that the Reviewer needed to consider the status afforded to him by his age and the fact that he had been invited to be “Mokhtar” in his local area, reflecting the fact that he was a man recognised by his neighbours and peers, and that holders of such positions were a particular focus for violence and assassination;
    2. his long-standing personal relationship with the two sheikhs from his mosque;
    1. his particular interactions with those sheikhs and other supporters of Moqtada al Sadr and the Mahdi Army which occurred before the applicant was detained in Camp Bucca and after the two sheikhs were released from the camp;
    1. the actual harm sustained by the applicant as a result of his opposition to the Mahdi Army in Camp Bucca;
    2. the applicant’s imputed political opinion as an American collaborator due to his failure to participate in the riot organised by the Mahdi Army in Camp Bucca;
    3. the history of threats directed at the applicant (directly or through family members); and
    4. the Mahdi Army following the applicant and searching for him since leaving Iraq.
  5. The applicant submitted that the Reviewer had stepped from a conclusion that “things are better than they were” to a further conclusion that the applicant did not have a well-founded fear without disclosing any intervening steps and without considering the evidence.

Consideration

  1. The applicant’s assertion that the Reviewer did not focus on his particular circumstances overlooks the true basis of the Reviewer’s decision which was his disinclination to accept that the applicant’s actions in Camp Bucca exposed him to a real chance of harm. He did so after having recited all of the applicant’s factual claims which included all the consequences said to have arisen from his decision not to participate in the demonstrations in the camp. The Reviewer having recited those facts, it must be inferred that he had them in mind when reaching his conclusion.
  2. Having rejected the basis of the applicant’s claims to fear persecution because he did not participate in the demonstrations in the camp, the Reviewer then considered whether other matters might justify the applicant fearing the principal sheikh from his mosque or the Mahdi Army more generally.
  3. As the applicant noted, the Reviewer concluded that the applicant’s political difference with the sheikh was hardly unique and concluded that, given changing political imperatives, al Sadr and his supporters would not act violently towards him on that account.
  4. As to the applicant’s status in his community, para.33 of the Reviewer’s reasons records that the applicant’s advisers submitted at the Reviewer’s interview that a person of the applicant’s stature was a target although it is unclear whether it was suggested that the applicant would be targeted regardless of his political opinion. Whatever the case, that submission depended on an assumption that the “Sadr group” was still targeting people, for whatever reason. Contrary to that assumption, the Reviewer concluded that Moqtada al Sadr had “had to clean up his image, damaged by the Mahdi Army’s past excesses” and that, in any event, the applicant had exaggerated the power and policies of the Mahdi Army with the result that, for instance, his claims concerning the alleged attempted abduction of his son were found to lack credibility. It is apparent that the applicant’s claim that a person of his stature was a target, which was not elaborated on or stressed to the Reviewer, was addressed by the Reviewer by his more comprehensive finding that the Mahdi Army did not pose the threat which the applicant alleged. As that finding, which was of general significance, implicitly dealt with the applicant’s specific claim to fear Sadrists because of his status, it was not necessary that the Reviewer separately address that specific claim. The fact that he did not do so does not lead me to conclude that that issue had not been considered.
  5. Further, what the applicant refers to in his particulars as his early release was no such thing and, moreover, is an issue without substance once it is recognised to depend on an acceptance that the sheikhs from the applicant’s mosque were after him, a proposition which the Reviewer did not accept.
  6. The claim to fear religious persecution by Sunni Muslims was expressly considered by the Reviewer but not accepted because the applicant’s family lived without problems in the family home in Baghdad and the encounter which the applicant’s wife had had with the taxi driver was a criminal act, not one with a Convention nexus, which, in any event affected the applicant’s wife and not the applicant.
  7. Finally, contrary to the applicant’s submission, the Reviewer did not undertake an analysis of the situation of people who opposed Moqtada al Sadr and then conclude that such people did not fear persecution. The Reviewer did make an observation towards the beginning of that part of his Statement of Reasons entitled “Findings and Reasons” to the effect that support for the Grand Ayatollah Ali al Sistani would not be a basis for persecution in Iraq as this was a characteristic shared with most Iraqi Shia. However, having done so and as discussed above, he then considered the claims made by the applicant, namely to fear persecution by reason of his political opinion and status and, in relation to the Sunni gangs, to fear persecution by reason of his religion.
  8. For these reasons, the first allegation is not made out.

