SZRNW v Minister for Immigration - [2012] FMCA 1054

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRNW v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1054

MIGRATION – Independent Merits Review report recommended applicant not owed protection obligations – judicial review – no merit in review.

Migration Act 1958 (Cth), s.476
Commonwealth Constitution, s.75(v)

Plaintiff M69 of 2010 v Commonwealth [2010] HCA 41
DZABS v Minister for Immigration & Anor (2012) 261 FLR 447
SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26
Alami v Minister for Immigration & Anor [2011] FMCA 623
SZQGA v Minister for Immigration & Citizenship [2012] FCA 593
WZAPH v Minister for Immigration & Anor [2012] FMCA 773

Applicant:

SZRNW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRISTINE LONG IN HER CAPACITY AS THE INDEPENDENT MERIT REVIEWER

File Number:

SYG 1272 of 2012

Judgment of:

Lindsay FM

Hearing date:

6 November 2012

Date of Last Submission:

6 November 2012

Delivered at:

Perth

Delivered on:

6 November 2012

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms Price

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application for judicial review filed on 8 June 2012 be dismissed.
That the applicant do pay the respondents’ costs of an incidental to these proceedings, fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

SYG 1272 of 2012

SZRNW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTINE LONG IN HER CAPACITY AS THE INDEPENDENT MERIT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant is an offshore entry person. He arrived at Christmas Island on 26 November 2010. He went through the usual entry procedures. He underwent a Refugee Status Assessment (“RSA”) which included an interview. The outcome of that assessment was that Australia did not owe him protection obligations. As he was entitled to do, he sought an Independent Merits Review “(IMR”) in relation to that determination and during the course of that review he was further interviewed. He was assisted by a migration agent throughout this process who made submissions, oral and documentary, on his behalf. The conclusion of the Independent Merits Reviewer was that Australia did not owe him protection obligations and that recommendation was made to the Minister.
He has filed an application pursuant to s.476 of the Migration Act 1958 (“the Act”) in this Court in which he seeks judicial review of the determination. In particular, he seeks a declaration that the recommendation made by the IMR, was not made in accordance with law, and he sought an injunction restraining the Minister from relying upon the recommendation.
As I say, the application is made pursuant to s.476 of the Act. Pursuant to that section, this Court has the same jurisdiction as the High Court has under s.75(v) of the Commonwealth Constitution, but only in relation to “migration decisions”; migration decisions being a cognate expression which is the subject of definition in the Act.
The High Court had the occasion to consider aspects of the judicial review of IMR decisions in Plaintiff M69 of 2010 v Commonwealth [2010] HCA 41. I summarised the effect of that decision for applications in this Court in DZABS v Minister for Immigration & Anor (2012) 261 FLR 447 at [25] to [42]. In that decision, I dealt with the issue of the jurisdiction of this Court in such matters from the perspective of two discrete periods of time, one leading up to the date of the judgment of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26, and secondly the period following the delivery of that judgment. In respect of the first period, the decision of Smith FM in Alami v Minister for Immigration & Anor [2011] FMCA 623 was still good law. That meant that the IMR decision itself was a decision of an administrative character, therefore a privative clause decision, therefore a migration decision in respect of which the jurisdiction of the court under s.476 of the Act could be exercised. The Full Court of the Federal Court in SZQDZ overruled Alami and essentially the position that I described in DZABS that we were left in after the Full Court decision in SZQDZ was that we had to recognise that the IMR review itself was not the subject matter of the review. It was the positing of the future reliance by the Minister upon that report that was the migration decision which attracted the jurisdiction of the Court under s.476 of the Act.
At the time I published DZABS, I was of the view that in light of SZQDZ, and in order for a review to succeed, the error identified in that posited reliance by the Minister on the report had to be a jurisdictional error. Subsequently, Barker J sitting as a court of Appeal from a decision of a Federal Magistrate in SZQGA v Minister for Immigration & Citizenship [2012] FCA 593 expressed the view which I am obliged to follow that the error identified in that posited reliance need not be jurisdictional.
I had reservations in relation to that which I discussed in WZAPH v Minister for Immigration & Anor [2012] FMCA 773, and the reservations are set out in [49] and the subparagraphs thereof. But those reservations made no difference in relation to my obligation to follow the decision. I approach this review upon the basis that I do not regard myself as being obliged to find jurisdictional error in the posited reliance on the review before the review can be allowed; legal error will suffice. A finding of a lack of procedural fairness will also suffice.
That is a short summary of the legal framework against which this application is made.
All of the processes that I describe, the entry interviews, the RSA interview and the IMR assessment report, were all administrative processes. The making of an application to the Court and the determination of that application is not an administrative process. The administrative process has ended. This is a Court of law and my obligation is to determine whether there is any error of law associated with the way in which the review was conducted, such that any reliance on the recommendation made in the IMR by the Minister can be said to have been vitiated by legal error.
