WZAPX v Minister for Immigration

[2012] FMCA 671

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAPX v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 671

MIGRATION – Judicial review – independent merits review recommendation – no injunction sought – whether application competent – no grounds of review filed – whether legal or procedural error.

Commonwealth of Australia Constitution, s.75(v)
Federal Magistrates Act 1999 (Cth), s.16(1)
Migration Act 1958 (Cth), ss.36(2), 476(1)

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371
Minister for Immigration & Ethnic Affairsv Wu Shan Liang & Ors (1996) 185 CLR 259
Plaintiff M61/2010E vCommonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264
SZONA v Minister for Immigration & Anor [2011] FMCA 99
SZONR v Minister for Immigration & Anor [2011] FMCA 89
SZQDZ & Ors v Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207; [2012] FCAFC 26
SZQGA v Minister for Immigration & Citizenship [2012] FCA 593
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
WZAPN & Ors v Minister for Immigration & Citizenship & Ors (2012) 261 FLR 284; [2012] FMCA 235
Zentai v Honourable Brendan O’Connor & Ors (No.3) (2010) 187 FCR 495; [2010] FCA 691

Applicant: WZAPX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: GINA TOWNEY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: PEG 329 of 2011

Judgment of: Lucev FM

Hearing date: 31 July 2012

Date of Last Submission: 31 July 2012

Delivered at: Perth (by video-link to Melbourne)

Delivered on: 10 August 2012

REPRESENTATION

For the Applicant: In person (by video-link to Melbourne)

Counsel for the First and Second Respondents: Mr T Reilly

Solicitors for the First and Second Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 329 of 2011

WZAPX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

GINA TOWNEY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Application

1. By application dated 4 November 2011 the applicant sought judicial review in respect of a recommendation by the second respondent, the Independent Merits Reviewer.[1] The application seeks a declaration that the IMR Recommendation was not made in accordance with law, by reason of the grounds of the application, but the application contains no grounds. The application does not seek an injunction restraining the Minister from relying upon the IMR Recommendation.

   [1] “IMR Recommendation” and “IMR” respectively.

2. Orders were made on 6 February 2012 permitting the applicant to file and serve:

   a)an amended application by 28 February 2012;

   b)any affidavit evidence by 16 April 2012, and

   c)any legal submissions 14 days prior to hearing.

   The applicant has not filed and served any documents in compliance with the orders, or otherwise.

Background facts

1. The applicant was born on 1 March 1980. He is a citizen of Iran who entered Australia as an unauthorised boat arrival, and was taken to Christmas Island on 14 August 2010.[2]

   [2] Court Book (“CB”) 109.

2. On 15 September 2010 an entry interview[3] was conducted with the applicant.[4] The applicant claimed to fear harm because of his:

   a)ethnicity as an Arab from the Ahwaz region; and

   b)political opinion as a member of the Miaad Party.[5]

   [3] “Entry Interview”.

   [4] CB 1-27.

   [5] CB 46-50.

3. On 18 October 2010 the applicant applied for a Refugee Status Assessment[6] and appointed a migration agent (who was also a legal practitioner) to assist him with the RSA application.[7]

   [6] “RSA”.

   [7] CB 38-39, 50-51, 52-56 and 72.

4. In support of the RSA application, the applicant provided a typed four and a half page written statement which essentially repeated the claims made in his Entry Interview.[8]

   [8] CB 46-51.

5. The applicant was interviewed by an RSA officer on 20 October 2010.[9] At the RSA Interview the applicant:

   a)expanded upon his claims; and

   b)also claimed that he had developed an interest in Christianity since arriving on Christmas Island.[10]

   [9] “RSA Interview”.

   [10] CB 116; see also CB 46.

6. On 10 March 2011 the applicant was notified that he had been assessed as not meeting the Convention definition of a refugee.[11] Accordingly, the RSA officer found that the applicant’s fear of harm was not well-founded.[12]

   [11] CB 106-117 (“RSA Decision”).

   [12] CB 117.

Independent Merits Review

1. On 26 April 2011 the applicant applied for independent merits review of the RSA Decision.[13]

   [13] CB 120-124.

2. On 20 June 2011 the applicant’s migration agent provided:

   a)a written submission to the IMR which summarised the applicant’s claims to fear persecution in Iran;[14] and

   b)a further statement from the applicant with supporting documents.[15]

   The submissions also referred to country information in support of the applicant’s claims.

   [14] CB 125-151.

   [15] CB 152-168.

3. On 20 July 2011 the applicant’s migration agent provided further submissions. Those submissions addressed issues raised at an interview with the IMR on 22 June 2011, and annexed supporting documents.[16]

   [16] CB 171-186.

4. On 25 October 2011 the IMR issued the IMR Recommendation.[17]

   [17] CB 189-211.

