SZRDE v Minister for Immigration
[2012] FMCA 495
•31 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRDE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 495 |
| MIGRATION – Review of recommendation of Independent Merits Reviewer – unparticularised ground – no jurisdictional error – application dismissed – cost order made. |
| Migration Act 1958 (Cth), s.477 |
| Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 MZYLE v Minister for Immigration & Anor [2011] FMCA 589 Minister for Immigration & Citizenship v MZYLE (No 2) [2011] FCA 1467 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2011) 243 CLR 319 SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26 |
| Applicant: | SZRDE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | L M BLACKLOW, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 269 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 31 May 2012 |
| Date of Last Submission: | 31 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application made on 7 February 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 269 of 2012
| SZRDE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| L M BLACKLOW, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
(Revised from Transcript)
The applicant before the Court today applies for an injunction and a declaration against the Minister for Immigration and a Mr Les Blacklow, acting in his capacity as Independent Merits Reviewer (“the reviewer”). That application was made on 7 February 2012, and is directed to the reviewer’s recommendation to the respondent Minister, of 21 October 2011, that the applicant not be recognised as a person to whom Australia owes protection obligations under the United Nations Refugee Convention.
Background
I note that two bundles of relevant documents have been filed in these proceedings by the respondent Minister (Court Book Volume 1 and Court Book Volume 2 – together referred to as “CB”). A copy of the reviewer’s record of recommendation is included in the first bundle of documents (CB 189 to CB 201). Also filed in these proceedings, although apparently not now relied upon by the applicant, was the affidavit of Sue Archer annexing a transcript (“T”) of the interview that the reviewer conducted with the applicant. The Minister provided written submissions in these proceedings and, having regard to those written submissions, I adopt what is said at [2] of that document as background for the purposes of this judgment. Namely:
“The Applicant is a citizen of Afghanistan who entered Australia as an unauthorised boat arrival on 2 May 2010: CB 94.8. On 30 May 2012 an entry interview was conducted with the Applicant: CB 2-31. On 15 October 2010 the Applicant applied for a Refugee Status Assessment (RSA): CB 32-91. On 4 January 2011 an officer assed the Applicant as not meeting the Convention definition of refugee: CB 92-102. On 31 January 2011 the Applicant sought an independent merits review (IMR) of this decision: CB 103-107. The applicant was interviewed by the reviewer on 1 September 2011.”
The applicant’s claims to fear persecutory harm if he were to return to Afghanistan were put forward at various interviews with officials of the Minister’s department, in the statutory declaration of the applicant made on 15 October 2010 (CB 33), and in written submissions by his representatives (who assisted him during the process of the determination of his claims before the Minister’s department) of 19 August and 20 September 2011 (CB 119 to CB 175 and CB 181 to CB 186)
The claims were in essence that the applicant feared harm in Afghanistan because of his Hazara ethnicity and because he was born into the Shia Muslim religion (although he otherwise claimed that he “did not have any religion” ([12] at CB 191)). Further, that he would have imputed to him the characteristic of being an infidel, or Christian convert, because he had been in a Western country for some time (I understood that to be Australia). At different times the applicant gave an account of what he said were relevant events in Afghanistan such as to show that the harm he feared emanated from the Taliban and a religious body, the Sharai Ulema, which I understand from material before the Court to be a council of religious scholars. In part, the applicant’s difficulties in this regard were centred on his claimed failure to have attended at certain religious occasions.
The process employed by the reviewer in conducting his enquiry is documented in the Court Book. In particular, I note [15] at CB 193 to [23] at CB 195 of the reviewer’s record which, as well as being a report of the interview that was conducted, makes reference to communications with the applicant and his representatives in relation to certain information.
It is important to note that, as well as conducting an interview with the applicant, at which his representative was present, at some point prior to the interview the reviewer, in writing, invited the applicant and his representative to comment on certain relevant information which had not been raised at earlier occasions ([16] at CB 193). That information included country information about the situation of Hazaras in Afghanistan.
Although the applicant did not seek to rely on the transcript of the interview, I note that the reviewer’s account of what occurred at the interview and the transcript are generally consistent as to what is said to have occurred. Both reveal that the applicant was given the opportunity to present his case, to know the case against him, and was given the opportunity to present his arguments as to why he said he engaged Australia’s protection obligations.
The reviewer reasoned (as is set out in the Minister’s written submissions at [4]):
“The reviewer gave weight to country information from authorities including the UNHCR, DFAT and US State Department, and did not accept that a person’s identity as a Hazara was sufficient of itself to cause that person to come within the definition of refugee (CB 198 [35]). The reviewer found the Applicant’s explanation of how he avoided detection of his non-believer status by his parents and family was not convincing (CB 199 [39]). The reviewer also noted that the Applicant stated his marriage was conducted according to usual Muslim requirements, which would indicate the Applicant had not ceased to accept the activities of participating in Islamic ceremonies nor rejected Islam at the time of his marriage in 1985. The reviewer not the Applicant claimed to have received visits from representatives of Ulema (council of religious scholars) and the Intelligence Branch. The reviewer did not accept these claimed visits occurred, because the Applicant offered no explanation as to why he was not home during any of the three visits and because the threats were not acted on (CB 199 [40]). The reviewer summarised general information about the Ulema at CB 199 [41] but did not expressly rely on it in rejecting this aspect of the Applicant’s claims. The reviewer held at CB 200 [43] that the Applicant’s claim to fear harm as a Christian convert or heretic claims were unsupported by authoritative evidence, citing information from DFAT. The reviewer concluded at CB 200-201 [44] that the Applicant would not face a real chance of future serious harm for a Convention reason now or in the reasonably foreseeable future, taking into account country information and the reviewer’s further findings of fact. See generally CB 196-201.”
