WZAPJ v Minister for Immigration
[2012] FMCA 1202
•13 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAPJ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1202 |
| MIGRATION – Irregular maritime arrival – application for protection visa – Palestinian – whether legal errors can be identified in IMR report. |
| Migration Act 1958 (Cth), ss.36, 91r & 476 1951 Convention relating to the Status of Refugees and its 1967 Protocol |
| Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 |
| Applicant: | WZAPJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 249 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 7 August 2012 |
| Date of Last Submission: | 7 August 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 13 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hooker |
| Solicitors for the Applicant: | Legal Aid WA |
| Counsel for the Respondent: | Mr Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application filed on 9 September 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 249 of 2011
| WZAPJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is an Irregular Maritime Arrival who arrived in Australian waters on 30 August 2010. He made his request for a Refugee Status Assessment (“RSA”) on 3 October 2010. The RSA recommended he not be recognised as a person to whom Australia owed protection obligations. He requested an Independent Merits Review (“the IMR”) of that assessment on 18 January 2011. On 1 August 2011 the reviewer made a recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.
This is an application pursuant to s.476(1) of the Migration Act 1958 (“the Act”) seeking orders by way of judicial review arising out of the recommendations made by an Independent Merits Reviewer (“the reviewer”) to the Minister that Australia should not be regarded as owing the applicant protection obligations pursuant to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
The application seeks the appropriate form of relief in that it seeks a declaration that the recommendation of the reviewer was not made in accordance with law, and it seeks an injunction restraining the Minister from relying upon it.
I had occasion to examine the nature of this Court’s jurisdiction in relation to such matters following the decision of the High Court in Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41 and the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26. My consideration of the position that this Court was left in as a result of those decisions is to be found in DZABS v Minister for Immigration & Anor (2012) 261 FLR 447.
It is the posited future reliance by the Minister upon the reviewer’s recommendation, which is the migration decision, that is the focus of the exercise of the Court’s jurisdiction in such matters. Prior to SZQDZ, cases such as the decision of Smith FM in Alami v Minister for Immigration & Anor [2011] FMCA 623 were good law in that the reviewer’s decisions themselves were regarded as migration decisions as that cognate term is used in the Act, but SZQDZ determined that in fact the reviewer’s decision is not only not a decision under the Act; it is not a decision at all.
In any event, SZQDZ made plain, as I indicated, that it is the posited future reliance by the Minister upon the report which grounds the jurisdiction of the Court. For reasons that I also gave in DZABS, I regarded myself as being obliged to identify jurisdictional error before allowing the review in such cases.
However, on 7 June 2012 Barker J delivered his judgment in SZQGA v Minister for Immigration & Citizenship [2012] FCA 593.
I discussed the consequences of that decision for the exercise of this Court’s jurisdiction in matters such as the matter before me in WZAPH v Minister for Immigration & Anor [2012] FMCA 773. I came to this conclusion at [48]:
In my view his Honour’s decision is authority for the proposition that in a review pursuant to s.476(1) relating to an IMR decision this Court does not need to identify a jurisdictional error in order to allow the review.
At [49] of the same decision I respectfully express my reservations in relation to that conclusion, but at [50] and [51] noted my duty to follow that decision, given that his Honour was sitting as a Court of Appeal from this Court, even if there is some degree of controversy attending whether I am bound by the doctrine of stare decisis in relation to decisions of single judges of the Federal Court where they are not sitting as a Court of Appeal.
In any event, as a result of those matters, the applicant in this case before me will be entitled to the relief that he seeks if he establishes legal error associated with the reliance upon the recommendation, whether that legal error is an error indicative of an excess or want of jurisdiction or not. The applicant will also be entitled to the relief claimed if he establishes that he was not accorded procedural fairness. So I will deal with the grounds he relies upon on the basis of the identification of legal error or a denial of procedural fairness as being sufficient to allow the review.
I proceed in this way notwithstanding that the Full Court of the Federal Court in MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99, a decision which was delivered on 11 July 2012 and therefore after Barker J’s decision of SZQGA, continued to express the task of review in terms of identification of jurisdictional error (see [19] to [25] inclusive of the Full Court’s decision).
Of course, the principles relating to the identification of jurisdictional error identified in cases such as Craig v The State of South Australia [1995] HCA 58 will continue to be of relevance in determining whether reviews of this kind will be allowed.
The applicant claimed to be and was accepted by the reviewer to be a stateless Palestinian. He was 26 years old at the time of the review. He was born in Gaza. He left Gaza on a Palestinian Authority document in 2010.
