AZAEF v Minister for Immigration
[2015] FCCA 808
•9 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZAEF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 808 |
| Catchwords: MIGRATION – Judicial review of decision of an Independent Merits Assessor – application for an injunction to restrain the removal (pursuant to s.198 of the Migration Act 1958 (Cth) (“the Act”)) of the applicants from Australia – allegation that Assessor, in conducting a merits assessment, failed to comply with the legal requirements and/or denied the applicants procedural fairness – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.16.01 Immigration (Guardianship of Children) Act 1946 (Cth), s.6(1) Migration Act 1958 (Cth), ss.36(2), 46A, 195A & 198 |
| Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 SZQDZ v Minister for Immigration (2012) 200 FCR 207 SZQGA v Minister for Immigration and Citizenship (2012) 204 FCR 557 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 Re: Commonwealth; Ex parte Marks (2000) 177 ALR 491 SAAP v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 215 ALR 162 Re: Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 DZADO v Minister for Immigration & Anor [2013] FMCA 1 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 144 ALR 567 SZLSM & Anor v Minister for Immigration & Anor [2008] FMCA 1172 |
| First Applicant: | AZAEF |
| Second Applicant: | AZAEG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | LUKE HARDY |
| File Number: | ADG 292 of 2013 |
| Judgment of: | Judge Simpson |
| Hearing date: | 8 May 2014 |
| Date of Last Submission: | 8 May 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 9 April 2015 |
REPRESENTATION
| Counsel for the Applicants: | Mr S Ower |
| Solicitors for the Applicants: | Legal Services Commission |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
That the Application filed on 11 October 2013 shall be dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 292 of 2013
| AZAEF |
First Applicant
| AZAEG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| LUKE HARDY |
Second Respondent
REASONS FOR JUDGMENT
I have before me an Application seeking the following orders:
“1.A declaration that the Applicants’ claims to be persons to whom Australia has protection obligations were not assessed, and otherwise have not been assessed, by an Independent Protection Assessor.
2.In the alternative, a declaration that the Second Respondent, in recommending to the First Respondent that the Applicants not be recognised as persons to whom Australia has protection obligations, made an error of law in that the Second Respondent failed to observe the requirements of procedural fairness and otherwise erred .
3.An injunction restraining the First Respondent from removing the applicants, or causing or allowing the applicants to be removed from Australia:
3.1until the applicants’ claims to be persons to whom Australia has protection obligations have been assessed according to law; and
3.2until the First Respondent has decided that the applicants are not persons to whom Australia has protection obligations.
4.An order that the First Respondent pay the Applicants’ costs of this application.
5.Such further or other orders as this Honourable Court deems fit.”
The grounds of the application are as follows:
1.The removal of the Applicants from Australia would be unlawful as the First Applicant’s status as a person to whom Australia owed protection obligations has not been assessed in a process conducted in accordance with Australian law.
Particulars
1.1The First Applicant was born on 14 May 2005.
1.2The First Applicant arrived in Australia on 10 May 2011.
1.3At the time of the First Applicant’s arrival:
(a) she was 6 years old; and
(b) she was a non-citizen child within the meaning of s. 4AAA of the Immigration (Guardianship of Children) Act 1946 (Cth); and
(c) the First Respondent was her guardian under the Immigration (Guardianship of Children) Act 1946 (Cth).
1.4The First Applicant may only be removed from Australia if her status as a person to whom Australia owed protection obligations has been assessed in a process conducted in accordance with Australian law.
1.5The First Applicant was not competent and did not have capacity to claim to the First Respondent to be a person to whom Australia owed protection obligations.
1.6The circumstances of the First Applicant’s arrival, her apparent country of origin (Vietnam) and the fact there was no evidence of the First Applicant’s parents being alive gave rise to a potential status that she was a person to whom Australia owed protection obligations.
1.7In the premises, the First Respondent as a guardian and fiduciary of the First Applicant was required to take his own steps to investigate and obtain material in respect of determining such status on behalf of the First Applicant.
