WZAQG v Minister for Immigration - [2012] FMCA 814

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAQG v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 814

MIGRATION – Independent Merits Review report recommends that Australia does not owe the applicant protection obligations – no grounds for review identified in application – application dismissed pursuant to power in Rules of Court.

Migration Act 1958 (Cth), ss.46A, 91R, 197AB & 476
Federal Magistrates Court Rules 2001, r.13.03
Commonwealth Constitution, s.75(v)

Plaintiff M61/2010 v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41

Applicant:

WZAQG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

PEG 10 of 2012

Judgment of:

Lindsay FM

Hearing date:

3 September 2012

Date of Last Submission:

3 September 2012

Delivered at:

Perth

Delivered on:

4 September 2012

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms Johnson

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

That the Application for an adjournment be refused.
That the Application filed on 19 January 2012 do stand dismissed.
That the Applicant pay the First Respondent’s costs of the proceedings fixed in the sum of $6471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 10 of 2012

WZAQG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant is an off-shore entry person who arrived at Christmas Island on 5 October 2010. He applied for a Refugee Status Assessment (“RSA”) in November 2010; a migration agent was appointed to assist him with that. That assessment process included an interview and on 13 April 2011 the applicant was notified that the outcome of that assessment was that he had been assessed as someone to whom Australia did not owe protection obligations.
He applied, as he was entitled to do, for an Independent Merits Review (“IMR”). His migration agent provided a written submission to the reviewer and accompanied him to the interview, but on 12 January 2012 the IMR also recommended that the applicant was not a person to whom Australia owed protection obligations.
Subsequently, on 19 January 2012, the applicant lodged an application pursuant to s.476 of the Migration Act 1958 (“the Act”) seeking orders of review in relation to that review.
The matter was the subject of a directions hearing before Lucev FM on 6 February 2012. One of the matters his Honour did on that day was that he ordered the applicant be referred to the Registrar for referral to a lawyer on the pro bono panel for legal assistance, including advice on the amendment of the application and filing of additional evidence and, if appropriate, representation at that hearing. He gave the applicant leave to file and serve an amended application, including any additional grounds for review with complete particulars of each ground, an opportunity to file affidavit material and directed him to file and serve written submissions and a list of authorities no later than 14 days prior to the hearing date and the matter was listed before me for a final hearing on 3 September 2012.
At the time of the hearing on 6 February 2012, the applicant was in detention in Western Australia at the Curtin Detention Centre, and that accounted for some orders Lucev FM made in relation to the mechanical aspects of the hearing.
However, on 6 August 2012, and by consent, I ordered that the applicant be able to participate in the hearing by video link with him being present at a courtroom in Melbourne.
On Friday, 31 August, last Friday, the last business day before the Monday scheduled for the hearing, written advice was received by the Court foreshadowing that the applicant proposed to apply to adjourn yesterday’s hearing, and I heard his application for the adjournment yesterday and heard submissions in relation to related matters.
I should say at this stage, in relation to the application, it purports to be an application for review pursuant to s.476 of the Act, but it gives no indication of the orders sought by the applicant – what the remedy is – and it gives no grounds. In those circumstances, with the state of the application being so, it rendered it likely that it would be the subject of consideration for dismissal under the Rules of Court.
So the adjournment was, in that light, seen as something that was necessary, as it were, to keep the matter alive. So, in addition to taking submissions on the adjournment application yesterday, I also asked for submissions on that point on the basis of an assumption being made that the adjournment would not be granted.
The first matter to note in relation to the matters that go to the consideration in terms of the adjournment is that the respondent is and was yesterday ready to proceed. The respondent has done everything required of him under the orders made by Lucev FM and under the Rules. The other thing to be noted is that the matter had been listed for 3 September for a period of some seven months. That is, the hearing was seven months out from the date of its listing.
