WZAOL v Minister for Immigration and Citizenship
[2013] FCA 425
•8 May 2013
FEDERAL COURT OF AUSTRALIA
WZAOL v Minister for Immigration & Citizenship [2013] FCA 425
Citation: WZAOL v Minister for Immigration & Citizenship [2013] FCA 425 Appeal from: Application for Extension of Time: WZAOL v Minister for Immigration & Anor [2012] FMCA 367 Parties: WZAOL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NTD 3 of 2013 Judge: KATZMANN J Date of judgment: 8 May 2013 Legislation: Migration Act 1958 (Cth)
Convention relating to the Status of Refugees done at Geneva 28 July 1951, as amended by the 1967 Protocol
Cases cited: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Sochorova v Minister for Immigration and Citizenship [2009] FCA 555
Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399Date of hearing: 3 May 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 32 Counsel for the Applicant: The applicant appeared in person. Solicitor for the First Respondent: Mr A Marcus of Australian Government Solicitor Solicitor for the Second Respondent: The second respondent filed a submitting appearance
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NTD 3 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: WZAOL
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentWENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
3 MAY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NTD 3 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: WZAOL
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentWENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
KATZMANN J
DATE:
8 MAY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a Vietnamese national. He left Vietnam by boat in early 2008 and was detained in a refugee camp in Indonesia on his way to Australia. There, he unsuccessfully made an asylum application to the United Nations High Commission for Refugees (“UNHCR”). After 17 months in detention he fled in a boat bound for Australia. The boat was intercepted at sea and its passengers taken to the Christmas Island Immigration Detention Centre. There, the applicant sought and was given a refugee status assessment.
To qualify as a refugee the applicant needed to show that he had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and was unable or, owing to such fear, unwilling to avail himself of the protection of his country of nationality (Convention relating to the Status of Refugees done at Geneva 28 July 1951, as amended by the 1967 Protocol, Art 1A(2) (together “the Convention”)). According to the statement accompanying the request, however, the applicant left Vietnam because his family was very poor and he wanted a brighter future in a place where he could support his family.
The refugee status assessment was carried out by a delegate of the Minister for Immigration and Citizenship. The delegate found that the applicant did not meet the necessary criteria to qualify as a refugee under the Convention. The applicant then applied for an independent merits review, assisted by a registered migration agent. At this time the applicant claimed to be in fear of his life if he had to return to Vietnam because he had left illegally and had no identification papers. He also claimed to have a well-founded fear of persecution due to his membership of a suppressed rural ethnic minority (although he apparently belongs to the majority ethnic group). The submission presented on his behalf additionally referred to human rights violations in Vietnam.
After examining the documentary material, interviewing the applicant through a Vietnamese interpreter, and hearing from his migration agent, the independent merits reviewer recommended that the applicant not be recognised as a refugee. After the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 (“Plaintiff M61”) (in which the Court held that reviewers were bound to afford procedural fairness and were also bound by the Migration Act 1958 (Cth)), arrangements were made for a fresh independent merits review.
The second reviewer conducted another interview with the applicant, again through a Vietnamese interpreter. His migration agent was also present at the interview.Unfortunately for the applicant, the outcome of the second review was no different. After considering the claims both independently and cumulatively, the reviewer found that the applicant did not have a well-founded fear of persecution within the meaning of the Convention and was not a refugee to whom Australia owed protection obligations. She made a recommendation accordingly.
The reviewer rejected the contention that the applicant was a member of an ethnic minority, because the applicant confirmed that he was a member of the Kinh ethnic group, the majority ethnic group in Vietnam. In submissions made by his first migration agent, the applicant claimed that his family lacked household registration. The reviewer did not accept this claim. She described the applicant’s evidence on this subject as “extremely vague and confusing” and observed that it was no part of the applicant’s original claim that he had experienced any difficulties in Vietnam because he or his family had no household registration. The reviewer accepted that the applicant had no identification card but found that the only reason was that he had never tried to obtain one. She also accepted that the applicant had been fined for working without an identification card, but considered that this must have only been a relatively minor inconvenience, otherwise he would have taken some steps to procure one. The reviewer said that this treatment does not amount to persecution within the meaning of the Convention and was, in any event, not imposed for a Convention reason.
The reviewer noted that the applicant had on this occasion raised a new claim that he had been regularly detained at the police station for not having an identification card, a claim she described as “at odds” with the applicant’s evidence before the first reviewer, which was that he had never set foot inside a police station. The reviewer was satisfied that the applicant had never been detained by the police and decided that the applicant had embellished this aspect of his case.
The reviewer accepted that the applicant was poorly remunerated, but found that his capacity to subsist was not threatened and he was not denied the chance to earn a living.