1.8The First Applicant arrived in Australia with her half-brother, the Second Applicant, who also claimed to be a minor.
1.9The First Respondent did not take steps to investigate and obtain material in respect of such a claim on behalf of the First Applicant but permitted:
(a) the Second Applicant to make claims and present material on behalf of the First Applicant; and
(b) those claims to be assessed on behalf of the First Applicant in accordance with the so-called “Protection Obligation Determination” process.
1.10The First Respondent’s conduct in paragraph 1.9 above constituted a breach of his duties as guardian and fiduciary.
1.11In the premises:
(a) the First Respondent has breached his duties as guardian and fiduciary by failing to take steps to investigate and obtain material in respect of such a claim; and
(b) the First Applicant’s status as a person to whom Australia may owe protection obligations has not been assessed in a process conducted in accordance with Australian law; and
(c) any removal of the First Applicant from Australia would be unlawful.
1.12If the First Applicant is a person to whom Australia owes protection obligations, the Second Applicant is a member of the same family unit within the meaning of s. 5 of the Migration Act 1958 (Cth) and therefore a person to whom Australia owes protection obligations.
2.The removal of the Applicants from Australia would be unlawful as the First Applicant’s status as a person to whom Australia owed protection obligations has not been assessed in a process conducted in accordance with Australian law.
Particulars
2.1The First Applicant repeats paragraphs 1.1 to 1.9 above.
2.2On 7 December 2011, a delegate of the First Respondent made an evaluation that the applicants were not persons to whom Australia had protection obligations.
2.3On 11 January 2012, the claims made by the Second Applicant were referred to an Independent Protection Assessor in accordance with the Protection Obligation Determination process.
2.4The Second Respondent found that the First Applicant was not an orphan and not otherwise a person to whom Australia owed protection obligations on the basis that he did not accept the Second Applicant as a credible witness.
2.5There was no positive evidence before the Second Respondent on which he could find the First Applicant was not an orphan or that she was not a person to whom Australia owed protection obligations.
2.6By reason of the Second Respondent’s findings, and the First Respondent’s position as guardian and fiduciary, the First Respondent was required to:
(a) no longer permit the Second Applicant to make claims and present material on behalf of the First Applicant; and
(b) take his own steps to investigate and obtain material in respect of determining such status on behalf of the First Applicant.
2.7The First Respondent failed to do so.
2.8In the premises:
(a) the First Respondent has breached his duties as guardian and fiduciary by failing to take steps to investigate and obtain material in respect of such a claim; and
(b) the First Applicant’s status as a person to whom Australia may owe protection obligations has not been assessed in a process conducted in accordance with Australian law; and
(c) any removal of the First Applicant from Australia would be unlawful.
2.9If the First Applicant is a person to whom Australia owes protection obligations, the Second Applicant is a member of the same family unit within the meaning of s. 5 of the Migration Act 1958 (Cth) and therefore a person to whom Australia owes protection obligations.
3.The Second Respondent, in recommending to the First Respondent that the Applicants not be recognised as persons to whom Australia has protection obligations, made an error of law in that the Second Respondent failed to observe the requirements of procedural fairness.
Particulars
3.1The Applicants repeat paragraphs 1.1 to 1.9, 2.2 and 2.3 above.
3.2On 2 May 2012, the Second Respondent interviewed both applicants. He interviewed each applicant separately.
3.3The First Applicant was not competent to give evidence or make submissions on her own behalf at an interview before an Independent Protection Assessor, and was not able to participate in the interview.
3.4The First Applicant has thereby not been given an opportunity to give evidence, comment upon or respond matters before the Independent Protection Assessor.
3.5In the premises:
(a) the First Applicant’s status as a person to whom Australia may owe protection obligations has not been assessed in a process conducted in accordance with Australian law; and
(b) any removal of the First Applicant from Australia would be unlawful.