Application to the Court
The application before the Court contains one unparticularised ground. Namely:
“That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.”
Before the Court
At the first Court date in this matter, on 22 February 2012, the applicant was represented by Mr J Gormly of counsel. However, I understand that Mr Gormly subsequently withdrew from participating in these proceedings.
The applicant appeared today in person and was assisted by an interpreter in the Hazaragi language. Mr T Reilly of counsel appeared for the Minister.
The applicant has put nothing before the Court in support of the sole ground of the application (he did not rely on the affidavit of Sue Archer).
At the commencement of the hearing, when called upon to make submissions, the applicant began to assert that, according to the “United Nations Convention”, protection should be granted to him because he had religious problems in Afghanistan. He claimed that there was no protection for religious converts in Afghanistan. Further, that the reviewer had not paid attention to that.
It is quite clear, when regard is had to the reviewer’s record, that what the applicant really seeks to complain about is that the reviewer did not accept that his claims in relation to religious conversion would lead to him meeting the definition of “refugee” as set out in the United Nations Refugee Convention. It is also quite clear that the reviewer did consider that aspect of the applicant’s claim to protection but, both for the reason of finding that some aspects of the applicant’s claims were not credible, and further that some of his claims were implausible, found adversely to the applicant.
In the current case I can only agree with Mr Reilly, who drafted the written submissions on behalf of the Minister, that the reviewer’s reasons for his recommendation to the Minister were based on findings which were reasonably open to him to make on what was before him. Findings for which the reviewer gave cogent reasons. The rejection by the reviewer of the credibility of parts of the applicant’s claim is a finding of fact for the reviewer to make within the confines of the task given to him (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1).
The applicant came to this Court today either with some misunderstanding, or some disregard, of the nature of these proceedings. I am satisfied that the applicant would have had the opportunity to have the nature of these proceedings explained to him, but for whatever reason was unable to put anything before the Court today, or to say anything to the Court today, to show any legal error on the part of the reviewer.
For the sake of completeness, I note in addition that, while the reviewer had before him different sets of country information that drew different conclusions as to the situation of Hazaras in Afghanistan, I cannot see that the reviewer fell into the type of error identified earlier this year in the case of MZYLE v Minister for Immigration & Anor [2011] FMCA 589, which was also the subject of an appeal (Minister for Immigration & Citizenship v MZYLE (No 2) [2011] FCA 1467 per North J).
The reviewer in the current case did not start from a proposition of needing to accept one set of country information over another. As is evident, in particular at [29] (at CB 196) to [37] (at CB199), the reviewer conducted a careful analysis of the various and, it must be said, voluminous sets of country information put before him. That the reviewer chose to give greater or lesser weight to various parts of that information is nothing more than a proper evaluation of the material put before him in exercise of the task entrusted to him.
What the applicant said to the Court simply invites the Court to engage in a review of the merits of his claim to be a refugee. The Court cannot do that. Nor can I otherwise see any legal error in what the reviewer has done (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Conclusion
It is the case that the relief that the applicant seeks by way of his application can only be granted if the reviewer failed to conduct his review with reference to correct legal principles or failed to act in a way that was procedurally fair (Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2011) 243 CLR 319).
The application made by the applicant to the Court was also accompanied by an application to extend time for the making of the substantive application with reference to s.477 of the Act. In this regard it is clear, relying on SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26, and a number of other cases considered at the same time, that no such extension is required in the current case.
What the Court is left with is that the applicant has been unable to articulate, or particularise, any legal error that is relevant in relation to the review. Nor can I otherwise see any such legal error. In these circumstances it is appropriate therefore that the application to the Court be dismissed. I will make an order accordingly.
Costs
It is appropriate that an order for costs be made today in this matter. Beyond asserting his claim to protection the applicant has nothing to say in relation to the matter of costs, and the fact that the applicant asserts that he is a person to whom Australia is owed protection obligations, contrary to the finding properly and lawfully made by the reviewer, is not a sufficient reason such that an order for costs not be made.
As to the amount, I am satisfied having regard to the work that has actually been done by the Minister’s solicitors in responding to the application, that it is a reasonable amount. In particular, I note the voluminous bundle of relevant documents and the numerous bundles that have been filed and served in these proceedings. I also note that the Minister has elected to be represented in these proceedings by counsel, as is his right to do so. I will make an order for costs in the amount sought.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 14 June 2012
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