MZYVN v Minister for Immigration
[2012] FMCA 784
•6 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYVN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 784 |
| MIGRATION – Irregular entry – review of independent merits review – alleged lack of procedural fairness – alleged failure to apply correct legal principles – application dismissed. |
| Migration Act 1958, s.417 |
| VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 |
| Applicant: | MZYVN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 185 of 2012 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 10 August 2012 |
| Date of Last Submission: | 10 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Knowles |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 21 February 2012 is dismissed.
The Applicant pay the First Respondent’s costs of this proceeding.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 185 of 2012
| MZYVN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 21 February 2012, the Applicant seeks a judicial review in respect of a recommendation made by the
Second Respondent (the Reviewer) in his report dated 20 October 2011, which recommendation was that the Applicant should not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (the Convention).
At the time the application was lodged, the Applicant was assisted by Victoria Legal Aid. Pursuant to directions made by Registrar Caporale on 2 April 2012, the Applicant was to file and serve any amended application, any affidavits and written submissions by 18 May 2012. At the request of the Applicant, or rather those who were speaking on his behalf, the time for the filing of those documents was extended to 29 June 2012.
However, when the matter came before me for hearing, no amended application or written submissions had been received.
The Applicant appeared in person and had the benefit of an interpreter, competent in the translation of Arabic.
When questioned as to why there was no compliance with the directions, the Applicant, through the interpreter, professed ignorance of the process involved and generally projected non-plussed confusion. At one stage the interpreter felt obliged to indicate that the Applicant was suggesting he could not understand her translation.
She gave the appearance of being offended by this comment and went to some trouble to explain the significant number of years she has been translation in the courts for people who speak the Arabic language, from various countries, and has never had difficulty before. She did go on to explain, however, that she believes he may be suggesting that the formality of the language used by the Court and the Court processes were what he was expressing his confusion about.
Indeed, as the translation throughout the rest of the hearing seemed to create no hurdles for the Applicant, with him apparently understanding the interpreter speaking to him in Arabic and, certainly, the interpreter understanding his responses, I am confident that the Arabic interpreter was competent, and a proper translation was provided both to the Applicant and to the Court concerning the Applicant’s responses.
When questioned about the directions and why he had not complied, one of four gentlemen who was in the body of the Court,
and apparently there as support for the Applicant, told the Court in very good English that he tried to assist the Applicant in getting submissions made and how the Applicant explored getting a private solicitor but the costs of doing so were prohibitive.
It was also explained that Legal Aid had declined to continue to act for the Applicant but suggested he, as I understood what was said,
write directly to the Minister, (presumably pursuant to section 417 of the Migration Act 1958), seeking a more favourable outcome.
He apparently did this, but I am unsure what the outcome, if known, was.
In any event, I was satisfied that there would be no purpose served by me allowing more time in which to prepare any amending application or supporting submissions as, from the comments made by the friend and, indeed, those translated from the Applicant, it would appear they have exhausted all avenues available to them in that regard.
Background
The Applicant is a 34 year old citizen of Iraq and a Sunni Muslim.
He left his wife in Iraq with two young children. He travelled first by car to Syria, from there to Bahrain and from Bahrain to Indonesia. From Indonesia, he travelled by boat which arrived at Christmas Island on 31 October 2010.
On 31 March 2011, an officer of the Department of Immigration and Citizenship assessed him as not being a refugee. He sought a merits review of that assessment on 9 May 2011, which merits review was conducted on 31 August 2011 by the Reviewer. The Reviewer’s recommendation was that he not be recognised as a person to whom Australia has protection obligations under the Convention.
In reaching that recommendation, the report of the Reviewer found that the Applicant was an Iraqi and he was a Sunni Muslim, but, significantly, found that his evidence was “inconsistent”, “unreliable” and “implausible”. He found also that the Applicant had fabricated his claims.
In respect of his claims, the Applicant stated that after working first for four years as a car dealer, he had spent the last 14 years as a chicken street vendor. The locality of his business was shared by various other street vendors, and he claimed that his vocal criticism of the government was, in effect, overheard by two particular street vendors who were Shi’ite Muslims and who were, by inference, affiliated with the ruling Dawa Party.
