SZQPJ v Minister for Immigration
[2012] FMCA 18
•20 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQPJ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 18 |
| MIGRATION – Review of a recommendation of an Independent Merits Reviewer – whether it is in the interests of the administration of justice to extend time – whether the final hearing should be adjourned for the applicant to obtain legal advice – reviewer’s findings were open on what was before him – application dismissed as not competent. |
| Migration Act 1958 (Cth), ss.189, 476, 477 International Covenant on Civil and Political Rights [1980] ATS 23 (Cth) Australian Human Rights Commission Act 1986 (Cth), Sch.2 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [1989] ATS 21 (Cth) Criminal Code 1995 (Cth) |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Applicant: | SZQPJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MR LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1973 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 25 November 2011 |
| Date of Last Submission: | 25 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application to extend time, pursuant to s.477(2) of the Migration Act 1958 (Cth), is refused.
The application made on 5 September 2011 is dismissed as not competent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1973 of 2011
| SZQPJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MR LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 5 September 2011, pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), seeking declaratory relief in respect of a recommendation to the first respondent, made by the second respondent, Mr Luke Hardy (“the reviewer”) on 6 May 2011, that the applicant not be recognised as a refugee to whom Australia had protection obligations under the of the United Nations Convention Relating to the Status of Refugees[1].
[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
The application to the Court also seeks injunctive relief and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14 (“M61/M69”).
Background
The background to this matter can be derived from the bundle of relevant documents (the Court Book – “CB”) filed by the Minister in conformity with the order made at the first Court date.
The applicant arrived in Australia by boat on 5 January 2010 as what is described as an “irregular maritime arrival”. He was taken to Christmas Island (CB 105).
On 5 March 2010 he sought recognition as a refugee. Consistent with procedures put in place by the first respondent (see M61/M69 at [41] – [44]) the applicant lodged a Refugee Status Application (“RSA”) for that purpose. In this he appears to have been assisted by a firm of solicitors (CB 39.6)
The Protection Claims
The applicant provided a Statutory Declaration in support of his claims to be in need of protection (CB 56 to CB 59). The following claims were put forward by the applicant in this, and at an interview with an officer of the Minister’s department appointed to conduct the RSA (see generally at CB 62 to CB 74):
1)He claimed to be of Faili Kurd ethnicity, born in Iraq in 1973. His family were “expelled” from Iraq in 1980, on the basis that they were not considered to be Iraqi citizens with no resident rights there, and were taken to the Iranian border.
2)The background to this was that his grandfather was born in Iran but had moved to Iraq before the applicant’s father was born.
3)In the interview he said that his father had obtained Iraqi citizenship five years ago, but he had no intention of applying for Iraqi citizenship.
4)He claimed to have then lived in Iran as a “foreigner” while he married an Iranian citizen and had two children with her. The marriage and birth of his children were not registered.
5)He claimed to have been harassed by the Iranian police (later this was explained as being, by the “Basij”, a quasi-paramilitary organisation).
6)The harassment consisted of constant requests for identification documents. When he produced what was described as a “white card” he would be told he was not an Iranian, and was detained for two to three days. He was only released upon payment of a bribe.
7)He also claimed his children were denied educational opportunities and had suffered discrimination in this regard.
8)Following a car accident in 2004, he took legal proceedings against the other driver. The Court found against him, and in so doing, also found he was not an Iranian citizen, and was unlawfully in Iran.
9)He facilitated his departure from Iran by the purchase of a “fraudulent” Iraqi citizenship card and passport.
The Initial Assessment
In March 2010 the applicant was notified that he had been assessed as not meeting the Convention definition of “refugee” (CB 60 to CB 74). In concluding that the applicant was not a person to whom Australia owed protection obligations, the decision-maker found, amongst other things:
1)The applicant was a stateless Faili Kurd. The claims to protection were assessed as against Iran, being the relevant country of former habitual residence.
2)Accepted that the applicant had experienced some discrimination in Iran, but that this did not amount to “serious harm” amounting to persecution nor did it constitute a well-founded fear of “persecution on cumulative grounds.”
3)Noted that the applicant’s evidence was vague, and limited, in relation to claims of having been the subject of adverse attention from the authorities, both before and after the Court decision in relation to the car accident.
4)In a similar light, the decision-maker made no clear finding that the applicant had been detained, although it was noted that the extent of his evidence at the interview was that he was stopped in the street, and would be given a “different look” on presentation of his white card.
