WZAOM v Minister for Immigration
[2012] FMCA 993
•25 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAOM v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 993 |
| MIGRATION – Refugee claims of offshore entry person arriving in 2009 – judicial review of IMR report – no arguable ground of review – protracted administrative and court proceedings – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth), r.12.03 Migration Act 1958 (Cth), ss.36(2), 46A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319, [2010] HCA 41 WZAOQ & WZAOR v Minister for Immigration & Anor [2011] FMCA 869 |
| Applicant: | WZAOM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | WENDY BODDISON, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 136 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 25 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PEG 136 of 2011
| WZAOM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| WENDY BODDISON, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is another unfortunate case concerning an offshore entry person, which has come into my docket after a protracted process of administrative decision‑making and judicial management of the proceedings. The applicant is a national of Vietnam, who arrived without any travel and identity documents on an intercepted boat, which was taken to Christmas Island in October 2009. He then presented claims for being permitted to make an onshore application for a protection visa.
Under administrative procedures followed by the Minister at that time, the Minister obtained assessments of the applicant’s ability to meet criteria under s.36(2), so as to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether the applicant would be allowed to make an application for an onshore protection visa. The applicant’s RSA request was submitted on 31 December 2009. He was interviewed on 4 January 2010, and a determination was made by an officer of the Department on 19 April 2010 that the applicant did not meet the definition of refugee as set out in Article 1A of the Refugees Convention.
The applicant’s initial refugee claims are found in notes of his interview on arrival, and in a statement of claim signed by the applicant and an interpreter, which was prepared with the assistance of a migration agent from Adelaide who had attended to assist the applicant on Christmas Island. Essentially, the RSA statement repeated what the applicant had said on his arrival, which was recorded:
1.Why did you leave your country of nationality (country of residence)?
As a fisherman I earn about 600,000 to 700,000 dong per month (less than $50 AU) and with this money I have to support my elderly parents my families life is very miserable we are a family with martyrs yet we are supposed to have credit with the country yet the government don’t do anything to help the children in the family to help them get work or apprenticeships the government of area where I live treat like us that, that’s why I decided to leave and get a job for myself I left Vietnam to come to A/a to get work. Q – Is this the only reason you left Vietnam? A – No the authorities in other districts create opportunities for children from families with martyrs and help them get jobs in companies or provide them with traineeships or apprenticeships and the authorities also provide those families with land or properties as a sign of gratitude for the sacrifice of their martyr children yet my local government will not do anything for us this is why I’m so upset they should do something for our family my brother No 5 was a martyr and my family is an invalid veteran. The government doesn’t treat families with martyrs well. I have two requests please. 1st request that the president of A/a should reconsider my case in regard to my employment had I had employment in Vietnam I wouldn’t have left my family to go to a foreign country so far from mine to look for employment. 2nd request that the president of A/a should allow me to stay in A/a on humanitarian grounds so that I can help my parents who are getting older and older when I get a job.
The RSA statement repeated the applicant’s concern that he had no future in Vietnam, and not enough income to live on as a fisherman. His statement also said:
I have not been involved in anti government activities but my family were involved in once incident. When I was 20 years of age my father told me a story. About two hours walk from our town there was a jungle area where my family acquired a piece of land for 4.5 grams of gold so that we could keep prawns to sell and buy rice for our family. My parents worked at the prawn farm for about 6 months but then the government officials came and said the block of land (and otherwise owned by neighbours) were part of the planned zone where the Government could have their own prawn farms. So the Government reclaimed the land and brought in machinery and expanded it but did not compensate my father or our neighbours in away way. My father and our neighbours were advised that if they reacted adversely and did not obey the official verdict they would be jailed. He wrote an official letter of appeal to the authorities in Hanoi. He expected the matter to be dealt with fairly but until now he has had no response.
