DZAAQ v Minister for Immigration and Citizenship

Solicitor for the First Respondent: Australian Government Solicitor

No appearance for the Second Respondent, at the hearing, he having indicated that he would abide any order of the Court, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 16 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEVE KARAS AO IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGE: DOWSETT J DATE OF ORDER: 10 SEPTEMBER 2012 WHERE MADE: BRISBANE (VIA VIDEO LINK) (HEARD IN DARWIN)

1. the appeal be dismissed;
2. the appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 16 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEVE KARAS AO IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGE: DOWSETT J DATE: 10 SEPTEMBER 2012 PLACE: BRISBANE (VIA VIDEO LINK) (HEARD IN DARWIN)

THE APPELLANT 1 A person entering Australia at Christmas Island may not apply for a protection visa unless the first respondent (the "Minister") exercises a discretion to allow that person so to do. This discretion is conferred by s 46A(2) of the Migration Act 1958 (Cth) (the "Migration Act"). Where a person seeks the favourable exercise of that discretion a refugee status assessment ("RSA") is performed by a departmental officer in order to determine whether Australia has protection obligations to that person. Such obligations will exist if the person is: … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country; or who, not having a nationality and being outside the country of his [or her] former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 2 The appellant arrived at Christmas Island on 7 March 2010 without a valid visa. On his arrival he claimed that Australia owed him protection obligations. He is a citizen of Iraq and a Shi'a Muslim. He sought a favourable exercise of the Minister's discretion. The RSA was unfavourable. Pursuant to administrative arrangements, the appellant was entitled to seek an independent merits review ("IMR") of that assessment. He did so. The result was again unfavourable. He sought review of the IMR in the Federal Magistrates Court. He was unsuccessful and now appeals against the Federal Magistrate's decision. The second respondent (the "Reviewer") performed the IMR. He has indicated that he will abide any order of the court, save as to costs. 3 The appellant was born in 1985 in Basra, received some primary schooling there and until February 2010, lived in that area. He had three brothers. One, a taxi driver, was abducted in 2004 by persons unknown. He has not been seen since and is believed to be dead. Another, Ali, was working as an intelligence officer in a prison in Basra. The appellant worked as his driver. The prison housed members of militia groups, detained because of their involvement in insurgency activities in Basra. The appellant claimed that his brother had been, to some extent, responsible for the imprisonment of militia members. He said that in February, 2009, a militia member was killed in the prison. The militia forces considered that the appellant's brother was responsible for the death. The appellant and his brother were threatened, as were other members of their family. On 15 May 2009 the appellant's brother was murdered by the militia. People came to the appellant's parents' home where he was living, beat his parents and threatened harm to him and his family. Fearing the militia, the appellant went into hiding. He now claims to fear harm on the basis of political opinion imputed to him by the militia, namely that he supports the Iraqi government and collaborates with coalition forces. He also claims to be a member of a particular social group, namely family members of participants in the Iraqi security service. He does not know which militia was responsible for the prison killing. 4 On 15 February 2010 the appellant left Iraq in disguise, but on a valid passport, using family money and proceeds from the sale of his car. He passed through the Basra airport without difficulty. He claims that the militia has threatened that his family will be killed if he does not return. He fears that if he returns, the militia will kill him. 5 When questioned about discrepancies as to dates and times in his account, he said that he was illiterate and was not accurate with dates. He said that he had, on three occasions, been threatened. He said that neither he nor his family had been involved in politics. At some stage he said that he did not believe that his brother, Ali, was involved in politics. However he then said that his brother must have been so involved as he worked for the police and the government. The appellant did not know why the militia were interested in him but surmized that they must consider that he had given information to his brother. He was his brother's "right hand". 6 In the course of the IMR the Reviewer interviewed the appellant. The appellant affirmed or clarified certain aspects of his earlier claims. The Reviewer suggested to him that Basra was a safe city. The appellant denied this, saying that foreigners and soldiers could not walk safely without a weapon or shield. There was no one to whom complaints could be addressed as the militia were working with the police and army. He is unable to support his family or relocate within Iraq. He is scared and does not know anybody. The militia are everywhere. All Iraq is unsafe.