5. In relation to the applicant’s overall credibility the IMR found that the applicant:

   a)lacked credibility “in some areas and that there also seemed to be gaps in his history that were not sufficiently filled in”; and

   b)was difficult to interview, and that, without “extensive prompting”, he seemed unwilling to answer basic questions that were put to him.[18]

   The issues of credibility extended to issues with the applicant’s background and origins, but not his birth.[19]

   [18] CB 206 at para.70.

   [19] CB 206 at para.70.

6. The IMR accepted that the applicant was an Arab from Ahwaz in Iran,[20] and that socio-economic conditions for Arabs in Ahwaz are poor.[21] The IMR found there was insufficient information to be satisfied that the applicant had a well-founded fear of persecution based on his ethnicity, because the applicant failed to establish how he, and his family, had been personally affected by discrimination against Ahwazi Arabs in Iran.[22]

   [20] CB 206 at para.72.

   [21] CB 206 at para.72.

   [22] CB 206 at para.72.

7. The IMR considered the applicant’s alleged conversion to Christianity. In so doing the IMR had regard to information from the Refugee Review Tribunal’s Guide to Refugee Law in Australia, setting out the law with respect to how an applicant’s knowledge of a relevant religion is tested for fact finding purposes.[23] The IMR found that the applicant had not made a genuine conversion to Christianity. The IMR said that “any steps taken by [the applicant] that seemingly demonstrated his conversion and any knowledge that [the applicant] has obtained regarding his Christianity have been solely to support his claim for refugee status in Australia”. The IMR finding was based on an assessment that:

   a)the applicant’s level of knowledge was inconsistent with his claimed exposure to Christianity; and

   b)the applicant had a lack of basic general knowledge in relation to Christianity, including, for example, not knowing that the day upon which the applicant was baptised as a Christian was Easter Sunday, which, the IMR observed, “is one of the most significant days on the Christian calendar”.[24]

   [23] CB 206-208 at para.73.

   [24] CB 208 at para.74.

8. The IMR expressed doubt as to whether the Miaad Party existed,[25] but, on the basis that the applicant’s oral evidence at interview lacked depth and credibility, the IMR did not accept that the applicant:

   a)was involved in the Miaad Party in any way, or that he distributed letters, pamphlets or flags for the Miaad Party;

   b)that he had attended Miaad Party demonstrations; or

   c)that he knew someone called “Mustafa” from the Miaad Party.[26]

   [25] CB 208 at para.75.

   [26] CB 208 at para.75.

9. The IMR also considered that it was “implausible” that the applicant would attend demonstrations or rallies over a four year period, and not meet anyone else within the Miaad Party apart from his initial contact “Mustafa”.[27] These were demonstrations or rallies which the IMR had been told occurred sometimes weekly, and sometimes every month or two, and were attended by in excess of 400 people, and lasted between three or four hours, and at which the applicant spoke to other people about Ahwaz.[28]

   [27] CB 209 at para.75.

   [28] CB 194-195 at para.37.

10. The IMR did not accept that the authorities had come to the applicant’s home and found information about the Miaad Party after he had left Iran.[29] This was because the IMR found that the applicant was never involved with the Miaad Party. Further, and in any event, the IMR considered that the applicant’s answers with respect to this issue lacked depth and credibility. The IMR considered that the applicant was not able to provide a reasonable explanation as to why he would not destroy paraphernalia related to the alleged Miaad Party when he returned home on the night that he allegedly found out that he had come to the attention of the Iranian authorities, and the threat was enough to make him leave his home, his family and the Miaad Party.[30] In any event, the IMR, because of the finding that the applicant was not involved with the Miaad Party, concluded that the applicant did not come to the attention of the Iranian authorities either during his time in Iran or after he left Iran.[31]

    [29] CB 209 at para.76.

    [30] CB 209 at para.76.

    [31] CB 209 at para.76.

11. The applicant submitted a copy of a summons to the IMR and claimed that it had been issued just prior to his departure from Iran. The applicant said that his family had not informed him of this summons until the time of his request for an independent merits review. The summons stated that the applicant had been “convicted” and had to present himself to the Ahwaz Revolutionary Court by 20 December 2008.[32]

    [32] CB 209-210 at para.78.

12. At interview the IMR informed the applicant that the genuineness of the summons was in issue, and that the IMR was concerned that:

    a)the summons was submitted late in the process; and

    b)although the summons was purportedly issued before the applicant’s departure from Iran, the applicant was able to leave Iran on his own passport.[33]

    [33] CB 196 at paras.43-44.

13. The IMR found, on the basis of country information describing the typical format and content of summonses issued in Iran, that summonses can be easily obtained illegally or forged. Also, on the basis of country information, the IMR concluded that the form and content of the summons did not accord with the usual form and content of Iranian court summonses in relation to:

    a)the nature of the information recorded;

    b)the times at which a person summonsed was required to attend court; and

    c)the recording of certain administrative information in relation to city and divisional codes.