A further thing to be noted at the outset of the matters going to the discretion is that nothing has been done in furtherance of the application for review in the eight months since it has been filed.
Incidentally, I should mention at this stage too, I was assisted and the applicant was assisted yesterday, by Ms Diego, to whom the Minister’s representative had no objection in relation to her assisting the applicant in making submissions on his behalf. She is an officer of the Asylum Seekers Resource Centre in Melbourne.
It was initially put by Ms Diego that the applicant had been in physical migration detention until August of this year. The transcript of yesterday’s proceedings at page 7 indicates, at line 24:
So the applicant presented to us in August when he was released from detention in Melbourne.
That, obviously, was the impression that Ms Diego was under or her understanding of the instructions that had been given to her by the applicant to that point.
In fact, it subsequently transpired, and transpired essentially because we were told so by the applicant, that he had been released from physical detention much earlier. He had been released from physical detention on 12 April, having been transferred from the Curtin Detention Centre to the Melbourne Immigration Transit Centre on 19 March, and what regulates his presence in the community, I am assuming – although there is nothing formally before me in relation to it – is that there has been a residence determination order by the Minister under s.197AB of the Act.
So whereas part, at least, of the applicant’s case in relation to the adjournment was the difficulties associated with him instructing legal practitioners and getting advice whilst in physical detention, that was no longer relevant, of course, once the information came to everyone’s attention, including Ms Diego’s attention, and the submission had to be, to that extent, recast.
I have already read onto the transcript the order Lucev FM made in relation to the applicant being provided assistance by the pro bono panel. That is something that is arranged by the Registrar of the Court once the order is made and, of course, having regard to matters associated with legal professional privilege, it is appropriate that we as the Court know no more about that once the order is made. I proceed on the assumption, as I am entitled to do, that the Registrar did what was required in furtherance of Lucev FM’s order to attempt to arrange that legal representation on a pro bono basis.
Whether it is through the auspices of that panel or otherwise, I was told yesterday and it is common ground that the applicant has sought assistance in relation to this matter from Legal Aid Western Australia, from Case for Refugees and from another organisation that assists persons in his position with the acronym of PILCH.
His application for assistance in relation to those organisations has been unsuccessful, and I was told with respect, I think, to the Legal Aid Western Australia application – this is the only one of those three bodies about whom this information was given to me – that the application was unsuccessful on the basis of their assessment of the lack of merit in the application. So those three organisations have been approached over this eight month period since the application has been filed to provide assistance, but the applicant has been unable to procure that assistance.
He has recently approached the Asylum Seekers Resource Centre and Ms Diego tells me and I accept that a barrister appointed by that centre has advised the centre that she regards the applicant’s review pursuant to s.476 as having merit, and that, based on that advice an approach has been made to the Victorian Legal Services Commission and advice from them is pending as to whether or not an assignment will be granted.
Ms Diego told me that there were two grounds on which it was said that the review would proceed, and they are set out at page 23 of the transcript. The first is that :
The reviewer failed to consider an integer of the applicant’s claim, namely that he would be denied Iranian Nationality for a Convention reason.
The second ground for review is that:
The reviewer denied the applicant procedural fairness and/or failed to consider the relevant considerations and/or failed to consider an integer of the applicant’s claims by failing to consider the submission that there had been a recent deterioration of human rights abuses in Iran.
Iran, of course, was the applicant’s country of origin for all practical purposes as found in the review. I will return to those identified grounds in a moment.