Reviewer failed to take into account a relevant consideration

  1. In his written submissions the applicant particularised his second allegation in the following way, which was slightly different to the particulars set out in the initiating application:
  2. The applicant submitted that the factors particular to his case, which he had said in the context of the first ground of the application had not been considered by the Reviewer, had the status of claims or integers of his claim to which the Reviewer was obliged to give specific consideration. He submitted that the Reviewer had failed to direct attention to substantial and discrete elements of his claim and said that this amounted to error.
  3. The applicant further submitted that although the Reviewer considered that his relations with the principal sheikh from his mosque were “central to much of [his] story”, the Reviewer failed to take into account his evidence of his particular circumstances and of his relationship with that sheikh. It was submitted that, instead, the Reviewer relied on country information concerning the political landscape in Iraq, none of which contradicted his claims, and reached a finding based on that information.
  4. The applicant also submitted that the Reviewer did not deal with evidence which suggested that there had been a recent increase in violence and strong indications that parts of the Mahdi Army were or might be rearming. He pointed to the fact that this was a matter which his advisers raised in written submissions to the Reviewer and as such it was a discrete element of his claims which the Reviewer had ignored.
  5. It was also submitted that the Reviewer had failed to deal with the death of another Camp Bucca detainee and, instead, placed weight on the absence of evidence of harm suffered by other detainees in Camp Bucca.
  6. The applicant submitted that the Reviewer failed to give proper, genuine and realistic consideration to the merits of his case.

Consideration

  1. With the exception of the first of the matters referred to by the applicant, the applicant’s political opinion, none were “relevant considerations” in the sense that the failure to consider them led to the invalidity of the review. They were matters of a factual nature and said to support the applicant’s claim to fear political persecution. They thus need not be considered further.
  2. Given that, relevantly, the applicant’s claimed fear was based at least partly on an actual political opinion, that opinion was a relevant consideration because, without determining what it was, the Reviewer could not fully consider whether the applicant had a well-founded fear of political persecution.
  3. The applicant’s submissions concerning the nature of his relationship with the principal sheikh, which turned on their differences over politics, highlight the fact that the applicant’s political views were considered by the Reviewer, not that they were overlooked. In this regard, it must be recalled that the applicant’s claim to fear persecution arose out of his time in Camp Bucca and not out of his prior history with the sheikh. Certainly that history provided a background to their claimed differences but the applicant did not allege that he feared harm from the sheikh or his allies at any point prior to his detention and thus there was no reason for the Reviewer to take their earlier differences specifically into account when reaching a conclusion on the applicant’s claim. The only relevance of the relationship between the applicant and the sheikh before their detention lay in the fact that it demonstrated the men’s different political affiliations, a matter which assumed significance for this claim when the applicant allegedly did not participate in the demonstrations in the detention camp. The Reviewer did not accept that the applicant faced a real chance of harm because of that claimed incident. By reaching that conclusion the Reviewer dealt with one aspect of the alleged political differences between the applicant and the sheikh, namely their approach to American or coalition forces. He dealt with their political differences more generally by not accepting that al Sadr or his supporters would react violently towards the applicant because of his support of Grand Ayatollah Ali al Sistani.
  4. Finally, the applicant’s submission that the Reviewer failed to give “proper, genuine and realistic consideration to the merits of the case” invites the Court to embark on a review of the merits of his claim to be entitled to a protection visa. That is something the Court cannot do: Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306.

No evidence to support findings (ground three)

  1. The first of the two allegations that there was no evidence to support findings made by the Reviewer concerned what the Reviewer described as the applicant’s exaggeration of the power of Moqtada al Sadr and his militia. The allegation that there was no evidence for this finding was particularised as follows:
  2. The applicant pointed to evidence before the Reviewer which referred to a directive to the Mahdi Army to disarm although Moqtada al Sadr was unable to establish firm control over his potential supporters and his success in enforcing a ceasefire on the Mahdi Army had been patchy. The applicant submitted that this information did not indicate exaggeration either by him or his representative. He submitted that, to the contrary, there had been country information before the Reviewer which directly supported his submissions.
  3. It was further submitted that even if, despite these matters, there had been exaggeration in the submissions made to the Reviewer, it was unreasonable and irrational for the Reviewer to attribute his advisers’ exaggeration to him and to make an adverse finding against him on that basis.
  4. The applicant submitted that, in any event, where there are inconsistent country reports before a decision-maker such as the Reviewer, it is incumbent on him to at least attempt to reconcile them and that failing to refer to one constituted a failure to take account of relevant material: MZXGK v Minister for Immigration & Multicultural Affairs [2006] FMCA 1469 at [64].
  5. It was also submitted that the Reviewer made an unsupported finding concerning the fate of others who had been in Camp Bucca but had not suffered harm by reason that they had not participated in the demonstration. In this regard, the Reviewer observed that:
  6. The applicant submitted that with the exception of the specific case of Haydir Sousa there was no evidence of the fate of other detainees. He submitted that he had not advanced a case that there was systematic persecution of all who had refused to take part in the demonstration, only that there had been persecution and a well grounded reason for him to fear further persecution because of his refusal.