3.6If the First Applicant is a person to whom Australia owes protection obligations, the Second Applicant is a member of the same family unit within the meaning of s. 5 of the Migration Act 1958 (Cth) and therefore a person to whom Australia owes protection obligations.
4.The Second Respondent, in recommending to the First Respondent that the Applicants not be recognised as persons to whom Australia has protection obligations, made an error of law in that the Second Respondent failed to observe the requirements of procedural fairness.
Particulars
4.1The Applicants repeat paragraphs 1.1 to 1.9, 2.2, 2.3 and 3.2 above.
4.2The Second Respondent made a decision as to the recommendation in both of the Applicants’ cases jointly and as one process.
4.3In making significant adverse credibility findings against the First Applicant and in rejecting her factual claims, the Second Respondent relied upon matters arising from the Second Applicant’s evidence.
4.4The First Applicant was not given an opportunity to comment upon and respond to these matters.
4.5In the premises:
(a) the First Applicant’s status as a person to whom Australia may owe protection obligations has not been assessed in a process conducted in accordance with Australian law; and
(b) any removal of the First Applicant from Australia would be unlawful.
4.6If the First Applicant is a person to whom Australia owes protection obligations, the Second Applicant is a member of the same family unit within the meaning of s. 5 of the Migration Act 1958 (Cth) and therefore a person to whom Australia owes protection obligations.
5.The Second Respondent, in recommending to the First Respondent that the Applicants not be recognised as persons to whom Australia has protection obligations, made an error of law in that the Second Respondent failed to observe the requirements of procedural fairness and/or failed to assess the Applicant’s claims.
Particulars
5.1The Applicants repeat paragraphs 1.1 to 1.9, 2.2, 2.3, 3.2 and 4.2 above.
5.2The Second Respondent published a Statement of Reasons for his recommendation.
5.3At paragraph [197] of his reasons, the Second Respondent found that he did not accept the Applicants’ mother to have died. In doing so, he rejected the evidence of the First Applicant on the basis that “I do not accept that Ms Nhu is as young as claimed”.
5.4At paragraph [226] of his reasons, the Second Respondent made a contradictory finding that “I am prepared to accept Ms Nhu was born on the date she provided, making her seven years old”.
5.5.In the premises, the Second Respondent failed to deal with the Applicants’ claim and thereby denied them procedural fairness.
5.6In the premises:
(a) the First Applicant’s status as a person to whom Australia may owe protection obligations has not been assessed in a process conducted in accordance with Australian law; and
(b) any removal of the First Applicant from Australia would be unlawful.
5.7If the First Applicant is a person to whom Australia owes protection obligations, the Second Applicant is a member of the same family unit within the meaning of s. 5 of the Migration Act 1958 (Cth) and therefore a person to whom Australia owes protection obligations.
6.The Second Respondent, in recommending to the First Respondent that the Applicants not be recognised as persons to whom Australia has protection obligations, made an error of law in that the Second Respondent failed to observe the requirements of procedural fairness.
Particulars
6.1The Applicants repeat paragraphs 1.1 to 1.9, 2.2, 2.3, 3.2 and 4.2 above.
6.2The Second Respondent, in making his recommendation, relied upon certain information that the Second Applicant was not a minor and over 18, including an age determination made by the Department.
6.3The Second Respondent did not put that information to the Second Applicant at the interview or otherwise.
6.4The First Applicant has thereby not been given an opportunity to give evidence, comment upon or respond to the issue.
6.5In the premises:
(a) the Second Applicant’s status as a person to whom Australia may owe protection obligations has not been assessed in a process conducted in accordance with Australian law; and
(b) any removal of the Second Applicant from Australia would be unlawful.
6.6If the Second Applicant is a person to whom Australia owes protection obligations, the First Applicant is a member of the same family unit within the meaning of s. 5 of the Migration Act 1958 (Cth) and therefore a person to whom Australia owes protection obligations.”