The next matter to note in respect of the adjournment application is a straight forward one, but I think it ought to be noted, and it is the fact that the Court has been convened on the application of the applicant, not on the application of the Minister. This judicial review hearing is not another phase of the administrative process that started with the applicant’s unauthorised arrival in Australia and his request for refugee status under the Refugees Convention and Refugees Protocol. During the course of that process, as we know, there were two assessments made, both involving interviews with his migration agent present with the submission of material by the migration agent on his behalf.
It was a carefully conducted process and the applicant made a significant contribution to it but that administrative process is presently at an end; this is a Court of law and, as I say, this Court has been convened to consider the application filed by the applicant some eight months ago now. As I have already indicated, the application itself seeks no specific relief and sets out no grounds.
Essentially, the application for the adjournment is promoted on the basis that the applicant, having unsuccessfully approached three organisations for legal assistance in the period since the application was filed, the hearing of the application should be adjourned so as to enable him to seek that representation from a fourth body. The consequence of my adjourning, of course, will be that the adjudication of the matter will be postponed for a period of time, perhaps for some months.
An additional ground that was agitated in respect of the adjournment was that the applicant was confused about who it was that was acting for him and this was said to arise from the Minister’s legal representatives having asked him to consent to an order to enable him to attend by video link from Melbourne rather than to be obliged to attend pursuant to the original arrangements that were made by Lucev FM in his February order. It appears as if the Minister’s representatives prepared a minute and asked him to sign it which he duly did. It was a process that was clearly to his advantage or, perhaps a better expression would be, it suited his convenience.
The applicant did not suggest, neither did Ms Diego suggest on his behalf, that the Minister’s representatives indicated that they were acting for him and there was nothing put to me that persuaded me that any part of this very straightforward process of varying the orders so as to permit the applicant to attend via video link from Melbourne gave rise to any confusion on his part. That order was made in any event on 6 August 2012 and by that time he had already approached three other bodies for the purposes of obtaining legal assistance. He did that because he was unrepresented. He has approached the Asylum Seekers Resource Centre because he knows he is unrepresented. So I do not accept that at any stage since the application for review was filed that he has been labouring under a misapprehension about the Minister’s legal representatives purporting to act for him.
Another ground was that I should evaluate his application for an adjournment in the circumstances in which he finds himself without representation and without grounds identified by taking into account that he suffers from a psychiatric or psychological condition or conditions which were essentially unspecified, although I understand that the suggestion is that he has developed some depressive disorder and that is a function of his having been in immigration detention and that he takes some medication in relation to that depressive disorder. I have no report from a psychiatrist or medical practitioner in relation to that contention; I do not know what the diagnosis is. I only have the applicant’s assertions as to his having suffered from that condition and it included his assertions that he attempted to commit suicide, as I understand it, although it was not necessarily clear, that occurred during the period that he was in physical immigration detention.
I do not have any medical report or information in relation to it and in particular then I do not have any explanation of the way in which this stated psychiatric condition is said to have impeded him in instructing solicitors after he was released from physical immigration detention.
His problem is not that he was not in a position to attempt to get legal representation; his difficulty has been that he did attempt to obtain legal representation and to date has been unsuccessful. So that matter – the contentions in relation to a medical condition having caused him difficulties in instructing legal practitioners or seeking the assistance of legal practitioners – is not one to which I can give any weight.
Significantly, I think, the position I am in is that I have no reason to assume that the adjournment that is sought would have any utility. It certainly will not have utility if the applicant is unable to obtain legal representation; so much I think was conceded yesterday by him and by Ms Diego on his behalf. But I have just no basis for assuming that Legal Aid Victoria will do what Legal Aid Western Australia, CASE for Refugees and PILCH would not do when asked by the applicant for assistance in the period since the application has been filed.
