ARN16 v Minister for Immigration
[2018] FCCA 1035
•30 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARN16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1035 |
| Catchwords: MIGRATION – Children – first applicant becomes pregnant and delivers child following lodgement of protection visa application – child added to application as member of same family unit – child required to satisfy criteria at time of decision – consideration of child’s interests – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 65, 424A, 425, 476, 501 Ministerial Direction No 65 Visa refusal and cancellation under s 501 |
| Cases cited: AMF15 vMinister for Immigration and Border Protection [2016] 241 FCR 30 Anandaraj Subramaniam v MIMA (Unrep’ FCA, 10 March 1998, Carr J) Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127 Roach v Minister for Immigration and Border Protection [2016] FCA 750 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Shresthav Migration Review Tribunal (2015) 229 FCR 301 SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 |
| First Applicant: | ARN16 |
| Second Applicant: | ARO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 631 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 29 May 2017 |
| Date of Last Submission: | 29 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 April 2018 |
REPRESENTATION
| The Applicants: | In person |
| Counsel for the Respondents: | Ms Stone |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The Applicants pay the First Respondent’s costs fixed at $3,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 631 of 2016
| ARN16 |
First Applicant
| ARO16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first named applicant, a Cambodian national aged 38 years, is the litigation guardian of her infant child, who is the second applicant.[1]
[1]The infant child is in fact the second child born to the first applicant but is for convenience referred to as ‘the child’ in these reasons for judgment.
By an application filed on 29 March 2016 the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 February 2016. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made on 29 February 2016 refusing the application for protection visas.
On 12 December 2009, the first applicant arrived in Australia as the holder of a subclass 676 visitor visa. On 23 January 2010, her visitor visa expired. For some years, the applicant then overstayed her visa.
On 16 September 2013, the applicant lodged her application for
a protection (Class XA) visa with the Department of Immigration and Citizenship. As concerned the identity of any close relatives who were not included in the application, the first applicant stated that such information would “be provided”.
The protection visa application was lodged with the assistance of a migration agent. In the body of her application, the first applicant explained that the basis on which she claimed protection was by reason of her pregnancy to a stranger and her inability to live in a communist state. The claims made in her application were as follows:
I am pregnant to a stranger which is against my culture and tradition. My child will not be allow to get birth certificate in Cambodia and therefore will not allow to attend school.
Furthermore, Cambodia is a Communist country. I cannot live under a dictatorship ruling. So I cannot return to Cambodia.
(Errors in original)
In the body of her application, the first applicant expanded upon her contention that she was entitled to a protection visa having regard to her pregnancy and the way in which she feared she would be treated by the communist government of Cambodia, including that:
There are many reasons that the local authorities or government will not protect me about the government does not care about the right and protection of its own citizen.
The government protect the right and powerful people. The government does not protect that poor and the weak. (Errors in original)
The application was notable for the lack of detail as to the nature of any harm which grounded any fear held by the first applicant or as to the inability of the Cambodian government to protect her.
Included with the application was a copy of a marriage certificate indicating that the first applicant had married on 7 September 1982.
On 16 September 2013, the first applicant was granted a Bridging visa.
The first applicant’s child was born on 8 January 2014.
On 25 June 2014, the first applicant was invited to attend an interview to discuss her visa application and her claims for protection. Arrangements were made for a Khmer speaking interpreter to be present. The first applicant attended that interview with the assistance of her migration agent.
On 23 July 2014, the first applicant attended an interview with the Department of Immigration and Border protection (department). In the course of that interview the first applicant provided a copy of her child’s Birth Certificate. She was invited to amend her application by adding her child as a dependent. It appears that she did so and the child was added as a member of the first applicant’s family unit (although the child’s date of birth was erroneously recorded).
By letter dated 7 August 2014, the department wrote to the first applicant advising that her child was taken to have: (a) applied for a protection visa, and; (b) been granted a Bridging visa which would remain in force for a period of 28 days until after notification of the decision on the application had been received.
