BSG16 and Ors v Minister for Immigration and Anor
[2017] FCCA 1478
•30 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSG16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1478 |
| Catchwords: MIGRATION – Protection (Class XA) visa – whether Authority’s decision affected by jurisdictional error – where applicant’s husband granted a Protection visa at an earlier point in time – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.46A(1), 65(1), 473CB, 473DC |
| Cases cited: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 MZZIA v Minister for Immigration [2014] FCCA 717 SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 |
| First Applicant: | BSG16 |
| Second Applicant: | BSL16 |
| Third Applicant: | BSM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | INDEPENDENT ASSESSMENT AUTHORITY |
| File Number: | BRG 632 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 22 November 2016 |
| Date of Last Submission: | 22 November 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 30 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Markwell, directly instructed |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Minter Ellison |
The Second Respondent entered a submitting appearance.
ORDERS
The applicant have leave to amend the amended application filed on 10 October, 2016 in the form of the “amended amended application” filed on 16 November, 2016.
The amended amended application filed on 16 November, 2016 be dismissed.
The first applicant pay the first respondent’s costs of and incidental to the amended amended application fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 632 of 2016
| BSG16 |
First Applicant
| BSL16 |
Second Applicant
| BSM16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| INDEPENDENT ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicants apply for judicial review of a decision of the second respondent that affirmed a decision of a delegate of the first respondent to refuse the applicants Protection (Class XA) visas. The applicant’s case, in short compass, is that the Tribunal’s decision was based on critical findings of fact in respect of which there was no evidence, or alternatively, upon findings that were not based on logical or rational grounds.
The first respondent opposes the application. He argues that the Tribunal’s findings were supported by evidence, were not irrational or illogical and in any event were not critical to the Tribunal’s determination of the application for review.
The second respondent entered a submitting appearance.
Both parties have filed written submissions.
Background
The applicants are nationals of Iran. The first applicant is the mother of the second and third applicants. In mid-2013 the applicants arrived in Australia as unauthorised maritime arrivals.
On 9 September, 2013 the applicants applied for Protection (Class XA) (subclass 866) visas.
Because the applicants were unlawful maritime arrivals, their visa application was invalid under s.46A(1) of the Migration Act 1958 (Cth) unless the Minister lifted the bar pursuant to s.46A(2) of the Act. On or about 13 July, 2015 the Minister “lifted the bar” to allow the applicants to apply for either Temporary Protection (subclass 785) visas or Safe Haven Enterprise (subclass 790) visas.
On 14 August, 2015 the applicants applied for Safe Haven Enterprise (subclass 790) visas. The first applicant was the primary applicant and advanced the relevant claims for protection. The second and third applicants’ claims were made solely on the basis that they were members of the same family unit as the first applicant.
On 5 May, 2016 a delegate of the first respondent refused the grant of the visas. The delegate’s decision was a “fast track reviewable decision” and accordingly was required to be referred by the first respondent to the second respondent. That referral occurred on 9 May, 2016.
On 6 June, 2016 the first applicant attended an interview with the second respondent to provide information in relation to her claims.
The parties agree that the first applicant’s claims were usefully summarised at paragraph 11 of the second respondent’s reasons in the following way (the reference to “the applicant” is a reference to the first applicant in the present proceedings):
· The applicant fears being executed on the basis of being an apostate and being married to an apostate. Her failure to attend mosque, pray and observe Islam may be viewed with suspicion.
· In 2009 her husband was arrested and held in detention for one night for a property dispute. This dispute was resolved prior to the applicant departing Iran and no harm is feared on this basis.
· In 2011, the applicant’s husband was arrested on the basis of being an apostate. Upon renouncing Islam, the applicant’s husband’s half brother (Masoud) who is a Mullah and clergyman at the mosque and works for the Basij and Etelaat discovered this and arrested the applicant’s husband. He was held in detention for two days and tortured. Upon release he returned home. That night Masoud came to the applicant’s home and kicked the door and was looking for her husband. The applicant’s husband packed his belongings and five days later left Iran lawfully for Australia. He departed Iran in September 2011 and was granted a permanent protection visa in Australia in September 2012.