THE REVIEWER'S REASONS 7 The Reviewer noted that the appellant claimed refugee status on the basis of fear of harm for imputed political opinion, namely that he supported the government and collaborated with coalition forces. He also feared persecution as a member of a particular social group, namely "family members of members of the Iraqi authorities". The Reviewer dealt with "country information" at paras 24-42. It is not necessary that I refer in detail to that material. The Reviewer noted the confusing and inconsistent information supplied by the appellant, particularly his inability to identify the militia group which, as he alleged, was threatening to kill him. His account of hiding and moving from place to place over several months was said to be implausible. Summarizing various areas of implausibility and/or inconsistency, the Reviewer observed at paras 49 to 62: 49 An Assessor should not uncritically accept all the claims made by a claimant especially where there is little or no probative, supporting or corroborating evidence to support such claims. 50 The Reviewer notes that although undue weight should not be placed on some degree of confusion and omission to conclude that a person is not telling the truth, particularly in the context of entry interviews constrained by time and where a claimant may not be aware of the degree of detail and relevance required, this does not mean that inconsistent evidence or late introduction of significant new details or claims are unimportant and should not reflect on credibility. 51 In this instance there were significant inconsistencies and the emergence of some new information during the RSA process and at the hearing of this matter in Darwin in a manner which caused the Reviewer concern. It was not just a question of vagueness or inconsistencies in recounting peripheral details. Having heard the claimant's evidence at the hearing and his explanations the Reviewer was not satisfied that these difficulties are reasonably explicable or without significance for the substance of his account. The Reviewer did not find the claimant to be a satisfactory witness in this regard. 52 A number of these difficulties, and the claimant's generally unsatisfactory explanations, are evidence from the omission regarding his brother's Ali's death and the alleged incidents with the unidentified militias that sought to kill him before he left Iraq for Australia in 2010. As well there were some contradictions in his evidence as reflected in his written statements and evidence at the hearings or interviews as referred to above. The Reviewer notes that very relevant information was not given consistently through the process by the claimant. 53 The Reviewer is mindful of the comments by the Federal Court in Chen Xie He v IEA unreported 23 November 1995, that it is for a decision maker not only to consider inconsistencies but also to determine what evidence it finds credible. Also, in Randhawa v MIEA (1994) 124 ALR 265, the Federal Court noted that a decision maker does not have to accept uncritically all statements and allegations made by an applicant for refugee status. It is for an applicant to convince or persuade the decision maker that all of the requirements are made out. As well, the assessment of the plausibility of an applicant's evidence is a necessary first step in assessing the applicant's credibility. Gleeson CJ noted in Re RRT; ExParte Aala (2000) 204 CLR 82, "decisions as to credibility are often based upon matters of impression and an unfavourable view taken upon an otherwise minor issue may be decisive". Further, a decision maker does not have to have rebutting evidence available before he/she can lawfully determine that a particular factual assertion by an applicant is not made out, Selvadurai v MILGEA (1994) 34 ALD 347. 54. Not every threat of harm or perceived harm a person fears will result in a finding that they fall within the Convention definition of a refugee. Essential in the Convention definition is that there must be a causal connection between the claimed fear of persecution and the ground suggested to give rise to that fear (as discussed by Kirby J in Chen Shi Hai v MIMA (2000) 201 CLR 293). There must be a linkage between each of the elements of the Convention definition. The phrase "for reasons of" identifies the motivation of the claimed persecutor. 