The first applicant is a young Vietnamese girl believed to be born on 14 May 2005. Her half-brother, the second applicant, is believed to have been born in Vietnam in 1995. The first applicant’s mother is believed to have died when the first applicant was a baby. The whereabouts of the first and second applicants’ father are unknown. The first applicant lived with her half-brother and their uncle in Vietnam. In May 2011, the first and second applicants together left Vietnam for Australia. They travelled by boat and arrived at Christmas Island on 10 May 2011.
The applicants did not have visas when they landed. Christmas Island is an ‘excised off-shore place’ within the meaning of the Migration Act 1958 (Cth) (“the Act”). A non-citizen without a valid visa (an “unlawful non-citizen” within the meaning of the Act) who arrives at an excised off-shore place is an ‘off-shore entry person’. Both of the applicants are therefore ‘off-shore entry persons’.
An off-shore entry person is prohibited from making a valid application for a permanent visa to enter Australia but may be permitted to apply for a visa if the Minister for Immigration and Border Protection (“the Minister”) exercises his personal non-compellable and non-reviewable power to ‘lift the bar’ that prohibits off-shore entry persons from applying for a visa (see ss.46A and 195A of the Act).
An off-shore entry person may be removed from Australia under s.198 of the Act unless:
a)The person has a claim that he or she is entitled to Australia’s protection under Australia’s international obligations by reason of the Refugee Convention, the Convention Against Torture, or The International Covenant for Civil and Political Rights; and
b)That claim has not been assessed.
The assessment of any such claim must be in accordance with the requirements of procedural fairness and be made in accordance with the correct legal principles.[1]
[1] Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at page 334; SZQDZ v Minister for Immigration (2012) 200 FCR 207 at para.44; SZQGA v Minister for Immigration and Citizenship (2012) 204 FCR 557 at paras.63 & 161; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505.
The applicants seek an injunction to restrain the Minister from removing them under s.198 of the Act. They also seek ancillary declaratory relief.
Both applicants have claims that he or she is entitled to Australia’s protection under Australia’s international obligations by reason of the Refugee Convention, The Convention against Torture or The International Covenant for Civil and Political Rights. Those claims were assessed in accordance with the so-called ‘Protection Obligation Determination’ process. Pursuant to that process, on 25 August 2012, an Independent Protection Assessor (“the Assessor”) made findings that the applicants did not meet the criteria for a protection visa set out in subs.36(2) of the Act.
The applicants contend that their claims were not assessed by the Assessor in accordance with law and/or were made in denial of procedural fairness. They therefore say that it would be unlawful for them to be removed and they seek injunctive relief.
Background and the Assessor’s decision
After the allegation was made that the first applicant was born in 2005, and the second applicant (the first applicant’s brother) claimed he was born in 1995, the Department of Immigration undertook an Age Determination Assessment in respect of the second applicant. They came to the conclusion that the second applicant was more likely than not an adult.
The second applicant claimed that his uncle told him that his father was a Catholic priest who had been jailed for 20 years, had lost his identity documents, and was forbidden from practicing his religion. The second applicant says that as a result of these events, he was unable to obtain any identity document or attend school. Further, it was claimed that the second respondent’s uncle had disappeared and his mother had committed suicide because of continued harassment from the authorities.
The applicants claimed further that they would face harm because they had departed Vietnam illegally and/or applied for asylum abroad. The second applicant claimed that if he returned to Vietnam, he would be unable to obtain a registration card or employment and would be vulnerable to trafficking, sexual exploitation and/or forced labour. The first applicant claimed to be dependent on her brother and made similar claims for protection.
