MZYVH v Minister for Immigration

[2014] FCCA 1302

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYVH v MINISTER FOR IMMIGRATION [2014] FCCA 1302

Catchwords:
MIGRATION – Complementary protection – procedural fairness – independent merits review.

Legislation:  

Migration Act 1958, s.36(2)

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525
M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14; (2010) 85 ALJR 133; (2010) 123 ALD 244
Minister for Immigration v SZQRB [2013] HCA Trans 323 (13 December 2013)

Applicant: MZYVH

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: MLG 38 of 2013

Judgment of: Judge Riethmuller

Hearing date: 9 December 2013

Date of Last Submission: 9 December 2013

Delivered at: Melbourne

Delivered on: 1 July 2014

REPRESENTATION

Counsel for the Applicant: Mr Greenway

Solicitors for the Applicant: Shine Lawyers

Counsel for the Respondent: Mr Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

THE COURT DECLARES THAT

1. The Reconsideration of Protection Claims assessment dated 22 May 2012 was not made according to law in that the applicant was not accorded procedural fairness.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 38 of 2013

MZYVH

Applicant

And

MINISTER FOR IMMIGRATION

Respondent

REASONS FOR JUDGMENT

1. The Applicant in this matter is a citizen of Pakistan who arrived in Australia by boat on 24 December 2010. On 5 February 2011, he lodged a request for refugee status assessment. This assessment was carried out on 12 May 2011, with the result that it was concluded that Australia did not owe the Applicant protection obligations. On 11 January 2012, after an independent merits review, the Applicant was notified that he did not meet the requirements for a protection visa as set out in s.36(2) of the Migration Act 1958. Judicial review proceedings were brought in this court, and ultimately dismissed by Riley J on 24 July 2012.

2. Importantly, on 24 March 2012 the test for a protection visa under s.36(2) of the Migration Act changed with the enactment of what is commonly referred to as the complementary protection provisions. The relevant part of the legislative scheme is discussed in detail in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525 at 64 to 107.

3. In an affidavit filed 30 July 2013, the solicitor for the Respondent said:

   6. From 24 March 2012, the practice of the Department of Immigration and Citizenship has been that persons who had received a negative IMR but had not had an International Treaties Obligations Assessment (ITOA) completed by 24 March 2012 have their claims considered against the Post Review Claims (the PRPC) guidelines. Annexed hereto and marked ‘B’ is a true copy of the “PAM3: Refugee and Humanitarian – Protection Visas – Post review protection claims”.

   7. The applicant was assessed against the PRPC guidelines by the third respondent on 22 May 2012. Annexed hereto and marked ‘C’ is a true copy of that assessment.

4. The procedural guidelines relevantly state:

   Applicability of s48B to an Offshore Entry Person

   Since s46A(1) of the Act prevent an Offshore Entry Person (OEP) from making a valid visa application, s48B of the Act do not apply to OEPs.

   Prior to the single Protection visa process, a non-statutory process was used to consider whether these individuals are owed protection under Australia’s protection obligations as provided for in s36(2) of the Act.

   On 25 January 2012, the Minister agreed to a process equivalent to that used to give effect to s48B of the Act that will apply to OEPs, who make new claims or raise new information following a Protection Obligations Determination (POD) (which includes a Protection Obligations Evaluation (POE) and an Independent Protection Assessment (IPA)). These guidelines are therefore based on the existing s48B guidelines. 

   On 24 March 2012, the statutory criteria for the grant of a Protection visa were amended by the Migration Amendment (Complementary Protection) Act 2011. Under these changes, the criteria for a grant of a PV were amended to include new criteria that reflect Australia’s non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment of Punishment (CAT).

   Following these changes, considerations of Australia’s non-refoulement obligations for OEPs will be carried out as part of the protection assessment process. Therefore, from 24 March 2012, any new claims or information raised by persons who have been found not to be owed protection that may engage these obligations should be considered under these guidelines.

   …

   3      Scope of these guidelines

   These guidelines are to be used in the following circumstances:

   •   in all circumstances, where a client:

   ·   •   has been found through the POD process not to be owed protection in Australia by both a departmental officer and an independent assessor and

   ·   •   subsequently raises additional protection-related claims or information.