On 27 August 2014, the delegate notified the first applicant of the refusal of the application for a protection visa. The reasons of the delegate recorded the first applicant’s visa history and identified the materials which were before the delegate. The delegate’s decision was grounded upon concerns as to the applicant’s credibility including that:
(a) the first applicant had made no mention in her protection visa application of her fear of the Cambodian police or military;
(b) the delegate was not satisfied the first applicant had developed any profile as a leader or activist or that she had ever attracted any adverse attention from the government for speaking out;
(c) the first applicant had made no mention in her protection visa application of her Cambodian husband being violent towards her;
(d) country information confirmed that a child born overseas to a Cambodian citizen was eligible for citizenship;
(e) the delegate did not accept any of the new claims as true and concluded that the first applicant had fabricated those claims;
(f) the delegate also noted the delay in the period between the first applicant having entered Australia in August 2009 and the application for a protection visa in September 2013.
The delegate also considered that there were deficiencies in the applicant’s evidence relating to her claims and her migration history and made findings that the applicant was not a credible witness.
The delegate concluded that the first applicant had made her application in order to prolong her stay in Australia.
On 16 September 2014, the first applicant’s migration agent lodged an application for review of the delegate’s decision. The application for review offered no new or additional matters in support of the first applicant’s case.
On 21 December 2015, the Tribunal wrote to the first applicant’s lawyers with an invitation to attend a hearing before the Tribunal. The first applicant was also invited to provide written submissions together with a declaration. In response, her lawyers indicated that the first applicant would require the assistance of a Khmer interpreter and that no additional witnesses would be called at the hearing.
The Tribunal record indicates that no submission or additional documents were provided by the applicant for the purposes of the hearing. No witnesses were called at the hearing held on 23 February 2016. A Khmer interpreter was provided to assist the applicant at that hearing. The applicants’ migration agent also attended the hearing.
On 29 February 2016, the Tribunal published its decision affirming the delegate’s decision not to grant the protection visa application.
Procedural history
As indicated, on 29 March 2016 the application was filed in this Court. The two grounds of review identified in the application are:
1)The refugee review Tribunal is errored (sic) in making speculative decision on the real chance of the review applicant being treated harshly due to her child was born without a father.
2)The member at the RRT failed to properly consider real chance of persecution.
The first applicant’s affidavit filed in support of the application merely exhibited a copy of the Tribunal’s reasons for decision (Reasons); that is to say, no additional information was furnished by the first applicant in support of the application for judicial review.
On 17 August 2016, the first applicant was appointed as litigation guardian of her child. Orders were made by consent for the applicants to file any amended application, and submissions in support of the application for review. Neither of those opportunities was taken.
The Minister's response filed on 27 April 2016 opposed the making of the orders sought and contended that the grounds contained in the application “simply disagree with the findings of the Tribunal and go no higher than to seek impermissible merits review” and that no arguable case for relief was raised by the application.
Consideration
The applicants were self-represented at the hearing before me.
Sub-class 866 of Schedule 2 of the Migration Regulations 1994 prescribes the primary and secondary criteria that must be satisfied in relation to a protection visa application at the time of the application and the time of decision. As concerns the criteria to be satisfied at the time of application, sub-clause 866.21 prescribes that in the case of:
(a) the first applicant, that she had made a claim that a criterion in sub-s 36(2)(a) or (aa) was satisfied and that she had made specific claims as to why such criterion were so satisfied: para 866.21(2)(a)-(b);
(b) the second applicant, that she claimed to be a member of the same family unit as the first applicant and that she was an applicant for a Subclass 866 (protection) visa: para 866.21(3)(a)-(b).
As the grounds of the application were put at a level of generality, and the applicants had advanced nothing in support of those grounds either by way of affidavit, submissions or at the hearing, it becomes necessary to examine the reasons of the Tribunal in more detail.
