WZAQI v Minister for Immigration and Anor (No.2)
[2012] FMCA 1182
•10 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAQI v MINISTER FOR IMMIGRATION & ANOR (NO.2) | [2012] FMCA 1182 |
| MIGRATION – Judicial review – independent protection assessment – no appearance by applicant – no application for injunctive relief – whether jurisdiction – alleged error or negligence by lawyer – whether error. |
| Constitution, s.75(v) Federal Magistrates Act 1999 (Cth), s.16(1) Federal Magistrates Court Rules 2001 (Cth), r.13.03C(1)(c) Migration Act 1958 (Cth), ss.5, 476 |
| Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 Plaintiff M61/2010E vCommonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 SZQDZ & Ors v Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207; [2012] FCAFC 26 SZQGA v Minister for Immigration & Citizenship (2012) 204 FCR 557; [2012] FCA 593 WZAPN & Ors v Minister for Immigration & Citizenship & Ors (2012) 261 FLR 284; [2012] FMCA 235 WZAQI v Minister for Immigration & Citizenship & Anor [2012] FMCA 921 |
| 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: | 7 December 2012 |
| Date of Last Submission: | 7 December 2012 |
| Delivered at: | Perth |
| Delivered on: | 10 December 2012 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant pay the First Respondent’s costs in the sum of $6471.00 by 7 January 2013.
Reasons for Judgment to be published from Chambers at a later date.
| 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
Introduction
On 7 December 2012 the Court made orders in the following terms:
1.The Application be dismissed.
2.The Applicant pay the First Respondent’s costs in the sum of $6471.00 by 7 January 2013.
3.Reasons for Judgment to be published from Chambers at a later date.
The following are the Court’s Reasons for Judgment.
Background and application
The applicant is a citizen of Iran who first arrived in Australia at Christmas Island on 20 February 2011. The applicant did not hold a visa, and therefore became an unlawful non-citizen and an offshore-entry person as defined in s.5 of the Migration Act 1958 (Cth).[1]
[1] “Migration Act”; Court Book (“CB”) 12.
By an application filed with this Court on 27 January 2012 the applicant applied for judicial review of an independent protection assessment. The applicant sought relief in the exercise of the Court’s jurisdiction under s.476 of the Migration Act in respect of a future decision, or other action by the Minister or an officer, under the Migration Act in relation to the independent protection assessment recommendation. That recommendation[2] was that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Convention.[3]
[2] CB 296 and 305
[3] “Convention”.
Earlier orders
At a first directions hearing on 2 April 2012 in Perth by telephone link to the applicant at the Curtin Immigration Detention Centre near Derby in the north of Western Australia, this Court ordered that the applicant should file and serve, on or before 25 June 2012, an amended application giving particulars of the grounds for review, and any affidavits upon which he intended to rely at the hearing, which was listed for 20 October 2012. When the matter came on for hearing on 2 October 2012 the applicant had not complied with those orders.
At the 2 October 2012 hearing in Perth by video link to the applicant in Melbourne, the applicant raised a new matter. The applicant asserted that he had been denied an opportunity to be heard by the independent protection assessor as to his conversion to Christianity.[4]
[4] See WZAQI v Minister for Immigration & Citizenship & Anor [2012] FMCA 921 (“WZAQI (No. 1)”).
At the hearing on 2 October 2012 following a brief argument, and, ultimately, without any real objection from the Minister, the Court made the following orders:
1.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.
2.The First Respondent file and serve any affidavits in reply by 30 November 2012.
3.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.
Affidavits filed prior to 7 December 2012 hearing
The applicant did not file and serve an amended application or an affidavit in accordance with the terms of the 2 October 2012 orders. The applicant did, however, file an affidavit on 2 November 2012[5] which dealt solely with the circumstances at the independent protection assessment hearing related to the alleged denial of an opportunity to be heard as to the applicant’s alleged conversion to Christianity.
[5] “Applicant’s Affidavit”.
