A36 of 2003 v Minister for Immigration
[2004] FMCA 889
•24 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A36 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 889 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa (866) – primary applicant deceased – application dismissed. |
Migration Act 1958 (Cth), ss.36(2), 91X
V120/00A v Ministerfor Immigration & Multicultural Affairs [2002] FCA 264
NAEA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 341
| Applicant: | APPLICANT A36 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1426 of 2004 |
| Delivered on: | 24 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 24 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J M Patel |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1426 of 2004
| APPLICANT A36 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 1 July 2002 and handed down on
25 July 2002, affirming a decision of a delegate of the respondent (“the delegate”) made on 10 February 2000 to refuse to grant the applicant husband a protection visa.
Background
The applicant in this matter is subject to s.91X of the Migration Act 1958 (Cth) (“the Act”) and accordingly has been granted a pseudonym. Because of the facts and situation in this matter, for clarity I will refer to the applicant husband and applicant wife respectively as the parties. The applicant husband and applicant wife arrived in Australia on 15 June 1999. On 30 June 1999 the applicant wife lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department) under the Act. On the application for a protection visa (866) both parties appear in the section headed “Details of Persons Included in this Application”, Question 1 of the application required details of all persons included in the application (those claiming to be refugees and members of the family unit). The applicant wife appeared as number 1 and the applicant husband as number 2. In the column headed “Relationship to Applicant 1”, applicant 2 has recorded husband. Under number 17, the applicant declaration, both applicants signed. The interpreter’s declaration at number 18 declared the applicants to be competent in English and Tamil.
On Form D, the application for a member of a family unit for a protection visa (866), the form has been completed by the applicant husband (Court Book pp. 24-26) (“CB”).
The delegate’s decision
On 10 February 2000 the delegate wrote to the applicants jointly advising them that their application for a protection visa (866) lodged on 30 July 1999 had been refused because they did not meet the criteria set out in the Refugee Protocol (CB pp.45-46). In the Department’s protection visa decision record the family member who made specific claims under the Refugee Convention was identified as the applicant wife and the member of the family unit not making specific claims under the Refugee Convention included in the decision record was recorded as the applicant husband. The reasons for the delegate’s decision is not relevant to the current consideration.
On 9 March 2000 the applicants lodged an application for review of the delegate’s decision with the Tribunal. The application was signed by the applicant wife and was counter-signed by the applicant husband under the Applicant 2 Signature Panel (CB pp.55-59). On 30 April 2002 the Tribunal wrote to the applicant husband and applicant wife inviting them to attend a hearing of the Tribunal on 17 June 2002. In a letter dated 14 May 2002 solicitors representing the applicants wrote to the Deputy Registrar of the Tribunal advising of the death of the primary applicant. The letter stated:
“Unfortunately, the primary applicant, [the applicant wife] died on 31 December 2000. Her spouse [applicant husband] who is also an applicant in the protection visa application, states that he wishes to attend the interview personally on 17 June 2002, if the Refugee Review Tribunal permits. The applicant wishes that the honourable member of the Refugee Review Tribunal give him the opportunity to submit his claim along with his wife’s claim who is not living any more.”
A photocopy of the death certificate was enclosed (CB pp.62-64).
A copy of the hearing information form of the Tribunal hearing held on 17 June 2002 records that the applicant husband was present together with his solicitor and interpreter. The applicant wife’s name appeared under “Related Applicants” and was crossed out in accordance with instruction to delete the names of parties who did not attend the hearing.
The Tribunal’s findings and reasons
On 25 July 2002 the Tribunal wrote to the applicant husband advising him of the outcome of the Tribunal review. The decision, under the heading “Applicant”, carried the applicant husband’s name and. under the heading of “Background”, the Tribunal records:
“The applicant and his wife [now deceased], claimed to be citizens of Sri Lanka …”.
In the Tribunal’s decision under the heading of “Refugee Claims”, it is stated:
“The applicant’s application for review, although not his original protection visa application was commenced in the name of his now deceased wife with the applicant included as a member of the family unit. However, the applicant has proceeded with this matter on his own account. The applicant’s wife made a statement dated 29 June 1999 summarised below.”
The Tribunal concluded that it was not satisfied that the applicant husband was a person to whom Australia had obligations under the Refugee Convention as amended by the Refugee Protocol. Therefore, the applicant husband did not satisfy the criteria set out in s.36(2) of the Act for a protection visa. The reasons for that decision are not relevant in this current situation.