The RSA statement also claimed that the applicant would be at risk of harm, arising from the circumstances of his departure from Vietnam:
If I am forced to return to Vietnam it could be the equivalent of killing my life. For two years I have “lost” my Vietnamese citizenship and been the organiser of an illegal departure from Vietnam. I have not paid my annuities and therefore the authorities will have probably cancelled all my citizenship papers. When I was in Indonesia I learnt that the Vietnamese police were searching for me because I had organised the trip and the crew (me and my nephew) could be subject to charges of serious crime. If I return the police will not leave me alone and will ask me to report them regularly and I fear I would be jailed if I was returned to Vietnam.
The Vietnamese Government has discriminated against me and my family and oppressed and persecuted us by not providing any form of assistance for employment, welfare, housing etc, reclaiming our land without any compensation and depriving us from any means of income, despite the fact our family has provided meritous services for the country. For this reason I believe we are genuine refugees.
The applicant was again interviewed by the RSA assessor, on 4 January 2010, at which he explained the above concerns. According to the assessor, he also raised a new claim:
Towards the end of his RSA interview, the claimant also asserted that in 2005, he had been involved in a demonstration against government decisions to reclaim his and the homes of other families in his local area. He claimed that he and his cousin, under duress, signed a report confessing to have planned and led the demonstration and for this they served 3 months in a re‑education camp. He claimed that with this prior record and being an organiser of an illegal departure, he will be arrested and will face penalties if returned to Vietnam.
The RSA assessor’s findings addressed all of the claims before him. He did not accept that the applicant had lost his Vietnamese nationality through absence. He did not think that the applicant’s fear of discrimination by district authorities was Convention‑related, and did not think that the applicant’s inability to get a job and the other events suffered by him and his family gave him the protection of the Refugees Convention.
The applicant was then assisted to apply for independent merits review, under the same procedures established by the Minister for the purposes of s.46A. The IMR was performed by Mr Hardy, who interviewed the applicant on 21 September 2010 with the assistance of an interpreter and in the presence of his migration adviser.
The adviser presented written submissions to Mr Hardy, which built a claim of persecution for actual or perceived political opinions upon the applicant’s claims of being detained in 2005 after participating in a demonstration. All of the applicant’s concerns about deprivations in his life in Vietnam and those of his family were then attributed to persecution for perceived political opinion. The applicant’s agent also elaborated claims for protection based on membership of variously formulated particular social groups.
These claims, and the applicant’s evidence bearing on them, were thoroughly examined by Mr Hardy in a report dated 27 October 2010. For various reasons which it is unnecessary to detail, Mr Hardy concluded that the embellishments of the applicant’s case for refugee status after his initial interview should not be accepted as true, and that neither the circumstances he had originally put forward, nor the circumstances of his illegal departure from Vietnam, came within the protection of the Refugees Convention as adopted by s.36(2) of the Migration Act. Mr Hardy therefore made a finding in the same terms as the RSA assessor, and said: “I do not recommend that this claimant be recognised as a refugee”.
Although Mr Hardy’s reasoning did not manifestly depart from any established Australian authorities on the statutory criterion for a protection visa under s.36(2) of the Migration Act, the Minister’s Department took the view that it might be affected by one or more of the errors identified by the High Court in the judgment of Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319, [2010] HCA 41, which was delivered after Mr Hardy’s report was made. The applicant was therefore offered, and accepted, an opportunity to have his case reviewed afresh by a new IMR reviewer.
Ms Boddison accepted that task. She interviewed the applicant on 11 March 2011 at Christmas Island, where the applicant had remained, with the assistance of an interpreter and the applicant’s migration agent. She then wrote a new report dated 30 April 2011, which made the following recommendation:
RECOMMENDATION OF REVIEWER:
I find that the claimant, [the applicant], does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958. Accordingly, I recommend that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (‘the Refugees Convention’).
Her report reads, in my opinion, as a thorough and clearly expressed examination of all of the evidence presented by the applicant throughout the whole process at his various interviews and in writing, and of the submissions, written and oral, of his migration agent. She noted how the applicant’s explanations of why he sought protection in Australia had changed over the period of his detention on Christmas Island. She considered possible innocent reasons for this, including the effects of protracted incarceration. However, after closely examining how the applicant had presented his claims over time, and the intrinsic plausibility of his claims, she did not accept that either the applicant or his family had suffered harms by reasons of perceived political opinion.
