WZAQN v Minister for Immigration
[2012] FMCA 796
•30 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAQN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 796 |
| MIGRATION – Independent Merits Review report recommends that Australia does not owe the applicant protection obligations – review does not seek injunction nor identify grounds – application dismissed pursuant to powers in Rules of Court. |
| Migration Act 1958 (Cth), ss.46A, 476 Commonwealth Constitution, s.75 Federal Magistrates Court Rules, r.13.03 |
| Plaintiff M61/2010 v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 Darabi v Minister for Immigration and Anor [2011] FMCA 371 |
| Applicant: | WZAQN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 36 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 30 August 2012 |
| Date of Last Submission: | 30 August 2012 |
| Delivered at: | Perth |
| Delivered on: | 30 August 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms B. Rayment |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application by the applicant for an adjournment of the hearing is refused.
Pursuant to Rule 13.03B(1)(a) of the Federal Magistrates Court Rules 2001 the application filed on 27 February 2012 do stand dismissed.
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 36 of 2012
| WZAQN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is an off-shore entry person who arrived in Australia on 10 January 2011. Following his arrival he sought a Refugee Status Assessment (“RSA”). He was unsuccessful. He then sought an Independent Merits Review (“IMR”) of that assessment, and that was also unsuccessful. Those two processes – the RSA and the IMR – were processes designed to assist the Minister for Immigration in determining whether or not it was appropriate to “lift the bar” in terms of s.46A of the Migration Act 1958 (“the Act”) in relation to the applicant’s opportunity to promote his application for a protection visa. In both of those processes, the RSA and IMR, the applicant was legally represented at the respective interviews; his representation prepared a statutory declaration for the RSA, and written submissions for the IMR.
His failure on the IMR review led to an application being filed in this court under s.476(1) of the Act. The applicant told me this morning that he had been advised by someone he described as his case worker that it was necessary for him to file the application. In other words, that it was not something he did at his election, or upon consideration, or upon legal advice, but because he considered it was a necessary part of the process.
This hearing, of course, which deals with the application he filed is not some further step in an administrative process relating to the processing of off-shore entry persons. It is a legal proceeding being heard in a Court constituted by a Chapter III Justice, and it is trite to say that persons who come to the Court, applicants or respondents, have certain responsibilities which they must discharge.
The jurisdiction for and the way in which applications for review of IMR decisions by off-shore entry persons should be conducted was the subject of the decision of the High Court in Plaintiff M61/2010 v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41. It is, in fact, the circumstance that the applicant is in custody or detention of one form or another that actually grounds the jurisdiction of the Court to review IMR decisions; that is the taking into custody or detention of an applicant whilst the Minister considers whether or not to lift the bar under s.46A of the Act.
This Court, under s.476(1), has the same jurisdiction as the High Court has under s.75(v) of the Constitution, but the same jurisdiction only in relation to migration decisions. It is important to note in cases such as this that this is an application about an IMR decision, but it is not that decision which constitutes the migration decision that is liable to be reviewed. It is the future posited reliance on the IMR decision by the Minister. That is the migration decision that is the subject of a review application.
The High Court made it plain in that same case though that the jurisdiction of the Court in such matters is only properly engaged if there is a claim for injunction to restrain the Minister from relying on the recommendation. There can be an application for an injunction and declaration, and it may be ultimately that it is only the declaration that is made. That was certainly the case in Plaintiff M61. But the jurisdiction of the Court can only be engaged by including an application for an injunction, and there is a useful discussion of that topic by Nicholls FM in the case of Darabi v Minister for Immigration and Anor [2011] FMCA 371, especially [30].
The application filed in this Court on 27 February of this year has two problems.
The first is the matter to which I have just referred, the fact that it contains an application only for declaration and not injunction, but, secondly, and perhaps more fundamentally, there are simply no grounds identified in the application at all as to why the review should succeed. Now, because of those circumstances, I drew to the applicant’s attention this morning the powers of the Court under Rule 13 of the Rules of Court.
Rule 13.03A describes what it is for a party to be in default so that the provisions of the Rule can be engaged, and the matters to which I have referred mean that the applicant is in default in terms of subparagraphs (a), (b) and (e). That means that under 13.03B(1), the Court has a range of orders it can make. It can stay the proceeding or dismiss it as to the whole or any part of the relief claimed. It can order that a step be taken within the time limited in the order, and it can, if the applicant does not take such a step, order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
I indicated to the applicant that I thought that this may be an occasion for the exercise of the power under the Rules.
That led to his application that I adjourn today’s hearing, and he asked me to adjourn the hearing because he told me that he wanted to obtain legal assistance, and he pointed particularly to the fact that he is in migration detention as a matter that has disadvantaged him in respect of trying to retain a solicitor.