The Minister caused to be filed an affidavit sworn by Ms Vahala on 5 December 2012.[6] That affidavit annexed a CD copy of the audio recording of the independent protection assessment hearing, and a hard copy extract of the transcript (about half a page in length in double spacing) of that part of that hearing related to the applicant’s claim that he had been denied an opportunity to be heard by the independent protection assessor as to his alleged conversion to Christianity.
[6] “Ms Vahala’s Affidavit”.
7 December 2012 hearing
The hearing on 7 December 2012 was in Perth with a video link established to Melbourne. The applicant presently resides in Melbourne. When the matter was called the applicant did not appear. The Court was informed that the applicant was on his way to Court, and, consequently, the Court adjourned the matter until such time as the applicant arrived at Court, or until 11.15am (Perth time) at the latest, that is, one hour after the matter had been initially called. The adjournment was ordered in that form because the Court was advised that the applicant had told Court officers with whom he had been in contact that to travel to the Court would take him 20 to 30 minutes.
The matter was called again at 11.15am, and there was no appearance by the applicant. At the Court’s direction, the matter was then again called outside the precincts of the Melbourne courtroom. There was still no appearance by the applicant.
Following a brief exchange with Counsel for the Minister concerning the applicant’s non-appearance, the jurisdiction of the Court, and the merits of the matter if the Court had jurisdiction, the Court made the orders set out at paragraph 1 above.
The reasons for the Court so doing now follow.
Jurisdiction
As noted above no amended application was filed in accordance with either the Court’s orders of 2 April 2012 or 2 October 2012. The application before the Court seeks declaratory relief only.
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.
Section 75(v) of the Constitution provides that:
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.
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.
An analysis of Plaintiff M61/2010E v Commonwealth of Australia & Ors[7] 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.[8]
[7] (2010) 243 CLR 319; [2010] HCA 41 (“Plaintiff M61”).
[8] 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”).
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 independent merits review recommendation, that enlivens this Court’s jurisdiction for relief in relation to a migration decision.[9] Whilst the High Court in Plaintiff M61 ultimately granted a declaration, but no injunction, injunctions grounding jurisdiction under s.75(v) of the Constitution were sought in Plaintiff M61.[10] Thus, it may be that this Court can grant a declaration alone as a remedy in relation to an independent merits review recommendation, but only where an injunction grounding jurisdiction is sought. The declaration is then made pursuant to this Court’s statutory capacity to make a declaration of right in respect of the matter in which it has the same original jurisdiction as the High Court.[11]
[9] See, for example, Darabi FLR at 308 per Nicholls FM; FMCA at paras.30-31 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) 204 FCR 557 at 575-576; [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.
[10] 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.
[11] Migration Act, s.476(1) and Constitution, s.75(v); see also Federal Magistrates Act 1999 (Cth), s.16(1).
In the circumstances where the applicant has had two opportunities to amend the relief sought in the application, and did not do so, and then failed to attend Court, there is no application for injunctive relief before the Court. It follows, therefore, that the application is incompetent, and must be dismissed for want of jurisdiction.
Non-appearance
The application was made on 27 January 2012, and as noted above had been the subject of orders made on 2 April 2012, at the first directions hearing. Those orders were not complied with, and further orders were made on 2 October 2012, and the applicant did not strictly comply with those orders either.
The applicant was present in Court in Melbourne on 2 October 2012 when the hearing was listed for 7 December 2012. A Court-provided interpreter was also present on that day.
The applicant’s failure to appear at the hearing in circumstances where it is reasonable to infer that he was aware of the hearing date from the orders made in Court on 2 October 2012, and where he failed to attend Court following a lengthy adjournment specifically granted to facilitate his attendance, warranted the dismissal of his application pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). In the absence of jurisdiction dismissal on that basis is not necessary.
Alleged error
In the above circumstances, it is not necessary to deal with the merits of the judicial review application.
Conclusion
For the reasons set out above the application was dismissed, with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 10 December 2012
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