WZAOV v Minister for Immigration - [2013] FMCA 9

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOV v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 9

MIGRATION – Judicial review – independent merits review – whether well-founded fear of persecution – whether denial of procedural fairness by failing to put provisional conclusion – whether conclusions not based on findings or inferences of fact supported on logical grounds – whether conclusions irrational or illogical – whether clear or coherent question of law for the determination of citizenship enunciated – whether relevant material ignored in relation to current position of Kurds in Iran – whether non-Iranian allowed to re-enter Iran – whether distinct integer of claim concerning actual or imputed political opinion considered.

Migration Act 1958 (Cth), ss.36(2), 46A, 91R, 195A, 476

Abebe v The Commonwealth of Australia & Anor (1999) 197 CLR 510; [1999] HCA 14
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1997) 47 FCR 576
Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30
Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41
Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22

Applicant:

WZAOV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

PEG 193 of 2011

Judgment of:

Lucev FM

Hearing date:

17 August 2012

Date of Last Submission:

17 August 2012

Delivered at:

Perth

Delivered on:

8 February 2013

REPRESENTATION

Counsel for the Applicant:

Mr R Hooker (pro bono)

Counsel for the Respondents:

Mr P Macliver

Solicitors for the Respondents:

Australian Government Solicitor

DECLARATION AND ORDERS

The Court declares that the second respondent, in his capacity as Independent Merits Reviewer, did not make his recommendation in accordance with the law by reason of his failure to deal with the applicant’s claim alleging a well founded fear of persecution by reason of the applicant’s imputed political opinion as a Faili Kurd.

AND THE COURT ORDERS:

That the first respondent, whether by himself or by his servants, officers, delegates or agents, be restrained from relying upon the second respondent’s recommendation of 20 June 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 193 of 2011

WZAOV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under s.476 of the Migration Act 1958 (Cth)[1] for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCA 9
Decision Date: 8 February 2013

CaseChat Overview and Summary

This case involves an application by WZAOV for a declaration and injunction in relation to a decision of Christopher Keher, in his capacity as an independent merits reviewer, who found that WZAOV did not meet the criterion for a protection visa under the Migration Act 1958 (Cth) and recommended that WZAOV not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees. The applicant, a Faili Kurd from Iran, claimed a well-founded fear of persecution by reason of his imputed political opinion as a Faili Kurd. The court considered two grounds of review: whether the IMR denied the applicant procedural fairness and whether the IMR failed to consider the distinct integer of the applicant's claims concerning actual or imputed political opinion.

The court found that ground 1 was not made out, as the IMR sufficiently put to the applicant the issues of his Iranian citizenship and the basis for his detention by the Basij in 2005. The court also found that the IMR's conclusions were not irrational or illogical and that the IMR did not ignore relevant country information. However, the court found that ground 2 was made out, as the IMR did not properly consider the distinct integer of the applicant's claims concerning actual or imputed political opinion. The IMR failed to address whether the applicant had a well-founded fear of persecution based on a real risk of serious harm in the reasonably foreseeable future by reason of the applicant's imputed political opinion as a Faili Kurd.

The court declared that the IMR did not make his recommendation in accordance with the law and ordered that the Minister and others associated with the Minister be restrained from acting upon the IMR Recommendation. The court will hear the parties as to costs.

Orders