All applicants in review such as this must, for the jurisdiction of the Court to be grounded, be in some form of detention, but it is sometimes the case that arrangements under the Act known as “community detention” are entered into, but here the applicant, as I understand it, is in actual physical detention. I do not know the reasons for that, or, that is, I do not know why he is not in community detention, that is, in actual physical detention, and it is not appropriate for me to inquire.
Now, he has had, as I have indicated, legal representation at each step of the process, and by that I mean during the course of the RSA and during the course of the IMR process, and then when proceedings came to this Court we know that he had representation by the legal representatives who assisted him at the time that Lucev FM made orders in March directing him to file certain documents, and especially gave him the opportunity to file an amended application specifying what is described in the order as “amended grounds”, but, in fact, in the circumstances of this case it would be the identification of grounds for the first time, if he had taken that opportunity.
He tells me he has made inquiries to secure legal representation. I think he said four or five different law firms had been approached, and they had declined to act, and, of course, that followed on after the lawyers that were retained by him in March ceasing to act for him, and I am inferring that they ceased to act for him shortly after those March orders were made. I do not know why they ceased to act for him, and it is not appropriate for me to inquire in relation to that.
He told me though that in respect of the approaches he had made to the four or five law firms subsequently that a significant part of their decision not to act in each case, as I understand it, related to his inability to pay them, and I accept that his circumstances of detention mean that he would be unable to do that. But if I adjourn the matter, those same features of his predicament will persist. He has not told me that he is being released from his physical detention.
His continuing detention will mean that he will not be in the position to retain a legal practitioner which is his current predicament, and, in short, I was not able to identify from anything that he put to me that there would be any utility in adjourning the proceedings.
In determining the application to adjourn, it is appropriate for me to take into account the time he has had to make these arrangements, and, as I indicated, I am proceeding upon the basis that his former lawyers ceased to act for him shortly after the March hearing.
That means he has had an opportunity of some four or five months to retain a legal practitioner so as to be able to put grounds before the Court, and to otherwise comply with the order that Lucev FM made. There is simply no basis for me to think that in a further four or five months his predicament will be any different. Certainly there is nothing here that is put to me this morning that suggests that. So as I indicated, I am not satisfied that the adjournment would have any utility.
It would only have a utility, of course, if he were able to engage legal practitioners. I should say that he is probably able to remedy one of the problems with respect to his application. I am assuming that in the light of what has been discussed this morning he would be able to amend his application so as to include an application for an injunction, but, as he himself acknowledged, he will not be in a position to promote any grounds for the review unless he has the opportunity of being legally represented, and there is nothing he has put to me that would indicate that the adjournment would serve the purpose of enabling him to be legally represented. Other matters relevant to the adjournment, of course, include the fact that the respondent has fulfilled its obligations. This is the day appointed for the hearing of the matter.
The application for the adjournment is opposed.
There being no matter indicating that the adjournment would have a utility, the adjournment application will be refused.
So we turn then to the difficulties with the application in its present form. It is plain that the applicant has never turned his mind to identifying grounds. The application has not been filed as a consequence of either he or his advisers having identified grounds. It has been filed in the circumstances that he told me about this morning. No grounds in respect of the review have been advanced. Conducting a hearing, a judicial review hearing absent the identification of any grounds for the review, in my view, would be entirely inappropriate.
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. The default in relation to the orders that were made in March, and in relation to the conduct of the matter generally are fundamental and not in any sense, in my view, technical defaults, and in those circumstances it seems to me that the appropriate remedy in terms of the choices of remedy in rule 13.03B is a dismissal of the application.
I should add the following. I have read carefully the Court Book, and in particular I have read the IMR report, and I have also read the helpful submissions of the respondent’s legal representatives. I have scrutinised the reasons of the IMR to see if I could identify any apparent legal error, jurisdictional error, or procedural unfairness associated with the way in which the review was conducted, and I could not. 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 is not.
But the nature of the jurisdiction the Court is exercising in respect of off-shore applicants I think requires me to have taken this step. Genuine applicants for protection visas are persons whose lives and livelihoods can be very much at risk, and so we are rightly apprehensive, it seems to me, about ensuring that we are not adhering to Court processes and furthering the integrity of the Court processes in a way which will disadvantage genuine applicants for protection visas. Assuaging our apprehensions in that regard though in this case are the following matters.
Firstly, I know from reading the Court Book that the applicant’s claims have been the subject of two very carefully conducted reviews by persons appointed by the Minister for that purpose, and they have been conducted in circumstances where the applicant had the opportunity of legal representation at each of those steps, and had the opportunity to put submissions, and put information about his personal circumstances, and country information relevant to the application.
It is important to temper our rightful apprehension about bringing this proceeding to an end in the way that I am proposing to bring it to an end with recognition of those circumstances.
I have been unable to identify any apparent legal or jurisdictional errors associated with the conduct of the review, or any procedural unfairness associated with it.
For these reasons, the application will be dismissed pursuant to the Rules and I order accordingly.
It is appropriate that there be an order for costs and I so order.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 11 September 2012
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