The reviewer also accepted that the applicant was at risk of being punished for leaving Vietnam illegally but rejected the applicant’s contention that he would be put to death for doing so or that he would be gaoled and die in gaol. Based on independent country information obtained by the Department of Immigration and Citizenship, she considered that he would merely be questioned and monitored. In any event, the reviewer observed that the offence of illegal departure appeared to be a law of general application. She noted that there was no evidence that the law was selectively enforced for a Convention reason or that the applicant would receive an unduly harsh penalty for that reason. She said that there was “no real chance” that the applicant would be arrested, detained or tortured or suffer “serious harm” as a result of his illegal departure. Based on independent country information from the UNHCR, the reviewer also rejected a submission that the applicant was a member of the social group of failed asylum seekers and could therefore face a harsher penalty on return because of suspicion that he had applied for asylum abroad.
After he learned of the recommendation of the second reviewer, the applicant applied to the Federal Magistrates Court (now the Federal Circuit Court) for constitutional writs to set aside the second reviewer’s decision and have his application reconsidered, but that application was also unsuccessful. The federal magistrate noted in his published reasons that “difficulties with in-court interpretation” prevented him from delivering ex tempore reasons on 18 April 2012, when the application was heard. On that date, however, he made orders dismissing the application and requiring the applicant to pay the Minister’s costs. On 8 May 2012, the date the reasons were published, the applicant appeared via telephone with the assistance of an interpreter. His Honour noted that the reasons were published and had been distributed to the parties.
I note that the applicant was unrepresented in the proceeding. The Federal Magistrates Court made an order referring him to a lawyer on the pro bono panel who apparently agreed to represent him but filed a notice of withdrawal before the hearing.
Now the applicant wants to appeal from the judgment of the Federal Magistrates Court, although he did not institute an appeal within the 21-day period prescribed by the Federal Court Rules 2011 (Cth) (r 36.03). It was over nine months after the judgment was published that he filed an application for an extension of time to appeal. For the following reasons that application must be dismissed.
The discretion to extend the time to appeal is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7]. This means that an applicant must show that it would be unjust to enforce strict compliance with the rules: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 449. Absent an adequate explanation for the delay and a real prospect of success on appeal, there is no injustice: Sochorova v Minister for Immigration and Citizenship [2009] FCA 555 at [39].
In order to succeed on any appeal the applicant would have to show error on the part of the federal magistrate (as his Honour then was): SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 (“SLMB”) at [11].
The grounds of appeal in the draft notice of appeal are opaque. They read:
1.The Federal Magistrate erred in law. Particulars will be provided at a later date.
2.The decisions of both the Department and the Tribunal or Assessor is vitiated by jurisdictional error. Particulars will be provided at a later date.
No particulars were ever provided.
The affidavit filed in support of his application is no more illuminating. There, the applicant asserted (without alteration) that:
(a)The Tribunal’s decision and the decision regarding my claims for protection and refugee status are vitiated by jurisdictional error.
(b)The judgment that followed is wrong in that the honourable judge erred in law or the learned Federal Magistrate erred in law on the face of the record.
(c)The decisions by the Department and the Tribunal were made in denial of procedural fairness and in denial of natural justice to me.
(d)The decision makers ignored relevant materials and failed to take into account relevant considerations.
No particulars were provided of any of these claims. There was, of course, no tribunal decision.
The affidavit also contained the following statements. At the time of his application in the Federal Magistrates Court he was detained in Darwin. He was then moved to Villawood Immigration Detention Centre in Sydney. He had no idea that the judgment had been handed down and did not know what to do about an appeal. He had no knowledge of the complexities of migration law, could not read or speak English, was not a lawyer and had never been trained as a lawyer. He said that his case raised “significant questions of law that need to be answered by the Court” and he needed a court appointed lawyer to represent him.
The affidavit was apparently sworn or affirmed before a justice of the peace. Yet, there was no indication on the face of the document that before the applicant signed it, it was read to him in the Vietnamese language and that he appeared to understand it. At the hearing in this Court the applicant said that he could not read English and had no idea what was in the affidavit. In the circumstances, I would not admit its contents into evidence. Instead, I invited the applicant to give oral evidence in support of his application. He accepted the invitation.
The applicant testified (through a NAATI accredited Vietnamese interpreter) that the reason he took so long to challenge the federal magistrate’s decision was that he had no one to help him and he did not know how to appeal. He said that he had received no assistance from anyone with his application. He explained that he obtained a copy of his cousin’s application and copied it. He said that an officer from the Department of Immigration told him that if he did not want to return to Vietnam he needed to appeal the federal magistrate’s decision.