5)Found that if the applicant were to return to live in Iran he would continue to live without fear of persecution.
6)Reviewed relevant country information regarding the resumption of Iraqi citizenship by those who had been expelled by the Saddam Hussein regime, and found that the applicant could reclaim his Iraqi citizenship (as his father had) and live there free from persecution.
The Review
Acting on the applicant’s behalf, his solicitors requested an Independent Merits Review (“IMR”) on 30 April 2010 (CB 87 to CB 95).
The applicant provided a Statutory Declaration in support of his claims (CB 98 to CB 101), and was interviewed by a reviewer, where he provided details of his claim to have been harassed by the Basij. In particular, he now claimed, in addition, that his wife had been “violated” by the Basij.
A further claim was put forward by the applicant’s representative that he would be persecuted on return to Iran because he had departed using a fake Iraqi passport.
The reviewer found that the applicant was not a person to whom Australia owed protection obligations (CB 102 to CB 115).
However, following the High Court judgment in M61/M69, the applicant’s claims were referred to another reviewer for consideration. It is the consideration by this subsequent reviewer, Mr Luke Hardy, the second respondent in these proceedings, which is the subject of the application currently before the Court.
In a further written submission the applicant’s adviser, who is also a solicitor, repeated the applicant’s claim to fear persecutory harm and emphasised , or added:
1)The applicant’s experiences of discrimination at the hands of the Basij did amount to a well-founded fear of persecution in Iran.
2)The applicant would be persecuted if he returned to Iran, additionally, for the reason that he was a failed asylum seeker.
3)That any consideration of the application going to Iraq was being seen as akin to one of “relocation”, and that it would not be reasonable to expect the applicant to go there as he would be persecuted for reason of being a Faili Kurd.
The reviewer conducted three interviews with the applicant (16, 22 and 24 February 2011 (CB 195)). The only account before the Court of what occurred is that contained in the reviewer’s record (see CB 204.4 to CB 209.7).
The reviewer concluded, and so recommended to the first respondent, that the applicant not be recognised as a person to whom Australia had protection obligations under the Refugees Convention (CB 231).
There were two bases for the reviewer’s ultimate conclusion. Both were underpinned by the reviewer’s concerns about the truthfulness of the applicant, and the credibility of significant parts of his account. The reviewer found that the applicant had exaggerated parts of his evidence, and that other parts were inconsistent with country information available to the reviewer (CB 225.6 and CB 227.5).
The first reason for the reviewer’s recommendation was that he found that the applicant was not stateless, but was a citizen of Iraq. The reviewer found that he had reclaimed his Iraqi citizenship (CB 226).
The second basis for his decision was that even if the applicant was found to have been stateless, that as against the circumstances relevant to his claimed place of habitual residence, there was no well-founded fear of persecution for a Convention reason (CB 227).
The Application to the Court
The application to the Court was made on 5 September 2011. The date of the written notice to the applicant of the reviewer’s decision was 16 May 2011 (CB 193 to CB 194).
Section 477(1) of the Act requires an application to the Court concerning migration decisions to be filed within 35 days. Pursuant to s.477(3)(d) of the Act, in this case, at the date of notification of the decision, the application was 77 days beyond this time limit.
I note that the question of whether the time limit in s.477 of the Act applies to recommendations made by the reviewer is currently before the Full Federal Court (appeal of SZQDZ v Minister for Immigration & Anor [2011] FMCA 652), and has been listed for hearing in February/March 2012.
In the meantime, I have taken the view (Darabi v Minister for Immigration & Anor [2011] FMCA 371; (2011) 250 FLR 301 and SZOZU v Minister for Immigration & Anor [2011] FMCA 393), as have other Federal Magistrates (Alami v Minister for Immigration & Anor [2011] FMCA 623 per Smith FM), that it does apply.
In this regard, the applicant has applied, in writing, for an extension of time. This meets the requirements in s.477(2)(a) of the Act. The test to be applied, in exercising this discretion, is whether the Court considers that it is in the interests of the administration of justice to extend time.
The relevant elements here include the extent of the delay, giving satisfactory explanation for the delay, prejudice to the applicant, the interests of the public, and whether there is any merit in the grounds of the application such as to make it appropriate in the interests of the administration of justice that time be extended.