55. It is clear that a claimant's strong subjective fear cannot by itself provide an adequate basis for persecution: Prahastano v MIMA (1997) FCR 260 at 269,271. In MIMA v Haji Ibrahim (2000) HCA 55, McHugh J. noted that the persecution feared must still be: "…so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned." 56. A fear of persecution is not well founded if it is merely assumed or if it is mere speculation. In MIEA v Guo (1997) 191 CLR 559 the High Court said at 572; "Conjecture or surmise has no part to play in determining whether a fear is well founded. A fear is "well founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for fear may exist even though there is less than a 50 per cent chance that the object of fear will eventuate. But no fear can be well founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well founded if is merely assumed or if it is mere speculation". 57. It is well settled now that "well founded fear" involves both a subjective and objective element (see, Chan v MIEA). Usually assessment of the objective element will involve consideration of general information about conditions in the claimant's country, as well as an assessment of the claimant's own claims in the light of any probative material provided in support of such claims. A fear of being persecuted is well founded if there is a "real chance" of being persecuted. This expression conveys a notion of a substantial as distinct from a remote chance of persecution occurring. 58. As noted in Chan's case the fact that an individual's claims of persecution may be plausible or credible is not enough to establish a real chance of persecution (see Dawson J at 397). Also a fear of persecution is not well founded if it is merely assumed or if it is mere speculation (see MIEA v Guo (1997) 191 CLR 559 at 572). 59. For the purposes of Australian law the concept of "persecution" in Article 1A(2) of the Convention is qualified by s 91R of the Migration Act 1958 (the Act). Section 91R(1) provides that for the purposes of the Act and Regulations, Article 1A(2) does not apply in relation to persecution for one or more of the Convention reasons unless: • That reason is the essential and significant reason, or those reasons are the essential and significant reasons for the persecution; and • The persecution involves serious harm to the person; and • The persecution involves systemic and discriminatory conduct. 60. However, s91R does not replace the Convention test of "persecution" with the statutory test; it remains necessary to establish a well-founded fear of "persecution" within the meaning of Article 1A(2) of the Convention and also establish that such persecution is essentially and significantly for one of the Convention reasons and involves "serious harm" and "systematic and discriminatory conduct". 61 Under section 91R(1)(b) of the Act persecution must involve serious harm to the person. Subsection (2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test and the examples provided involve physical harm or economic hardship. In MIMA v Haji Ibraham McHugh J emphasized the degree of harm that would be required to constitute persecution. He noted: "The convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purposes of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as "persecution". ((2000) 204 CLR 1 at [55]). 62 Overall, based on the information available to me, including the available evidence about his and his family's experiences and the fact that it was his family's decision for the claimant to leave Iraq to seek protection in Australia, I am not satisfied that the claimant has a well founded fear of persecution or that he would suffer persecution and/or possible death from the unnamed and unidentified militia should he return to Iraq now or in the reasonably foreseeable future. Indeed, given the circumstances of this case, the claimant may be affected in part by the incidents of an armed insurgency in terms of general insecurity and hardships, or civil disturbances but this does not amount separately or cumulatively to a well founded fear of persecution for a Convention reason. It is accepted that the Convention definition does not generally encompass those fleeing generalized violence, internal turmoil or civil war … . Further, as noted by Professor Hathaway, a person affected by generalized phenomena is not ordinarily entitled to protection on that basis alone. … 8 Thus it seems that the Reviewer simply rejected the appellant's claim that he had a well-founded fear of persecution for a Convention reason in the event that he returned to Iraq.

