WZAQL v Minister for Immigration - [2012] FMCA 771

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAQL v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 771

MIGRATION – Independent Protection Assessment unfavourable to applicant – review application pursuant to s.476(1) of Migration Act filed – application fails to specify any ground for review or to seek injunction restraining Minister from relying upon Independent Protection Assessment – application dismissed pursuant to power in the Rules.

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

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

Applicant:

WZAQL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

HUGH WYNDHAM IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

File Number:

PEG 33 of 2012

Judgment of:

Lindsay FM

Hearing date:

29 August 2012

Date of Last Submission:

29 August 2012

Delivered at:

Perth

Delivered on:

29 August 2012

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms B. Rayment

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That pursuant to Rule 13.03B(1)(a) of the Federal Magistrates Court Rules 2001 the Application filed on 20 February 2012 is dismissed.
That the applicant pay the respondents’ costs of and incidental to these proceedings fixed in the sum of SIX THOUSAND FOUR HUNDRED AND SEVENTY ONE DOLLARS [$6,471.00].

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 33 of 2012

WZAQL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

HUGH WYNDHAM IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

On 12 March 2012 Lucev FM made a number of procedural orders to prepare this matter for hearing. He fixed today as the date for hearing. He obliged the First Respondent to do certain things. The First Respondent has done them.
As far as the Applicant was concerned, he made an order 8 as follows:
The applicant has leave to file and serve an amended application including any additional grounds for review with complete particulars of each ground on or before 29 May 2012.
He made an order 10 as follows:
The applicant file and serve written legal submissions and a list of authorities no later than 14 days prior to the hearing date.
He also gave the Applicant an opportunity to file affidavit evidence.
I am not concerned this morning about the absence of the affidavit evidence or the legal submissions but I am concerned about the absence of any document that even purports to specify a ground relating to the Independent Merits Review (“the IMR”).
The Applicant is an offshore entry person. The nature of the jurisdiction the Court exercises in matters of this kind is the jurisdiction the High Court described in the case of Plaintiff M61/2010 v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 and, essentially, the task on reviews of this kind is to identify whether there is any legal error or jurisdictional error or departure from the principles of natural justice associated with the conduct of the IMR review (or the Independent Protection Assessment, as it is now called).
But it is not the IMR review itself that grounds the jurisdiction under s.476(1) of the Migration Act 1958 (Cth) (“the Act”). It is the positing of the possibility of a future reliance by the Minister on that review in his decision as to whether or not to “lift the bar” under s.46A of the Act that grounds the jurisdiction. But we are not in a position to reach that kind of adjudication in this matter because no grounds for review have been identified. It is not appropriate to embark on a review where the grounds have not ever been identified or described.
Section 476(1) of the Act gives this Court the same jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution. Migration decisions carry a very specific definition under the Act.
In addition to the issue of not having identified a ground for review, the other problem with the application is that it seeks relief only in the form of an order by way of declaration. An application for an order for declaration together with an application for an injunction seeking to restrain the Minister from reliance upon the impugned report, would be enough but that same decision, Plaintiff M61, makes it plain, that the application for a declaration on its own is not enough to ground the jurisdiction of the Court in this species of review. Even if the only order that is made on the review is a declaration (as was the case in Plaintiff M61) the application must seek the injunctive relief to provide the Court with a jurisdiction. No issue arises as to leave to amend the application; an opportunity to amend has already been given and it has not been taken.
The Rules of the Court are equipped to deal with this kind of situation and Rule 13 of the Rules of this Court deal with questions of default. Rule 13.03A(1) describes what it means for an applicant to be in default. It includes a failure to comply with an order of the Court. That is the position here. Also, a failure to file and serve a document required under the Rules, is a default. That is the position here. A failure to prosecute the proceeding with due diligence is also a default.
It is (a), (b) and (e) of 13.03A(1) that are engaged here. Rule 13.03B tells me what my powers are in the event that there has been a default and they include in sub-rule 1(a) my power to order the stay or dismissal of the whole or any part of the relief claimed by the Applicant.