Application for review of the Tribunal’s decision
On 15 October 2004 the applicant husband filed an amended application seeking review. The grounds of the application are not relevant to the current matter other than to say that the Tribunal made adverse credibility findings against the applicant husband. The Tribunal rejected critical elements of the applicant husband’s claim on credibility grounds and did not accept that he had a well-founded fear of being persecuted for Convention reasons.
Submissions
Mr J M Patel, Counsel for the applicant husband, and Mr S Lloyd, Counsel for the respondent, both filed written submissions. The respondent’s submission was that the Tribunal was bound to affirm the decision under review in the circumstances where the primary visa applicant had died and the present applicant did not make claims under the Convention in his visa application: V120/00A v Ministerfor Immigration & Multicultural Affairs per Kenny J at [53]-[61]:
“What was the effect of the deceased's death on the deceased's entitlement to review by the Tribunal? Whether a statutory entitlement (including an entitlement to merits review of an administrative decision) lapses or devolves on another upon the death of the claimant under the statute depends on the language of the statute under which the entitlement arises: see Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326 at 327. Where the statutory entitlement does not devolve upon another upon the claimant's death, then death extinguishes the entitlement and also the power of a relevant decision-maker with respect to it, including the power of a Tribunal upon review: cf Re Andreatta at 327.
In a number of provisions, the Act emphasises that the right of review conferred by it is personal to the non-citizen who is the subject of the RRT-reviewable decision: see, e.g., ss 412(2) & (3), 425(1) and 430A(2). If, in this case, the deceased had been the sole applicant for review of a decision by the respondent refusing him a protection visa, then, as a matter of statutory construction, his death would have extinguished his review entitlement.
……
In the present case, it was the deceased who, at the time of application, sought a Protection (Class AZ) visa and who made the specific claims under the Refugees Convention. His wife and children made application for protection visas solely as members of his family.
This is made clear from the different versions of Form 866 completed by the deceased and his family. The deceased completed a Form 866 entitled "Application for an applicant who wishes to submit their own claims to be a refugee". His wife and children completed applications entitled "Application for a member of the family unit", which carried the following notation:
This part is for a member of the family unit who does NOT have their own claims to be a refugee, but is included in this application.
……
As the respondent's delegate held that the deceased was "not a person to whom Australia has protection obligations under the Refugees Convention", it followed that the delegate found that none of the deceased's family met the criterion in cl 866.222(b) of Schedule 2 of the Regulations. It was this decision that the deceased and his family challenged on review. Was it open to the Tribunal to decide the review application as if each living applicant had made an application for a Protection (Class AZ) visa?
As the Full Court of this Court noted in Li at 535, the Act "places great emphasis on the need for a visa applicant to complete a prescribed application form". The Regulations do not, so it seems to me, permit the Tribunal to treat the applicants as if they had each sought a Protection (Class AZ) visa in her or his own right. As we have seen, the Regulations prescribed the application to be made by a family member of an applicant for a Protection (Class AZ) visa. This is the form that the applicants completed.
In any event, even if it was open to the Tribunal to have considered their applications in this way, a result adverse to the applicants was inevitable. Having completed an application in December 1996 as a family member of an applicant for a Protection (Class AZ) visa (in reliance on criterion 866.221(b)), none of the present applicants would have been able to satisfy the Tribunal that she or he met criterion 866.222(b), since the principal claimant had died without being granted a Protection (Class AZ) visa. Equally, none of them would have been able to satisfy criterion 866.221(a) and avoid the need to satisfy criterion 866.222(b), since none of them had made specific claims under the Refugees Convention at the time of application for a visa. Upon the death of the deceased, his application for a Protection (Class AZ) visa lapsed; and it became impossible for his wife and children to satisfy the primary criterion set down in the Regulations for a visa of the class sought by them.