The application for review was filed on 8 June 2012, and as I indicated, identifies with clarity the orders that are sought. Under the heading “Grounds of Application”, all that is set out however, is that the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error. There is no particularisation of that ground or that contention.
There was a directions hearing conducted in relation to this application by Lucev FM on 6 August 2012 and the applicant was directed to file and serve an amended application and any affidavits upon which he proposed to rely by 8 October; that has not been done. He was to file and serve an outline of submissions not less than 14 days before the hearing; that has not been done. There is no criticism of the applicant for that. He has been, I infer, without the opportunity of legal representation.
Ordinarily, in exercising such a jurisdiction as this, the failure to provide any kind of particularity with respect to the alleged legal error, would lead to the summary determination of the application. But the nature of the jurisdiction being exercised in these kinds of matters, that is, the subject matter being contentions by a person that they are owed protection obligations on account of fears of persecution, or serious harm, if they return to their country of origin, means that we should be somewhat circumspect and cautious before proceeding to determine the matter in that summary way. In that sense, the jurisdiction is a special one.
However, the distinction between the administrative process, which has ended, and the legal process which is before the Court, must be also be borne in mind.
The applicant is a Tamil from a place called Jaffna in Sri Lanka, which part of Sri Lanka is Tamil-dominated and has been right at the heart of the civil war in that country, which concluded only in 2009. He is a fisherman. He has in the period 1990 to 1994, lived in exile, as it were, from Sri Lanka and in India. He returned to live in Jaffna, returned to his life as a fisherman, then leaving again with his family for India in 2008.
His departure from Sri Lanka to India in 1994 by boat was illegal. His departure in 2008 was regular in the sense that he and his family left through the airport with passports. His family remain in India. He travelled to Christmas Island by boat. It is fair to say that the Independent Merits Reviewer accepted a good many of the contentions made on behalf of the applicant as to the position of Tamil persons in Jaffna and Tamil fishermen in particular. The general claims that persons in his position have been subject to ill-treatment, at times brutality, both before the war, during the war, and after the war were to a significant extent, accepted. That was upon the basis of the review of the country information by the reviewer relating to persons in the general position of Tamil fishermen from the Jaffna area. The difficulties arise because of the perception on the part of the Sri Lankan army and navy officers in the area, that fishermen were thought to be connected with the LTTE, who were the organisation colloquially known as the Tamil Tigers and who were the principal wagers of the civil war on the Tamil side during the course of the civil war in Sri Lanka. So for example, in [83] of the reasons, the reviewer says:
The reviewer accepts that the country information referred to by the claimant supports in a general way the claims that the claimant makes about his fears of returning to that country.
At [84]:
In the reviewer’s opinion country information in relation to the situation for returned Tamil asylum seekers is inconsistent.
Although, even in relation to that discrete topic of the position of returned Tamil asylum seekers in [86] the reviewer says:
The reviewer also accepts that there is country information that reliably indicates that Tamils in and around Jaffna who were working as fishermen were sometimes harassed and threatened by the Army and also the LTTE, as the claimant claims during hostilities in Sri Lanka before those hostilities ended in May 2009.
The reviewer goes on to accept country information produced by the claimant in support of his claims that fishermen were shot by the army in the Jaffna area, including in 2007 and 2008, as the claimant had claimed. But the reviewer makes this important observation in [87]:
Although the reviewer accepts that there is country information which generally supports the claimant’s claims, clearly the reviewer must determine whether the claimant before the reviewer has a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country.
I should note that it was accepted that he was a Sri Lankan. Australia’s obligations to him under the Refugees Convention and Refugees Protocol were assessed upon the basis of Sri Lanka being his country of origin, as he had claimed. It was when the reviewer turned from the general position of persons such as the applicant, based upon his own claims and the country information, to his specific claims that the applicant experienced difficulties in having his claims accepted. I am not going to go through every detail the reasons given by the reviewer for the rejection of the applicant’s specific claims. They begin at [89] and go through to [100].
The first matter relied upon by the reviewer in coming to the view that she did in relation to the claim was the circumstance of the regular departure from the country in 2008 with his family. I should note that she rejected the applicant’s explanation as to how it was he was able to get through the airport by attaching himself to a church group.
Second, was the fact that a number of members of his family who have remained as fishermen in the Jaffna area pursuing their occupation as fishermen have not encountered specific problems, despite experiencing some worry or fear.
