WZAOL v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 367
•18 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAOL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 367 |
| MIGRATION – Independent Merits Review relating to off-shore entry person – adverse report – review sought on sole ground that applicant not provided with translated version of rejection letter and reasons. |
| Migration Act 1958 (Cth), ss. 46A, 476 |
| Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319 WZAOQ & WZAOR v Minister for Immigration [2011] FMCA 869 WZAOP v Minister for Immigration [2012] FMCA 870 SZQBV & Anor v Immigration [2011] FMCA 727 WZAOK v Minister for Immigration & Citizenship & Anor [2012] FMCA 366 |
| Applicant: | WZAOL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | WENDY BODDISON, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 135 of 2011 |
| Judgment of: | Simpson FM |
| Hearing date: | 18 April 2012 |
| Date of Last Submission: | 18 April 2012 |
| Delivered at: | Darwin |
| Delivered on: | 18 April 2012 |
| Reasons Published on: | 8 May 2012 in Adelaide |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First & Second Respondents: | Mr Markus, of counsel |
| Solicitors for the First & Second Respondents: | Australian Government Solicitors |
ORDERS
The Application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of SIX THOUSAND, TWO HUNDRED AND FORTY DOLLARS ($6,240.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
PEG 135 of 2011
| WZAOL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| WENDY BODDISON, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
I have before me an application for judicial review under s 476 of the Migration Act 1958 (Cth) (“the Act”), seeking relief in relation to a decision and recommendation made by the second respondent, an Independent Merits Reviewer (“the second respondent”), on 1 May 2011 that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
This matter was heard by me consecutively with WZAOK v The Minister for Immigration & Citizenship & Anor[1]. The factual background of WZAOL is in all material respects identical to the present case. The legal issues raised are also identical. As the applicants are unrelated and commenced separate actions, I have considered it appropriate to give separate reasons for each action. This explains why the reasons in WZAOK are in similar terms to these reasons.
[1] The reference for the decision is relation to this matter is [2012] FMCA 366.
Background
The statements of background facts that follow are substantially derived from the second respondent’s written submissions.
The applicant is a citizen of Vietnam who left that country on 19 February 2008. He was detained in Indonesia for 17 months before arriving on Christmas Island as an unauthorised boat arrival on 2 October 2009. For the purposes of the Act, he is an offshore entry person and cannot make a valid application for a visa[2].
[2] s.46A of the Act.
The applicant was interviewed by an officer to the Department of Immigration and Citizenship (“the Department”) on 4 October 2009. On 30 December 2009, the applicant lodged a request for a Refugee Status Assessment (“RSA”) and he was interviewed by an officer of the Department on 4 January 2010.
On 19 April 2010, an officer of the Department found that the applicant did not meet the definition of a refugee in the Refugees Convention. The applicant was advised of the RSA outcome on 28 April 2010 and on 30 April 2010 he lodged a request for an Independent Merits Review (“IMR”).
The applicant was interviewed, in the presence of his representative, by an Independent Reviewer, Mr Luke Hardy, on 27 September 2010. On 27 October 2010, Mr Hardy found that the applicant did not meet the definition of a refugee in the Refugees Convention. The applicant was notified of the IMR outcome by letter dated 2 November 2010.
In light on the judgment of the High Court in Plaintiff M61/2010E v The Commonwealth[3] the applicant was offered a fresh IMR by letter dated 5 January 2011. The applicant accepted the offer.
[3] [2010] HCA 41; (2010) 243 CLR 319
On 14 March 2011, the applicant was interviewed by the second respondent at the Christmas Island Immigration Detention Centre, in the presence of his representative and with the assistance of an interpreter. On 1 May 2011, the second respondent recommended that the applicant not be recognised as a person to whom Australia had protection obligations under the Refugees Convention. The applicant was notified of the IMR outcome by a letter dated 4 May 2011 from Ms Regina Szakacs of the Department.
On 3 June 2011 the applicant filed an application in the Perth registry of the Federal Magistrates Court. The application sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Act in respect of a migration decision. The decision was wrongly identified by the applicant as a decision made by Regina Szakacz on 4 May 2011. I have proceeded on the basis that the decision complained of is the decision of the second respondent made on 1 May 2011 and notified to the applicant on 4 May 2011 by a letter from Ms Regina Szakacaz of the Department.
On 14 July 2011 Lucev FM made orders to prepare the application for final hearing. His Honour also listed the matter for a further directions hearing and referred the applicant to the Registrar for pro bono assistance.
On 29 July 2011 the applicant was transferred from Christmas Island to Northern Immigration Detention Centre in Darwin where he has remained.
A notice of address for service was filed on behalf of solicitors for the applicant on 16 November 2011.
On 22 November 2011, Lucev FM listed the application for hearing in Darwin and made further directions to prepare the matter for trial. This included directions providing for the filing of any evidence and any amended application by the applicant, as well as the filing of written legal submissions by the parties.
No amended application, affidavits or written submissions were filed by or on behalf of the applicant. On 23 February 2012, a notice of withdrawal was filed by Robert Welfare Barrister and Solicitor.
The Hearing
The applicant remained unrepresented at the hearing. He did however have the assistance of a Vietnamese interpreter.
The sole ground identified in the application was in the following terms:
“I asked for a Vietnamese translation of the rejection letter, but it was not provided. Not knowing why I was rejected, I could no (sic) prepare for the review. This is a lack of natural justice.”
