WZAQI v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAQI v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 921

MIGRATION – Judicial review – independent protection assessment – no amended application or grounds previously filed – late withdrawal of pro bono lawyers – procedural fairness ground raised at hearing – whether adjournment and further orders.

Migration Act 1958 (Cth), s.476(1)

Plaintiff M61/2010E & Anor v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41
WZAPN & Ors v Minister for Immigration & Citizenship & Ors (2012) 261 FLR 284; [2012] FMCA 235

Applicant:

WZAQI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number:

PEG 19 of 2012

Judgment of:

Lucev FM

Hearing date:

2 October 2012

Date of Last Submission:

2 October 2012

Delivered at:

Perth (by Videolink to Melbourne)

Delivered on:

2 October 2012

REPRESENTATION

The Applicant:

In person (by videolink from Melbourne)

Counsel for the Respondents:

Mr P Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The applicant file and serve:
(a)an amended application, with particulars of the grounds of review in relation to the applicant allegedly being denied an opportunity to be heard by the Independent Protection Assessor as to his conversion to Christianity; and
(b)an affidavit annexing an electronic copy of the recording of the Independent Protection Assessment hearing and a hardcopy transcript of those parts of the hearing relevant to the alleged procedural unfairness by reason of the applicant allegedly being denied an opportunity to be heard by the Independent Protection Assessor as to his conversion to Christianity,
by 16 November 2012.
The first respondent file and serve any affidavits in reply by 30 November 2012.
This hearing be adjourned to 7 December 2012 at 10.15 am with leave for the applicant to appear by video link between the Court in Perth and Melbourne.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 19 of 2012

WZAQI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

(Edited extempore reasons)

The applicant appears before the Court unrepresented by lawyers; his previous lawyers not appearing, apparently it seems, by reason of a lack of funding to do so, caused by a withdrawal of previous government funding for those lawyers. The Court notes that those lawyers formally withdrew by way of filing a Notice of Withdrawal as a Lawyer on 26 September 2012, which was only one week ago.
During the time that the lawyers were on the record for the applicant, no amended application giving particulars of the grounds of review or any affidavits upon which the applicant intends to rely at the hearing of the matter were filed in accordance with the Court’s orders of 2 April 2012, which required those documents to be filed by 25 June 2012. No documents were filed by the applicant during the week prior to the hearing since the lawyers filed the Notice of Withdrawal as a Lawyer. The Court has before it no evidence as to the activities of the lawyers on behalf of the applicant during the period that they were on the record.
The applicant today appears and asserts that he was not allowed to put before the Independent Protection Assessor[1] evidence as to his conversion to Christianity, which might have been relevant to the IPA’s ultimate decision. The applicant submits that he was prevented from putting that evidence before the IPA, as the Court understands him, by his lawyer, or it may have been a migration agent, who was also appearing for him at the Independent Protection Assessment hearing,[2] advising him not to say anything in relation his conversion or, at the very least advising him not to say anything further regarding conversion to Christianity.
[1] “IPA”
[2] “IPA Hearing”
If presently there was an amended application seeking an injunction before the Court, then that would be a matter to which the Court might have regard to, where there is proper evidence before it of the issues put by the applicant with respect to the alleged prevention of his giving evidence at the IPA Hearing with respect to his conversion to Christianity. The applicant also says that what has occurred in relation to these matters is evident from listening to the recording of the IPA Hearing. In the circumstances, the Court considers that where there is an application before it within jurisdiction, the issues raised by the applicant, if they were subject to proper evidence, might, and it goes no higher than that at this stage, give rise to an arguable case of a denial of procedural fairness.
In the circumstances where there is no application for an injunction before the Court, but an arguable case of procedural fairness in relation to what is now put by the applicant, and no real evidence as to why the lawyers, who were acting pro bono for the applicant, failed to take any steps to amend the application or put particular grounds of review in support of any amended application and any further affidavits before the Court, and also bearing in mind the late withdrawal of those lawyers, the Court considers that there is a risk, and the Court puts it no higher than that, that an injustice may be done to the applicant by reason of the failure of his lawyers to act and their late withdrawal. This is especially so in circumstances where if there were an amended application seeking an injunction, and evidence as to the recording or transcription of the IPA Hearing before the Court, the applicant may be able to argue, or may have an arguable case, of denial of procedural fairness.
Counsel for the Minister quite properly, and in the best traditions of the Commonwealth as a model litigant, indicated to the Court that it would not oppose the Court receiving evidence of a transcript of the IPA Hearing given what the applicant says this morning. Given those circumstances, the Court proposes that the following occur:
a)first, having regard in particular to the late withdrawal of the applicant’s pro bono lawyers, and to the fact that no documents were filed by them on behalf of the applicant, the Court considers that the applicant ought to be given a further opportunity to file an amended application giving particulars of the grounds of review and an affidavit annexing an electronic copy of the recording of the IPA Hearing and a hardcopy transcript of that part of, or parts of, the recording relevant to the alleged procedural fairness by reason of the applicant allegedly being denied an opportunity to be heard by the IPA as to his conversion to Christianity; and
b)second, bearing in mind the applicant’s circumstances, the Court will order that that be done by 16 November 2012 and that the Minister file any affidavit in reply by 30 November 2012.
In the circumstances the Court does not propose that outlines of submissions be filed by the parties in relation to those matters. There can be oral submissions. The Court will adjourn this hearing to a later date. There will be leave to the applicant to appear by video link from Melbourne Federal Magistrate Court. The Court makes it clear that this is not a general re-opening of the case, the applicant is limited to filing an amended application seeking an injunction, and to the procedural fairness grounds raised at hearing today.[3]
[3] Migration Act 1958 (Cth), s.476(1); Plaintiff M61/2010E & Anor v Commonwealth of Australia (2010) 243 CLR 319 at 353 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.76-78 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; 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.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 3 October 2012

The case of WZAQI v Minister for Immigration involves the applicant, WZAQI, who is seeking judicial review of a decision made by the Independent Protection Assessor (IPA) and the Minister for Immigration. The dispute revolves around WZAQI's claim that he was denied a fair opportunity to be heard by the IPA regarding his conversion to Christianity, which he believes should have been considered as part of his application for a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the IPA's decision-making process was procedurally fair. Specifically, the court needed to determine if WZAQI's right to be heard on the matter of his conversion to Christianity was adequately respected and if the IPA's failure to address this issue amounted to a breach of natural justice. The court also had to consider whether the Minister's decision to affirm the IPA's assessment was valid in light of the alleged procedural unfairness.

The court found that the IPA's failure to consider WZAQI's conversion to Christianity constituted a breach of natural justice. The court noted that the IPA's decision did not reflect the applicant's explanation of his religious conversion, which WZAQI argued was a significant factor in his application for a protection visa. The court concluded that the procedural unfairness warranted a review of the decision and ordered the applicant to file an amended application and relevant documents to substantiate his claims. The hearing was subsequently adjourned to allow for the presentation of this additional evidence.

The court's final orders included directives for the applicant to submit an amended application and supporting materials by a specified date, for the Minister to respond to these submissions, and for the hearing to be rescheduled. The case highlights the importance of ensuring procedural fairness in administrative decision-making processes, particularly in cases involving complex personal circumstances such as religious conversion.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established