DZABV v Minister for Immigration

[2012] FMCA 1200

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZABV v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1200

MIGRATION – Judicial review – independent merits review – whether denial of opportunity to comment on adverse information – whether denial of procedural fairness – whether failure to apply correct test, misunderstanding or misconstruction of relevant test – whether failure to consider claims – whether failure to properly consider question of state protection.

Migration Act 1958 (Cth), ss.36(2), 476

Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371
DZABU v Minister for Immigration & Citizenship & Anor [2012] FMCA 1194
Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41

Applicant: DZABV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 57 of 2011

Judgment of: Lucev FM

Hearing date: 7 March 2012

Date of Last Submission: 7 March 2012

Delivered at: Perth (by telephone to Darwin)

Delivered on: 14 December 2012

REPRESENTATION

Counsel for the Applicant: Mr J Gibson with Ms A Hanley

Solicitors for the Applicant: Northern Territory Legal Aid Commission

Counsel for the First Respondent: Mr T Anderson with Ms A Nanson

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

DNG 57 of 2011

DZABV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under s 476 of the Migration Act 1958 (Cth)[1] for a declaration and injunction in relation to a decision[2] of John Blount, in his capacity as an independent merits reviewer,[3] finding that the applicant does not meet the criterion for a protection visa set out in s36(2) of the Migration Act, and recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[4]

   [1] “Migration Act”.

   [2] “IMR Recommendation”.

   [3] “IMR”.

   [4] “Convention”.

Relief sought

1. The applicant seeks the following relief:

   1.A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the ground/s of this application.

   2.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer.

   3.An order remitting the matter to the Independent Merits Reviewer (differently constituted) for determination according to law;

   4.Any other orders which the Court thinks fit;

   5.Costs.

Jurisdiction

1. The application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[5]

   [5] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM.

Consideration of the application

1. This application was argued together with the application in DZABU v Minister for Immigration & Citizenship & Anor.[6] The applicant in this matter is the wife of the applicant in DZABU.

   [6] [2012] FMCA 1194 (“DZABU”).

2. The parties agree that this matter and DZABU are relevantly the same, both factually and in relation to the issues for determination arising, save for a minor issue with respect to the material allegedly not drawn to the applicant’s attention in this case, that is, an additional alleged failure in this case to draw to the applicant’s attention the USDS International Religious Freedom Report 2010.

3. For the reasons appearing in DZABU the failure to expressly draw the applicant’s attention to the fact that a negative inference was to be drawn from the material to which the applicant was not referred does not constitute a denial of procedural fairness, and the same reasoning applies in this case to the alleged failure with respect to the USDS International Religious Freedom Report 2010. Otherwise, the reasoning in DZABU applies equally to this case.

4. It follows that, as with the application in DZABU, this application must be dismissed. There will be an order accordingly.

5. The Court will hear the parties as to costs.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  14 December 2012