MZYWD v Minister for Immigration
[2012] FMCA 1163
•3 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYWD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1163 |
| MIGRATION – Independent Merits Review report recommends that Australia does not owe applicant protection obligations – judicial review – dismissed. |
| Migration Act 1958 (Cth), ss.36 & 476 1951 Convention relating to the Status of Refugees and its 1967 Protocol Migration Amendment (Complementary Protection) Act 2011, No. 121 |
| Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41 SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 DZABS v Minister for Immigration & Anor (2012) 261 FLR 447 SZQGA v Minister for Immigration & Citizenship [2012] FCA 593 WZAPH v Minister for Immigration & Anor [2012] FMCA 773 Craig v The State of South Australia [1995] HCA 58 MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 MZYLE v Minister for Immigration & Anor [2011] FMCA 589 |
| Applicant: | MZYWD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DAVID CORRIGAN IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 271 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 3 December 2012 |
| Date of Last Submission: | 3 December 2012 |
| Delivered at: | Perth |
| Delivered on: | 3 December 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr M. Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application for review be dismissed.
The Applicant pay the Respondents’ costs of and incidental to the proceedings fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
MLG 271 of 2012
| MZYWD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DAVID CORRIGAN IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is an off-shore entry person who arrived at Christmas Island on 9 April 2010. This is an application pursuant to s.476(1) of the Migration Act 1958 (“the Act”), seeking orders by way of judicial review arising out of the recommendations made by an Independent Merits Reviewer (“the reviewer”) to the Minister that Australia should not be regarded as owing the applicant protection obligations pursuant to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
The application in its amended form which was filed without leave but which I propose to allow the applicant to rely upon, having regard to the subject matter of the application, seeks the appropriate form of relief in that it seeks a declaration that the recommendation of the reviewer was not made in accordance with law, and it seeks an injunction restraining the Minister from relying upon it.
The first application filed simply asserted without particularity that the reviewer did not afford the applicant procedural fairness and applied the wrong legal test. As I read the amended application, that ground has been substituted by a new ground that is described as Ground 2, but is in fact the new Ground 1, and there is a second ground that is promoted, and I will come to those grounds in a moment.
I had occasion to examine the nature of this Court’s jurisdiction in relation to such matters following the decision of the High Court in Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41 and the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26. My consideration of the position that this Court was left in as a result of those decisions is to be found in DZABS v Minister for Immigration & Anor (2012) 261 FLR 447.
It is the posited future reliance by the Minister upon the reviewer’s recommendation, which is the migration decision, that is the focus of the exercise of the Court’s jurisdiction in such matters. Prior to SZQDZ, cases such as the decision of Smith FM in Alami v Minister for Immigration & Anor [2011] FMCA 623 were good law in that the reviewer’s decisions themselves were regarded as migration decisions as that cognate term is used in the Act, but SZQDZ determined that in fact the reviewer’s decision is not only not a decision under the Act; it is not a decision at all.
In any event, SZQDZ made plain, as I indicated, that it is the posited future reliance by the Minister upon the report which grounds the jurisdiction of the Court. For reasons that I also gave in DZABS, I regarded myself as being obliged to identify jurisdictional error before allowing the review in such cases.
However, on 7 June 2012 Barker J delivered his judgment in SZQGA v Minister for Immigration & Citizenship [2012] FCA 593.
I discussed the consequences of that decision for the exercise of this Court’s jurisdiction in matters such as the matter before me today in WZAPH v Minister for Immigration & Anor [2012] FMCA 773. I came to this conclusion at [48]:
In my view his Honour’s decision is authority for the proposition that in a review pursuant to s.476(1) relating to an IMR decision this Court does not need to identify a jurisdictional error in order to allow the review.
At [49] of the same decision I respectfully express my reservations in relation to that conclusion, but at [50] and [51] noted my duty to follow that decision, given that his Honour was sitting as a Court of Appeal from this Court, even if there is some degree of controversy attending whether I am bound by the doctrine of stare decisis in relation to decisions of single judges of the Federal Court where they are not sitting as a Court of Appeal.