The Tribunal provided an accurate summary of the application for review and applicable legal principles: Reasons [1]-[9]. In identifying the primary issue on the application for merits review the Tribunal said:
The primary issue in this review is whether there is a real chance that, if they return to Cambodia, the applicants will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Cambodia, there is a real risk that they will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act. Reasons, [10].
I consider that this statement of reasons was an accurate description of the primary task which confronted the Tribunal.
The Tribunal set out the first applicant’s circumstances as detailed in her visa application and noted her claims at [16] as follows:
On review the applicant claims to fear returning to Cambodia for a number of reasons. That is, she claims to fear harm form (sic) the authorities on the basis of her (anti-government) political opinion. She claims to fear harm from her ex-husband whom she claims was violent toward her in the past. She also claims to fear harm from society in general because she is a single mother.
I consider that the Tribunal distilled the substantial and clearly articulated claims that had been made by the first applicant. From my examination of the protection visa application, Tribunal record and Reasons, no other claim had been squarely or sufficiently made on the face of the material before the Tribunal. For those reasons, I consider that no other claim made by the first applicant was required to be considered by the Tribunal: cf SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [44]-[52] (Robertson J).
I consider the reasoning of the Tribunal in relation to each of the claims that were made by the first applicant.
Claim to fear based on political opinion
The first applicant’s claim that she qualified for the grant of a protection visa on the basis of a fear that she would be harmed by soldiers and police was grounded on an asserted history of having been a person who was ‘against the government’.
The Tribunal observed that the first applicant’s protection visa application made no mention of having been a critic of the government or of having ever being threatened as a result of such conduct.
The Tribunal rejected this claim, finding at [20]:
The Tribunal does not accept the applicant’s claims to have been outspoken against the government and threatened by police and soldiers as a result. . . she made no mention of these claims in her protection visa application – i.e. that she was a critic of the government and was threatened by the authorities as a consequence. When the Tribunal asked the applicant why she failed to mention this core claim in her protection visa application the applicant replied that she did not mention it to her representative. Given the significant nature of these claims the Tribunal would have expected the applicant to have raised them at the application stage (and the representative to have included them in the application form).
In the context of this claim, the Tribunal found the applicant’s oral evidence to be vague and lacking in detail: Reasons, [20].
The Tribunal concluded there was not a real chance that the first applicant would face serious harm at the hands of authorities on the basis of supposed anti-government political opinion, whether on return to Cambodia or in the reasonably foreseeable future. On that basis, the Tribunal found that the first applicant’s fears of persecution were not well founded: Reasons, [21].
Status as a single mother and as a woman
The Tribunal proceeded to consider the applicant’s claims as a single mother and as a woman respectively: Reasons, [22]-[32], [33]-[34].
The Tribunal observed that while the first applicant had focussed her claims on her political opinion and fears of mistreatment from her ex-husband, she had not raised this claim at the Tribunal hearing until prompted to do so: Reasons, [23].
The Tribunal accepted that it might be difficult for the applicant returning to Cambodia as a single mother and that she might face family and broader societal disapproval as a result.
However, the Tribunal did not accept that the applicants’ family members intended to seriously harm the first applicant. It did not do so because the first applicant had told the Tribunal that she maintained a relationship with her family notwithstanding the birth of her child.
The Tribunal accepted that the first applicant faced a measure of social discrimination as a single mother. The Tribunal found, on the basis of the first applicant’s statements, that she would not face serious harm on the basis of being a single mother: Reasons, [26]-[27]. The Tribunal noted that the continuing relationship and support from her family would assist her upon return: Reasons, [25], [30].
Having considered the matters put, the Tribunal concluded at [32] that while the applicant might face some verbal abuse and disapproval from family members and possibly members of the community upon return to Cambodia as a single mother, this would not be to the extent that it could be regarded as constituting serious harm: Reasons, [32].