Before the Court
At the hearing today, the applicant appeared in person. He was assisted by an interpreter in the Arabic language. Ms L Clegg of counsel appeared for the first respondent.
At the hearing the applicant was accompanied by a “friend” from the Hillsong Ministry who appears to have been providing support to the applicant during his time at the Villawood Immigration Detention Centre.
Although not put in any evidentiary context, I accepted comments from the Bar table that the Hillsong Ministry assisted the applicant in obtaining the assistance of a “new” migration agent about three weeks before the final hearing.
I understood the reference to “new” to be put in the context of the applicant having been represented during the course of the review by a migration agent and solicitor employed by a firm of solicitors (CB 87, CB 95 and CB 194).
Although it was not expressly put, I understood the applicant, and his friend, to now seek an adjournment of the hearing for the purpose of finding another lawyer to assist the applicant in these proceedings.
What was not made clear to the Court were the circumstances which led to the engagement of a migration agent, and not a lawyer, in relation to proceedings before the Court, and what appeared to have been about a two to three week delay in the migration agent apparently advising the applicant, through the Hillsong Ministry representative, that she could not assist with a matter before the Court.
In any event, it appears also that the Hillsong Ministry representative spent “about a week” seeking another lawyer, but was unable to find anyone who could, or would, assist the applicant.
The Minister opposed the “application” for an adjournment on the basis that the applicant had had sufficient time to obtain legal assistance, and that the prospect of now obtaining such assistance, based on what the applicant’s “friend” told the Court, was “bleak”.
I refused to grant the adjournment. A number of matters are relevant.
First, the applicant was represented by lawyers, albeit in their capacity as migration agents, before the reviewer. The import of this is that, at the conclusion of the review, he would at least have had the opportunity to obtain advice as to how to obtain legal assistance in relation to these proceedings.
Second, the matter of legal assistance for the purposes of this matter was specifically raised with the applicant at the first Court date, some ten weeks before the final hearing. At that time, the applicant stated that he had been assisted by a lawyer from the Legal Aid Commission of NSW (“the Commission”) to prepare an application for a grant for Legal Aid assistance. It appears this grant was refused at a time just prior to the first Court date.
Third, in these circumstances it was impressed upon the applicant, at the first Court date, that he should use his best endeavours, through friends, or on his own, to obtain any other legal assistance that may be available.
Fourth, it would appear that the applicant was misdirected to a migration agent, instead of a lawyer, by his “friends” in the Hillsong Ministry. While there is nothing to suggest that these “friends” were not well intentioned, it remains of concern that this Court often has matters of this type before it where “friends” seek to involve themselves in this fashion, and, through ignorance, are a hindrance to the effective prosecution of the application.
Ultimately, what the Court was left with was an applicant who was on notice, even prior to commencing this litigation, to the possibility, and desirability, of obtaining legal advice and assistance. He has had reasonable time and opportunity to obtain such assistance.
That he was refused Legal Aid does not provide a basis for granting him more time. In any event, he has had at least ten weeks since he was notified of the Commission’s decision. In the absence of any real prospect of the applicant obtaining any such assistance, and in all the circumstances, no adjournment was granted.
The Extension of Time
On the issue of the extension of time, the Minister’s position was that he opposed the extension simply on the basis that the application is misconceived and has no discernable merit.
While the applicant has provided no real explanation for the delay, particularly in circumstances where he was represented in the conduct of the review by lawyers, the circumstances attendant on his immigration detention may provide some basis for any difficulties in this regard. It may also be that the delay in coming to this Court was occasioned by the applicant awaiting the outcome of his application for Legal Aid. On this basis, and given its length, the issue of delay, on its own, would not be such as to lead to a refusal to extend time.
Whatever the case, I agree with the Minister that the extension of time should be refused given the lack of merit in the substantive application. The grounds of the application appeared to have been drafted by someone on the applicant’s behalf, although it was not clear if the author had legal qualifications.
The grounds are:
“1. Error of law in the decision it self (sic) and in the manner in which the INDEPENDENT MERITS REVIEW TRIBUNAL conducted the hearing and matter,
2. Failing to take into account very relevant facts of the matter,
3. Taking into account irrlevent (sic) facts of the matter
4. Failing to take into account Australia(n) obligation under the International Convenant (sic) on Civial (sic) right(s) and Political rights ICCPR
5. Failing to take into account the Commonwealth obligation under the International Convenant (sic) and the convention against Torture and other Cruel, un-human or Degrading Treatment or Punishment CAT I”
Complaints Before the Court
The applicant’s oral complaints before the Court were not immediately referrable to the grounds of the application nor presented in, it must be said, any coherent fashion.