In any event, as a result of those matters, the applicant in this case before me will be entitled to the relief that he seeks if he establishes legal error associated with the reliance upon the recommendation, whether that legal error is an error indicative of an excess or want of jurisdiction or not. The applicant will also be entitled to the relief claimed if he establishes that he was not accorded procedural fairness. So I will deal with the grounds he relies upon on the basis of the identification of legal error or a denial of procedural fairness as being sufficient to allow the review.
I proceed in this way notwithstanding that the Full Court of the Federal Court in MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99, a decision which was delivered on 11 July 2012 and therefore after Barker J’s decision of SZQGA, continued to express the task of review in terms of identification of jurisdictional error (see [19] to [25] inclusive of the Full Court’s decision).
Of course, the principles relating to the identification of jurisdictional error identified in cases such as Craig v The State of South Australia [1995] HCA 58 will continue to be of relevance in determining whether reviews of this kind will be allowed.
Ground 1 says:
The Second Respondent erred at law and failed to accord procedural fairness in approaching the matter on the basis that a choice had to be made between the various items of country information rather than assessing the country information to determine whether the fear held by the applicant was well-founded in the light of the information then available and the level of satisfaction the Second Respondent concluded was appropriate when assessing that information.
Reference is made in the application to the decision of Riethmuller FM in MZYLE v Minister for Immigration & Anor [2011] FMCA 589. In my view, the applicant has misunderstood the point being made by the Federal Magistrate in that case. That was a case where a reviewer had indeed expressed himself as follows when considering country information:
It is the decision-maker’s responsibility to come down on one side or the other.
Riethmuller FM discusses the difficulties that arise from the use of that expression at [42] to [48] of his decision and, perhaps, most relevantly at [46] he says as follows:
The law in this area does not require a decision-maker to “come down on one side or the other”. Rather the law requires the decision-maker to first make an assessment of the material and identify the facts and circumstances which they are persuaded to accept or reject and assess the weight to place on each item of evidence. Secondly, in cases involving asylum seekers, the legal test is not limited to whether or not they have proven a particular factual element (such as the application of physical force on a specific occasion), but ultimately requires an assessment of risk in determining whether or not the asylum seeker holds a well-founded fear of persecution.
In the case before me, the reviewer considered a quantity of country information. As is often the case, it did not speak with one voice about the issue being addressed, which was the issue of the risk of persecution for Convention reasons of Hazara persons in present-day Afghanistan. I should note at this point that the applicant claimed to be and it was accepted by the reviewer that he was an Hazara of the Shia branch of the Muslim faith; that he was born in Parwan; that he lived there until the age of five; returning to live there at the age of 13; and that between those ages he lived at Mazar Sharif.
It was at Mazar Sharif that he says his father was victimised because of his imputed allegiance to a political party known as Hezb-e-Wahdad. In fact, it is said that he was killed by a local commander of the Taliban – and I say of the Taliban because that is as I understand the case that he was presenting – and that that commander is now a high-ranking member of the government. These events relating to his father were said to have arisen in 1998, and it is fair to say that the applicant’s account of these events was the subject of some criticism on credibility grounds by the reviewer.
In any event, returning to Ground 1, I was indicating that the country information referred to by the reviewer certainly does not speak with one voice about the position of Hazara persons in modern-day Afghanistan. The preponderance of the material, however, suggested that Hazara were not being targeted on account of their ethnicity or their faith and, indeed, some of the country information referred to the position of Hazara post-2001 as being the best it has been in Afghanistan for those people for some time.
There was a range of opinion, and as is commonly the case in reviews of this nature, it was the reviewer’s duty to give consideration to the range of material and to indicate what, if any, aspects of the material he found convincing and reliable for the purposes of the exercise he was undertaking. It is up to the reviewer what facts he finds and what country information he relies upon in coming to his factual findings. Provided the reviewer does so without resort to capricious selection of information or without resorting to illogicality or irrationality, it is open to the reviewer to determine what he relies upon and what he does not rely upon. In this case, for reasons that he gave, the reviewer’s preference was for DFAT and UNHCR reports in relation to the topic.