   ·   •   where a client prior to 24 March 2012:

   •    was found not to be owed protection in Australia by both a departmental officer and an independent assessor in the POD process and

   •    did not have an ITOA completed in relation to their case.

   More information relating to the above scope

   Due to the changes to the criteria for the grant of a Protection visa that came into effect on 24 March 2012, all clients who have been through the POD process and have not had an ITOA completed (as at that date) are to have their cases assessed against these guidelines as soon as practicable. In their negative IMR or IPA notification letter these clients were given 35 days to provide any information relating to their claims against Australia’s international human rights obligations. If a client has not provided any additional protection-related claims or information in response to this request, an assessment against these guidelines is to be completed, considering all protection claims previously submitted to the department against the new criteria for the grant of a PV that were added to s36(2) of the Migration Act by the Migration Amendment (Complementary Protection) Act 2011.

5. As a result, a further assessment was carried out of the Applicant’s case, resulting in a Departmental Minute (titled “Reconsideration of Protection Claims”) addressing the reconsideration of the protection claims. This Minute was dated 22 May 2012. It clearly identifies, at p.2, the claims that were made and the findings that were made by the refugee status assessment process, the claims and findings about the independent merits review process  and that no new information or claims had been provided by the Applicant. 

6. At p.4 of the Minute, the case officer set out:

   ASSESSMENT OF CASE AGAINST THE MINISTER’S GUIDELINES

   Protection claims advanced during the RSA and IMR processes

   [MZYVH]’s previous claims were not considered under the complementary provisions in the Migration Act which commenced on 24 March 2012.

   [MZYVH] has previously claimed in relation to his protection claims that he faces being seriously harmed or killed. The IMR assessor found that there was no real chance he will face serious harm upon return.

   I note that under the complementary protection framework, the threshold for a real risk of significant harm is higher that the test posed for determining a real chance of persecution. Therefore there is no real risk of any harm that [MZYVH] fears as a result of returning to Pakistan.

   Therefore I find these claims do not enhance [MZYVH]’s chance of making a successful claim for protection under the complementary protection framework.

7. The result of that assessment was a finding that the Applicant was not entitled to a protection visa under those provisions.

8. The Applicant lodged an amended application for judicial review of this recommendation on 29 July 2013.  He relied on two grounds.  The first relates to whether or not the Applicant was accorded procedural fairness.  The second related to whether or not the correct legal test was applied when assessing the Applicant’s entitlements under the complementary protection provisions.

Ground 1

1. The Applicant’s first ground of review was expressed in the following terms:

   1. The Respondent cannot lawfully act on the basis of the PRPC Assessment because it was made by a process that denied the Applicant procedural fairness in that he was not given any opportunity to:

   a. be notified that the process was being undertaken; and/or

   b. be heard on the questions relevant to the Assessment; and/or

   c. respond to the substance and source of information that the Assessor relied upon as being credible, relevant and significant in making the Assessment; and/or

   d. be provided with the reasons for the decision.

Procedural Fairness Arguments

1. The relevant provisions providing for a visa on the grounds of complementary protection commenced on 24 March 2012, and are contained within s.36(2)(AA). It is not in dispute in this case that the provisions needed to be considered (following M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14; (2010) 85 ALJR 133; (2010) 123 ALD 244).

2. The Applicant referred to a PAM3 guideline entitled “Refugee and Humanitarian – Protection Visas – Post-review Protection Claims”.  The PAM3 instructions do not take effect as regulations, and they are not binding.  The relevance of this document is simply to demonstrate the administrative process dealing with the need to consider a person’s entitlement to a visa on the complementary protection grounds when they have not yet left Australia, but had been the subject of an adverse finding on their application for a protection visa under the refugee convention grounds.

3. The Minister formally contended that Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525 was wrongly decided, I expressed the view that it is a Full Court decision it is therefore binding on me. It is clearly appropriate that I apply the law as set out in SZQRB until such time as the Full Court or the High Court alters the law on this issue.  I note that subsequently the Minister was not granted special leave to appeal to the High Court (see: Minister for Immigration v SZQRB [2013] HCA Trans 323 (13 December 2013)).