In any event, the complaints can be understood to be:
1)A complaint that the reviewer, unlike the earlier reviewer, did not accept that he was Faili Kurd.
2)The reviewer was in error in finding that his father went back to Iraq.
3)A number of complaints about the interview conducted by the reviewer:
a)That on at least one occasion (the “second” interview, which may have been a reference to the interview held on 22 February 2011) the applicant was given insufficient notice in that he was woken and told to go immediately to the interview.
b)On another occasion (it was not clear if this was the interview with the “first” reviewer), he was given insufficient time to prepare (“a few days”).
c)Difficulties with the different interpreters provided at the interviews, specifically:
i) The use of the services of a “female” interpreter.
ii) The use of different dialects by the interpreters: Kurdish, Egyptian. There was only one with which he had no difficulty: Arabic interpreter.
iii) That at the “second” interview the reviewer “pledged” that he would provide an Arabic speaker at the third interview, yet an “Iranian Egyptian” was provided.
iv) He was unable to explain the attack on his wife: he had to ask for an explanation of the words “sexual assault”.
4)The applicant was surprised that his claims were “dismissed” by the reviewer given his approach at the interview.
5)He was asked by the reviewer to provide evidence in support of his claims. The applicant complains this was impossible as there was “no piece of paper to show harassment”.
The first complaint fails at the factual level. Whatever the “first” reviewer found, the reviewer, despite concerns as to the relevant evidence presented, accepted that the applicant was “a Faili Kurd and a Shi’ite Muslim originally from Iraq” (CB 226.10).
The second complaint also fails at the factual level. The applicant’s evidence before the “first” reviewer was that his parents remained in Iran (CB 72.2), and that while his father “obtained his Iraqi citizenship some five years ago”, he had not returned to Iraq (CB 72.8).
In his own recording of the report of the interview, the reviewer correctly noted the applicant’s evidence in this regard. He understood that the thrust of the applicant’s relevant evidence was the acquisition, or reacquisition, of Iraqi citizenship (CB 200.3).
Further, the reviewer recorded that the applicant, in a Statutory Declaration of 14 April 2010, stated that his father “never had Iraqi citizenship” (CB 202.3 and see at [16] at CB 99).
Whatever the various and differing evidence from the applicant in this regard, giving rise in part to the reviewer’s finding that the applicant had not been truthful or consistent on significant points (see CB 225.6 and following), the reviewer’s relevant finding was directed to the applicant’s father’s Iraqi citizenship, and his reacquisition of it (CB 226.4), not that his father had returned to Iraq.
The applicant’s complaints about difficulties said to arise from the interpreters provided were not clear. Although the Court attempted to obtain some specificity as to what was meant by the “second” or “third” interview, it was not made clear whether this referred to the various three interviews with officers of the Minister’s department, or the “first” reviewer.
The applicant’s first interview with the reviewer was on 16 February 2011. Some light is shed on this matter by submissions to the reviewer made by the applicant’s representatives on 18 March 2011 (after the conclusion of the third interview before the reviewer).
In particular (at CB 184.3):
“Further, during the course of the 16 February hearing, our client made it clear that he was given inadequate notice of previous IMR hearings, stating that he was on one occasion informed of his IMR hearing only hours prior to its scheduled start. Significantly, our client has highlighted on multiple occasions that the interpreters at all previous IMR hearings were male and did not speak our client’s principal international language of Iraqi Arabic. This made it incredibly difficult for our client to divulge the information regarding the serious harassment, rape and abuse of his wife by the Basij. Our client’s concern over the absence of a suitable interpreter is supported by the special request, which he submitted, that his second IMR hearing be held with the assistance of an Arabic interpreter from Iraq. Our client’s failure to raise information regarding his wife’s persecution by the Basij was due to inappropriate interpreting services as well as the previous decision maker’s failure to appreciate our client’s cultural sensitivity and vulnerable state.
We submit that in light of the above, the Independent Reviewer should accept the statements made by our client regarding his wife’s violation by the Basij as an honest account of the events experienced by our client in Iran.”