She did not accept that the applicant had ever been denied a household residence or citizen ID card in Vietnam, nor that the applicant was a member of a particular social group of undocumented Vietnamese citizens.
In relation to his claims of mistreatment by authorities, she accepted only that the applicant had been fined in 2005 because he stayed out past a curfew, and she did not think that this was persecution within the meaning of the Convention or was imposed for a Convention reason.
Ms Boddison was unpersuaded that the applicant had participated in protests in 2005, nor that the events which were said to have caused them had happened. She also rejected a new claim that was first made in interview with her, that the applicant had been again arrested in 2007 because he did not have relevant documentation. She said: “there is no indication that the failure of the government to assist the claimant and his family was for reasons of any Convention ground rather than because the authorities did not have the means and resources”.
In relation to claims of appropriation of family land, she accepted only that some rural land with a prawn pond had been confiscated in 2004. She then said:
85.… Although the reviewer accepts that this occurred there is no indication, and it has not been submitted, that it occurred for reasons of any Convention ground. It was not due to the claimant’s family’s race, nationality, religious beliefs, political opinions or because of their membership of a particular social group.
86.The reviewer finds that the claimant and his family have not been persecuted in the past for reasons of any Convention ground. In particular he has not been persecuted on account of his political opinions’ real or imputed or his membership of particular social groups, as submitted.
When considering the applicant’s illegal departure from Vietnam, Ms Boddison did not consider there was any evidence that the applicant had been an organiser of the boat on which he had travelled, and said: “there appears to be no reason why he would be regarded as an organiser”. She said:
89.Given the claimant is not an organiser of illegal departures the penalty he is likely to receive is questioning and monitoring which would not amount to serious harm and persecution within the meaning of the Convention.
…
94.There is no evidence before the reviewer that would suggest that illegal departure laws are selectively enforced for a Convention reason or that the claimant would receive an unduly harsh penalty for a Convention reason. There is no real chance that the claimant would be arrested, detained and tortured or would be “imprisoned ending in death”. The reviewer finds that the punishment the claimant may receive on his return to Vietnam for having illegally departed, firstly would not amount to serious harm and secondly is the enforcement of a law of general application and not persecution within the meaning of the Convention.
Ms Boddison concluded:
98.The reviewer has considered the claimant’s claims cumulatively. That is whether as a person who departed Vietnam illegally, whose Ho Khau has probably been cancelled and whose family’s land has been confiscated in the past, faces a real chance of persecution in the reasonable foreseeable future for a Convention reason. The reviewer finds that even when his claims are assessed cumulatively the claimant does not have a well‑founded fear of persecution within the meaning of the Convention and that he is not a refugee and Australia does not owe him protection obligations.
The circumstances in which Ms Boddison’s report was given to the applicant are obscure. However, there is in the Court Book a letter dated 4 May 2011 addressed to the applicant, notifying him of the report and attaching a copy. There is nothing in the Court Book to indicate that the Department assisted the applicant in any manner to understand the contents of the report, although his case worker appears to have assisted him to make an application to the Court.
On 3 June 2011, the Perth Registry of the Court received an application for judicial review of what was said to be a decision of “Regina Szakacs” dated “4/5/2011”. I think this is to be understood as a reference to the letter of notification of Ms Boddison’s report. The application is an uncorrected annotated version of the published Court form, without revealing any legal input, nor any understanding of the contents of Ms Boddison’s report. Under the heading “Grounds of application”, it says only:
I asked for the Vietnamese translation of the rejection letter, but it was not provided. Not knowing why I was rejected, I could not prepare for the review. This is a lack of natural justice.
The application reached the Perth registry under cover of a letter from Legal Aid Western Australia, which said:
…
However, several clients have completed their application forms with assistance from non‑legally trained advocates and general legal information provided by LAWA.