In the light of there being simply no application before the Court that, firstly, engages properly the jurisdiction of the Court or, secondly, that specifies any ground relating to the review, I consider that it is appropriate to proceed to dismiss the application. No other remedy under Rule 13.03B is appropriate in the circumstances of this case.
In doing so, though, I make it clear that I have read carefully all of the material provided in the court book that was provided by the First Respondent pursuant to the order of Lucev FM and I have also read the very careful submission prepared by the First Respondent’s counsel. I am making what on their face appear to be procedural orders but I am making the orders against the background of a substantial knowledge of the claims by this Applicant during the review process and I am noting these matters because, of course, it is important to bear in mind the jurisdiction the Court is exercising under s.476 in relation to protection visa applicants.
Genuine claimants for refugee status are persons whose lives and livelihoods are potentially at risk, so the Court must always be very careful to ensure that a concern for adherence to the proper procedures of the Court does not get in the way of the scrutiny of matters and careful consideration of matters which go to the question of whether someone is owed protection obligations by Australia under the Refugees Convention and Refugees Protocol; however, we have got to respond in a measured way to our natural apprehensions about that possibility and responding in a measured way requires me to take into account, I consider, that the Applicant’s claims have already been the subject of two discrete processes.
There has been the process associated with what is described as a Protection Obligations Evaluation. The Applicant was assisted by a migration agent in that process which included an interview, preparation of a statutory declaration, a provision of a number of documents and then subsequent to the interview a lengthy written submission. When the Protection Obligations Evaluation was unsuccessful from the Applicant’s point of view automatically he became entitled to a further review and it is the assessment that has been carried out under the auspices of the Independent Protection Assessment. That is, ostensibly at least, the subject matter of the application before me. Once again, the Applicant was represented by a migration agent representative at the interview associated with that process.
That is the first set of circumstances that qualifies my response to the apprehensions I mentioned earlier.
The second is the fact that we are not dealing with mere incidental non-observances of orders or Rules, we are dealing with non-observances which effectively leave the Applicant in a position of not having any application before me to promote.
I have read the Independent Protection Assessment carefully. It is plain that from the perspective of the author of that assessment, as from the perspective of the author of the earlier assessment, that there were significant difficulties associated with the Applicant’s account of those matters which were said to ground his concerns that if he were returned to Iran he would have genuine fears in relation to persecution for Convention reasons. His claims related almost exclusively to his participation in a demonstration in Iran in 2009.
The claims of detention made by the Applicant included claims of being tortured and beaten during his detention following that demonstration. Those claims were rejected in their entirety. He claimed that, in a long-delayed sequalae to that detention, the authorities renewed their interest in him and that such renewed interest required him to go into hiding and, ultimately, required his departure from Iran. He was not believed in relation to those matters either.
There is nothing in the way in which the assessor went about his tasks – that is, the evaluation of the information provided on behalf of the Applicant, the evaluation of country information or the scrutiny of that information in the light of Australia’s obligations to persons who are owed protection obligations – that is indicative of error, whether jurisdictional error or legal error, and there is no indication on the face of the material, on my reading of it, of any departure from principles of procedural fairness such as would provide the basis for an order allowing the review.
I undertook that scrutiny notwithstanding the circumstance of the failure of the Applicant to properly engage the jurisdiction of the Court in his application or to provide any grounds for his entitlement to review. In mentioning those matters I am not purporting to have conducted a hearing in relation to the Applicant’s review. I wish to make that clear. But I want my scrutiny of the materials to be noted.
I am making an order under the Rules dismissing the application before embarking upon the conduct of any review but I am noting these matters so as it is clear that the orders which, as I say, are on their face procedural orders, can be understood to have been made against the background of that kind of scrutiny of the information.
For these reasons, the application will be dismissed and I order accordingly.
It is appropriate that there be an order for costs and I so order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 31 August 2012