Notwithstanding the order that he do so, the applicant, not surprisingly, did not provide the Court with an outline of submissions. I invited the applicant to put oral submissions to me in support of the application. As is so often the case with unrepresented litigants, the applicant was unable to greatly assist the Court.
As the written submissions of the second respondent had expressed concerns that the sole ground of application did not make it clear which rejection letter was referred to, I invited the applicant to clarify the matter. He initially informed the Court that he had intended the ground to refer to the rejection letter sent to him on 4 May 2011 (ie the rejection letter in relation to the second IMR) but later said that he had intended the ground to refer to the rejection letter of 2 November 2010 (ie the rejection letter in relation to the first IMR). He informed the Court that there were no other grounds for his application.
The applicant says in his ground that he could not prepare for the second IMR review because he was not provided with a translation of the rejection letter in relation to the first IMR. I consider it fair and reasonable in the circumstances to interpret the sole ground of review as referring not only to the rejection letter but also to the Reviewer’s reasons that accompanied the rejection letter as it is the reasons that provide the explanation for the rejection. The second respondent’s written submissions had proceeded on this basis.
As ordered by Lucev FM, the second respondent had filed and served a written outline of submissions. This was supplemented before me at the hearing with oral submissions.
It was submitted on behalf of the second respondent, that the ground relied upon for the application was without merit and should be rejected as there is no legal obligation on an Independent Merits Reviewer to provide translated versions of the reasons or rejection letter. The applicant should himself obtain the services of an interpreter to read the document to him.
Counsel referred to the recent decisions of Raphael FM in WZAOQ & WZAOR v Minister for Immigration[4] and WZAOP v Minister for Immigration[5]. The relevant facts in WZAOP were said to be identical in all material respects with the facts in the present case. I was referred to the following passages:
“…the difficulty I have with this argument (of the applicant) is that when the first IMR decision was given there was no suggestion that another IMR would occur. The applicant was being given a determination on an administrative matter in Australia and there really is no obligation upon administrative tribunals or courts of this country to provide parties who may not speak English particularly well or even at all with translated copies of their reasons ; SZQBV & Anor v Immigration [2011] FMCA 727 at 28 – 29.”
and
“…There is an additional reason why I do not believe that it is a jurisdictional error to fail to provide a translated copy of the reasons in a case such as this where those reasons may be considered by another IMR, and that is where, as in this case, the applicant herself is assisted by a competent migration agent or solicitor. In the instant case the agents had provided the first IMR with her submissions and attended with the applicant at the second IMR hearing. There could be no doubt (or perhaps, more accurately, there is no evidence to suggest otherwise), that the representative had not read the first IMR report. The applicant does not say that the representative did not discuss this with her and I think it is a reasonable inference to make that this was done.”
[4] [2011] FMCA 869
[5] [2012] FMCA 870
It was submitted on behalf of the second respondent that the applicant in the present case had had the assistance of a qualified Migration Agent provided under the Immigration and Advice Assistance Scheme. The Agent represented the applicant at all stages of the RSA and IMR processes including preparing submissions and evidence on his behalf.
It was further submitted on behalf of the second respondent that an examination of the second respondent’s statement of reasons does not disclose any jurisdictional error as:
·There has been no failure to comply with any requirement of procedural fairness whether arising from the IMR guidelines, the Act or common law;
·No error of law is disclosed in the Reviewers interpretation of the Refugee Convention or the Act; and
·The Reviewer clearly considered and addressed all of the applicants claims and evidence, including the lengthy submissions prepared by the applicants representative.
Conclusions
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. The reasons are to be expressed in the English language. It is the applicant’s responsibility to take whatever steps are necessary to gain a full understanding of the contents of a rejection letter and the reasons that accompany the letter. It would impose an unreasonable burden on an Independent Merits Reviewer to require that his or her reasons be translated before or at the time of being published. In cases where the applicant’s preferred language is a language not commonly spoken in Australia, it may take an inordinate length of time to obtain such a translation. Procedural fairness is not infringed where a rejection letter and reasons in the English language are provided to an applicant whose preferred language is a language other than English. This is so even in a situation where the applicant has no understanding of written or spoken English.
If any criticism is to be made of the failure to translate the rejection letter (and I stress that I do not believe that there should be any such criticism), that it is a criticism that should be directed to the first IMR. The decision in the second IMR is not tainted by anything that did or did not happen in relation to the first IMR. In the event that there is to be a second IMR there is no obligation on the later Independent Merits Reviewer to ensure that the applicant has been provided with a translation or explanation of the contents of the earlier IMR.
It will be seen from the background facts provided earlier in these reasons that some 19 weeks elapsed between the applicant being advised that he was unsuccessful in the first IMR and the hearing for the second IMR. During this time, the applicant obtained the assistance of a migration agent who no doubt was provided with the reasons of the first merits reviewer. It was up to the applicant to fully discuss his case with the agent and to identify the matters that needed to be addressed. It is hard to accept that the applicant’s statement that he did not know why he was unsuccessful in the first IMR or his statement that he did not know how he should prepare for the review.
In my opinion, the applicant’s sole ground of application provides no avenue to have the second respondent’s recommendation set aside. There is simply no jurisdictional error. I agree with Counsel for the second respondent that a close examination of the material provided and submissions put does not indicate any other reason why the recommendation should be interfered with.
On 18 April 2012, I made the orders to be found at the beginning of these reasons. Difficulties with in-court interpretation prevented me from delivering ex-tempore reasons at that time.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Simpson FM
Date: 8 May 2012
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