Importantly, there is nothing in these submissions to complain about the standard of interpretation at the interviews with the reviewer.
In any event, the reviewer recorded the applicant’s submissions in his decision record (relevantly at CB 213.8). Ultimately, he dealt with the complaint about interpreters (male/female), and the question of “language problems” as it was ultimately put to him by the applicant, through his representatives after the conclusion of the third interview that he conducted.
The reviewer ultimately found (at CB 227.9):
“I do not believe [the applicant’s] claims about having been apprehended (or arrested) and detained with his wife by the Basiji on any past occasion. I do not believe that [the applicant] withheld this information due to sensitivity or embarrassment, or due to language problems or due to previously having male interpreters. I believe on the evidence before me that that these claims are relatively recent inventions. I believe that [the applicant] fabricated the claims about his wife having been abused by the Basiji. I do not believe that this abuse of [the applicant’s] wife happened; in the first place I do not believe that [the applicant] and/or his wife were arrested or detained by the Basiji, so I do not even accept as fact the context within which the alleged abuse supposedly occurred.”
Further, the applicant has provided no evidence now (say for example any transcript of the interviews) to support the, albeit unclear, claim made that the difficulty with interpreters may have been with interpreters before the reviewer, and not on earlier occasions.
The applicant’s complaint now that he was given inadequate notice of the scheduling of the interviews is also explained by the applicant’s submissions as is reproduced above (at [53]). This complaint clearly related to previous interviews (see the reference to the complaint being made at the “first” interview before the reviewer, it therefore could not be said to refer to the “second” interview before him) and not those before the reviewer, other than to the text dealt with below.
The only reference in the evidence before the Court to the scheduling of an interview before the reviewer is as recorded by the reviewer at CB 208.9 to CB 209.1:
“… In the second interview, [the applicant] said he could not remember if the date of birth in the passport was his own. I put to him that he had made a claim about the date of birth before and he said he could not remember. He said he had come to this interview without being given notice by staff in the Villawood IDC. We adjourned.”
The reviewer was alert to the applicant’s complaint about inadequate notice, and the applicant’s consequent claimed “tiredness and dizziness”, and “quickly” adjourned to a third interview two days later (CB 209.2):
“At the third interview, I first checked whether [the applicant] felt clear enough in his mind to proceed, as he has reported a kind of tiredness or dizziness at the quickly-adjourned second interview.”
If there was any difficulty arising from the scheduling of the other two interviews before the reviewer then no evidence has been presented to support any such claim. In any event, as Ms Clegg submitted, such a complaint on its own does not reveal legal error on the part of the reviewer. The evidence before the Court does not reveal any denial of procedural fairness in this regard. There is nothing otherwise to say that an irregularity in the scheduling of interviews denied the applicant a meaningful opportunity to present his claims and evidence.
The applicant’s complaint that he was surprised by the outcome of the review, given what occurred at the interviews, may, at best, be interpreted as a complaint by a lay person that he was not put on notice of the case against him, and therefore was denied the opportunity to make relevant submissions.
It is the case that common law principles of procedural fairness require that an applicant should not be left in the dark as to the case they need to answer.
However, in the current circumstance I cannot see this to be the case here. The applicant has brought no evidence to the Court to challenge, or contradict, the reviewer’s record of what occurred at the interviews with the applicant.
These accounts reveal that the reviewer raised concerns with the applicant’s evidence in relation to critical claims which were subsequently rejected (see in particular, CB 204.6, CB 204.7, CB 205.5, CB 205.7: “… I was concerned that [the applicant] was being evasive here…”, CB 206.4, CB 207.3, CB 207.4, CB 207.6, CB 207.7: “… Since [the applicant] had mentioned his wife’s problems as the critical factor in his decision to leave Iran when he did, I asked him why he had never mentioned this issue until the IMR stage of his claim to refugee status, when he presented evidence to the other reviewer…”, CB 207.9, CB 208.5 and CB 208.10).
Further, the applicant was represented by a migration agent before the reviewer. The submissions made after the final interview (CB 177 to CB 188) reveal that the applicant, through his adviser, was on notice of the issues on which the review would turn.
The applicant’s complaint that he was asked by the reviewer to produce documentary evidence to support his claims misconstrues the reviewer’s decision. This is not a case, as was discussed in Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041, where the decision-maker refused to believe the applicant’s claims in the absence of corroborating documentary evidence.