The Assessor accepted that the applicants were siblings and Catholic, but found that the second applicant had fabricated his claims for protection. In particular, the Assessor identified numerous discrepancies in the second applicant’s evidence about the whereabouts of his mother that were not adequately explained. The Assessor also identified inconsistencies in the second applicant’s evidence about whether he was denied the freedom to practice his religion; whether the first applicant was forced to travel with him and his uncle when they went to work; whether his uncle had gone missing; why he claimed to fear harm as a failed asylum seeker; and his age. For these reasons, and in light of the country information that was before him, the Assessor did not accept that the second applicant was under 18 years of age. He also rejected the second applicant’s claims that his father had been jailed or stripped of his identity documents and that he and his family had otherwise faced adverse treatment from the Vietnamese authorities. The Assessor also did not accept that the applicants were undocumented or faced any serious harm by reasons of their Catholic faith.
As the Assessor found that the second applicant had fabricated his claims relating to his father, he did not accept that he had been imputed with an adverse political profile. The Assessor also found, on the basis of adverse credibility findings and the available country information, that the second applicant would not be imputed with such a profile because he had departed the country illegally and/or sought asylum in Australia. The Assessor was also satisfied that the second applicant would be able to obtain a registration card and reside with his uncle on his return to Vietnam.
Whilst the Assessor accepted that the second applicant came from a low income sector of Vietnamese society, he did not accept that the second applicant would be unable to find employment or that he would otherwise be denied the capacity to subsist for a Convention reason. The Assessor also did not accept that the second applicant would face serious harm in the reasonably foreseeable future because he had undertaken a risky boat trip to Australia.
As the Assessor did not accept that the second applicant was less than 18 years of age, he also did not accept that the second applicant was vulnerable to trafficking, sexual exploitation or forced labour. The Assessor was not satisfied that the second applicant did not have a birth certificate or that he would be denied freedom of movement in Vietnam. The Assessor also did not accept that the second applicant had lived in poverty or faced harm as a result of undertaking a risky boat trip to Australia.
Finally, whilst the Assessor accepted that the first applicant would be unable to attend school or medical care until she had obtained a registration card, he did not accept that she would be unable to obtain a registration card or that a temporary delay in obtaining registration would amount to serious harm.
Having considered the second applicant’s claims individually and cumulatively, the Assessor was not satisfied that the second applicant had a well-founded fear of persecution. For similar reasons, the Assessor also did not accept that there was a real risk that he would suffer significant harm if he was removed from Australia to Vietnam.
The Assessor acknowledged that the first applicant was too young and vulnerable to represent herself and accepted that she was almost totally dependent on the evidence of her brother who he had found to be an “unreliable witness”.
On the basis of its previous findings in relation to the second applicant’s claims, the Assessor was not satisfied that the first applicant was an orphan; had been denied documentation; was prevented by the State from practicing her religion or identifying herself as a Catholic; had been imputed with any adverse political opinion; or would face harm because she departed the country illegally and sought asylum abroad.
Having considered the first applicant’s claims individually and cumulatively, the Assessor was not satisfied that the first applicant had a well-founded fear of persecution. For similar reasons, the Assessor also did not accept that there was a real risk that she would suffer significant harm if she was removed from Australia to Vietnam.
Proceedings in the Federal Circuit Court
The applicants commenced these judicial review proceedings in the Federal Circuit Court on 11 October 2013. This was some 14 months after the Assessor’s recommendation was communicated to the applicants.
The applicants have not given any explanation for the delay in filing their application. It is submitted on the part of the first respondent, that in these circumstances, even if the applicants could demonstrate that the Assessor made an error of law in making the recommendation (which the first respondent denies), relief should be refused because of the unexplained delay.[2]
[2] The first respondent relied on the following cases: SAAP v Minister for Immigration & Multicultural Affairs (2005) 215 ALR 162 at [80]; Re: Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 paras.56 &57; SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [28].
The first respondent submits that the following comments of McHugh J in Re: Commonwealth; Ex parte Marks[3] apply with equal force to the present case:
“Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. …”
I will deal with the consequences of the applicants’ delay later in these reasons.
[3] (2000) 177 ALR 491 at [16].
Analysis of the grounds of review
As mentioned earlier in these reasons, the applicants have six grounds of review. I propose to deal with each ground in the order that they appear in the application.