· On the same day as her husband’s departure, the Basij came to the applicant’s home and raided her house. They discovered anti Islamic material (CDs and books). They threatened the applicant and her daughters.
· The Basij returned to the applicant’s home a few months later (January 2012) searching for the applicant’s husband. They raided her house, asked for her husband and left after approximately 35 minutes.
· Masoud continued to antagonise the applicant. He threatened to throw acid in her face and kidnap her daughters. He continued to harass the applicant by frequently calling her and visiting her shop. He also slapped the applicant.
· The applicant sold her shop to her brother in June or July 2012 and did not work the remaining time she was in Iran.
· She was unable to report these events to the authorities given Masoud’s influential position with the Basij and Etelaat. The applicant and her two daughters fled Iran in August 2012.
· She also fears returning to Iran as a single mother with no male protection and as a failed asylum seeker returning to Iran from a Western country. Her fear of harm has been heightened due to the disclosure of her personal details through the department’s “data breach”.
· She also fears harm on the basis of her active Facebook profile which depicts her in a western manner.
The second respondent accepted that:
a)the first applicant was an Iranian national of Persian ethnicity who was born into a Shia Muslim family;
b)the first applicant was a non-practising Shia Muslim who did not practice Islam or follow any other religion;
c)the Iranian authorities (the Basij or Ete’laat) were aware of the anti-Islamic activities engaged in by the first applicant’s husband and arrested him in 2011 for apostasy (and that he was released after two days of imprisonment);
d)the first applicant’s husband departed Iran in September, 2011 and, after arriving in Australia, he was granted a permanent protection visa;
e)the first applicant stayed in Iran for around 12 months after her husband’s departure (that is, until August, 2012); and
f)during the abovementioned 12 month period the Basij raided the first applicant’s home on two occasions to ascertain the whereabouts of the first applicant’s husband; however, on both occasions the Basij did not harm the first applicant.
The second respondent did not accept that the first applicant’s husband’s half-brother (Masoud):
a)was involved in the first applicant’s husband’s arrest in 2011;
b)worked for any arm of the Iranian authorities (including the Baij and Ete’laat); and
c)ever threatened the first applicant or her daughters.
The second respondent came to this view in light of what the second respondent considered were implausible and inconsistent responses given by the first applicant about questions relating to Masoud.
Ultimately, the second respondent found that it was not satisfied that the interest the Iranian authorities had in the first applicant’s husband extended to the first applicant. It came to this view primarily because of its findings that:
a)on the two occasions that the Iranian authorities raided the first applicant’s home in search of her husband (after he fled Iran in September 2011), the first applicant was not harmed; and
b)after the first applicant’s husband fled from Iran the first applicant continued to reside at her normal place of residence for 12 months without incident.
The second respondent considered the relevant country information that was before it which suggested that the situation in Iran was that individuals with the first applicant’s profile would not be persecuted or harmed by the authorities. The second respondent thought that this was consistent with the fact that the first applicant’s parents (who were non-practising Muslims) had continued to reside in Iran without any safety issues.
In light of the country information and the second respondent’s finding that the Iranian authorities were not interested in the first applicant, the second respondent was not satisfied that the first applicant would face any real risk of persecution or harm at the hands of the Iranian authorities if she was to return to Iran.
The second respondent rejected the other claims made by the first applicant. These included the first applicant’s claims that she feared persecution by the Iranian authorities upon her return to Iran because:
a)she would be a single mother with no male protection;
b)the authorities would perceive her to be Westernised; and
c)she would be a failed asylum seeker.
The second respondent concluded that it was not satisfied that the first applicant faced any real risk of being persecuted or harmed on her return to Iran for any reason advanced by the first applicant and, accordingly, on 17 June, 2016 affirmed the decision under review.
