DZACL v Minister for Immigration - [2012] FMCA 851

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZACL v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 851

MIGRATION – Judicial Review of Independent Merits Review.

Migration Act 1958 (Cth)

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA41, (2010) 272 ALR 14 (“M61/M69”) SZOZU v Minister for Immigration and Citizenship [2011] FCA 1005

WAGU v MIMIA [2003] FCA 912

Re: Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 70 [49]

Applicant:

DZACL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 73 of 2011

Judgment of:

Simpson FM

Hearing date:

17 April 2012

Date of Last Submission:

17 April 2012

Delivered at:

Adelaide

Delivered on:

21 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr Gibson, of counsel

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the first and second Respondents:

Mr Anderson, of counsel

Solicitors for the first and second Respondents:

Clayton Utz Lawyers

ORDERS

Application dismissed.
Applicant to pay the costs of the Second Respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 73 of 2011

DZACL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant was born in Iran in 1980. He is an unmarried Arab from an area previously known as Ahwaz. He is the youngest son of a large family belonging to a tribal chief or sheik.
The applicant left Iran in September 2010. He travelled by plane to Indonesia and then attempted to travel to Australia by boat. His boat was intercepted by the Australian Navy and he was taken to the Christmas Island Detention Centre (“CIDC”).
Upon arrival at the CIDC, the applicant was assigned a Migration Agent to assist him with his application for refugee status.
On 4 December 2010, the applicant was provided with a Refugee Status Assessment (“RSA”). Paragraph 2 of the assessment letter was in the following terms:
“After a thorough assessment of your request and following careful consideration of all available information, an officer of the Department of Immigration and Citizenship has determined that you are not a refugee as defined in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (the Refugees Convention).”
The applicant was provided with a copy of the RSA Record.
On 26 May 2011, the applicant sought an Independent Merits Review (“IMR”) of the RSA. The IMR was conducted at the CIDC on 18 September 2011.
The applicant was advised by letter dated 10 November 2011 from the Department of Immigration and Citizenship (“DIAC”) that on 7 November 2011, the Independent Reviewer (“Reviewer”) who had conducted the IMR had recommended that the applicant not be recognised as a refugee. A copy of the Reviewer’s report and recommendations accompanied the letter.
On 6 December 2011 the applicant filed an application in the Darwin Registry of this Court seeking judicial review of the decision. The application sought the following final orders:
a)A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with the law, by reason of grounds of this application;
b)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;
c)An order remitting the matter to the Independent Merits Reviewer (differently constituted) for determination according to law;
d)Any other orders which the Court thinks fit; and
e)Costs.
At the hearing before me, the applicant abandoned all but one of the four grounds of the application. The remaining ground was in the following terms:
“1.The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend 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 and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.
Particulars
…
(b)The Second Respondent made findings rejecting as a “fabrication” a certain document – a AHRA letter from NLMA – potentially corroborative of the applicant’s claims of a nexus of political opinion to the Applicant’s fears through links to the NLMA (and thus rejecting its authenticity), alternatively rejected the contents of the document on the basis that it was not genuine and/or implicitly had been obtained by means of a fraudulent arrangement and/or contrived arrangement involving the Applicant and others without giving the Applicant any opportunity to answer the allegation(s) or to provide further information regarding the provenance of the document or call further evidence to establish the authenticity and/or genuineness of the document.”
It is common ground that this Court has jurisdiction to deal with a judicial review application such as this and that, not only should procedural fairness be afforded to an applicant in an IMR, but also that the Reviewer must ensure that the correct legal principles are correctly applied throughout.[1]
[1] Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA41, (2010) 272 ALR 14 (“M61/M69”); SZOZU v Minister for Immigration and Citizenship [2011] FCA 1005 at para 3.
The above remaining ground of review raises the question whether the applicant was denied procedural fairness on the basis that material was considered and taken into account by the Reviewer in circumstances that required him to give the applicant an opportunity to consider the material and to provide a response and further information. It is necessary to look closely at what is complained of.
On 2 June 2011, the Reviewer received a submission from the applicant through his migration agent. A letter addressed to DIAC and dated 15 May 2011 formed part of that submission. The letter purported to be from the Ahwazi Human Rights Agency (“AHRA”) of the National Liberation Movement of Ahwazi (“NLMA”). It was in the following terms:
“Ahwazi Human Rights Agency (AHRA) of NLMA confirms that [applicant’s name] is a member of the National Liberation Movement of Ahwaz (NLMA).
[applicant’s name] is in charge of organizational recruitment in his tribe and also the distribution of publications, statements and CDs.
[applicant’s name] is the son of tribal leader [applicant father’s name].
Since the collapse of the Shah in 1979 the current Iranian regime took over [the applicant name’s] tribe’s land and other clans in order to establish Iranian Revolutionary Guard bases, settlements and to construct projects of cane sugar.
Members of this tribe are still subjected to harassment and arrests by the Iranian regime for two reasons:
1.The tribe [applicant’s surname] continue to claim recovery of their land.
2.The majority of members of this tribe belong to the NLMA, which is struggling for independence of Ahwaz also an end to the Iranian occupation.
AHRA is confirming that [applicant’s name] is an Ahwazi political activist and member of NLMA since 2005; hunted by Iranian intelligence because of his political activities. For this reason Iran is searching for [applicant’s name] to execute him.
For these reasons [applicant’s name] was forced to leave Ahwaz, he’s on the run from arrest and death to preserve his life.
AHRA requests from the Government of Australia to consider the issue of [applicant’ name] favourably humanitarian and providing security and protection and grant political asylum.
Our appreciation to Australia a friendly country.
If there is any question or concern, please do not hesitate to contact us.
(signature)”
In his final report and recommendations, the Reviewer made the following comments and findings (emphasis added):
“181.I should note here that [applicant’s name] more or less correctly identified [member’s name] as a figure within the NLMA. I draw no negative inferences from his apparently erroneous spelling of [member’s name] name, although that would make it difficult for him, as claimed, to make contact [member’s name] by email (sic). This is because [applicant’s name] claims he only did this once after coming to Australia and could easily have forgotten the spelling by the time he was asked by me to recall it off the top of his head, as it were. Also, [applicant’s name] claims that he gave little or no information or evidence about himself to [member’s name] who, he claims, received it from someone else. I can believe that [applicant’s name] himself had little contact with the NLMA and on only one occasion since coming to Australia, and that the NLMA might have “received” its information from someone other than [applicant’s name], but I do not accept on the evidence before me that the information it received and then conveyed is true or in any other way reliable. I do not believe on the evidence before me that [applicant’s name] did not ask or persuade the NLMA to help him with a supporting letter. I find that the letter is the product of fabrication entered into with [applicant’s name] knowledge and co-operation, and give it no positive weight in this matter. I do not accept that he was in contact with the NLMA.
182.I should note that the letter states that the author is available for further questions, but [applicant name’s] evidence already clearly satisfies me that the author of the NLMA/AHRA letter received untrue information about [applicant’s name] from an unreliable source. In addition, I am not required to make enquires that could breach the confidentiality of the process in which [applicant’s name] and I are engaged. (I am guided by the Federal Court in a number of matters including the recent matter of SZOZU v MIAC [2011] FCA 1005).
…
184.It was argued by the adviser at our interview that I should consider the possibility that [applicant’s name] contact and identification with the NLMA could be treated by the Iranian authorities as evidence of his engaging in anti-government activity abroad, and I discussed with her where and how s91R(3) might necessarily come into play.
185.I accept that [applicant’s name] has been in contact with the NLMA since he came to Australia. I accept that he emailed the organisation once and some time later received the letter presented in evidence. On the evidence before me, taking account of [applicant’s name] discussion of and explanations for his contact with the NLMA, it is clear he contacted that organisation after he came to Australia order to obtain support for his refugee application (sic). As I have found that [applicant’s name] has had no relationship at all with this organisation outside of seeking this letter, the matter appears to me to be a clear-cut instance of conduct entered into for the sole purpose of strengthening [applicant’s name] claim to refugee status under the Convention. In this light, it seems appropriate to disregard the conduct of soliciting and receiving letter and all that flows from it (sic). …”
It was submitted on behalf of the applicant that there was jurisdictional error as the Reviewer rejected the letter as a fabrication and had been obtained by means of a “fraudulent arrangement and/or contrived arrangement involving the Applicant and others”. It was submitted that in these circumstances the Reviewer should have given the Applicant the opportunity to answer the allegation or to provide further information including calling further evidence of its authenticity and/or genuineness.
In my opinion the Applicant’s submission wrongly characterises what the Reviewer found. The Reviewer made it clear that he was prepared to consider the letter as authentic and genuine in the sense that it had not been forged or fraudulently produced by the Applicant. He made no finding that the author of the letter conspired with the Applicant to mislead. Neither the Reviewer’s reasons nor the transcript of interview taken on 18 September 2011 indicate a finding to the contrary. What the Reviewer found was a ‘genuine’ letter from the NLMA relying on false information given to the NLMA with the Applicant’s knowledge: the letter was a second-hand recounting of events rather than an account of events by someone who has first hand knowledge. The Reviewer specifically stated that the contents of the letter were based on “untrue information…from an unreliable source.” It is to be implied that the source was either the Applicant or someone else with the Applicant’s knowledge and consent. The Reviewer effectively found that the author of the letter had been duped by the Applicant or someone on his behalf. As was said by French J (as he then was) in WAGU v MIMIA[2]:
“Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision.”
[2] [2003] FCA 912.
In the circumstances of this case, it can not be said that the Reviewer committed an error of law in rejecting the evidence of the letter on the basis of the applicant’s credibility[3].
[3] Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 70 [49].

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Simpson FM

Date: 21 September 2012