WZART v Minister for Immigration

[2013] FCCA 416

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZART v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 416

Catchwords:
MIGRATION – Application for judicial review of decision of Independent Merits Reviewer – allegation of bias because Reviewer rejected both Convention and Complementary Protection claims – allegation not made out – no other grounds advanced – no discernible error in decision – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.36(aa)

Cases cited:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Applicant: WZART

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: PETER MCDERMOTT IN HIS CAPACITY AS THE INDEPENDENT MERIT REVIEWER

File Number: PEG 258 of 2012

Judgment of: Judge Burchardt

Hearing date: 2 April 2013

Date of Last Submission: 2 April 2013

Delivered at: Melbourne

Delivered on: 12 June 2013

REPRESENTATION

The Applicant: In person (assisted by a Tamil interpreter and by Mr Somasunderam)

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. That the application be dismissed.

2. That the Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 258 of 2012

WZART

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

PETER MCDERMOTT IN HIS CAPACITY AS THE INDEPENDENT MERIT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. In this matter, the applicant seeks judicial review of a decision of an Independent Merits Reviewer, dated 23 July 2012.  The application filed 23 October 2012 lists as grounds of application:

   “That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.”

2. No affidavit in support of the application was lodged.

3. Notwithstanding orders made for the filing of amended applications and any further materials, the applicant provided nothing by way of an amended application.  This is not put as a matter of criticism, bearing in mind that he is self-represented, but it is part of the picture.

4. Following difficulties with a hearing in Perth owing to a lack of interpretation, and further difficulties posited by the applicant with his health, the matter was eventually heard by teleconference link on 2 April 2013.  The applicant appeared for himself, with the assistance of a Tamil interpreter and with the assistance of Mr Somasunderam, a volunteer social worker with the West Australian Tamil Association.

5. It should be noted that I was informed that the interpreter was not a graded interpreter, but I satisfied myself by direct questioning before the start of the case not only that the interpreter was confident that he would be able to fulfil his task but also that the applicant was confident that he could properly communicate with the interpreter in Tamil.  From the way the proceeding eventuated, it was clear that the applicant and the interpreter were able properly to communicate.  They had the further assistance of Mr Somasunderam, in any event.

6. In a letter sent to the court, undated but apparently forwarded on 15 March 2013, the applicant confirmed that he had had the written submissions of the first respondent interpreted to him and submitted several documents about the circumstances in Sri Lanka.  He also asserted:

   “I also wish to submit that the same officer who heard the appeal under the Refugee Convention also heard my appeal under the 2011 amendment to the Migration Act of 1958 in respect to my claims for a Protective Visa.

   This I consider unfair and I wish to appeal that an order be made by a different officer to test the validity of my claims for a Complementary Visa.”

7. In a further letter, sent on 27 March 2013, the applicant appended further materials from Sri Lanka and repeated the submission that:

   “My submission is that when the IMR officer examined my claims the situation in Sri Lanka was not assessed, or was I given an opportunity of explaining my position.  The same government and military is yet in occupation in the North and East of Sri Lanka, committing human rights abuses at the time my claims were made.”

8. Subsequent to the hearing, the applicant sought to forward further material, which is before the Court albeit that it was not accepted for filing.  It is once again information, purporting to be from Sri Lanka, about the circumstances that obtain there.

9. When the matter was before the Court, the applicant said that there were still a lot of problems in Sri Lanka and that returnees likewise face many difficulties.  He said that the Roman Catholic newspaper reveals a lot of problems for returnees.  Because the applicant asserted he was very stressed and unable properly to express himself, I gave permission to Mr Somasunderam, who was in court, to make submissions on his behalf.

10. Mr Somasunderam submitted that the applicant lives in a chummery where there is constant discussion about the situation in Sri Lanka.  He referred to the documents that had been forwarded to the Court.  He said that the basic submission is that the same officer who heard the Refugee Convention claim also heard the Complementary Protection claim.  He submitted that the Independent Merits Reviewer had already made up his mind in considering the Refugee Convention claim and used the same reasons to deny the Complementary Protection claim.  He submitted that this was not fair.

11. Mr Somasunderam repeated, albeit in précis, the various claims made by the applicant and pointed, correctly enough in my view, to the fact that if the applicant returns to Sri Lanka and his wife and children are in India, he will simply not be able to see them. Mr Somasunderam submitted that the applicant cannot relocate and is in any event illiterate. He submitted that the applicant should be tested against the provisions in s.36(aa) of the Migration Act.

12. Counsel for the Minister submitted that the applicant’s advisor was simply attempting to revisit the merits of the original application.  She formally opposed the receipt by the Court of the additional information now put forward by the applicant on the grounds that it was not relevant as it post-dated the Reviewer’s decision and was not before the Reviewer.