The reviewer rejected key aspects of the applicant’s claims and evidence because of his assessment of the nature, quality and character of the evidence, how it had been presented, and his analysis of the documentary evidence that was provided (for example the applicant’s passport and his wife’s documents).
The reviewer’s findings were all open to be made on what was before him. No error is revealed in this regard.
The Grounds of the Application
Ground One
Ground one asserts a general unparticularised complaint as to the “manner” in which the reviewer “conducted the hearing and the matter”.
If this is some general complaint of a breach of procedural fairness at common law, both as to the conduct of the interviews, or more broadly a claim that the applicant was denied a fair hearing, it is not made out for the reasons already set out above. Ground one has no merit.
Grounds Two and Three
Grounds two and three, again, are general, unparticularised complaints that the reviewer failed to take into account relevant facts of the matter and took into account irrelevant facts.
Any plain reading of the material before the Court reveals that the applicant’s real complaint is that the reviewer made findings of fact not in his favour.
It is clear that the reviewer rejected key aspects of the applicant’s claims. But, as is often quoted in relation to such decisions of an administrative nature, findings of fact and findings on credibility are for the decision-maker (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J).
The material reveals that the reviewer made findings of fact reasonably open on the material, and for which he gave cogent reasons probative of the material before him.
That the reviewer rejected parts of the applicant’s evidence and claims, and found to the contrary, does not amount to any failure to take into account material facts, nor to take into account immaterial facts. (There is, of course, a difference between rejecting claims made and not considering them.) Grounds two and three have no merit.
Grounds Four and Five
Grounds four and five allege that the reviewer failed to take into account Australia’s obligations under two treaties:
1)International Covenant on Civil and Political Rights[2] (“ICCPR”); and
2)Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[3] (“Convention Against Torture”).
[2] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[3] Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
In the present case the scope of the reviewer’s task is determined by the application made by the applicant to the Minister and the Minister’s direction and guidelines as to the conduct of the interview. Of course, subject to the requirements of the law.
In the present case the applicant, with the assistance of advisers, called on Australia’s obligation to provide protection to him on the basis that he was a refugee. Without anything else, this immediately confined the reviewer’s task, in effect, to whether the applicant met the definition of “refugee” as set out in the Refugees Convention.
There is nothing in the material, and I note also the Minister’s guidelines, to suggest that the reviewer was required to look to other international treaties. In this context, I agree with Ms Clegg that there can be no jurisdictional error in failing to take into account treaties that have no relevance to the reviewer’s task.
The above alone answers grounds four and five. They are not made out.
In any event, I note further that the reviewer was alert to this issue. In fact, in his decision record he made reference to QAAE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 46 (“QAAE”) (albeit using the wrong citation) for the proposition that there was no basis for considering certain treaties relating to the question of statelessness given that they had not been enacted into Australian domestic law (see QAAE at [6] - [12] and also CB 197).
In relation to the treaties referred to in the grounds:
1)The ICCPR is referred to in the International Covenant on Civil and Political Rights [1980] ATS 23 (Cth) see Australian Human Rights Commission Act 1986 (Cth), Sch.2. It, however, is clearly limited to the purposes in that Act.
2)The Convention Against Torture is referred to in the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [1989] ATS 21 (Cth) see Criminal Code Act 1995 (Cth), however it also is clearly limited to that purpose.
Both treaties therefore appear in some fashion in domestic law (see above at [83]). However it is not clear whether it can be said that they have been enacted into domestic or municipal law in the sense discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 195 ALR 502.
Importantly, the applicant has not pointed to any material, nor is it evident on what is before the Court, that he had any legitimate expectation that the reviewer would have regard to these treaties, as for example in Ah Hin Teoh v Minister of Immigration and Ethnic Affairs [1994] FCA 1017; (1994) 49 FCR 409. In this light, any argument of a denial of procedural fairness in this regard, on the part of the reviewer, is not available to the applicant.
But what is clear is that the grounds do not succeed because the relevant question for the reviewer on the review of the initial assessment was whether he was satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.
Conclusion
In all, the grounds are not only not made out, but they lack merit. There is no utility in this case in granting any extension of time. It is not in the interests of the administration of justice to do so in cases where no real argument emerges such as to warrant any further consideration.
The application for an extension of time is refused. The application to the Court is therefore not competent. I will make orders accordingly.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 20 January 2012
15
5