…
I attach copies of application forms that have been sent to us by DIAC Case Managers at Christmas Island via email. …
If possible, LAWA would like to work with the Court in finding pro bono lawyers (or representation under Order 80) can help these asylum‑seekers as their cases progress. …
It is not clear to me that the application was in a proper form for acceptance by the registry, but it was accepted, and was treated as initiating the present proceedings which have now been on foot for more than sixteen months.
Unfortunately, the above ground remains the only contended ground of review now before me, since nothing subsequently was filed by or on behalf of the applicant to improve his application. In particular, nothing has been filed to show that the applicant has any argument of merit for obtaining relief by way of judicial review bearing upon Ms Boddison’s report or a possible future reliance on it by the Minister and his Department.
The matter was first case managed by Lucev FM from Perth, with the applicant remaining on Christmas Island. In July 2011, the Court was advised that the applicant had been moved to Darwin Immigration Detention Centre. The matter remained in the Perth registry.
The file suggests that before this happened, a Perth barrister had accepted a reference for de bono assistance under r.12.03 of the Federal Magistrates Court Rules 2001 (Cth). There is some evidence of the barrister attempting to speak to the applicant, but it is obscure whether the barrister ever read the RSA and IMR assessments, and advised the applicant about their contents. On 2 October 2011, there is a file note indicating that the applicant told the registry that the Perth barrister was no longer acting for him, and he sought another reference for assistance. By November 2011, the Court’s file indicates that a Northern Territory solicitor had accepted the task of providing legal assistance to the applicant, and she filed a formal address for service, thereby becoming the solicitor for the applicant on the record on 16 November 2011.
However, Lucev FM’s initial direction for the filing of an amended application was not complied with, nor was a further direction to file an amended application which was made on 22 November 2011, at a directions hearing at which the Northern Territory solicitor attended. His Honour appointed a hearing in Darwin on 2 April 2012, which was then moved to 18 April 2012, before Simpson FM. However, the applicant’s solicitor filed no documents except a notice of withdrawal on 23 February 2012, for reasons which are not explained on the file.
The Minister’s solicitors prepared for the appointed hearing by filing a written submission, in which they noted the absence of any arguable ground of judicial review, but attempted to give some meaning to what had been written on the application form.
Two days before the appointed hearing, Simpson FM received an application by the solicitor for the Minister to vacate the hearing and to adjourn it indefinitely, because the Minister intended to transfer the applicant the following day to Brisbane to receive medical treatment for symptoms of “a moderately severe depressive illness of 3 – 4 four months duration”. The Court was told that such orders would be made with the agreement of the applicant. His Honour then made the orders, leaving the matter without any future listing.
The matter then remained in Simpson FM’s docket until his Honour made an order in chambers on 3 August 2012, transferring the matter to Sydney. The circumstances in which that order was made are not shown on the file, but I assume his Honour had been informed by the Minister that the applicant had been moved to Sydney. No evidence has been presented by the Minister or the applicant about the applicant’s current state of health.
For whatever reason, the matter then reached my docket, and a directions hearing was held on 28 August 2012. The applicant was produced by the Minister from detention at Villawood. He did not have a legal representative, but was receiving some support from a lay helper. I made a further direction allowing him to file an amended application no later than 25 September 2012, and fixed the matter for hearing today.
It appears that further legal assistance was not found for the applicant, and he has appeared today unrepresented. He was released from detention into the community in Sydney last week. Reading the report of Ms Boddison, I can perhaps understand why the applicant’s original legal advisor in Perth, and his subsequent advisor in Darwin, may have ceased to accept instructions to act for him without even filing an amended application, and why no legal assistance was found in Sydney.
For whatever reason, the fact is that the applicant’s application for judicial review has never shown an arguable case for the relief it seeks, and I am unable to discern one today. Nor, understandably, has the applicant been able to appreciate the legal context in which his application comes before me today.
I used the hearing to endeavour to communicate to the applicant in simple language why he has not been found to qualify for a protection visa, and the role of the Court in relation to such decisions. I do not think the applicant understands what has been said, but frankly I do not think anyone else could have explained these things more clearly.
