SZQFR v Minister for Immigration and Citizenship

[2012] FMCA 863

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQFR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 863

MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer failed to consider a claim made by the applicant.

PRACTICE & PROCEDURE – Proceeding remitted by the Federal Court of Australia for the making of final orders following successful appeal on a discrete issue.

Migration Act 1958, s.477

SZQFR v Minister for Immigration & Citizenship [2011] FMCA 785
SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26
SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191
SZQDZ v Minister for Immigration & Citizenship; SZQFR v Minister for Immigration & Citizenship [2012] FMCA 793
SZRPA v Minister for Immigration & Citizenship [2012] FCA 962

Applicant: SZQFR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 968 of 2011

Judgment of: Cameron FM

Hearing date: 13 September 2012

Date of Last Submission: 13 September 2012

Delivered at: Sydney

Delivered on: 18 September 2012

REPRESENTATION

Solicitors for the Applicant: Salvos Legal Humanitarian

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 968 of 2011

SZQFR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. 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: SZQFR v Minister for Immigration & Citizenship [2011] FMCA 785 (“primary decision”). Nevertheless, it is useful at this point to repeat from that judgment that:

   On 7 May 2010 an officer of the department administered by the first respondent minister (“Minister”) assessed the applicant as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 9 March 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. (at [1])

2. 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.

3. 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] FCAFC 26 (“appeal decision”). The matter was consequently remitted to this Court for determination having regard to the reasons in the appeal decision.

4. 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

1. 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; SZQFR v Minister for Immigration & Citizenship [2012] FMCA 793 at [29].

2. The applicant in this proceeding has not sought subsequently to re-open his case.

Consideration

1. In his amended application to this Court the applicant alleged:

   1.That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.

   2.The Independent Merits Reviewer denied the applicant procedural fairness by not considering the claim that the Applicant feared harm for reason of being:

   a)     a young Hazara; or

   b)     a young man.

   3.The Independent Merits Reviewer made an error of law by failing to consider the claim that the Applicant feared harm for reason of being:

   a)     a young Hazara; or

   b)     a young man.

2. At the original hearing the applicant submitted that one of his earliest claims had been that he feared harm because he was “a young Hazara” but that the Reviewer made no findings on this claim, at least to the extend that it related to his youth.

3. The relevant findings made in the primary decision in this proceeding were that:

   … the applicant’s claim as articulated to the Reviewer was based on his ethnicity, his religion, his perceived political views and possible perceptions of him were he to return to Afghanistan after a period abroad. Although the applicant’s adviser did initially raise with the assessor the question of the applicant’s youth and the Reviewer must be considered to have been aware that it had been advanced at that stage, it is apparent that to the extent that this was an integer of the applicant’s claims at the RSA stage, it was not subsequently so on review.

   At all times the applicant was professionally represented and the fact that his youth was not raised at the review stage was not a case of an unrepresented applicant inadequately articulating his or her claims. It should be understood to represent a decision concerning what the applicant’s claims were and what claims were being pursued. In those circumstances, the omission from the further evidence and submissions on review of any reference to the applicant’s youth as an integer of his claims had the effect of abandoning it as an aspect of those claims. Consequently, the assertion that the applicant was at risk of harm from the Taliban because of his youth could not be said to have been, at the review stage, “a substantial, clearly articulated argument relying upon established facts” as considered in Dranichnikov or a claim which emerged clearly from the materials, in the sense discussed in NABE. As a result, the Reviewer was not required to consider it and no error on the Reviewer’s part has been demonstrated on that account. (at [47] – [48])

4. As a consequence of those conclusions it was found in the primary decision that the applicant had not made out his allegation that the Reviewer had failed to consider an aspect of his claims.

5. 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. Indeed, the reasoning in the second paragraph quoted above at [9] now appears to gain support from the recent decision of Foster J in SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [9]-[10] and [25]-[26].

6. 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.

Conclusion

1. Consequently, the application will be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date:  18 September 2012