Consideration

  1. The written submissions made on behalf of the applicant after the interview with the Reviewer included a statement that:

The Reviewer described this statement as “a gross distortion of the report” and had earlier, at para.43 of his reasons, set out relevant portions of that report which failed to support the contention advanced by the applicant’s adviser. That is to say, the conclusion reached by the Reviewer concerning the applicant’s advisers was open to him on the evidence.

  1. More generally, at para.48 of his reasons the Reviewer found that Grand Ayatollah Ali al Sistani was a more significant political figure than Moqtada al Sadr. At paras.42-43 and 45 the Reviewer had set out country information which recorded the influence of the Grand Ayatollah and indicated that Moqtada al Sadr was altering his political tactics to employ “soft power”, that his group had internal divisions which led to the formation of splinter groups and that the Sadrist militias were disarmed. Given these matters, it was open to the Reviewer to conclude that the picture of Moqtada al Sadr and the Mahdi Army painted by the applicant and his advisers exaggerated Moqtada al Sadr’s power and policies.
  2. The applicant’s submission that the Reviewer’s conclusion about the credibility of claims made by the applicant’s adviser could not rationally reflect on his own credit mischaracterises what the Reviewer said. At para.47 of his reasons the Reviewer said that his greatest difficulty assessing the applicant’s situation was “that he has, personally and through his adviser, consistently exaggerated the power of Moqtada al Sadr and his militia”. The Reviewer was not there making an observation on the credibility of the applicant but on the difficulty he faced in reaching conclusions of fact as evidence he had been supplied was inaccurate because of exaggeration.
  3. However, when the Reviewer did make a credibility finding on the evidence of Moqtada al Sadr’s power, he did not refer to the exaggerated claims made by the applicant’s adviser but to the exaggerated claims made by the applicant himself. In this regard, in para.54 of his reasons the Reviewer stated:
  4. The allegation that the Reviewer made a factually unsupported finding about the fate of other Camp Bucca detainees also misconstrues what the Reviewer said. The relevant passage, quoted above at [43], was a simple factual conclusion based on the applicant’s own evidence in which he had not suggested that anybody else who had not been involved in the demonstration in the camp had been harmed. That conclusion was open on that evidence.
  5. The applicant also alleged that the Reviewer’s findings were so unreasonable that no reasonable reviewer could have made them. A decision might be manifestly unreasonable if only one conclusion was open on the evidence and it was not the conclusion reached, if the decision was simply not open on the evidence or if there was no logical connection between the evidence and the inferences or conclusions drawn. However, an allegation of manifest unreasonableness of the relevant sort will not succeed if there is room for a logical or rational person to make the same decision on the material which was before the reviewer or decision-maker: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 647-650 [128]- [135] per Crennan and Bell JJ. Given the matters referred to above at [46], I do not find that the Reviewer’s finding was manifestly unreasonable in the relevant sense.
  6. Finally, I do not agree, where there are inconsistent country reports before a decision-maker such as the Reviewer, that it is incumbent on him or her to attempt to reconcile them. I respectfully disagree with McInnis FM’s comments to this effect in MZXGK. A decision-maker’s reasoning should not be fettered in this way.

No evidence to support findings (ground four)

  1. The allegation that there was no evidence to support the Reviewer’s finding that it did not appear from the applicant’s evidence that any other detainees in Camp Bucca “had suffered harm as a result of their actions” and that his release after over a year’s detention without charge could hardly be called “early” was particularised as follows:
  2. The applicant submitted that there was no evidentiary foundation for a finding that everybody else who had refused to take part in the protest at Camp Bucca had not suffered harm. He submitted that there had been unchallenged evidence before the Reviewer that another detainee, Haydir Sousa, had been killed at Camp Bucca because of his opposition to the Mahdi Army and that it was therefore unreasonable and irrational for the Reviewer to find that no other detainee had suffered harm.
  3. The applicant further submitted that at no point had he or his advisers claimed that his release was “early”. He submitted that the reference to early release was to an allegation by the second of the two sheikhs from his mosque that the applicant’s release was suspiciously early, an allegation used to blacken his name by painting him as an American agent whose conduct led him to receive special treatment from the Americans who let him out when everybody else was still locked up. He submitted there was no basis for the Reviewer’s assumption that “early release” was any part of his claims.

