WZAQQ v Minister for Immigration - [2012] FMCA 766

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAQQ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 766

MIGRATION – Independent Merits Review report recommends that applicant not be regarded as being owed protection obligations by Australia – judicial review application filed pursuant to s.476(1) of the Migration Act – no grounds specified – no amended application filed – dismissed.

Migration Act 1958 (Cth), ss.46A, & 476
Federal Magistrate Court Rules 2001, 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 & Anor [2011] FMCA 371

Applicant:

WZAQQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

HUGH WYNDHAM IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

File Number:

PEG 41 of 2012

Judgment of:

Lindsay FM

Hearing date:

28 August 2012

Date of Last Submission:

28 August 2012

Delivered at:

Perth

Delivered on:

28 August 2012

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the First Respondent:

Mr P.J. Hannan

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

That pursuant to Rule 13.03B(1)(a) of the Federal Magistrates Court Rules 2001 the Application filed on 29 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 41 of 2012

WZAQQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

HUGH WYNDHAM IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Note: this written account of ex tempore Reasons delivered on 28 August 2012 contains a correction as to one aspect of the Reasons given. The correction, which I find does not inure to the disadvantage of the applicant, is to be found at [5] hereof.

The applicant claims Australia owes him protection obligations under the Refugees Convention and Refugees Protocol and says that he is fearful of persecution for a Convention related reason if he is returned to his country of origin, which is Iraq.
He arrived in Australia on 1 September 2010. On 2 October, he applied for a Refugee Status Assessment and he had the assistance of a migration agent in relation to that process. His application was supported by a statement of claim. He was interviewed by an RSA officer on 6 October and on 4 March 2011, the RSA officer determined that he was not someone who was owed protection obligations by Australia.
His response to that was to apply, as he was entitled to do, for an independent merits review (hereinafter “IMR”); again, he did that with the assistance of a migration agent. The migration agent subsequently lodged written submissions with the independent merits reviewer, and they were supplemented with other documents filed on his behalf. He was interviewed by the reviewer on 17 November 2011 and on 2 January 2012, the reviewer recommended, as the RSA officer had done, that he was not a person to whom Australia should regard itself as owing protection obligations.
So he is someone who has had the opportunity, at two discrete phases of his experience since arrival in Australia in September of 2010, of having his claims articulated and of having his claims scrutinised and reasons given following that scrutiny and that decision.
He has lodged an application to this Court under s.476(1) of the Migration Act 1958 (Cth) (“the Act”), seeking to review the IMR’s decision and in a moment I will come to the nature of the review process in the context of these IMR reports but first, I should note that his application simply specified no grounds at all in relation to why it was that he should be granted the relief that was claimed. When I gave these Reasons ex tempore on 28 August 2012 I noted that, insofar as he sought a declaration that the recommendation of the reviewer was not made in accordance with law by ticking a box on page 2 of the application document, he, in a strictly formal sense, had engaged the appropriate mechanism for the agitation of the review. That is incorrect.
In fact, the decision of Plaintiff M61/2010 v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 makes clear that whilst a declaration may be the only remedy granted (as it was in that case) the jurisdiction of the Court in cases involving off-shore entry persons will only be engaged if there is an application for injunction to prevent the Minister from relying on the recommendation (see Darabi v Minister for Immigration & Anor [2011] FMCA 371 at [30]). But my mis-statement of the position did not and does not inure to the disadvantage of the applicant.
When the matter came before Lucev FM in March of this year, the applicant unsurprisingly was ordered to file an amended application, setting forth the grounds on which he says he was entitled to the declaration. He was also ordered to file some other documents to facilitate the proper hearing of his claim. By July, he still had not done that and Lucev FM extended the time for him to do so but neither of Lucev FM’s orders have elicited anything that provides any amplification or articulation of his review application and he tells me this morning that the review was lodged on the advisement of the independent merits reviewer himself.
It is also apparent from what he said to me this morning that his migration agents no longer act for him and in that sense, this process has lost the catalyst which generated the earlier activity and the earlier scrutiny of his claims. He is significantly in default of the orders made by Lucev FM and that engages the provisions of Rule 13 of the Rules of this Court.