He claimed that, on 2 September 2009, six masked persons forced their way into his home and abducted him. He believed those persons were from the Dawa Party. He believed their motivation was religious based, as he was a Sunni and they were Shi’a, who opposed Sunni Muslims. He was of the understanding that as the Sunni supported the former regime of Saddam Hussein, that they believed him to also support Saddam Hussein and that he was a member of the Ba’ath Party because he was a Sunni like Saddam.
He claimed his wife was beaten also. He was taken to a house approximately an hour from his home, to an unknown location,
where he was beaten and accused of killing a Sunni leader. He said he was detained for 11 months and, for three to four months, was severely beaten and tortured. He bribed his way out of the prison he was kept in on 5 August 2010.
He states he returned home for one hour, collected his genuine Iraqi passport and fled by motor vehicle to Syria for safety. He destroyed his passport in Syria and obtained a false passport from a people smuggler. He said he paid the smuggler USD$14,000, which payment was made in three instalments, for his travel between Syria and Christmas Island.
Grounds for Appeal
In his grounds for appeal, the Applicant set out two grounds. The first ground contended that the Reviewer had made a legal error, in that he was not procedurally fair. The second ground contended that the Reviewer’s recommendation was affected by legal error in that he did not apply correct legal principles.
No further particulars were provided as to how the two grounds are to be made out, and, as stated earlier, no written submissions were provided.
In response, the First Respondent has provided written submissions which relevantly highlight the responsibility imposed upon the Applicant to make out the factual foundation for his claim of breach of natural justice or of failure to accord procedural fairness[1].
[1] See VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]
The First Respondent simply contends the Applicant has not shown how it is asserted the Reviewer denied the Applicant procedural fairness. The First Respondent highlights that the Applicant was represented before the Reviewer, that his representatives lodged, on his behalf, written submissions and other supporting documents with the Reviewer, and the Applicant was afforded an opportunity to attend, which he did, an interview with the Reviewer, at which interview he gave evidence with the assistance of an interpreter.
The First Respondent contends that there is no indication the Applicant was denied a proper opportunity to put his case to the Reviewer.
In respect of procedural fairness, a reading of the court book and,
in particular, the recommendation made by the Reviewer and the reasons given, in my view, clearly shows that the Applicant was afforded procedural fairness and he cannot reasonably have complaint in that regard. This ground is not sustained.
In respect of the second ground, again the Applicant does not particularise how the Reviewer failed to proceed by reference to correct legal principles, correctly applied. The report from the Reviewer clearly sets out the relevant law, and there is no demonstrable error in that regard.
A fair reading of the report does not disclose that there was a failure on the part of the Reviewer to apply those legal principles to the facts presented to him. It cannot be said, in my view, that the Reviewer misconstrued or misapplied the legal principles relevant to the determination of the Applicant’s refugee status. This ground is not sustained.
Indeed, the report of the Reviewer is very thorough, gives full consideration of the claims as made by the Applicant and also gives cogent reasons why the Reviewer made the findings he did. In my view, it was open to the Reviewer to make those findings.
During the conduct of the hearing before me, however, the Applicant articulated a further potential ground for review; namely, that there was bias on the part of the Reviewer. In support of that contention,
the Applicant asserted that of the 11 Iraqis interviewed by the Reviewer, he was the only one not recommended for refugee status.
Of the other 10, it appears, from the Applicant’s understanding, they were of Kurdish ethnicity.
The Applicant appeared to be applying a mathematical formula in support of his contention of bias, but apart from that general assertion, he was unable to support it any further. Such an allegation is considered very serious, and it falls to the Applicant to substantiate the allegation, which would require something more significant than that which he did suggest. Quite clearly, there may be very different factual grounds for a recommendation made in respect of the Kurdish refugees, being so classified, relative to his own circumstance.
A reading of the Reviewer’s reasons does not exhibit in itself any bias, actual or apprehended. This late, potential ground is not made out.
Conclusion
Accordingly, when regard is had to the above, I am unpersuaded that the Reviewer has committed an error of law, in particular,
a jurisdictional error and consequently the application filed on
21 February 2012 should be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Date: 6 September 2012
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