WZAOQ & WZAOR v Minister for Immigration & Anor [2011] FMCA 869 (24 October 2011)

Last Updated: 10 November 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOQ & WZAOR v MINISTER FOR IMMIGRATON & ANOR

[2011] FMCA 869

MIGRATION – Review of decision of IMR – whether applicant entitled to translated copy of first IMR decision – whether applicant entitled to advance copies of independent country information – whether IMR asked irrelevant questions of second applicant.

Plaintiff M61 of 2010E v Commonwealth of Australia [2010] HCA 41; (2010) 85 ALJR 133 Darabi v Minister for Immigration & Anor [2011] FMCA 371 SZPAC v Minister for Immigration & Anor [2011] FMCA 517 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Dranichnikov v Minister for Immigration & Anor (2003) 77 ALJR 1088 Applicant A27 of 2002 v Minister for Immigration & Anor [2004] FCA 259 Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 MZQAP v Minister for Immigration & Anor [2005] FCAFC SZATG v Minister for Immigration & Anor [2004] FCA 1595 SFGB v Minister for Immigration & Anor [2003] FCAFC 231 NABE v Minister for Immigration & Anor [2004] FCAFC 263; (2004) 144 FCR 1

Applicants:

WZAOQ WZAOR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	WENDY BODDISON, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
File Number:	PEG 151 of 2011 PEG 152 of 2011

Judgment of:

Raphael FM

Hearing date:

24 October 2011

Date of Last Submission:

24 October 2011

Delivered at:

Darwin

Delivered on:

24 October 2011

REPRESENTATION

Counsel for the Applicants:

Mr S Lee

Counsel for the Respondent:

Mr Anderson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) Both applications are dismissed.
(2) The applicant father WZAOQ is ordered to pay the first respondent’s cost which are assessed it the sum of $6,240.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN

PEG 151 of 2011
PEG 152 of 2011

WZAOQ WZAOR

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. I deal with the matters WZAOQ and WZOAR together, because that is how the matters were dealt with by the independent merits reviewer, in respect of whose decision judicial review is sought. The applicants are entitled to judicial review following the decision of the High Court in Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41; (2010) 85 ALJR 133 (“M61”)
2. The two applicants are Vietnamese citizens who arrived in Australia by boat in around September 2009. It transpired that the first applicant, the father, was a serial escaper, having left Vietnam unlawfully by boat in mid-1990, in 2001, 2003 and 2006 before his attempt in 2009.
   He had actually arrived in Australia in 2001 but was removed back to Vietnam in that year. The father’s claims to be a person to whom Australia owed protection obligations arose out of the restrictions that were being placed upon him in Vietnam, including the failure to provide him with a current Ho Khau. This prevented him, he said, from working in the trade that he knew best, which was fishing. Instead, he was able to earn what the IMR described as a “limited income” as a motorcycle taxi driver and making charcoal. The situation for the son was somewhat different. Firstly, in his documentation, he made no individual claim to be a refugee, relying solely on his relationship to his father. But as it turned out, it was accepted by all persons charged with considering his claim that he was suffering from an intellectual disability.
3. The decisions in respect of which judicial review is being sought were the second decisions by an IMR, the first having been made prior to the High Court decision in M61. The first ground of application is that the failure to provide the applicant father with a Vietnamese translation of the first IMR report prevented him from preparing for the second review and that constituted failure to provide him with natural justice. This is not an argument that I can accept because I am firm in my view that there is no obligation on the part of an administrative decision maker to provide his or her reasons for decision in any language other than English. In this case there is also no suggestion at the time Mr Hardy issued his reasons for decision that there was to be another IMR because his decision was made before the High Court handed down its judgment.
4. So to say that there should have been a translation provided in order to get one ready for another assessment that no one had agreed to make is, to my mind, rather stretching the point. I would add that Australia has accepted its responsibilities under the Refugees Convention and the 1967 Protocol to consider claims and has put in place a regime that those who wash up on the shores of other countries might well envy. The evidence is that this applicant received assistance from qualified migration agents who made representations on his behalf and attended hearings with him. These persons would surely have been in a position to read and understand Mr Hardy’s decision.
5. The second ground consists of four parts. It is in the following form:
   1. “The second respondent did not afford procedural fairness to the applicant.
   2. Procedural fairness required the second respondent to take all reasonable steps to ensure all reasonably available evidence was available to the applicant in exercise of the applicant’s right that the second respondent’s findings be based on evidence.
   100. Procedural fairness required the second respondent to identify to the applicant the independent evidence and country information she relied upon in a way which made the information available to the applicant for consideration where the information could be found on the internet or otherwise provide copies.
   4. The second respondent did not identify or otherwise make available to the applicant country information she relied on.
   5. The second respondent did not identify or provide the applicant copies of the country information that she relied on before the interview of 12 March 2011.”
6. I am of the view that the best expression of the current law on these matters is found in M61 which was applied by Nicholls FM in Darabi v Minister for Immigration & Anor [2011] FMCA 371 and considered by me in SZPAC v Minister for Immigration & Anor (2011) FMCA 517.
   I only make reference to these Federal Magistrate Court decisions because there is as yet no authoritative decision from the Federal Court on the matter. Those decisions, particularly M61, make it clear that what is required of a reviewer is to provide an applicant with the substance of the independent country information upon which the reviewer may rely and to seek from that applicant any comment he might have upon it. That is the extent of the obligation. It most certainly does not extend to providing him with copies in advance or telling him where that information could be found upon the internet.
7. Most of the country information which is dealt with by the IMR is well known and is frequently utilised by those acting for applicants in their claims. I am not making an inference that this is the case here but I think one has to take into account the practicalities. It is also well that one should consider what is the independent country information that was apparently not given to the applicant in the manner referred to.
   In the instant case there is country information concerning persons from a bad family background in Vietnam. The applicant had claimed that he was a person with such a background and that this was part of the reason for the discrimination which he claimed he suffered. The IMR found that it was not unreasonable for the Vietnamese authorities to restrict this applicant’s access to the sea but for reasons which are not difficult to ascertain. In any event, the existence of his allegations of a bad family background is a matter that was considered between the applicant and the IMR. In fact, it was raised by the applicant in a handwritten document that he provided to the IMR, a translation of which is found at [CB 160] when he says:
   • “I am aware that in the notice of rejection of my protection visa application (a document he says was not translated to) Immigration has made a reference to the effect that from 1990 onwards, the Vietnamese communist authorities no longer mistreat families who have collaborated with the government of the former Republic of Vietnam in South Vietnam.”
8. So the existence of this information was clearly known to him and to those advising him. I do not think that he can argue that the IMR fell into jurisdictional error by not putting to him the actual documents upon which she relied.
9. The second point upon which it was claimed that the country information was utilised was in connection with the Ho Khua but I have looked very carefully through the decision and I am unable to see that it was. The reviewer herself, when discussing the Ho Khua, says at [89] [CB 219]:
   • “The claimant states that he only had a temporary Ho Khua before 1993 and had to report to the local authorities and was occasionally detained from living outside his area. He did not indicate that other family members had this problem. It is unclear whether this was related to his background. The reviewer is satisfied that the claimant’s bad family background has not led him to be persecuted in the past. The claimant’s siblings have household registration which suggests that the failure to grant the claimant’s a Ho Khua is not connected to his bad family background. The reviewer finds that there is no real chance given his past experiences, and the independent evidence that he will be persecuted in the reasonably foreseeable future on account of his bad family background.”
10. The reviewer then goes on to consider persecution arising out of the failure to give him a Ho Khua because of his continual efforts to leave Vietnam. She states at [90] [CB 219]:

“The reviewer accepts that the claimant has gained some notoriety in his local area as someone who has departed many times from Vietnam. The reviewer accepts that the authorities may now be looking for the claimant because he has been absent for several years and they suspect he has been involved in another illegal departure. Independent country information indicates that people who leave Vietnam illegally may be prosecuted particularly if they organised departures of others, although reports generally indicate that a returnee might only be questioned or monitored for a period in the case of simply having left illegally.”