Consideration

  1. It is important when considering the first particular of the fourth allegation to have regard to exactly what was relevantly said by the Reviewer:

I asked the claimant why anyone would want to harm him in 2011 because he declined to participate in a demonstration in Camp Bucca in 2007. His response was not convincing. I asked him if he had had any contact with others who had similarly declined to participate and had asked to be moved. He said he had had some contact but rarely. It did not appear from his evidence that any others had suffered harm as a result of their actions. Accordingly I do not accept that there is a real chance of the claimant suffering harm from any source as a result of any action or inaction in Camp Bucca.

  1. Seen in context, the Reviewer’s observation, that it did not appear from the applicant’s evidence that any others in the camp had suffered harm, was limited to those who had refused to take part in a demonstration in Camp Bucca in 2007. In his statement to the Reviewer of 2 March 2011 the applicant said that:

It is apparent from that statement that Haydir Sousa was killed before the demonstration occurred and that his death was not ascribed to a refusal to participate in it. Consequently, as particularised, the applicant’s allegation misconstrues the Reviewer’s reasons and his relevant finding.

  1. Turning to that part of the allegation concerned with the point at which the applicant was released from detention, again it is necessary to consider the relevant statement in context. In para.53 of his reasons the Reviewer said:
  2. The Reviewer’s quotation marks around the word “early” were not used to quote a claim made by the applicant as he asserts, but as an ironic reference to the unfairness of the applicant’s detention for more than a year in circumstances where, at no time, had he been charged with an offence. The relevance of this ironical form of expression lay in the fact that the applicant had claimed that one of the sheikhs from his mosque had alleged that he was an American agent leading to the Mahdi Army watching his house. The Reviewer’s use of language was intended to convey the implausibility of such a claim in circumstances where the applicant had been detained for more than a year, without charge, by the very people with whom the purported rumours alleged he had collaborated. For these reasons, this aspect of the fourth allegation does not disclose error on the Reviewer’s part.

Reviewer failed to provide the applicant with adverse material

  1. The fifth allegation was particularised as follows:
(b) The second respondent did not:

Particular (a) was not pressed.

  1. The applicant submitted that the findings in question were key steps in the Reviewer’s reasoning and that the information underlying them should have been put to him. He further submitted that the Court was in a position to conclude that, had he had a proper opportunity to comment, he might well have brought material to the attention of the Reviewer that would have materially changed his conclusions.

Consideration

  1. A party liable to be directly affected by an administrative decision to which the rules of procedural fairness apply is to be given the opportunity of putting information and submissions to the decision-maker in support of an outcome that supports his or her interests. In order that that right can have substance, the party affected is to be given the opportunity of ascertaining the relevant issues, which will require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The party affected is also entitled to be informed of the nature and content of adverse material that is credible, relevant and significant and which the decision-maker has obtained from sources other than that party, as well as of any adverse conclusion that the decision-maker has reached which would not obviously be open on the known material, and to address that new material and those unexpected conclusions by further information and submission: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96-97 [140]; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 162 [32]; Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 599 [9].
  2. What the applicant characterises in particular (b)(i) as a finding based on information which had not been supplied to him was nothing of the sort. What the Reviewer said in para.49 of his reasons, after referring to the applicant’s answers to some questions which had been put to him, was:

As already observed above at [49], that was a simple factual conclusion based on the applicant’s own evidence.

  1. As to particular (b)(ii), this was an ironically expressed conclusion also drawn from evidence provided by the applicant, namely the nature and duration of his detention and the content of the alleged rumour spread about him following his release.
  2. Further, both of these conclusions were obviously open on the known material.

Conclusion

  1. The applicant has not demonstrated that the Reviewer denied him procedural fairness.
  2. Consequently, the application will be dismissed.

I certify that the preceding 66Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !sixty-sixsixty-six (66) paragraphs are a true copy of the reasons for judgment of Cameron FM


Date: 1 February 2012

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