    The IMR was therefore not convinced as to the authenticity of the summons. The IMR was also not convinced as to the authenticity of the summons, supposedly issued in November 2008, because the applicant did not provide it until late in the review process in June 2011.[34]

    [34] CB 209-210 at paras.78-79.

14. After considering relevant country information, the IMR found that the applicant’s status as a failed asylum seeker or returnee from a Western country was not sufficient to establish that he faced a real chance of serious harm in the foreseeable future if he returned to Iran.[35]

    [35] CB 211 at para.83.

15. The IMR was ultimately not satisfied that the applicant was a person to whom Australia owed protection obligations, and therefore recommended that the applicant not be recognised as a person to whom Australia owed protection obligations.[36]

    [36] CB 211 at paras.84 and 85.

Hearing

1. At hearing:

   a)the applicant, who appeared in person with the assistance of an interpreter, was invited by the Court to make submissions in support of the application. The applicant said that he had no submissions to make;

   b)the Minister’s Counsel, during the course of submissions, indicated that the Minister would have no objection if the applicant sought to amend the application to include injunctive relief; and

   c)asked by the Court whether there were any submissions in reply to what had been said by the Minister, the applicant indicated that he had nothing to say.

2. At hearing, therefore, no amendment to the grounds or relief was sought, and no submissions in support of the application (which was made without grounds) were made.

3. The Minister argued that:

   a)as the applicant has not sought an injunction the application is incompetent, as the applicant has not properly invoked the Court’s jurisdiction under to s.476(1) of the Migration Act;

   b)the application does not contain any grounds of review and the application therefore raises no case to answer;

   c)the IMR was not required to accept the applicant’s claims at face value, and the weight to be given to his claims and evidence was a matter for the IMR to assess as part of its fact-finding function;[37] and

   d)the IMR clearly considered and assessed the evidence and weighed it in the balance of the other evidence presented.[38]

Consideration

[37] Citing Minister for Immigration & Ethnic Affairsv Wu Shan Liang & Ors (1966) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).

[38] Citing Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30.

Injunctive relief

1. Section 476(1) of the Migration Act provides as follows:

   Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

2. Section 75(v) of the Commonwealth of Australia Constitution[39] provides that:

   [39] “Constitution”.

   In all matters –

   …

   (v)In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

   the High Court shall have original jurisdiction.

3. The jurisdiction given to this Court in migration matters is therefore the original jurisdiction of the High Court under s.75(v) of the Constitution to issue a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth.

4. In Plaintiff M61/2010E v Commonwealth of Australia & Ors[40] an analysis of the High Court’s Reasons for Judgment leads to the conclusion that an application which seeks injunctive and declaratory relief is valid and competent, but an application that merely seeks a declaration, but does not seek an injunction restraining the Minister from relying on an IMR recommendation, is not competent.[41]

   [40] (2010) 243 CLR 319; [2010] HCA 41 (“Plaintiff M61”).

   [41] Plaintiff M61 CLR at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. See also Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at paras.30-31 per Nicholls FM (“Darabi”).

5. Following Plaintiff M61, the Full Court of the Federal Court, the Federal Court and this Court, have each found that it is the application to this Court for injunctive relief in relation to the still to be completed decision-making process by the Minister arising from an IMR recommendation that enlivens this Court’s jurisdiction for relief in relation to a migration decision.[42] Whilst the High Court in Plaintiff M61 ultimately granted a declaration, without an injunction, injunctions grounding jurisdiction under s.75(v) of the Constitution were sought in Plaintiff M61.[43] Thus, it may be that this Court can grant a declaration alone as a remedy in relation to an IMR recommendation, but only where an injunction grounding jurisdiction is sought, and then the declaration can be made pursuant to this Court’s statutory capacity to make a declaration of right in respect of the matter in which it has original jurisdiction.[44]

   [42] See, for example, Darabi FLR at 308 per Nicholls FM; FMCA at para.31 per Nicholls FM; SZQDZ & Ors v Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207 at 220 per Keane CJ, Rares and Perram JJ; [2012] FCAFC 26 at para.45 per Keane CJ, Rares and Perram JJ (“SZQDZ”); SZQGA v Minister for Immigration & Citizenship [2012] FCA 593 at paras.72-74 per Barker J (following SZQDZ cited above); WZAPN & Ors v Minister for Immigration & Citizenship & Ors (2012) 261 FLR 284 at 292-293 per Lucev FM; [2012] FMCA 235 at para.25 per Lucev FM.

   [43] Plaintiff M61 CLR at 334 and 359-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.7-8 and 103-104 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

   [44] Federal Magistrates Act 1999 (Cth), s.16(1).