In their first ground of review, the applicants contend that the Minister breached his duty as guardian of the first applicant under the Immigration (Guardianship of Children) Act 1946 (Cth) (“the IGC Act”) by, firstly, allowing the second applicant to speak on her behalf and, secondly, failing to take steps to investigate and obtain material about the first applicant’s claim in circumstances where she was not competent to do so and did not have the capacity to make a claim for protection.
Subsection 1 of s.6 of the IGC Act is in the following terms:
“6 Guardianship of non‑citizen children
(1)The Minister shall be the guardian of the person, and of the estate in Australia, of every non‑citizen child who arrives in Australia after the commencement of this Act to the exclusion of the parents and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.”
It will be seen that the Act confers on the Minister all the usual incidents of guardianship which may extend to the provision of the basic needs of the child, which includes legal advice and assistance[4].
[4] See Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 at [88].
In DZADO v Minister for Immigration & Anor[5] Judge Driver rejected a complaint very similar to the complaint to be found in Ground 1. In DZADO Judge Driver referred to the fact that the Department of Immigration had established guidelines concerning unaccompanied minors who claimed protection. These guidelines allowed the Minister to receive advice and assistance under the Immigration Advice and Application Assistance Scheme (“IAAAS”) and the appointment of an independent observer (“Life Without Barriers”) to observe and act in the best interests of the child at any interviews held by the Department of Immigration.
[5] [2013] FMCA 1.
In referring to those obligations, Judge Driver had this to say:
“95.I accept the Minister’s submissions on the question of the failure to appoint a litigation guardian. There is no legal obligation to appoint a litigation guardian for offshore entry persons who are minors in relation to the assessment of their claims for protection. Rather, the arrangements that have been put in place by the Minister’s Department are those detailed above. I am inclined to the view that the failure to follow those arrangements in relation to unaccompanied minors may be a reviewable legal error but, as also noted below, it is unnecessary to make a definitive finding.”
In the present case, the evidence shows that the Department and the Assessor acted appropriately by allowing the first applicant to have representation under the IAAAS and by ensuring that Life Without Barriers representatives were present at all relevant interviews.
The applicants’ representative made detailed written submissions in support of the first applicant’s claims for protection. It cannot be said, in light of the fact that both the Department of Immigration and the Assessor followed the established procedure, that the Minister breached the duties he owed. As a result, I find that this ground is without merit. As has been submitted by the first respondent, it must also fail for the simple reason that any putative breach of the IGC Act by the Minister would not lead to the conclusion that the Assessor made an error of law in making the recommendations.
Second ground of review
In the second ground of review, the applicants contend that they were denied procedural fairness because there was no “positive information” on which the Assessor could find that the first applicant was not an orphan. In my view, this ground of review is misconceived. It was for the applicants to provide their evidence and arguments in sufficient detail to enable the Assessor to establish the relevant facts.
The case of Minister for Immigration and Ethnic Affairs v Guo Wei Rong[6] is authority for the proposition that the applicant must establish, to the satisfaction of the decision maker, that, “all statutory elements are made out”. The Assessor was not required to make the applicants’ case for them. It was open to the Assessor to rely upon its adverse credibility findings in respect of the second applicant to find that he was not an orphan. As the applicants were siblings, it follows that it was also open to the Assessor to find, on this basis, that the first applicant was also not an orphan.
[6] (1997) 144 ALR 567 at 596.
Third and fourth grounds of review
In their third and fourth grounds of review, the applicants contend that the Assessor interviewed each applicant separately and, in light of the fact that the first applicant was not competent to give evidence, the Assessor denied her the opportunity to comment upon matters arising from the second applicant’s evidence. It appears from the Assessor’s reasons that the first applicant was not present for the entirety of the oral evidence given by her brother. However, the second applicant elected to speak on behalf of his sister and the representatives for both applicants were expressly invited to comment upon the concerns that the Assessor identified with the evidence of the second applicant. The second applicant was also invited to make any submissions that he wished on behalf of the first applicant.