4. As a result, this Court has jurisdiction to review the relevant decision in this case.

5. The Applicant argues that he had no notice that the Minister’s delegate would be considering whether or not he was entitled to a protection visa on the complementary protection grounds, and that the effect of failure to give proper notice denied him the opportunity to provide materials and have a fair hearing.  He also argues that he was not afforded procedural fairness.

6. The relevant letter, sent on 12 May 2011, said:

   Whether or not you decide to seek judicial review, the department will be making an assessment of any humanitarian concerns or international human rights obligations that may affect you return to Pakistan as part of a pre-removal clearance. You may wish to submit further information to be considered in this assessment. You have 35 days from the date of this letter to provide further information which you would like to have taken into consideration. This information should be emailed to the department’s International Obligations mailbox ([email protected]). If you do not provide further information for this assessment, the department will make this assessment using the information you have already provided.

7. The letter invited submissions for an assessment of any “humanitarian concerns” or “international human rights obligations” that may affect the Applicant’s return as part of a pre-removal clearance.  Given that this letter was sent prior to the commencement of the relevant provisions, it cannot be said that it was intended to cover considerations of the type covered by the complimentary protection provisions. Nor could it be said that at the time it was received, it would have provided notice of a hearing of the type contemplated to fulfil the requirements of the complementary protection provisions.  Arguably the phrases are so broad, its ambit would be broad enough to include the considerations relevant to complementary protection visa claims. However, the absence of a specific reference to the visa conditions does not admit of a real opportunity to be heard on the question of whether or not those conditions were fulfilled.  This is particularly poignant in circumstances where the relevant provisions had not yet commenced operation, and their potential future existence not drawn to the attention of the Applicant.

8. In the circumstances, I am not persuaded that the letter is sufficient to establish that the Applicant has been accorded procedural fairness with respect to the determination of the complementary protection visa claim.

Ground 2

1. The Applicant’s second ground of review was expressed in the following terms:

   2 The Respondent cannot lawfully act on the basis of the PRPC Assessment because the assessor applied the wrong test under s 36(2)(aa) by:

   ·   a. applying the wrong standard of proof when assessing the Applicant’s claims for protection;

   i. At page 4 of the PRPC Assessment the assessor states that “under the complementary protection framework, the threshold for a real risk of significant harm is higher than the test posed for determining a real chance of persecution. Therefore there is no real risk of any harm that [the Applicant] dears as a result of returning to Pakistan”.

   ·   b. failing to consider if the Applicant will suffer significant harm as defined under s 36(2A)(a)-(e) of the Act; and/or

   ·   c. failing to consider the definitions of ‘significant harm’ that appear in s 5(1) of the Act.

2. The second ground relates to the terms of the decision that was made.  Having found that the Applicant should succeed on the first ground, it is not technically necessary for me to consider the second ground.    However, in the event that I am wrong with respect to the first ground, it is appropriate that I determine the second ground.

3. The determination with respect to the complementary protection provisions was made on 22 May 2012.  The relevant passage is as follows:

   Mr [MZYVH’s] previous claims were not considered under the complementary provisions in the Migration Act which commenced on 24 March 2012.

4. It appears clear from the terms of the decision, at p.2, that the decision-maker had regards to the decision of the RSA, as follows:

   The RSA case officer made the following findings in respect of [MZYVH]’s case:

   ·He is a citizen of Pakistan;

   ·The confiscation of his land was a private land dispute and does not have a nexus with the Refugees Convention;

   ·He may have encountered difficulties from the Taliban if others in the area connected with the Taliban reported him to them;

   ·Relocation was reasonable and in the reasonably foreseeable future he would not face persecution in other areas of Pakistan related to one of the reasons stipulated in the Refugees Convention; and

   · There is not a real chance of Refugees Convention relation persecution if he was to return to Pakistan.