When asked to explain the error in the federal magistrate’s judgment, the applicant said:
Because at the hearing, there wasn’t fresh interpreter. That person couldn’t even do the job, and they acted through all the case and called another interpreter, and then even the second interpreter, she or he couldn’t read the three sentences in the document, so the court dismissed.
HER HONOUR: I don’t understand that.
APPLICANT: When I was at the Darwin court, when they called the first interpreter to interpret what I want to say, she or he couldn’t repeat or interpret, so they dismissed.
HER HONOUR: Yes.
APPLICANT: We had a break, and when the court resumed, they called another interpreter, and the court gave her three documents in English and asked her to interpret to Vietnamese for me, and she only read a few lines and then the court took it back from her. And the courts finish.
HER HONOUR: …What was it that you wanted to say to the Federal Magistrate through those interpreters?
APPLICANT: I just want to hear whatever the magistrate said to me but the interpreter couldn’t interpret what [he] (scil.) said.
The evidence suggested that the applicant was complaining about the adequacy of the interpreting services provided to him at the hearing. But under cross-examination it became clear that the complaint did not relate to the conduct of the hearing but to the applicant’s capacity to understand the outcome. The applicant acknowledged that the first interpreter was present during the hearing, which had taken place in the morning, and the second was present in the afternoon, when the judgment was delivered. It was put to the applicant that the change in interpreters occurred because the interpreter present in the morning was unavailable in the afternoon. The applicant merely agreed that there was a different interpreter in the afternoon. The court file indicates that an accredited Vietnamese interpreter was only booked for the period from 10.00 am until 1.00 pm.
The applicant complained that certain documents were given to the second interpreter, who was unable to translate them. Mr Markus, who appeared for the Minister in this Court and also in the court below, explained that the documents that were given to the interpreter comprised a draft judgment and other papers to assist the interpreter to translate the judgment that the federal magistrate was going to deliver at the time.
The applicant submitted that he should be given an extension of time because he needed time to find someone to help him with his appeal. He said that he wanted “justice and fairness”. When pressed to identify the error allegedly made by the federal magistrate, he replied that he was not sure if his Honour had made any error. Ultimately, he stated that what his Honour said was correct, but that he just wanted to be able to stay in Australia. His only complaints related to the difficulties with the interpreter after the hearing had concluded. He sought an opportunity to come up with a different story, as the independent merits reviewers had found he had lied.
I appreciate that the applicant has been disadvantaged by his long period in immigration detention. I also appreciate that he may have had difficulties securing assistance with his case. But I am not satisfied that the lengthy delay in making the application has been satisfactorily explained. In any event, there is no merit in the prospective appeal.
The sole ground for review raised by the applicant in the court below was that he had been denied natural justice. The applicant never identified the jurisdictional error to which the grounds of appeal were directed and I am unable to identify one for myself.
Before the federal magistrate, the applicant contended that he was denied natural justice because he had asked for a Vietnamese translation of “the rejection letter” but it was not provided. Not knowing why his application had been rejected, he said he was unable to prepare for the review. A failure by the reviewer to accord natural justice would vitiate the decision: Plaintiff M61/2010E v The Commonwealth; Plaintiff M69/2010E v Commonwealth of Australia (2010) 243 CLR 319; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
In dismissing the application, the federal magistrate held that there is no obligation on an independent merits reviewer to provide an applicant with a translation of his or her reasons in the applicant’s preferred language. His Honour explained that it was the responsibility of the applicant to do what needed to be done to understand the reasons his application was rejected. He said it would impose an unreasonable burden on an independent merits reviewer to require that reasons be translated before or at the time of being published. Accordingly, he found there was no jurisdictional error. He also said that on a close examination of the material there was no other reason to interfere with the recommendation.
Whether or not it would be an unreasonable burden on the reviewer to have the reasons translated, the rules of natural justice do not require that the independent merits reviewer do so.
None of the matters raised at the hearing before me casts any doubt on the correctness of the federal magistrate’s conclusions. If the applicant was trying to advance any additional basis for challenging the decisions of the reviewer, he would need the leave of the Court to do so. Leave would not be forthcoming unless the Court considered it expedient in the interests of justice for the new point to be raised: SLMB at [12]. The applicant said nothing to suggest that the Court would grant him leave. Any failure by the applicant to understand his Honour’s reasons does not involve a denial of natural justice. The applicant did not contend that his capacity to present his case to the Court or to understand the arguments put against him was in any way affected by the lack of or problem with an interpreter or any problem making himself understood or in understanding anything the federal magistrate may have said to him during submissions.
The application should therefore be dismissed. The applicant should pay the Minister’s costs.
I certify that the preceding thirty-two (32) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 8 May 2013
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