In my view, the applicants’ contention in this regard are misconceived. Given that the first applicant was not capable of making claims or giving evidence before the Assessor, the Assessor’s procedural fairness obligations are taken to be owed to the second applicant. Otherwise, it would have been a nonsense for the Assessor to have acted in a way consistent with the fiction that the first applicant herself was capable of presenting evidence and arguments in support of her application.
In similar circumstances, Federal Magistrate Nicholls (as he then was) had this to say in SZLSM & Anor v Minister for Immigration & Anor[7]:
“60.In all the circumstances, it would have been a nonsense for the Tribunal to have acted in a way consistent with the “fiction”, which the applicants’ submissions seek to assert now. That is, that the two infant applicants were somehow, despite their lack of capacity, knowledge, and competence, nonetheless capable of having made an application for review (let alone an application for the protection visa previously) and that somehow, their father had been directed, or instructed by them, as their representative, and appeared at the hearing as some third party (it was suggested in submissions like “any other expert” on the situation in Bangladesh).
61.Had the Tribunal seen the situation in the way as expressed in the applicants’ submissions now, then having invited the applicants themselves to the hearing, and having received no notice pursuant to s.426(2) that the applicants wished the Tribunal to take evidence from any other person, then it would have been open to the Tribunal to have determined the review without hearing anything from the applicants’ father. A course, which given the absence of anything else, and given the Tribunal’s preliminary view, that on what was before it, it was unable to make a decision favourable to the applicants, without hearing from them at a hearing, would have led to the rejection of the application. The Tribunal proceeded, in all the circumstances, not only in the most practical way, but in my view, the most appropriate manner. That being to treat the applicants’ father’s evidence as being evidence given by them, through him as their representative.”
[7] [2008] FMCA 1172.
In my opinion, the third and fourth grounds of review are without merit and must fail.
Fifth ground of review
In ground five, the applicants contend that they were denied procedural fairness because there was a discrepancy between the Assessor’s finding that it did not accept that the first applicant was as young as she claimed and its finding that it accepted that she was born on the date claimed.
In my opinion, the fifth ground is without merit. Even if the Assessor did make inconsistent factual findings, such an error is a factual error only and not a legal error. Further, the factual error, if there was one, had no bearing on the conclusion reached by the Assessor which was largely based on an adverse assessment of the credibility of the second applicant upon whom the first applicant’s claim to fear persecution et cetera were based.
Sixth ground of review
In this ground, the applicants contend that the rules of procedural fairness had been infringed as a result of the Assessor not making the second applicant aware of the existence of his age determination, or that his age determination would be material that would be relied upon by the Assessor.
In my opinion, and on the basis of the material that follows, this ground is without merit.
By letter dated 15 November 2011, the second respondent confirmed to the second applicant that, in his presence, an age assessment had been conducted by the Department and that as a result, the Department would use as his date of birth, 31 December 1992.
On 7 December 2011, a Protection Obligation Evaluation Referral was conducted with the second applicant attending. The Assessor reported that the second applicant’s age assessment was a matter discussed and that at the time of those discussions, the second applicant had the services of a Vietnamese interpreter.
The material provided in the green book includes a written statement of the second respondent in which he discusses and criticises in detail the age assessment. The statement was, again, prepared with the assistance of a Vietnamese interpreter.
In the Statement of Reasons of the Independent Protection Assessor dated 25 August 2012, it is recorded that through his advisor, the second applicant provided a detailed submission dated 9 November 2011 concerning his age assessment.
The matters referred to above convince me that it would not be correct to suggest that the second applicant was not aware of the existence of the age assessment or that the second applicant was unaware that the age assessment would be taken into account by the Assessor. The sixth ground of review is without merit.
As I have found that none of the applicants’ grounds of review have merit, I do not consider it necessary to embark on the matter of the applicants’ delay in bringing their application.
Conclusion
For the above reasons, the application is without merit and should be dismissed.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 9 April 2015
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