11. Whilst this paragraph does not deal specifically with Ho Khau, it does deal with independent country information relating to the applicant leaving the country. The IMR found that that the refusal to issue the applicant with a Ho Khau was probably related to his illegal departures [91] [CB 219] and that any punishment that he should receive because of the illegal departures was in respect of a law of general application and therefore did not fall within the convention. The IMR found that there was no evidence that would suggest that the illegal departure laws were selectively enforced for a convention reason against this particular applicant.
12. As the substance of those matters upon which country information was utilised by the IMR to make a finding adverse to the applicant was put to him and discussed with him, I am of the view that the IMR complied with its obligations to provide him with procedural fairness and the claims made in paragraph 2 of the amended application cannot be sustained.
13. The applicant’s son, WZAOR, did not make any independent claims to be a refugee but there came up during the course of the interview the fact that he was a person who suffered from an intellectual disability. The young man was born in 1991, making him 20 years old. The evidence that came out from the independent review and the review of the assessor was that he had gone to school for some time and that after he had left he had worked with his father in the father’s charcoal business.
14. During the course of the review, the reviewer asked the son some questions about his schooling, and in particular, as to whether he had been discriminated against and ostracised at school. It would appear that the young man replied in the negative, but in her consideration of his position, the IMR gave him the benefit of the doubt saying at [102] [CB 221]:
    • “The claimant’s son is intellectually disabled. Despite his evidence to the reviewer that the other children treated him well at school, it is accepted that he was, to a degree ostracised due to his disability. However this treatment is not serious harm. Since leaving school he has been able to assist his father in his charcoal making business. The reviewer is satisfied based on his past experiences that there is no real chance that the claimant’s son will be persecuted in the reasonably foreseeable future on account of his disability and that any fear of persecution is not well founded. The reviewer also notes that he is also at risk of being punished for his illegal departure from Vietnam however it’s noted above the punishment he might receive will not be convention-related persecution.”
15. On behalf of the applicant it is contended that the questioning of the son about his schooling had two effects. Firstly, in regard to the father, it had somehow confused the issue of his claims by the addition of irrelevant considerations. But a close reading of the decision without a mind attuned to the perception of error, would bring one to a clear conclusion that the reviewer had isolated the father from the position of the son and that she had dealt with the son independently, insofar as he had any claims at all.
16. The second complaint about the questioning was that it was irrelevant in the son’s case and that the IMR really did not ask herself the right questions in respect of the son to ascertain whether or not as a member of the particular social group of disabled persons that he had a well founded fear of persecution should be return.
17. It is trite law that there is an obligation on the part of a claimant to make out his own claim; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, Dranichnikov v Minister for Immigration & Anor (2003) 77 ALJR 1088, Applicant A27 of 2002 v Minister for Immigration & Anor [2004] FCA 259; Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166, MZQAP v Minister for Immigration & Anor [2005] FCAFC, SZATG v Minister for Immigration & Anor [2004] FCA 1595, SFGB v Minister for Immigration & Anor [2003] FCAFC 231, and whilst there is an obligation on the tribunal to take into consideration a substantially and clearly articulated argument relying upon established facts that emerged clearly from the evidence; NABE v Minister for Immigration & Anor [2004] FCAFC 263; (2004) 144 FCR 1 per Black CJ, French and Selway JJ. I could not say that this IMR had fallen down in her obligations. Only the weakest of claims were made. It was not articulated in the submissions put to the assessor or in the submissions made by the applicants’ advisors. The use of the phrase “particular social group” is nowhere to be found. In my opinion, the asking of these questions served only to assist applicant WZAOR and cannot be found to have driven the IMR into jurisdictional error.
18. In all these circumstances, I am of the view that the claims made by both applicants are unable to be substantiated. Both applications are dismissed. The applicant father WZAOQ is ordered to pay the first respondent’s cost which are assessed in the sum of $6,240.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Date: 9 November 2011