MZZJL v Minister for Immigration

[2014] FCCA 1304

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZJL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1304

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

Legislation:

Migration Act 1958 (Cth), s.36(2)

M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 [2010] HCA 41;
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

Applicant: MZZJL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 491 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 Respondents: Mr Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

THE COURT DECLARES THAT

1. The Post-Review Protection Claim (PRPC) and Unique and Exceptional Circumstances (UEC) assessments dated 14 May 2012 were not made according to law in that the applicant was not accorded procedural fairness.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 491 of 2013

MZZJL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant seeks judicial review of a recommendation made by a delegate to the Minister with respect to whether or not the Applicant should be recognised as a person to whom Australia owes protection obligations under the complementary protections provisions.

Background

1. The Applicant in this matter is a citizen of Sri Lanka who arrived on Christmas Island on 10 or 11 May 2010. On 6 August 2010, he lodged a request for refugee status assessment. On 9 August 2010 the Applicant was interviewed for the purpose of a refugee status assessment (RSA) and on 29 September 2010 the RSA officer produced a decision which stated that ‘the [Applicant] did not meet the definition of a refugee and is not someone to whom Australia owes protection obligations.’ [CB p.8]

2. The Applicant applied for an Independent Merits Review on 28 October 2010 and was interviewed on 16 April 2011. On 4 July 2011, the Reviewer found that the Applicant did not meet the criteria for a protection visa and refused to make a recommendation to the Minister.

3. On 5 August 2011, the Applicant filed an applicant for judicial review in the Federal Magistrates Court (now the Federal Circuit Court). The applicant was dismissed on 18 April 2012.

4. On 9 May 2012, the Applicant filed an appeal in the Federal Court. The appeal was dismissed on 18 January 2013.

5. In a decision dated 14 May 2012, a delegate of the Minister conducted a Post-Review Protection Claim (PRPC) assessment and a Unique and Exceptional Circumstances (UEC) assessment, finding that the Applicant’s case did not meet the Minister’s guidelines for the consideration of post-review protection claims.

The Current Application

1. 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.

2. 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.

3. As a result, a further assessment was carried out of the Applicant’s case, resulting in a Departmental Minute addressing the reconsideration of the protection claims. This Minute was dated 14 May 2012. It clearly identifies 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 (CB 31-33). 

4. At p.4 of the Minute, the case officer set out (CB 33):

   ASSESSMENT OF CASE AGAINST THE MINISTER’S GUIDELINES

   No new information has been presented, there has not been a change in [MZZJL]’s personal circumstances, and there has not been a change in [MZZJL]’s country of reference since his Independent Merits Review was finalised.

   As it was not accepted by the RSA and the IMR that [MZZJL] faces serious harm due to being a young Tamil male from the Northern Province, that he has any real or imputed LTTE associations, for being a failed asylum-seeker or for any other reason, in the absence of any further claims or information, I therefore find there is not a real risk he would be subjected to torture, cruel or inhuman treatment or punishment or to arbitrary death upon his return.

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

6. The Applicant filed an application in the Federal Circuit Court on 16 April 2013 seeking the following declaration and orders:

   1. A declaration that the Minister cannot rely upon the PRPC assessment for the purposes of a decision under the Migration Act 1958 (Cth).

   2. An injunction restraining the Minister, by himself or his Department, officers, delegates or agents from removing the Applicant from Australia until:

   a. the Applicant’s claims pursuant to s 36(2) (aa) of the Migration Act 1958 (Cth) have been assessed according to law; and

   3.  The Respondent pay the Applicant’s costs.

7. The Applicant lodged an 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 as it is a Full Court decision it is therefore binding on me and I would decide this case accordingly. 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, which is dated 5 July 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 Sri Lanka 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 long before 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. failing to separately consider it from the test under s 36(2)(a); and/or

   b. failing to consider whether the Applicant was at real risk of ‘degrading treatment’, as s 36(2A)(e) defines ‘significant harm’ for the purposes of s36(2)(aa); 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 decision-maker also had regard to the IMR findings, saying:

   The IMR did not accept [MZZJL]’s telling of events at the IMR interview as he lost track of previous accounts and when confronted with the inconsistencies, he was unable to explain them, or he claimed that his prior statements were wrong. The IMR found that given his ‘retelling of events have become more dramatic’ and that he ‘embellished his evidence,’ [MZZJL] is not a generally reliable witness. This included how long he worked for the company that contracted with the LTTE, his accounts of the dates, his time in [A] around August/September 2009 and his account of being taken by the army and beaten. The IMR found that if he had been in their custody, he would not have so easily obtained permission to travel to [N]. The IMR did not accept that [MZZJL] returned to Sri Lanka in 2009.

   The IMR found that [MZZJL] was not subject to persecution and there was no evidence presented at the IMR interview that he was physically ill-treated at the time of the school/bomb incident in 2002. The IMR did not accept [MZZJL]’s newly presented account of being forced to confess to the bombing, which cause death and injury, or his reasons that he was allowed to continue with his schooling after being questioned and ‘only report to the army camp each weekend’. The IMR considered other young Tamil males were required to do the same during that time.

   The IMR also found that [MZZJL] was questioned by the Sri Lankan army on three occasions, beginning in 2006, but was not subjected to persecution on any occasion. [MZZJL] was questioned to obtain names – not for having an imputed LTTE profile and was not suspected of being an LTTE member. The IMR found that there is no real chance that [MZZJL] would be at risk of being subjected to serious harm upon his return to Sri Lanka as a result of being a failed asylum seeker or for any other Convention based reason.

4. 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.4 of the decision). The decision-maker notes that the Applicant did not face serious harm due to being a young Tamil male from the Northern province, from being a failed asylum seeker or for any real or imputed LTTE associations. 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.

5. As a result, factually, the only facts and circumstances that the Applicant 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.

6. 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).

7. 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 (although 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-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 1 July 2014