His mother died in 2008 of natural causes. His father was killed by an Israeli sniper while on his way to work in 1992. He has two brothers, both of whom were detained by Israeli forces in 2007 when they were among a group throwing rocks at the Israeli forces. He does not know what has happened to his brothers and has not seen them since.
In 2008 he was encouraged by a person known to him as Abu Moussab to join an organisation that Moussab belonged to which the applicant took to be an Islamist extremist organisation. He said that Moussab visited him more than five times up until shortly before he left Gaza in June 2010, each time accompanied by two companions whom the applicant took to be his bodyguards. He told Moussab he did not want to join his organisation. He found life in Gaza very difficult. He feared persecution by the Israeli and by members of the Palestinian extremist groups in Gaza. The full range of his claims for refugee status are set forth at [21] of the Findings and Reasons of the reviewer as follows:
The claimant claims refugee status on the basis that he fears harm and discrimination as a Stateless person who is fearful of being returned to Gaza in the Occupied Palestinian Territories (OPT) where he would face persecution at the hands of the Israeli forces occupying Gaza and at the hands of extremist Salafi-Jihadi groups active in the Gaza strip on account of his nationality as a Palestinian; his religious beliefs as a moderate Sunni Muslim; his membership of particular social groups namely young Palestinian males, member of the family of a martyr (shahid), failed asylum seekers returning from a Western country; his imputed political opinion of being supportive of the Israelis because he has refused to fight against them; and of being seen by the current Israeli forces as being opposed to their occupation of Gaza because he is a Palestinian with brothers in administrative detention.
He provided a statement to the reviewer with the assistance of a legal adviser. Submissions were made by that legal adviser, both oral and documentary. The reviewer had regard to a quantity of country information. Of course, the applicant was interviewed for the purposes of the review.
The reviewer was not satisfied that Australia owed the applicant protection obligations. He said at [41]:
Overall, based on the information available to the Reviewer, including the available evidence about his experiences, I am not satisfied in the circumstances of this case that the claimant would suffer persecution at the hands of the Israeli authorities, the Palestinian groups and their supporters on account of either cumulatively or separately his nationality as a Palestinian, his religious beliefs as a moderate Sunni Muslim, his membership of particular groups namely, young Palestinian males, member of the family of a martyr (shahid), failed asylum seekers returning from a Western country, and his imputed political opinion of being supportive of the Israelis because he has refused to fight against them and of being seen by the current Israeli forces as being opposed to their occupation of Gaza because he is a Palestinian with brothers in administrative detention should he return to Gaza now or in the reasonably foreseeable future.
The applicant promotes five grounds of review, one of which was the subject of the grant of leave at the hearing before me on 7 August 2012.
Ground 1 alleges a failure to address the totality of the applicant’s claims. It can readily be accepted that a failure to consider a claim is a failure to exercise the jurisdiction of review and can also be categorised as a failure to accord procedural fairness. Each of the integers of the claim must be considered.
What the applicant says was overlooked was the applicant’s fear of persecution on account of his membership of a particular social group namely his being a member of the family of a martyr (or a “shahid” to use the Muslim term). The claim for refugee status on this basis is to be found clearly articulated in the submissions of the applicant’s migration agent. He is a member of such a group because of the death at Israeli hands of his father and, possibly, on account of the treatment of his brothers by the Israelis.
I should note at this point that the reviewer did not have difficulties with the truthfulness of the applicant’s account of his experiences.
The applicant says that the reviewer’s treatment of this claim can be contrasted with his treatment of the other claims of his refugee status in that it was not addressed specifically.
He says that the reviewer did not ask himself whether the members of the family of a martyr constituted a particular social group of which he was a member and did not consider whether the applicant as a member of that group had a well founded fear of persecution, contrary to his obligations as explicated by the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. I do not think this criticism can be sustained. At [40] of the reasons the reviewer says:
The Reviewer notes the confidential nature of this matter. As well, there is not authoritative evidence that young Palestinian males as a particular social group are being persecuted in Gaza and again although family members of the claimant have suffered at the hands of the Israelis there is no evidence that the family as such has been targeted by the Israelis or others for a Convention reason and indeed, the claimant was able to live in Gaza for some years after the detention of his brothers without the Israelis threatening or harassing him. (my emphasis)
The reference to family members suffering at the hands of the Israelis picks up the identification of the social group described as family of a martyr already noted as being part of the applicant’s claim at [10] and [21]. The passage indicates the reviewer’s tacit acceptance of the existence of that social group but he is not satisfied that the applicant’s membership of such a family gives rise to a fear of persecution. Critical to that determination is the applicant’s ability to live in Gaza for many years following his father’s death and for some years following the detention of his brothers without himself experiencing threats or harassment or the specific attention of the Israelis. The problem for the applicant was not whether the social group existed but whether his membership of it would give rise to the requisite fear of persecution. True it is that the reviewer could have in a more explicit way identified the existence of the group and only then asked himself whether the applicant’s membership of the group gave rise to a well founded fear of persecution. But the reviewer did ask himself that question in any event and his answer is the reason for the applicant’s failure on that ground. The failure to explicitly identify the social group first has made no difference to the outcome of the reviewer’s assessment as to whether the applicant has been persecuted on account of the applicant’s membership of it.