I should say something at this point about the nature of the claim for refugee status.
The applicant is an undocumented Faili Kurd who, for all but the first year of his life as I understand it, has lived in exile from Iraq in Iran. He says that his status as an undocumented Faili Kurd – although I think there was a suggestion that he has had a green card at some stage in the past – but, having lost that card on his way or as a function of his travelling to Australia, if he were returned he would be an undocumented Faili Kurd and his experience as an undocumented Faili Kurd as a non-citizen of Iran who was a Faili Kurd is said to have given rise to difficulties for him in the past.
Essentially, the IMR found that he had experienced discriminatory conduct in the past but not discriminatory conduct that amounted to serious harm in terms of s.91R of the Act. The reviewer also undertook the separate exercise – that is, apart from determining what his experiences had been in the past – of looking into the future and asking the question as to whether he would experience Convention related persecution as understood by s.91R of the Act in the future – and the reviewer was not so satisfied.
The high watermark, as it were, of the applicant’s claims in relation to fear of persecution is to be found at [86] of the report which I will read out in full:
The reviewer is of the view that there is no reason why the claimant would be treated more harshly in the reasonably foreseeable future for reasons of being a Faili Kurd (an undocumented Faili Kurd or an Iraqi refugee) than he has been in the past such that any discriminatory conduct he experienced for being a Faili Kurd would amount to serious harm as envisaged by s91R(2). There is no reason why he could not continue and live in his village and assist his father as he has in the past. There is no reason why suddenly the Basij would seek to harm him when they have never harmed him or anyone else in the village in the past. The claimant stated that if the Basij caught him without documents they would torture and detain him and sexually abuse him. As discussed with the claimant all the inhabitants of his village were undocumented Faili Kurds and this had not happened to his knowledge to anyone in the past. The reviewer finds that there is no real chance that the claimant, in the reasonably foreseeable future, would be seriously harmed by the Basij (other Iranian governmental authorities) for being a Faili Kurd (an undocumented Faili Kurd or an Iraqi refugee).
There was a separate claim, a quite discrete aspect of his claim, was that he had a reasonable fear of persecution for a Convention reason as being a returnee or a failed asylum seeker, especially a failed asylum seeker from a western country such as Australia, considering that he left illegally on a photo substituted passport. Essentially, the view the reviewer took in relation to this was that he might be liable to prosecution for a breach of a law of general application in Iran relating to leaving the country illegally but that, essentially because of his relatively low profile in terms of his own case which was that he had never been politically involved, never accused of anti-government activity, never been the subject of any imputed political opinion, that he would not be persecuted in the future.
I should say in relation to this, this purports only to be a summary of the IMR; it does not purport to be the kind of summary which would be the consequence of the conduct of a fully fledged review hearing. I think it is important for me to note these matters for reasons which I will come to in a moment.
In relation to the two grounds that the barrister appointed by the Asylum Seekers Resource Centre has identified, turning to the first, namely:
The reviewer failed to consider an integer of the applicant’s claim, namely that he would be denied Iranian Nationality for a Convention reason.
The first question that arises in relation to this is the difficulties associated with the denial of Iranian nationality in itself being considered the kind of serious harm under s.91R(2) which would ground a fear of persecution for a Convention reason.
The IMR report notes that a number of Faili Kurds are citizens; some however, like the applicant, do not have the status of citizenship in Iran and that inures to their disadvantage and the disadvantages are discussed by the reviewer in his report. They are wide ranging disadvantages from disadvantages relating to marriage, education, medical treatment and the like and they were the kind of disadvantages that the reviewer accepted led to discrimination but not to persecution for a Convention reason.