What ought the Tribunal have done in this case? As already noted, by virtue of s 415(1) of the Act, the Tribunal was entitled to exercise the powers and discretions that are conferred by the Act on the person who made the primary decision: cf Yilmaz 511-515 per Gyles J and the authorities cited. At the same time the Tribunal was bound to act in accordance with the Act and the Regulations made under it. If the applicants' review entitlement did not lapse with the deceased's death, then the Tribunal was bound to consider their visa application and determine it adversely to them. (I interpolate here that, had the Tribunal recognised this, then a number of the applicants' objections to the Tribunal's reasons would have had less force. I refer, for example, to the Tribunal's reliance on the fact that the deceased's then relatively young children were not arrested with him. The applicants objected, with some force, to the Tribunal's reliance on this fact.) Given, however, that each family member's entitlement was entirely dependent on the deceased's entitlement and that, upon his death, his entitlement for review lapsed, the preferable view may be to regard all entitlement to review as lapsing on the deceased's death, with the consequence that the Tribunal had no power to determine the review application. It is, however, unnecessary to decide which of these alternatives is to be accepted and, bearing in mind that the matter was not argued by the parties, I do not do so.”
Counsel also referred me to the matter of NAEA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs per Gyles J at [14]-[16]:
“Counsel for the applicant sought to avoid this result by reference to the decisions of Full Courts in Dranichnikov v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 397 and Soondur v Minister for Immigration & Multicultural Affairs [2002] FCAFC 324. Dranichnikov considered a situation different to that which exists here, namely, that of a family member who lodges a fresh application for a protection visa on his or her own account after the death of the primary applicant. In any event, even if correct, the reasoning in Dranichnikov would not assist the present applicant, as it would have the result that she had made no application for a visa. Soondur is a special case, the reasoning in which may need to be reconsidered. Be that as it may, it dealt with the case of a child, not an adult, and considered the position which arises if a fresh later application is made on behalf of the child. In the present case, it is quite plain that the applicant deliberately applied for a protection visa on the basis that she was a family member of her husband claimant and not in her own right. There is a fundamental difference between the two bases for a protection visa. In my opinion, the Act and the Regulations require separate and specific applications for each. It would not be open for the Tribunal to grant a protection visa to a person who had applied as a family member on the basis that that person was a refugee. I agree with the reasoning of Kenny J in V120/00A at [59].
I also refer to the following statement from the majority judgment in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 at 8-9:
"30.These submissions by the prosecutors should not be accepted. The existence in favour of an applicant for a protection visa of protection obligations under the Refugees Convention was neither the sole nor a necessary criterion for the grant of a temporary protection visa. The Regulations distinguished between those to whom such obligations arose and who thus were refugees within the definition in the Refugees Convention and those who were members of the same family unit as a person who had made specific claims to refugee status and who had been granted a protection visa.
31.None of the prosecutors relied upon the position of their husband and father as the main applicant to found a claim that they fell within the second category. The reasons why they did not do so are apparent, at the least, from their then state of knowledge respecting his whereabouts. The Tribunal was required to review the decision of the delegate who, in turn, had been required (by s 47) to consider the application and the criteria which that application had to meet, not the criteria for an application, never made, which might have been put on another basis.
32.Section 65(1) obliged the Minister, and thus the Tribunal, to determine their satisfaction as to whether the criteria for the visas sought had been satisfied. Paragraphs 785.21 and 785.22 posited criteria expressed in disjunctive terms, as indicated earlier in these reasons. There is no obligation imposed by s 65(1) to reach a state of satisfaction (or otherwise) respecting criteria which the prosecutors did not advance. There was no misapplication of the relevant criteria by the Tribunal and no jurisdictional error."
Although the application there was for a temporary protection visa, the effect of the Regulations was the same as those applicable here.
As pointed out during the hearing, s 48A of the Act has an unfortunate effect in the case of a family member of a deceased applicant who would have had an independent claim as a refugee which was not made. The purpose of s 48B is to deal with situations of that kind, amongst others. On the face of it, this case would appear to be the very kind of case for which s 48B was designed. That, however, is a matter for the Minister.”
Mr Patel, Counsel for the applicant husband, submitted that he had been unable to find any authority that was contrary to the proposition set out above and consequently conceded that the respondent’s submission must prevail.
Conclusion
I have reviewed the material contained in the Court Book which sets out the history of this matter and have evaluated it in light of the two authorities the respondent has referred me to. I agree with the submission and must dismiss the application accordingly.
I have not assessed the Tribunal’s decision as I believe there is no point in hearing submissions or considering the matter further as the course of the current application seems to be exhausted. However, I note that the applicant husband does have avenues that he can pursue with the respondent.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan Date: 24 November2004
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