13. It was submitted that the allegations of bias were not made out as a fair reading of the Reviewer’s decision shows that careful consideration was consideration to the s.36(aa) matters and cogent reasons for its rejection given.

14. During the currency of submissions made by the Minister’s counsel, which were being interpreted to the applicant, the applicant said that the Reviewer had erroneously assumed that he possessed an Indian passport and rejected his claims on this ground.  It is clear that that is not what occurred.

15. In final submissions in reply, Mr Somasunderam said that the Reviewer had already made up his mind in dealing with the Refugee Convention matters and with that bias went on to the s.36(aa) claim. He submitted that a different mind should have been brought to bear.

The Reviewer’s Decision

1. The Reviewer commenced by setting out instruction and said at paragraph 4 (CB198)

   “This independent review will consider afresh all claims for protection as they relate to the Refugees Convention, taking into account all available information, including information available to the refugee status assessment officer in reaching the unfavourable refugee status assessment, information provided by or on behalf of the claimant and any additional information the independent reviewer may consider relevant.”

2. The Reviewer set out at CB198-200 the relevant law.  I note that at CB199-200 the Reviewer correctly referred to the complementary protection criterion and the circumstances in which it would operate.

3. At CB201 and following, the Reviewer set out the claims and evidence in the case.  I note that the analysis of the applicant’s claims at paragraphs 18-25 seems to me entirely consistent with the materials that had been provided to the Reviewer and as set out in the court book.

4. At CB203 (paragraph 26) and following the Reviewer sets out the course of the Independent Merits Review interview.  I accept the submission of counsel for the first respondent that the record of the review shows that the applicant was accorded procedural fairness.  I note that although orders were made by Lucev FM on 5 November 2012, which would have facilitated the presentation of transcript of the interview, none has been provided.  I therefore am bound to conclude that the Reviewer’s record of events is correct.

5. It is clear that the Reviewer went through the applicant’s account of his circumstances in considerable detail and put to him, in my view fairly, country information relevant to a possible outcome. 

6. I note inter alia that the Reviewer, at paragraph 96 and following (CB215-217), traversed in detail with the applicant the matters that arise under the Complementary Protection provision.

7. At CB217 and following the Reviewer set out findings and reasons.  The reasons can be summarised shortly.  Because of a number of inconsistencies in the versions of events given by the applicant from time to time, the Reviewer simply did not believe the applicant’s claim that he had an LTTE connection as claimed.  His claims that would have grounded his assertion that he was a refugee were roundly rejected.

8. This does not mean that the Reviewer was in every sense antithetical to the applicant.  The Reviewer gave the applicant the benefit of the doubt and accepted that he was a citizen of Sri Lanka although his family lives in India where there is a large Tamil presence (paragraph 106, CB218).  The Reviewer also accepted that the applicant had been detained because he went into an LTTE controlled sea area (paragraph 114, CB219).

9. Nonetheless, the Reviewer’s conclusions that the applicant was not involved with the LTTE are not in my opinion open to criticism and do not reveal jurisdictional error.

10. Indeed, the applicant has not asserted jurisdictional error in this regard but I have considered it since the applicant, being effectively self represented, may not have been able to put forward such a criticism.

11. The Reviewer considered the various bases upon which the application could be considered including whether the applicant was a member of a particular social group within the meaning of the Convention and concluded that he was not.  The Reviewer also considered the claims put forward cumulatively (paragraph 126, CB222).

12. At paragraphs 127 and following (CB222-227) the Reviewer dealt in considerable detail with the applicant’s claims pursuant to the Complementary Protection provision.  I accept the submission of counsel for the Minster that the Reviewer’s reasoning in this regard was cogent.

13. While necessarily the factual conclusions that the Reviewer reached grounded both his consideration, and indeed rejection, of the claims under the Refugee Convention and the Complementary Protection provision I do not think the applicant’s submissions can be upheld. The Complementary Protection provision provides a further set of criteria under the Act which the Reviewer was bound to and did consider. The proposition that in each and every case a Reviewer who comes to an antithetical conclusion in relation to the Convention must necessarily then cease consideration of the matter and not consider the Complementary Protection provision is not one that in my opinion arises under any provision of the Migration Act.

14. Likewise, a fair and informed observer reading the Reviewer’s reasons for decision would not come to the conclusion that the Reviewer was guilty of pre-judgment in the Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 sense. To the contrary, a fair reading of the decision suggests that the Reviewer gave fair and conscientious consideration to the applicant’s claim pursuant to the Complementary Protection criteria but rejected them for reasons which I have said more than once strike me as being cogent.

15. In the circumstances the applicant’s application must be dismissed. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  12 June 2013