The Tribunal went on to consider the applicant’s claims to a fear of living under a dictatorship under the status of being a woman. It observed that the first applicant had not put forward any specific claim to fear persecution on the basis of her status as a woman (except on the basis of her being a single mother as considered above).
The Tribunal acknowledged country information that attitudes towards women were strongly influenced by traditional codes of gender conduct and that historically, the power relations between men and women were unequal and that discrimination against women was evident both in public and private spheres. While accepting that the first applicant would be expected to adhere to settled norms of conduct, the Tribunal did not accept that such treatment rose to the level of serious or significant harm: Reasons, [33].
The Tribunal noted that the first applicant had raised a claim to fear from living under a dictatorship but that this had otherwise not been further articulated: Reasons, [34]. It was not satisfied that the first applicant had a well-founded fear of harm on this basis.
Fear of violence from estranged husband
Finally, the Tribunal considered claims relating to the applicant’s
ex-husband at [35]-[38]. The first applicant related to the Tribunal that, about five months before she had left Cambodia, she had had an argument with her ex-husband during which he had threatened her with a knife. She said that the ex-husband had said he would harm her if he ever saw her again. She also said that they had not spoken since separation in 2009. The Tribunal accepted the applicant’s claims to having suffered violence at the hands of her ex-husband, although this had not been mentioned in her protection visa application.
The Tribunal also noted that the first applicant had told the Tribunal that her ex-husband did not want to see her again and that he had now remarried. The Tribunal recorded that the first applicant did not propose to attempt to see her first child who lived with the ex-husband. The Tribunal found to be remote that there was a chance the first applicant would be seriously harmed by her ex-husband.
In concluding that the applicant was not a refugee and had no convention protection claims within the meaning of ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) respectively, the Tribunal also had regard to the delay in the interval between the applicant’s arrival in December 2009 and the lodgement of her refugee application in August 2014: Reasons, [41]-[43] citing Anandaraj Subramaniam v MIMA (Unrep’ FCA, 10 March 1998, Carr J); Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.
I discern no error in the Tribunal’s Reasons in relation to those claims.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476.
The grant or refusal of a protection visa requires that the Minister has been satisfied or not satisfied (as the case requires) that the criteria prescribed for such visa have been ‘satisfied’: ss 36(2)(a), 36(2)(aa), 65(1)(a), 65(1)(b). Ministerial satisfaction that a protection visa applicant has fulfilled the criteria prescribed by s 36 is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
Thus, s 65 requires the decision-maker to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
I have set out above the two grounds relied upon in the application.
Ground 1 was confined to the claim concerning the first applicant’s fear to harm by reason of her being a single mother. I accept the Minister's submission that Ground 1 goes no higher than to contest the findings of the Tribunal that the applicant did not face a real chance of harm on the basis of her being a single mother of the second applicant who had been born to a stranger.
Ground 1 is in substance a merit’s based challenge to the decision of the Tribunal. To seek a merits review by this court is impermissible: Wu Shan Liang, 272.
Ground 2 contended that the Tribunal failed to properly consider the first applicants “real chance of persecution.” This ground may be seen to contend that the Tribunal had failed to apply the correct statutory test in determining whether the first applicant had a real chance of persecution for the reasons which she had claimed. By sub-s 36(2)(a), a person may be entitled to a protection visa if they establish that they are a refugee. For the purposes of the Act, the term refugee is given the meaning defined by s 5H. Relevantly, the meaning of that term entails consideration of whether the person is shown to have a “well-founded fear of persecution.” In turn, the expression “well-founded fear of persecution” is defined by s 5J. I agree in the Minister’s submission that the Tribunal’s application of the statutory test was accurate and that its reasons disclose no such error.
While the applicants did not raise issues as arising under ss 424A or 425, the Minister drew attention to those provisions and demonstrated why they had not been engaged in the present case.
Subject to what follows, the Tribunal’s decision was clearly open to it on the materials presented and the application must be dismissed.