IN THE FEDERAL MAGISTRATES' COURT 9 The Federal Magistrate understood there to be four grounds of review, namely: denial of procedural fairness by failure to put country information to the appellant; imposing a burden of proof on the appellant (the "first appeal ground"); misconstruing or misunderstanding the Convention test (the "second appeal ground"); and misconstruing the Convention test regarding the appellant's membership of a particular social group. In the present appeal, the appellant relies only upon alleged errors by the Federal Magistrate in failing to set aside the IMR decision on the basis of the first and second appeal grounds. 10 Concerning the first appeal ground, the Federal Magistrate said: [Counsel] contends that the Reviewer adopted a flawed approach to his review task when he stated that he: "should not uncritically accept all the claims made by a claimant especially where there is little or no probative, supporting or corroborating evidence to support such claims." It was suggested that the Reviewer had erroneously imposed a particular standard of proof or burden on the appellant. 11 The Federal Magistrate accepted that the concept of onus of proof "generally has no place in administrative proceedings" and that an "applicant's own statements and testimony constitute evidence and there is no requirement as a matter of law that the [appellant] provide corroboration". His Honour pointed out that the Reviewer had made findings about the overall credibility of the appellant on the basis of inconsistencies in his evidence and the manner in which new information arose at the hearing. His Honour considered that these were "not matters of corroboration or relevant to the application of any particular standard of proof. Rather, they are necessary incidents of an inquisitorial process." 12 The Federal Magistrate pointed out that: in an inquisitorial process it is necessary that the content of, and scope of particular pieces of evidence be examined; such examination might include a consideration of whether the evidence was corroborated; and this approach would not impose a specific burden on an applicant. 13 The Federal Magistrate concluded at [115]: In my view, a fair reading of [the Reviewer's] reasons does not indicate that he imposed a burden of proof upon the [appellant] to establish his claim for refugee status. Rather, he reached the view that the [appellant] was not credible because of the manner in which he presented his evidence; a lack of detail; and the inconsistencies within it. The decision did not turn upon the absence or otherwise of corroboration, although [the Reviewer] was entitled to comment as to whether a particular circumstance was or was not corroborated. For these reasons, ground two is not established. 14 As to the second appeal ground, the Federal Magistrate understood the appellant to assert that the Reviewer had imposed a higher standard upon the appellant than that required in order to meet the Convention test of persecution. The relevant statements by the Reviewer appear at [117] in the Federal Magistrate's reasons as follows: "… a decision maker does not have to accept uncritically all statements and allegations made by an applicant for refugee status. It is for an applicant to convince or persuade the decision maker that all of the requirements are made out. As well, the assessment of the plausibility of an applicant's evidence is a necessary first step in assessing the applicant's credibility." "… section 91R does not replace the convention test of "persecution" within the statutory test; it remains necessary to establish a well-founded fear of "persecution" within the meaning of article 1A(2) of the Convention and also establish that such persecution is essentially and significantly for one of the convention reasons and involves "serious harm" and "systematic and discriminatory conduct"." 15 The appellant seems to submit that these paragraphs suggest that the Reviewer misunderstood the test to be applied in determining whether the appellant was a person to whom Australia owed protection obligations. However the Federal Magistrate considered that any errors demonstrated in these propositions had not led the Reviewer into error in identifying and deciding the relevant questions. 16 At [122] the Federal Magistrate observed: I accept that, overall, [the Reviewer] did identify the correct issues in the case before him and did ask himself the correct questions which arose from those issues. This is apparent from the penultimate paragraph of the reasons, where he said as follows: "… based on the information available to the Reviewer, including the available evidence about his family's experience and his alleged situation I am not satisfied in the circumstances of this case that the claimant would suffer persecution and/or possible death at the hands of the extremist militia groups in Iraq due to an imputed political opinion of support for the government and collaboration with coalition forces and membership of a particular social group, namely family members of the Iraqi authorities either cumulatively or separately should he return to Iraq now or in the foreseeable future." 17 As to the first appeal ground, the appellant's notice of appeal states: His Honour erred in not finding that the Second Respondent misunderstood and/or misconstrued a criterion (being the test under the Refugees Convention) about which it had to be satisfied for the purposes of establishing whether the Appellant was owed protection obligations pursuant to s36 of the Migration Act) by imposing an onus or burden of proof and/or a particular standard of proof in requiring his claims to be either substantiated or corroborated which directly affected the adverse credibility findings it made in relation to the Appellant. 18 As to the second ground, the notice of appeal states: His Honour erred in not finding that the Second Respondent misunderstood and/or misconstrued a criterion (being the test under the Refugees Convention) about which it had to be satisfied for the purposes of establishing whether the Applicant was owed protection obligations pursuant to s36 of the Migration Act and/or misstated and/or misunderstood established legal principles by stating that an assessment of plausibility of an applicant's evidence was a necessary first step in assessing an applicant's credibility (immediately following its statement that it is for an applicant to convince or persuade a decision-maker that all the requirements are made out) which directly affected the adverse credibility findings it made in relation to the Appellant. 19 Both appeal grounds allege a misunderstanding of the Convention criteria, but both really criticize the Reviewer's approach to the material before him. Both seem to assert an alleged imposition upon the appellant of a burden of proof. The second appeal ground also asserts an erroneous approach to the evidence, namely that the Reviewer erroneously considered that he was obliged to commence his consideration of the appellant's evidence by considering its plausibility. The two appeal grounds are said to be separate, but the appellant submits, with respect to the first appeal ground, that the Reviewer's alleged error lies in his observations concerning the appellant's evidence in light of the errors alleged in the second appeal ground.