Rule 13.03A tells me what circumstances are taken to constitute a party being in default and in terms of Rule 13.03A(1)(b), the applicant has failed to comply with an order of the Court in the proceeding and failed to file and serve a document required under these Rules or to prosecute the proceeding with due diligence.
Rule 13.03B tells me what I can do if I am satisfied that a party is in default and that tells me that the proceedings can be stayed or dismissed as to the whole or any part of the relief claim and I have given consideration this morning as to whether I should exercise the powers under that Rule, there being no doubt at all, of course, that the applicant is significantly in default.
I should say a word about the review process itself. It is an application made pursuant to s.476(1) of the Act. It is not a review that focuses upon the IMR decision itself in the sense that what we are concerned about is not simply identifying error in the IMR report itself but in positing a future reliance by the Minister upon that report and asking ourselves whether if the Minister relied upon it, in any future decision relating to the lifting of the bar under s.46A of the Act, there would be a legal error, a jurisdictional error or procedural unfairness associated with the Minister so relying upon the report.
As I have indicated, I am prepared to dismiss this review under the relevant power in the Rules. I should note that I have read the IMR report and the other materials in the Court Book. I have also read Mr Hannan’s very careful analysis of the IMR report and of his submissions relating to the legal principles upon which any review would have been conducted. I have remarked previously and I will say it again, that the nature of the jurisdiction we are exercising in matters such as this requires us to ensure that we do not adopt an overly zealous attitude towards the adherence to the relevant Rules or relevant procedures of the Court.
We are, after all, dealing, in the case of genuine refugees, with persons whose lives and livelihood are at significant risk. On the other hand though, we have to have some sense of proportionality in terms of how we respond to this apprehension and in the circumstances of this case, I bear in mind that there has been a very careful scrutiny of the applicant’s circumstances to date, twice, and both times and during the course of both of those processes, the applicant was assisted by a migration agent and I know from the Court Book that there has been a highly calibrated articulation of his claims.
I also know that the application itself that he made shortly after his arrival has generated significant effort and cost on the part of those that conducted the Refugee Status Assessment, the IMR report itself and the legal practitioners involved in their response to the review. The other matter that gives us a sense of proportionality in responding to this understandable apprehension we have about looking for compliance with the Rules in matters of this nature is that in this case, is that there is simply nothing at all that has been filed that gives us any clue as to what problems the applicant would suggest there has been with the review, other than of course that he was dissatisfied with its outcome.
The claim of the applicant for protection status focussed upon his alleged participation in a protest in Basra in Iraq in June of 2010. The protest was in relation to electricity shortages and I note that it would have been in the middle of summer when the protest was being conducted. So it relates to his participation in that process and then the sequelae to that, that is what he says were his experiences in terms of being arrested, beaten and tortured, released upon the payment of a bribe but then experiencing subsequent threats communicated, essentially, through family members as to his life and livelihood if he did not depart the country.
In short, the reviewer thought there were significant problems associated with the credibility and integrity of the applicant’s account of his experiences, together with a significant lack of detail relating to aspects of it and significant inconsistencies with information that was available in relation to the protest and in particular, as to the issue as to whether any political party adopted a particularly severe view in relation to those who participated in the protest.
I am unable to discern, in my scrutiny of the IMR reasons, any legal error, jurisdictional error or unfairness associated with the way in which the review was conducted.
Mr Hannan’s analysis of the IMR report and related materials has not been cursory and my reading of the materials has not been cursory. As I have indicated, I have not identified, following my consideration of those matters, any matter that suggests any error associated with the way in which the IMR review was conducted.
Had I discerned such matter or even the suggestion of such matter, I would have hesitated more than I have in utilising the procedures available to me to deal with this application under the Rules.
For these reasons, I am satisfied that it is appropriate to proceed to deal with the matter in the way that I have outlined.
It is appropriate that there be an order for costs in the light of the orders I have made.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 29 August 2012