The second applicant
The first applicant was self-represented at the hearing before me and, as noted above, did not file any submissions. She appeared with the assistance of an interpreter. I have assumed that she was unfamiliar with court processes: cf AMF15 vMinister for Immigration and Border protection [2016] 241 FCR 30, [44(g)]. In those circumstances, I am conscious of the unreality and inutility of expecting such a person will be able to identify the jurisdictional error of which they complain: AMF15, [44(e)] (Flick, Griffiths and Perry JJ), citing Shresthav Migration Review Tribunal (2015) 229 FCR 301, [53] (Mansfield, Tracey and Mortimer JJ). With those observations in mind, I have re-examined the Tribunal’s reasons.
In deference to the matters that were put by the Minister, I record that the matters which follow were not the subject of submissions.
As noted above, by letter dated 7 August 2014, the department wrote to the first applicant advising that her child was taken to have applied for a protection visa and that she was taken to have been granted a bridging visa which would remain in force for a period of 28 days until after notification of the decision on her application had been received. The department’s advice above reflected the effect of regs 1.12(1)(b) and 2.08 of the regulations.
The second applicant, an infant who was born on 8 January 2014, was a member of the first applicant’s family unit and a dependent child of the first applicant within the meaning of the Act and regulations: see sub-s 5(1), regs 1.12 and 1.05A. The second applicant was also an applicant for a Subclass 866 (protection) visa.
By force of para 2.08(2)(a) of the regulations, a new born child who is born to a non-citizen before a visa application has been determined must satisfy the criteria to be satisfied at the time of decision. As concerns the criteria to be satisfied at the time of decision, sub-clause 866.22 prescribes that in the case of:
(c) the first applicant, the Minister is satisfied that a criterion in sub-s 36(2)(a) or (aa) is satisfied: para 866.22(2);
(d) the second applicant, that she was a member of the same family unit as the first applicant and that the first applicant had been granted a Subclass 866 (protection) visa: para 866.22(3).
On the application of the criteria prescribed by para 866.22(3), the failure of the first applicant’s application for a protection visa would appear to impel a conclusion that the second applicant could not satisfy an essential criterion for the grant of her visa. As she could not satisfy that criterion, the Minister could not be satisfied that the requirements for a protection visa were met and so was required not to grant a visa to the second applicant: para 65(1)(b).
It is clear that, as concerned each of the claims advanced in support of the application for the grant of a protection visa, the Tribunal considered the position of the second applicant in her own right.
As concerned the first claim – political opinion – the Tribunal rejected the first applicant’s claim that she would face serious harm at the hands of authorities on the basis of a supposed anti-government political opinion. The Reasons demonstrate that the Tribunal found this claim to be without substance and that the first applicant’s evidence had been vague and lacking in detail. The claim had not been mentioned in the protection visa application. It had not been mentioned by the first applicant to her migration agent. The claim had not been developed by her agent in any submission to the Tribunal. Nor had it been put in any submission before this Court.
I consider that there was no foundation for a derivative claim that the second applicant was entitled to, or satisfied the criteria for, a protection visa on the basis of her mother’s political opinion.
As to the second claim – status as a single mother – the Tribunal considered and found that the first applicant and her daughter would not face a real chance of serious harm from family members on return to Cambodia whether because the first applicant was a single mother or because her daughter did not have a father: Reasons, [25], [30], [31]. In the course of those reasons, the Tribunal observed the first applicant spoke to her mother at least once each week: Reasons, [25].
I consider that there was no foundation for a derivative claim that the second applicant was entitled to, or satisfied the criteria for, a protection visa on the basis of her mother’s status as a single mother.
As to the third claim – apprehension of violence from ex-husband – the Tribunal recognised that the first applicant and her ex-husband had a reciprocal desire not to see the other again: Reasons, [37]. This finding involved the acceptance of the first applicant’s evidence to that effect. This finding underpinned a conclusion that the first applicant would not face a real chance of serious harm from her ex-husband on return to Cambodia.