The membership of the family of a martyr is again identified as a basis for the applicant’s claims at [41]. As with the other categories of claims, it was rejected.
Ground 2 focuses upon the expression in [41] that the reviewer was
… not satisfied in the circumstances of this case that the claimant would suffer persecution at the hands of the Israeli authorities, the Palestinian groups and their supporters on account of either cumulatively or separately …
The reviewer then goes on to list the various categories of claim. The applicant says that the requisite test was one which involved the reviewer asking whether the applicant had a well founded fear of persecution. This is the result of s.36(2) of the Act and the adoption of the test referred to Article 1A(2) of the Refugees Convention. A fear will be well founded if there is a real chance that the applicant would face persecution. The chance may be below 50 per cent and it may be that someone who has a well founded fear of persecution may not in fact ultimately suffer persecution.
It is said that to ask whether the applicant would suffer persecution is to ask the wrong question altogether.
If that was in fact the question asked by the reviewer then there would be substance to this ground but at [24], [31] and [32] of the reasons the reviewer uses the “real chance” description of the test. [31] in particular contains a specific explication of the test and includes a reference to the key High Court authority on the topic which is Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 although the citation for the case is not given and the case is only referred to by name.
The need to be satisfied that the applicant has a well founded fear of persecution is then specifically articulated again at [38] and [39].
In these circumstances the expression used at [41] can reasonably be seen as a shorthand expression for what has been specifically explicated elsewhere in the reasons.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 the High Court refer to the earlier Federal Court decision of Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 and the oft-cited dicta from that case that the reasons given by an administrative decision maker that are subject to a review are not to be construed “finely with an eye keenly attuned to the perception of error” and go on to say :
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
These remarks are apposite to the evaluation of this ground. I am not persuaded that the shorthand reference to the suffering of persecution at the end of the review constitutes a legal error.
Ground 3 is a contention that the reviewer did not give proper consideration to the significance of the general state of conflict in Gaza between Israelis and Palestinians and whether it supported the overall account given by the applicant of a likelihood of being subjected to physical harm in Gaza for a Convention based reason.
The level of violence and conflict and control in the area had been noted in the reviewer’s account of the country information but at [39] the reviewer said this:
What is important to understand, is that irrespective of the instability, discrimination and or (sic) violence that may exist in the community a Reviewer must determine whether a claimant has a well founded fear of persecution for one of the reasons provided in the Refugees Convention.
It is at this juncture of the reasons that the applicant says that the reviewer was obliged to give real and genuine consideration as to whether the general conditions extant in Gaza assisted him in determining the likelihood of the applicant being at risk of Convention related persecution or harm.
However, I do not think this criticism can be sustained. It was not that the generally unstable and violent conditions in Gaza were not addressed; it was that the reviewer did not consider those matters to amount to a ground for well founded fear of persecution for a Convention reason, or to assist in making out that ground.
At [38] the reviewer says
Indeed, given the circumstances of this case, the claimant may be affected in part by the incidents of conflict and disturbances and some discrimination and hardships, but this does not amount separately or cumulatively to a well founded fear of persecution for a Convention reason. It is accepted that the Convention definition does not generally encompass those fleeing generalized violence, internal turmoil or civil war. (see MIMA v Haji Ibrahim (2000) 204 CLR 1 at 141)
This issue was always going to be near the heart of any evaluation of the applicant’s claims. It is well known that Gaza has been for many years and continues to be a very dangerous environment, often one in which actual war takes place. The reviewer could not fail to note this circumstance and he did so but properly drew the distinction between generalised dangers arising from civil commotion and those fears that relate to Convention related persecution. I appreciate that as the argument was put to me it was expressed in terms of a failure to give real and meaningful consideration to these general circumstances in Gaza as distinct from token or formal references to them and I have read the reasons with that distinction in mind but I am unable to identify in the way that the reviewer dealt with this issue any legal error.