In his statements to the Court, the applicant maintained that he is a genuine refugee, and not an economic refugee, and that this explains why he has spent all this time seeking refuge in Australia.
However, on my reading of Ms Boddison’s report and the file of papers indicating how the matter reached her consideration, it reveals no departure from principles of procedural fairness, nor any error of law which would support the grant of relief of the type which was found to be available by the High Court in Plaintiff M61.
The Minister’s solicitors’ submission attempted to give meaning to the ground of review written in the applicant’s application, by referring me to a judgment of Raphael FM in WZAOQ & WZAOR v Minister for Immigration & Anor [2011] FMCA 869 at [3] and [4]. In that case, a Vietnamese national who arrived in Australia by boat in 2009 had been represented by a barrister before his Honour in Perth, who presented three grounds of review. His Honour said in relation to the first ground:
3.The decisions in respect of which judicial review is being sought were the second decisions by an IMR, the first having been made prior to the High Court decision in M61. The first ground of application is that the failure to provide the applicant father with a Vietnamese translation of the first IMR report prevented him from preparing for the second review and that constituted failure to provide him with natural justice. This is not an argument that I can accept because I am firm in my view that there is no obligation on the part of an administrative decision maker to provide his or her reasons for decision in any language other than English. In this case there is also no suggestion at the time Mr Hardy issued his reasons for decision that there was to be another IMR because his decision was made before the High Court handed down its judgment.
4.So to say that there should have been a translation provided in order to get one ready for another assessment that no one had agreed to make is, to my mind, rather stretching the point. I would add that Australia has accepted its responsibilities under the Refugees Convention and the 1967 Protocol to consider claims and has put in place a regime that those who wash up on the shores of other countries might well envy. The evidence is that this applicant received assistance from qualified migration agents who made representations on his behalf and attended hearings with him. These persons would surely have been in a position to read and understand Mr Hardy’s decision.
It appears from this, that the first ground which was addressed by his Honour was a ground suggesting that there had been a denial of procedural fairness affecting that applicant’s ability to present his case to a second IMR reviewer, by reason of not being provided with a translation of the report of the first IMR reviewer.
This was not how I originally read the ground of review in the present application, since it might appear to complain that Ms Boddison’s second IMR report had not been translated to the applicant. I endeavoured to clarify the ground of review with the applicant today, without success, although he made a somewhat unclear complaint about not being provided with a translation of something.
In any event, assuming that the ground is the same as was raised in WZAOQ, and that there was some evidence that the applicant was not provided with a translation of Mr Hardy’s report at or around the time when he was given the letter of notification of the outcome of that review, I share Raphael FM’s opinion that this could not give rise to a denial of procedural fairness affecting the report of the second IMR reviewer. As in the matter before his Honour, the present applicant was assisted throughout the second review by the same agent who had assisted him during the first review. In the absence of evidence to the contrary, it is much more likely that the contents of Mr Hardy’s report would have been sufficiently explained to him by his agent, and that this then informed the giving of his evidence to Ms Boddison and the submissions made on his part to Ms Boddison. It is, in fact, plain from Ms Boddison’s report that his agent had fully digested the contents of Mr Hardy’s report, when preparing for the interview with Ms Boddison and the submissions she made. This is because she expressly addressed the adverse points made by Mr Hardy (see paragraph 63 of the report). I am therefore not persuaded that there was any unfairness affecting the second IMR report, resulting from any failure by the Department of Immigration to provide a translation of Mr Hardy’s report at the time it was given to the applicant, even assuming that it was under some obligation to do that.
Generally, it appears to me that this applicant has received professional assistance from lawyers and other agencies endeavouring to assist offshore entry persons grappling with the arrangements of the Minister which were in place over the relevant time. It seems to me that he has had at least the same rights and opportunities as any litigant in this Court to have his case prepared and brought to hearing. The time has come, in my opinion, to address its apparent lack of merits by ordering the dismissal of the application.
I shall therefore make that order.
I certify that the preceding forty‑two (42) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 7 November 2012
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