MZYLE addresses the error involved in saying that a choice must be made between two competing accounts of circumstances within a country. That, as Riethmuller FM made clear, is not the position. Both of two particular accounts can be rejected. If a claim for protection includes a generalised claim, that is, one that is not specifically reliant upon the applicant’s own circumstances, it is probable that some country information will be identified as being relied upon in the rejection of such a claim, but it is not a matter of choosing the least badly argued or badly reasoned article or piece of evidence. Where reliance is placed upon some specific elements of the country information considered then such reliance must be explicable and rational and there is nothing about the reviewer’s specific reliance on the DFAT and UNHCR material which, in my view, can be categorised as other than explicable and rational. Accordingly, I am not satisfied that there is any substance to Ground 1.
Ground 2 alleges:
That the applicant has not had an opportunity to make claims and be assessed in accordance with s.36(2A) of the Migration Act 1958 (Cth) thereby denied natural justice.
Mr Smith for the Minister fairly conceded that the reference ought to be to section 36(2)(aa) of the Act, which is the section that introduced the so-called complementary protection provisions pursuant to the Migration Amendment (Complementary Protection) Act 2011, that is No. 121 of 2011, and in particular, pursuant to the schedule set forth in item 2 and the terms of item 35 of that amending Act.
The amendments to the Act that are now to be found in s.36(2)(aa) apply in relation to an application for a protection visa that is made on or after the day in which this item commences – and I am looking at item 35 – or that is not finally determined (within the meaning of subsection 5(9) of the Act), that is the Migration Act, before the day in which this item commences.
Item 2 tells us that the provisions are to commence on 24 March 2012. So at the time that the reviewer furnished his report, that is 16 January 2012, the provisions referred to had no operation under the Act.
The submission of the applicant is that in accordance with the reasoning of the Full Court of the Federal Court in SZQDZ he says that no decision has been made in relation to his protection visa, and that therefore the Minister is obliged to afford him the opportunity for natural justice and procedural fairness as addressed in Plaintiff M61 to make an application for assessment under the complementary protection provisions. I express no view about that but consider that the submission is of no applicability in relation to an application of this nature; the subject matter of which is the identification of error in a review upon which we posit the possibility of the Minister’s reliance.
In other words, it is illogical to suggest that we can identify legal error or procedural fairness associated with the conduct of a review seen through the perspective of legislative provisions which were not in operation when the review was conducted and finalised. The difficulty arises on account of the view the Full Court of the Federal Court took in SZQDZ that the reviewer’s decision is not a decision under the Act, and indeed, the view of the Full Court of the Federal Court in that case, is that it is not a decision at all.
In those circumstances when we go to subsection 9 of s.5 of the Act and pick up the references to when an application is finally determined we find that it is when either:
(a)a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7, or
(b)a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.
Again, I remind myself of the relevant provision of the amending legislation which tells me that the amendments apply in relation to an application for a protection visa that is made on or after the day in which the item commences or that is not finally determined before the day in which this item commences. Given that the decision of the Full Court in SZQDZ posits a notional future reliance by the Minister as the relevant decision under s.476(1) of the Act it is difficult to see the applicability of time limits in relation to that at all. But these are difficult questions in respect of which, it seems to me, no obligation arises for me to resolve in the context of this case.
I content myself by observing that the provisions of the Act upon which the applicant proposed to rely had not come into operation at the time that the reviewer concluded his responsibilities of reporting to the Minister and that as a consequence of that it is not possible to identify legal error whether jurisdictional or otherwise or a denial of procedural fairness arising out of such circumstances. Ground 2 is not made out.
Mr Smith has out of an abundance of caution addressed himself to what was the only ground of review promoted in the original form of the application and that was the assertion unparticularised that the reviewer did not afford the applicant procedural fairness and applied the wrong legal test. I have indicated that I was not satisfied that the ground of review was still being promoted. It is not referred to in the applicant’s submissions in support of his application but, in any event, and as Mr Smith identified in his submissions to me, there is no basis for that criticism of the way in which the reviewer undertook his task. The obligations arising from the Convention are spelled out in the review as are the ways in which the terms of the Act impact upon those considerations. A fair reading of the review provides no basis for the assertion of the application of the wrong legal test. That assertion at least can be extracted from the way in which the original Ground 1 was expressed. The suggestion that this involved a denial of procedural fairness is not particularised and I do not propose to comment upon it.
For those reasons the application for review will be dismissed. It is appropriate that there be an order for costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 5 December 2012
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