The fourth ground relates to the way in which the reviewer dealt with the question of serious harm as that expression is used in s.91R of the Act. The written submissions of the applicant’s legal adviser contained a detailed account of the various forms of discrimination experienced by the applicant at the hands of Israeli forces as a Palestinian male in Gaza. His conclusions in relation to discrimination are to be found at [22] and [24].
[22] The Reviewer acknowledges that many Palestinians in Gaza have been generally oppressed, marginalized and discriminated against in the allocation of services, goods and materials and the like by the Israeli government and authorities.
[24] As well the Reviewer does not accept that services were systematically denied to the claimant and his family because of his nationality as a Palestinian in a way that would cause them to be unable to live or subsist. Although instances of discrimination may have occurred from time to time, it does not appear that there was a policy of active discrimination against him as a Palestinian. Similarly he was able to work and find employment as indicated by him. The Reviewer in the circumstances does not accept that the claimant as a Palestinian or as a moderate Sunni Muslim faced or will in the foreseeable future face a real chance of general social discrimination amounting to persecution in Gaza based on his race or ethnicity or religious beliefs. Indeed, there was no evidence before the Reviewer that he feared persecution because of those beliefs although he was approached by Abu who had more extremist religious beliefs.
The complaint is that the conclusions indicate that the applicant has given consideration only to those specific instances of serious harm listed at s.91R(2) when that list is described by the legislation as being non-exhaustive. It is said that what the reviewer ought to have done is to have given full consideration to the very serious instances of harm constituted by the experiences of the applicant’s brothers, the murder of his father and the restrictions on his freedom of movement and that this amounts to the asking of a wrong question and to a significant error of law. Reliance is placed upon the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] – [83].
I regard this complaint as falling into the same category of over-zealous scrutiny of the reasons of an administrative decision-maker discussed at [32] above. All of the serious matters relating to persecution and discrimination are given specific attention at various parts of the reasons, namely the death of the father, the detention of the brothers, the restrictions on freedom of movement and other consequences of the Israeli blockade. There is no basis for assuming that these matters were overlooked when the reviewer was giving consideration to the applicant’s claims of discrimination. Indeed, the reviewer says at [23]
However, there was no evidence before the reviewer to support the assertion that the social and other discrimination referred to by the claimant or by his adviser is so severe as to amount to persecution … (my emphasis)
This ground is augmented by a specific contention that at the point of discussion of the operation of s.91R and the nature of serious harm there ought to have been a careful consideration of the murder by the Israelis forces of the applicant’s father. But the reviewer had already recognised this integer of the applicant’s claim. I have already referred to the reviewer having given consideration to the applicant’s membership of a family of a martyr. This claim could only have been considered if the reviewer had accepted that the applicant’s father had been murdered as he claimed. There is no specific finding by the reviewer as to the murder of the father by Israeli forces. It had happened in 1992. The membership of such a family is closely related to the detention and effective disappearance of the applicant’s brothers in 2007. I do not consider that the reviewer fell into legal error by failing to make specific reference to the murder of the father in 1992 in the context of the consideration by him of whether the applicant would suffer serious harm as described by s.91R of the Act and this ground is not made out.
Ground 5 says that legal error is manifest in the finding at [40] by the reviewer that
there is no authoritative evidence that young Palestinian males as a particular social group are being persecuted in Gaza.
The applicant points to the existence of such evidence in the form of the country information provided by the applicant’s advisers and set forth at CB117 and CB121.
It is said that an incorrect finding that there was no evidence on a topic amounts to jurisdictional error and the authority relied upon for that proposition was Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] to [10].
That legal proposition is not controversial. The issue is whether to describe evidence as not authoritative is the same as saying there is no evidence at all. I have considered the two items of country information upon which specific reliance is made in support of this ground. The authors of the material relied upon are a journalist for the Guardian newspaper, a Ms Harriett Sherwood, in one case, and someone (or some institution) described as B’Tselem who posted an article on his or their internet site in May 2010 in the other.
It is for the reviewer to determine whether, amongst all of the country information provided to him and considered by him, there is to material to be relied upon as authoritative or if there is not. His categorisation of these items as “not authoritative” is one that was properly within his entitlement to make. The evidence, such as it is, is recognised as existing but the reviewer comes to a conclusion that he was not prepared to rely upon it. Saying it was “not authoritative” is to be taken as his account as to why he would not rely upon it. Even if it had been accepted as authoritative it would have added very little to what the reviewer had already accepted as the general circumstances of Palestinians within the Gaza strip as a result of the Israeli blockade and would not have made any difference to the outcome of the review.
The application will be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
Date: 13 December 2012
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