The disadvantages that he identified were a function of the fact that the applicant did not have the status of a citizen in Iran in the main; that is, the lack of citizenship occasioned the disadvantage. So doing the best I can to understand the alleged error associated with this aspect of the matter, it must be an argument I suppose that the issue of citizenship considered on its own, that is, stripping that issue of its consequences in terms of the disadvantages that are specifically discussed by the reviewer, can amount to serious harm pursuant to s.91R(2).
In my view, there will be considerable difficulties in demonstrating that such a lack of consideration of the claim for citizenship or the entitlement to citizenship on its own would be capable of amounting to serious harm under s.91R(2).
The other alleged ground or promoted ground of review is that:
The reviewer denied the applicant procedural fairness and/or failed to consider the relevant considerations and/or failed to consider an integer of the applicant’s claims by failing to consider the submission that there had been a recent deterioration of human rights abuses in Iran.
I am assuming that this means or this is a reference to the political oppression and suppression that is taking place in Iran in the wake of the 2009 elections, the subsequent repression following those elections of protesters and oppositionists, and that is a matter that is part of the matters that are discussed in the country information which the applicant’s migration agents put to the IMR. The Convention link in relation to anyone persecuted in the wake of those elections is, of course, in the context of political opinion or activity or membership of, or imputed membership of such anti-government or oppositionist political parties. On his own case, the applicant was simply a person who never participated in political activity let alone anti-government or oppositional political activity. So the prospects of successfully promoting that as a ground for review are also, in my view, difficult to discern.
It will be noted that I have read the IMR’s report. I also want it to be noted that I have read all of the other material in the court book and I have read the Minister’s submissions. The reason I want that noted is not because I am conducting a review. I want to make it perfectly clear that I am not purporting to conduct a review in summarising the nature of the applicant’s claims in the review and the way in which the reviewer responded to them. I am not doing that at all, but if I thought that there was any apparent merit in any of the grounds of review now belatedly and indirectly being advanced on behalf of the applicant, it would be a very important matter to go into the scales in considering whether or not to grant the adjournment. I am unable to identify that apparent merit in either of those grounds or, indeed, in any other way in which the reviewer went about the conduct of the review.
I do not have to conduct a full scale review to decide whether I should adjourn the matter, but I am obliged, I think, to have a look at the apparent strengths or apparent weaknesses of the applicant’s case, as I say, with grounds somewhat belatedly identified indirectly by what I am told was the opinion received by the Asylum Seeker Resource Centre. In my view, prima facie, a case that was promoted on those grounds would be a weak case.
I have to bear in mind that genuine claimants for refugee status are persons whose lives and livelihoods are at serious risk if they are returned to their country of origin, and that is why in the context of this adjournment application, I have taken the opportunity to scrutinise carefully all of the material in the court book. That is an exercise I have had to carry out more than once in this matter, but it certainly was an integral part of the exercise in considering the application for the adjournment.
Ultimately, what I have considered as determinative of the application for adjournment is that the applicant has had some seven months since the matter was listed for hearing and some eight months since filing his application to secure legal representation. He has, to use the vernacular, “been knocked back” by the organisations that he has approached on three occasions, and there is simply no basis for me to assume or to proceed upon the basis that he will fare any better on his fourth attempt, an attempt he only makes as the scheduled hearing is about to be convened.
None of the other matters put to me as explaining his wholly unprepared state in terms of this application are matters that I found to be persuasive.
Accordingly, the adjournment application is refused.
As I indicated earlier, in doing that, and this was the subject of some colloquy with the applicant and with Ms Diego and the Minister’s legal representative yesterday, I recognise that in the light of the refusal of the application for the adjournment the application itself is now liable to be dismissed given the state that it is in.
Reviews under s.476(1) of the Act are conducted by this Court on the basis that the Court exercises the same jurisdiction as the High Court under s.75(v) of the Commonwealth Constitution, but only in relation to migration matters. That expression “migration matters” is the subject of a very precise definition in the Act, and we have been assisted by the High Court in the decision of Plaintiff M61/2010 v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 as to the basis for the jurisdiction of the Court in relation to the consideration of these applications by off-shore entry persons such as the applicant, and ultimately whilst the review would have pertained to the IMR decision, it is not that decision which is the migration decision which grounds the jurisdiction of the Court. It is the future or posited reliance by the Minister upon that report in making a future decision whether or not to “lift the bar” under s.46A of the Act. That is the decision to which attention must be drawn for the application to succeed, and the corollary of that is that to ground the jurisdiction of the Court there must be an application for an injunction to restrain the Minister from relying upon that IMR report in any future decision.
