SZQER v Minister for Immigration and Anor (No.2)
[2013] FCCA 1319
•17 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQER v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2013] FCCA 1319 |
| Catchwords: PRACTICE & PROCEDURE – Proceeding remitted by the Federal Court of Australia for the making of final orders following successful appeal on a discrete issue. |
| Legislation: Migration Act 1958, s.477 |
| Cases cited: SZQER v Minister for Immigration & Citizenship [2011] FMCA 738 SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 SZQDZ v Minister for Immigration & Citizenship [2012] FMCA 793 SZQDZ v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1119 |
| Applicant: | SZQER |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 830 of 2011 |
| Judgment of: | Judge Cameron |
| Hearing date: | 2 September 2013 |
| Date of Last Submission: | 2 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S.E.J. Prince |
| Solicitors for the Applicant: | SBA Lawyers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 830 of 2011
| SZQER |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan who seeks to be recognised as a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The facts of the applicant’s case are set out in the first judgment of this Court concerning him: SZQER v Minister for Immigration & Citizenship [2011] FMCA 738 (“primary decision”). Nevertheless, it is useful at this point to repeat from that judgment that:
On 19 August 2010 he was assessed by an officer of the department administered by the first respondent minister (“Minister”) as not meeting the definition of a “refugee” under the Convention. He sought a review of that decision and on 22 February 2011 the second respondent (“Reviewer”) recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. (at [1])
In the primary decision the applicant’s application to this Court was dismissed on the bases that it had been brought outside the time limit prescribed by s.477 of the Migration Act 1958 (“Act”) and that it was not in the interests of the administration of justice to extend the time within which it could be brought. The basis on which it was found that an extension of time under s.477 of the Act was not in the interests of the administration of justice was that the applicant had not demonstrated error on the part of the second respondent (“Reviewer”) or that his substantive claims had reasonable prospects of success.
The applicant appealed that decision to the Federal Court where it was held that s.477 of the Act had no application to this case and that I had erred by dismissing the applicant’s application by reference to its provisions: SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 (“appeal decision”). The matter was consequently remitted to this Court for determination having regard to the reasons in the appeal decision.
The remittal requires the Court to determine the proceeding on a final basis and by reference to the applicant’s substantive allegations, rather than on an interlocutory basis as had been the case when it was dismissed for being out of time. The issue is therefore whether the applicant has demonstrated that the independent merits review of his request to be recognised as a person to whom Australia has protection obligations under the Convention was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
Nature of remitted proceeding
Upon remittal, questions arose concerning the nature of the remitted proceeding, what issues could be raised upon remittal and whether I should disqualify myself from hearing the proceeding further. The same issues were raised by three other applicants whose matters had been similarly remitted as a result of the appeal decision. Following argument I concluded that subject to any re-opening of the applicants’ cases, there was no need or reason to reconsider them and no call to permit amendments, further hearings or further submissions in relation to them. I found that the question which the Federal Court remitted to this Court in each of the four cases could, and absent a re-opening should, be determined in accordance with the findings made in the primary decision applicable to each of those applicants: SZQDZ v Minister for Immigration & Citizenship [2012] FMCA 793 at [29].
The applicant in this proceeding has not sought subsequently to re-open his case although he did seek unsuccessfully to amend his application for a second time: SZQDZ v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1119.
Consideration
In his amended application to this Court the applicant alleged:
1.The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Migration Act 1958 (Cth) (“the Act”).
2.The second respondent’s recommendation was not made in accordance with law because the second respondent failed to take a relevant consideration into account.
3.The second respondent’s recommendation was not made in accordance with law because the second respondent took an irrelevant consideration into account.
4.The second respondent’s recommendation was not made in accordance with law because there was no evidence to support the second respondent’s critical finding that the applicant would be afforded adequate protection in the Jaghori region.
5.The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Act.
6.The second respondent’s recommendation was not made in accordance with law because the second respondent denied the applicant procedural fairness.
The relevant findings made in the primary decision in this proceeding were that:
Relevant test misunderstood
…
… the Reviewer was not required to consider whether the Afghan state could provide adequate protection for the applicant in his home area because it was found that he had not demonstrated that he had a well-founded fear of persecution for a Convention reason in his home area.
Failure to take a relevant consideration into account
…
… for the reasons given in relation to his first allegation, this ground is unsuccessful. Because the Reviewer concluded that the applicant did not have a well-founded fear of persecution for a Convention reason in his home area, the Reviewer was not required to consider whether the Afghan state was capable of providing him with protection.
Irrelevant consideration taken into account
…
… the Reviewer did not determine that the applicant was able to access protection from non-state actors. What the Reviewer did was to conclude that the operation of the various Hazara factions relevantly had the practical effect that the applicant’s claim to fear persecution in his home area was not well-founded.
Finding made without evidence
…
Contrary to the applicant’s submissions, the Reviewer made no finding that the state of Afghanistan afforded him adequate protection. The relevant finding in para.107 of the Reviewer’s decision was to the effect that the applicant’s home region was protected by Hazara factions and, in particular, the Hizb-I Wahdat Khalili/Nasr faction, in the sense that their operation had the practical effect of excluding Taliban influence in the applicant’s home area.
…
Relevant test misunderstood
…
Based on the applicant’s submissions, this allegation has two bases. The first turns on the quality of life which the applicant could expect were he to return to his home district, the second being whether it was reasonable for the applicant to resist returning to his home area because it would be unsafe to travel there.
As to the latter point, the Reviewer expressly found, as was open to him on the facts, that there was not a real chance that the applicant would face serious harm in the reasonably foreseeable future travelling to his home area upon his return to Afghanistan.
As to the other elements of the allegation, the issue which the Reviewer had to address was whether the applicant had a well-founded fear of persecution for a Convention reason in his home area, not whether he would enjoy living there or whether the quality of life in his home area was equivalent to that which he might enjoy elsewhere. Further, the applicant’s submissions concerning whether his unwillingness to return to the Jaghori district was objectively reasonable, thereby importing considerations relevant to questions whether a person might reasonably relocate within their home country because they have a well-founded fear of persecution in one place which would not exist in another, is not relevant in this case which is concerned with whether the applicant has a well-founded fear of persecution for a Convention reason in his home area.
…
Denial of procedural fairness
…
… the Reviewer [discharged] his obligation to put relevant matters to the applicant. He was not required, however, as the applicant submitted, to alert him to the “determinative weight given to the protection afforded by the faction”. The Reviewer had no obligation to indicate to the applicant what, if any weight, any particular matter would have in the ultimate determination of the review. (at [29], [31], [33], [35], [38]-[40], [45])
As a consequence of those conclusions it was found in the primary decision that the applicant had not made out his allegations.
As noted earlier, the nature of the order remitting the proceeding to this Court and the reasons in the appeal decision to which I must have regard are such that the findings to which reference has just been made have not been disturbed and need not be reconsidered for the purposes of the present decision.
Conclusion
By reason of the conclusions reached in the primary decision concerning the applicant’s substantive application, I find that he has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed with costs of $6,646 in accordance with the present fixed scale.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 17 September 2013
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