6. The applicant has had opportunities to amend the relief sought to include injunctive relief grounding jurisdiction. Apart from the initial application, the Court’s orders of 6 February 2012 allowed an amended application to be filed, although one was not filed. Further, at hearing, the Minister indicated that there would be no objection if the applicant sought to amend the relief sought to include an injunction. The applicant did not seek to do so. There is therefore no application for injunctive relief in these proceedings. It follows, therefore, that the application is incompetent, and must be dismissed.

No grounds for review

1. As indicated above,[45] the application contains no grounds for review. No advantage was taken of the opportunity to file an amended application afforded by the 6 February 2012 orders to include grounds for review. Notwithstanding the opportunity to make submissions afforded to the applicant at hearing, both in support of the application and in reply, the applicant said nothing by way of submission, and, therefore nothing by way of anything that could constitute grounds for review. It follows that there are no grounds for review, and that the Minister effectively had no case to answer. Thus, even if the application were competent, which it is not, the application would have been dismissed as raising no grounds for review which the Minister was required to answer.

   [45] See para.1 above.

No procedural or legal error

1. The IMR was entitled to assess the applicant’s credibility, and the assessment of credibility is a matter for the administrative decision-maker par excellence.[46] A credibility finding is a finding of fact, and a reviewing body must not set it aside simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.[47]

   [46] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J, and see, for example, SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM; SZONA v Minister for Immigration & Anor [2011] FMCA 99 at para.31 per Lloyd-Jones FM; SZONR v Minister for Immigration & Anor [2011] FMCA 89 at para.49 per Nicholls FM.

   [47] W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at 716 per Tamberlin and RD Nicholson JJ; [2001] FCA 679 at para.64 per Tamberlin and RD Nicholson JJ.

1. In this case the applicant’s credibility was tested by the IMR during the course of the IMR interview and relevant matters in issue, including those going to credibility, were raised. The IMR’s credibility findings were entirely open to it in the view of this Court, and do not approach being strongly against the probabilities of the case. Two examples will suffice of evidence which was sufficient to significantly affect the applicant’s credibility. First, the suggestion that for four years the applicant carried out tasks for the Miaad Party, had contact with “Mustafa”, went at least bi-monthly to demonstrations which were 3-4 hours long and involved up to 400 people, and spoke to people at those demonstrations who were involved with the Miaad Party or activities of a similar kind, and that during that time he did not befriend or come to know the name of any other person involved in the Miaad Party, is almost beyond belief. Second, the failure to destroy or somehow dispose of the alleged Miaad Party paraphernalia in his home, and, moreover, the home of his family, whom there is no evidence that he warned of any possible raid by the Iranian authorities, and, when he says that he understood, from “Mustafa”, that he was likely to be specifically targeted by the Iranian authorities, is very unlikely. There is, therefore, a sound basis for the IMR’s findings as to the applicant’s credibility, both generally and specifically.

2. All of the findings of the IMR are findings of fact in relation to matters raised by the applicant, or, in one instance, a finding that insufficient information was given to the IMR to allow findings of fact to be made. Findings of fact are not to be interfered with by a Court upon judicial review if the findings of fact were open to the administrative decision-maker, and otherwise made in accordance with the law.[48] In this instance, the Court considers that all of the findings of fact made by the IMR were open to it on the evidence that was available to the IMR. Where the applicant has failed to provide sufficient information for the IMR to make findings of fact, that is simply a case of the applicant failing to make out his case.

   [48] Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

3. Having regard to the IMR’s findings on credibility and actual fact-finding on the issues, all of which were open to the IMR on the available evidence, this Court cannot, on judicial review, revise those findings. Consideration of the factual material, including the various inconsistencies arising from the applicant’s evidence and a consideration of the country information, meant that there was probative material from which the IMR could logically or rationally arrive at the conclusions in the IMR Recommendation, and, in particular, the ultimate conclusion that the applicant was not a person who met the criteria for a protection visa set out in s.36(2) of the Migration Act. It is not for the Court to interfere where all of the evidence has been sifted and weighed by the IMR.[49] Were the Court to do so in these circumstances it would cross the “vigorously policed” line between merits review and judicial review.[50]

   [49] Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14.

   [50] Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 589 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.

4. It follows, therefore, that no procedural or legal error is disclosed by the IMR Recommendation, and the application would have had to have been dismissed, in any event.

Conclusion and order

1. For the reasons set out above the application is incompetent, and must be dismissed. Even if the application was not incompetent:

   a)it raises no grounds for review, and would have been dismissed as raising no case to answer; and

   b)as the IMR Recommendation discloses no procedural or legal error, the application would have had to have been dismissed.

2. There will, therefore, be an order dismissing the application.

3. The Court will hear the parties as to costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  10 August 2012