The application for injunction can be accompanied by an application for a declaration. A declaration being sought on its own is not enough even though ultimately the order made by the Court may only be a declaration, and was only a declaration in Plaintiff M61, but there has to be a claim for an injunction in those terms in order for the Court to be able to exercise a jurisdiction in these off-shore entry matters.
I have already said this, and I do not want to labour it, but there is simply no specification in the application what relief is claimed and there are simply no grounds specified in relation to the review.
So that brings into focus the power the Court has under Rule 13 of the Rules of Court – Part 13 of the Rules is headed “Ending a proceeding early”. Rule 13.03A describes what constitutes a party being in default. If I am satisfied a party is in default then I am entitled to look at the range of orders under Rule 13.03B and here, in asking myself whether the applicant is in default, it seems to me in a formal sense the only part of Rule 13.03A(1) in respect of which he is in default is that which is referred to in subparagraph (e):
a failure to prosecute the proceeding with due diligence.
An amended application was always going to be necessary for this review application to have any meaning. It would need to be amended to identify the relief sought and the grounds promoted for review, but it was liberty to apply that was given by Lucev FM’s orders in relation to that in a technical sense. It was not a direction given, and it is for that reason that in a technical sense he is not in default in terms of the other provisions of subrule (1) in that he was not obliged to file such a document, but only given liberty to file it, although he was ordered to file an outline of case document and, of course, he has failed to do that as well.
It is the failure to prosecute the proceeding with due diligence which is the heart of his difficulty and it was his failure to take advantage of the leave that was given by Lucev FM some seven months ago that is at the core of his failure to proceed with due diligence in terms of subparagraph (3). It should also be noted that it is a total lack of due diligence here. It is not that what the applicant has done has been unsatisfactory. He has done nothing following upon the institution of the proceeding by the filing of the review document. So I am satisfied that he is in default.
It is then a question of me looking at the orders that ought to be made, and they are dealt with in the case of the applicant by Rule 13.03B(1), and the three options are:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken (I may order that a step in the proceeding be taken) within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b) — the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
In my view, the exercise of the power in subrule (b) is not appropriate. That is a power that is more appropriately exercised, in my view, where there has been partial compliance, that is, we have already embarked in a meaningful sense upon the review, but there has been some default along the way and it is necessary to regulate the further performance of an applicant’s obligations in the litigation. I also make the observation that the exercise of the powers under subrule (b) would entail the adjournment of the proceedings, and I am faced then with the same concern I have about there being no basis for an assumption that he will have the benefit of legal representation in this context either, and of course, it is common ground that if he has no lawyer he is not going to be in a position to promote the review in any event.
In my view, it would be wholly inconsistent with the integrity of the review process to embark upon a hearing of this kind without there having been any attempt to identify any grounds in which the review could be advanced or succeed.
Once again, and in the context of this phase of the adjudication, I have given consideration to the content of the IMR report itself and to the other materials in the court book. I have scrutinised the reasons of the Independent Merits Reviewer to see if I could identify any apparent error, that is, legal error, jurisdictional error or procedural unfairness associated with the way in which the review was conducted and I could not. Again, in saying this I want to make it very clear that these remarks are not to be taken as any kind of substitute for the conduct of the review itself. It does not purport to be that.
I pause at this part of the process to look at the contents of the court book again because of the nature of the jurisdiction the Court is exercising and the fact that genuine applications for protection visas are persons about whose lives and livelihoods we are rightly apprehensive. It is important to ensure we do not demand the adherence to Court processes preserving the integrity of the Court processes in a way that would disadvantage genuine applications for protection visas.
Assuaging my apprehensions in this particular case though is this matter: I know from reading the court book that the applicant’s claims have been the subject of two thorough reviews by persons appointed by the Minister for that purpose and they are reviews in which the applicant has had the opportunity of participating and has been assisted by migration agents who have made submissions and filed documents on his behalf and so tempering the apprehensions we rightly have about the summary dismissal of applications of this nature is that matter.
In the circumstances, it seems to me it is appropriate to exercise the power to dismiss the proceeding.
It is also appropriate for an order for costs to be made and I so order.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 11 September 2012