Thirdly, was the fact that his wife’s parents were able to remain, from the time of his departure in 2008 until their departure for India in May 2011, in the Jaffna area, without incident.
There was a quantity of documentary evidence that the applicant sought to rely upon and the reviewer has given her reasons for her inability to rely upon that documentary information as supporting the applicant’s claims. The important conclusion is reached in [100] and it is as follows:
While the reviewer accepts that the claimant will face discrimination and harassment in his country because he is a Tamil male from Jaffna and a fisherman, the evidence before the reviewer does not enable the reviewer to conclude that there is a real chance that this claimant will be targeted for and suffer harm amounting to serious harm from the Army, the Navy, Sri Lankan authorities, members of paramilitary groups, or anyone else in Sri Lankan, either now or in the reasonably foreseeable future because of his political opinion or imputed political opinion, his race, because he is a Tamil from Jaffna, because of his membership of a particular social group including fishermen from Tamil, or for any other Convention reason, if he returns to his country.
For that reason, the recommendation to which I have referred was made.
Now, I have been assisted in my scrutiny of the reasons of the reviewer by the very detailed Outline of Submission that was filed on behalf of the Minister. I am unable to identify, in the way that the reviewer went about her task, any failure, firstly, to address any of the arguments or submissions or evidence that were adduced by the applicant on his behalf or anything involving error that related to the use that was made of the country information which, generally speaking, the reviewer formed a view favourable to the applicant’s claims in relation to that material.
I am unable to discern in the reasons the reviewer gave for the rejection of the documentary material, any error. I am unable to discern, in the way the review was conducted and in particular, in relation to the way in which the interview with the applicant was conducted, any matter which gave rise to any procedural unfairness. In particular, it seems to me that each of the matters material to the view to which the reviewer came were matters that were put to the applicant and about which he had the opportunity to comment.
As I say, there is limit to this kind of scrutiny. I certainly consider it appropriate in matters of this nature to embark upon that scrutiny, notwithstanding the fact that no particulars of the errors of law have been promoted by the applicant. But following that scrutiny, and as I say, with the assistance of the scrutiny that was carried out by the Minister’s representatives and on which they framed their submissions, I am unable to identify any legal error associated with the way the reviewer carried out her task.
Accordingly, I am unable to identify any error that would be involved and any reliance by the Minister upon the recommendation that was made in that review. The application for review will be dismissed.
I should say just a word or two about the conduct of this hearing today. The applicant appeared without legal representation. He has been assisted by an interpreter. Following upon my leaving the bench to consider what I should do, and then when I returned to the bench, I was informed by Ms Price for the Minister that a representation had been made to her by a person in Court who identified himself as a minister of a church with which the applicant is associated and a Tamil person, that raised some general concerns about the standard of interpreting that was provided.
Then the applicant at that point told me that he had some concerns about not understanding certain matters that I had said that had been put to him. I am not in a position, obviously, to comment upon anything relating to the standard of the interpreting. What I did say and what I repeat in these Reasons is that even if I posit the possibility that there have been some difficulties associated with the interpreting today, I am not satisfied, on account of the way this hearing has proceeded, that any issue has arisen that gives rise for concern about the applicant’s participation in this hearing.
Manifestly, when he was given the opportunity to make submissions to me, he, not unsurprisingly for a person without legal expertise was unable to address himself to the issue that was before this Court and that is the identification of legal error in the IMR decision. He spent his time, again, understandably but for him unhelpfully, putting factual matters to me which went to the merits of the matter. That English was not his first language was an additional factor certainly, but made no difference to the outcome. Given that, the view I have is that any alleged shortcomings with respect to interpreting would have made no difference to the outcome of this hearing today.
I should also mention in these Reasons and it is a matter that is really perhaps more appropriately taken up by the Registry so as to ensure that similar events do not happen in future matters but the first difficulty was that the interpreter engaged for the hearing this afternoon simply did not turn up and nothing has been put to my staff which provides any kind of adequate explanation for that. That concerns me.
Secondly, when I was giving my Reasons, the interpreter who made herself available at the last minute, and who is attending this hearing by telephone, abruptly terminated her telephone connection to the Court, for reasons which are not clear to me.
In any event, we have persisted in the hearing and I am satisfied that there is no irregularity associated with the interpreting that would have made any difference to the outcome of this application for judicial review.
In my view, it is appropriate that there be an order costs and I so order.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 16 November 2012