5. The decision-maker also had regard to the IMR findings, saying:

   The IMR found in relation to [MZYVH]’s claims:

   ·   The testimony he provided to support his claims was not convincing or consistent;

   ·   Parts of his story appeared to change with each telling;

   ·   There was no evidence that Laskar Islam was operating in [N];

   ·   The changing nature of his evidence and the lack of country information are such that it is not convinced that he is recalling events that have actually occurred;

   ·   He is not telling the truth about the land dispute with the individuals he alleges were aligned with the Taliban, that he informed the village elders that they were spies, that pro Taliban individuals accused him of being a traitor, that shots were fired against him, that he said things against the Taliban and that he was report to the Taliban or that he fled to [B];

   ·   His brother is not missing and the Taliban have not been looking for him or his family;

   ·   It did not accept that he had been critical of the Taliban or holds opinions such as there is a real chance that he would be identified as being critical of the Taliban;

   ·   He has not been identified as a collaborator or spy for the Pakistani authorities; and

   ·   Considering the claims singularly and cumulatively he has not suffered persecution in the past nor does he have a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of his membership of a particular social group in the foreseeable future.

6. The decision-maker goes on to find that there has not been a change in the Applicant’s personal circumstances since his IMR was finalised (at p.3 of the decision).  Importantly, the decision-maker noted that there were no further claims or information which could potentially give rise to circumstances that would be a basis for the operation of complementary protection provisions.

7. As a result, the only facts and circumstances that the Applicant was taken to have relied upon were matters that had a Convention nexus, which were rejected by the IMR.  The nature of the fact-finding about those allegations was such that they did not present the Applicant with a risk sufficient to bring him within s.36(aa), whether they had sufficient convention nexus or not, and that no other matters were alleged.

8. In these circumstances, it is difficult to see any error on the part of the decision-maker, when applying the test, as there were no factual findings, nor additional materials on which it could be said that the Applicant could fall within s.36(aa).

9. Of course, the lack of clear notice (as discussed under Ground 1) is shown in stark relief without notice of the intent to consider the complementary protection issues the applicant would not have known to specifically raise these issues.

The exercise of the discretion to issue a declaration

1. In this case, based upon the comments of the full court in SZQRB, the appropriate remedy for the Applicant is simply a declaration that the decision has not been made according to law.  The Minister argues that the exercise of the power to grant a declaration is an exercise of discretion, which is completely correct.

2. In determining whether or not to exercise the discretion, it is appropriate to have regard to whether or not the making of the declaration would serve any purpose.  In this case, it is argued that the IMR’s findings with respect to the Applicant are such that his evidence was not accepted as a result of his lack of credibility.  Therefore, the Minister argues that there is no factual foundation for a potential complementary protection visa.  The Applicant was not able to point to any factual claims made by him in the refugee protection application which could found a basis for a complementary protection application, that had not been rejected as a matter of fact.  It seems to me that this would provide an adequate answer to the Applicant’s claim for a declaration with respect to the incorrect test being applied.  That is, regardless of the test to be applied, the outcome would have been no different given the factual findings.

3. The situation with respect to the lack of procedural fairness is, however, different.  The gravemente of a claim for lack of procedural fairness is the loss of an opportunity to potentially place material or arguments before a decision maker that may affect the outcome.  It is not for the Applicant, once establishing a lack of procedural fairness, to bear the onus of showing what further evidence or material could potentially be placed before the tribunal to establish the possibility of a different outcome.  It is possible (even though experience suggests unlikely) that the Applicant’s claims before the IMR were restricted to matters that were thought to be arguably within the ambit of the refugee convention, and that further claims have not yet been placed before the decision makers which may fall within the terms of the complementary protection provisions.

1. As a result, on the material before me I am not able to be satisfied that making a declaration, so as to effectively require the Applicant to be given an opportunity to be heard on the complementary protection claims, would be futile as it remains possible that further material would be placed before the decision maker which may alter the outcome.

2. In the circumstances, I therefore find that the Applicant’s application ought to be allowed, and that it is appropriate to make a declaration in the form granted in SZQRB.

3. In this case, I was advised from the bar table that there is not any need for an injunction, as it is expected that the Minister will act in accordance with the declaration.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  1 July 2014