I consider that there was no foundation for a derivative claim that the second applicant was entitled to, or satisfied the criteria for, a protection visa on the basis of her mother’s apprehension of violence from her ex-husband.
I have given consideration to the position of the second applicant by reason of her infancy and the fact that her litigation guardian was self-represented. In other circumstances, it may be necessary for a Tribunal to consider the best interests of a child but that requirement arises in the quite distinct circumstance that the cancellation of a visa, or refusal of a visa on character grounds, is under consideration: cf s 501, Uelese v Minister for Immigration and Border protection (2015) 256 CLR 203, [1], [64] (French CJ, Kiefel, Bell and Keane JJ), [117]-[119] (Nettle J); Roach v Minister for Immigration and Border protection [2016] FCA 750, [120] (Perry J); YNQY v Minister for Immigration and Border protection [2017] FCA 1466, [38] (Mortimer J); Nigam v Minister for Immigration and Border protection [2017] FCAFC 127, [11] (Siopsis, Griffiths and Charlesworth JJ).
Section 501 of the Act confers power in the circumstances where it applies, to refuse to grant or to cancel a visa where the applicant cannot satisfy a character test as provided by sub-s 501(6). The definition contained in sub-s 501(6) addresses matters as to an applicant’s actual or suspected criminal record or conduct.
Relevantly, the framework within which the Minister’s delegate is to consider whether to refuse or cancel a visa under s 501 is provided by Direction No 65 titled Visa refusal and cancellation under s 501 issued on 22 December 2014: Nigam at [5]. By this direction the decision-maker must take into account certain primary considerations which include consideration of the best interests of an applicant’s child.
In Nigam, the Full Court accepted at [40]-[44] that where an obligation to consider a child’s best interests arose by dent of s 501, one possible outcome was that the child’s best interests may be regarded as a neutral factor in the sense that the removal of the visa applicant from the child’s life may, on balance, be “neither here nor there.” The Full Court reasoned that, insofar as the decision whether to revoke (or not grant) a visa required consideration of a child’s best interests, it did not follow that the only choices open to the decision-maker were that such the grant or revocation was or was not in a child’s best interests. The choice was not binary. Rather, such consideration may result in a conclusion that a neutral weighting of those interests should be applied.
It is clear that sub-s 501 is not engaged in the present case. Here, the first applicant had not been granted a protection visa (having not made such application for some four years after first arriving in Australia). No issue as to cancellation of a visa arose. Nor did any question arise of a refusal to issue a visa on character grounds under s 501. There was no suggestion that first applicant actually had or was suspected of having a criminal record or having engaged in conduct of that kind. Nor was there any suggestion that the refusal of the application was being considered on character grounds under s 501.
In those circumstances, any obligation of the kind expressed in Direction No 65 was not engaged and the principles considered in Uelese and the further authorities referred to above do not apply.
This was not a case in which the decision-maker was required to give consideration to the second applicant’s best interests pursuant to Direction No 65 in deciding whether or not to grant a protection visa to the first applicant. That direction had no application to this case.
Further, I note that in Roach at [120], Perry J observed it had not been suggested that there was an implied statutory requirement that the Minister consider the best interests of an applicant’s child, whether as a primary consideration or otherwise. Roach has now been cited on many occasions, however, her Honour’s observation at [120] above does not appear to have been addressed by another Court to date.
While it appears that no express or an implied obligation to consider the best interests of the second applicant arose in the present case, I have found that the Tribunal in fact gave consideration to whether the second applicant was owed protection obligations either by reason that she was a refugee or because the Minister had substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Cambodia, there was a real risk that she would suffer significant harm: see ss 5H, 5J, 36(2)(a), 36(2)(aa), 36(2A) of the Act. I do not identify any jurisdictional error in the decision of the Tribunal affirming the delegate’s decision.
Conclusion
As the applicants’ grounds of review are not made out, the application must be dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge A Kelly.
Date: 30 April 2018.
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