THE FIRST APPEAL GROUND 20 The appellant submits that, when read in context, the following statement is an "offending sentence": An assessor should not uncritically accept all the claims made by a claimant, especially where there is little or no probative, supporting or corroborative evidence to support such claims. 21 The relevant context is said to be: the Reviewer's observations about inconsistencies, contradictions and implausibility in the appellant's evidence; the Reviewer's requirement that the appellant "convince or persuade", rather than "satisfy" him as to his claim to have a well-founded fear of persecution for a Convention reason; and the Reviewer's statement that consideration of the evidence must commence with consideration of the plausibility of the appellant's evidence. The appellant submits that these matters, together, demonstrate the imposition of a burden of proof. 22 Whilst there may be no place for the application of a burden of proof in the IMR process, the fact remains that the Reviewer was obliged to look to the appellant for evidence as to his subjective fear of persecution for a Convention reason and as to at least some of the circumstances which might demonstrate or disprove that such fear was well-founded. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 the majority said at 570: An applicant for refugee status who has established a fear of persecution must also show that the persecution which he or she fears is for one of the reasons enumerated in … the Convention. 23 At 571, the majority continued: An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a "well-founded" fear. 24 Clearly, it is for an applicant to establish his subjective fear, that it is for a Convention reason and that it is well-founded. Such establishment must be to the satisfaction of the relevant tribunal. In those circumstances, the Reviewer had to consider whether he accepted the appellant as a substantially honest and reliable witness. This process necessarily entailed a consideration of all of the material before him, particularly the appellant's various statements and the country information. The country information offered some general support to the appellant's case in that it demonstrated that Basra and Iraq were not safe and peaceful places. However the Reviewer considered that such information did not support the more specific aspects of the appellant's claim. Having regard to the available material, the Reviewer concluded that the appellant was not a satisfactory witness. The Reviewer was not satisfied that any fear of persecution was well-founded, although he accepted that the appellant might be exposed to the hazards of an armed insurgency. The Reviewer also found that the appellant had embellished, exaggerated and altered his claims "to suit the occasion as he saw fit". In summary the Reviewer was not satisfied that the appellant would suffer persecution and/or possible death for reason of his political opinions or familial relationship. 25 There is no apparent error in this reasoning process. The appellant accepts that the Reviewer was not obliged uncritically to accept his evidence, particularly where there was little or no probative, supporting or corroborating evidence. However the appellant submits that the Reviewer erred in observing that it was for the appellant to convince or persuade him that the Convention requirements were established. It is true that Guo uses the word "establish" rather than "convince or persuade". However the appellant, in his submissions, seems to accept that he had to "satisfy" the Reviewer as to the "required statutory elements". This proposition is drawn from the reasons of Dodds-Streeton J in MZYHT v Minister for Immigration and Citizenship [2011] FCA 659 at [41]. 26 The words "establish", "satisfy", "persuade" and "convince" may have differing shades of meaning, but they cover much common ground. In this context, the Shorter Oxford English Dictionary suggests that the word "establish" means "Place beyond dispute, ascertain, demonstrate, prove". The word "satisfy" means "Provide with sufficient proof or information; free from doubt or uncertainty; convince". The word "persuade" means "Lead a person to believe (that, a proposition, etc); prove, demonstrate". The word "convince" means "Persuade to believe firmly the truth (of, that); satisfy by argument or evidence …". Once it is accepted that the Reviewer had to decide whether the relevant matters had been "established", it follows that the appellant's involvement in the process was for the purpose of "satisfying", "persuading" or "convincing" him of such establishment. I see no error in the Reviewer's statement that it was for the appellant so to convince or persuade him. 27 The statement that assessment of the plausibility of an applicant's evidence was a necessary first step in assessing his credibility also seems to me to be unobjectionable. I do not understand the Reviewer to have been stating a legal proposition. Rather, he was recognizing the fact that generally, acceptance of an applicant's evidence is critical to the process of determining a claim to refugee status. Of course, plausibility must be assessed by reference to all of the evidence, not merely to the applicant's evidence, taken in isolation. There is no reason to believe that the Reviewer erred in that regard. I see no error in commencing the assessment of evidence by considering its overall plausibility. 28 In conclusion, I see no reason to conclude that the Reviewer erroneously imposed a burden of proof upon the appellant.

THE SECOND APPEAL GROUND 29 I am not entirely sure as to the distinction between the first and second appeal grounds. I see no basis for the assertion that the Reviewer misunderstood the issues which he had to address, or that his consideration of those issues miscarried. As much follows from my reasons for dismissing the first appeal ground.

ORDERS 30 The appeal must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.