On 11 July, 2016 the applicants applied to this Court for judicial review of the second respondent’s decision.
The grounds of review
Illogicality or Irrationality
The first ground of review pressed by the applicants is ground four in the amended amended application filed on 16 November, 2016. It is in the following terms:
4. The Second Respondent has made a decision that is so illogical and rational (sic) that no logical rational decision maker would have made and a jurisdictional error has occurred.
Particulars
(a) The First Applicant’s Husband was granted protection by the First Respondent;
(b) The First Applicant therefore has a ‘well founded’ fear of persecution and there is a ‘real risk’ that the First Applicant will suffer ‘significant harm’ if all of the Applicants were to return to Iran.
The test of illogicality or irrationality in administrative decision making is generally accepted to be that posited by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647–648 as follows (footnotes omitted):.
129. It can be acknowledged that the contemporary invocation of “illogicality” or “irrationality” as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of “Wednesbury unreasonableness” in immigration law. Equally it may be that the development of “irrationality” as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust”, “arbitrary”, “capricious” or “Wednesbury unreasonable”?
130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The applicants point out that the first applicant’s husband and the second and third applicants’ father has been granted a Protection (Class XA) visa. That visa was granted to him in September, 2012. They argue that had they been included in his visa application at that time, they would have been granted visas on the basis that they were part of the same family unit. They also submit that the second respondent did not refer to the fact that the first applicant’s husband had been granted a protection visa. But that assertion is not correct. The second respondent said in its reasons for decision:
5. On 23 May 2016, the applicant also submitted her husband’s statement of claims for protection which was submitted to the then Department of Immigration and Citizenship (the department) in December 2011 in support of his protection visa application. This document was not referred to in the delegate’s decision and is ‘new information,’ pursuant to s.473DC. The applicant was asked why this information could not have been provided to the department prior to the decision being made. The applicant responded by stating that this information was available to the department as it was submitted in 2011 in association with her husband’s protection visa application. I accept that the applicant would have reasonably assumed that the delegate would have regard to her husband’s application in determining hers, and would not have been aware that the delegate did not do so until the decision had been finalised. In these circumstances, I am satisfied that the information was not and could not have been provided to the delegate prior to the decision being made and that there are exceptional circumstances to justify its consideration.
…
30. The applicant claims to fear harm returning to Iran on the basis that she will be returning with her two daughters only. Her husband has been granted a permanent protection visa in Australia.
The applicants argue that because the Minister previously granted a protection visa to the first applicant’s husband, who must have been assessed as having a well-founded fear of persecution should he be returned to Iran, it is illogical or irrational for the second respondent to not find that the first applicant also held a well-founded fear of persecution. The applicants’ argument appears encapsulated in their counsel’s written submissions as follows:
It is logical and rational that if the husband/father has a ‘well-founded risk of persecution, then surely his family members would have that same ‘well-founded risk’. It may be argued by the First Respondent, that these are different applications and each have been assessed on their merits by both the Delegate and Second Respondent, and while the husband/father was granted protection, the Applicants were refused with the factual scenario for the Applicants and husband/father being very similar or the same. If the husband/father and the Applicants had all applied under the same application, at the same time, then all of the Applicants would have been granted.
But the applicants’ argument must be rejected. The applicants were not included in the first applicant’s husband’s protection visa application. She has made her own application and included the other applicants as part of her family unit. In those circumstances, the task of the second respondent and the delegate before that was to ascertain whether the first applicant met the requirements for the grant of the visa for which she applied. That required an assessment, amongst other things, of whether she had a well-founded fear of persecution for a Convention reason. That her husband, some time earlier, had been assessed as having a well-founded fear of persecution is not and cannot be determinative of that issue for the applicants. The second respondent, faced with a separate application made on behalf of the applicants, needed to determine that application on its own merits.
The second respondent’s reasons for decision make it plain that it paid regard to the first applicant’s husband’s circumstances and the basis upon which he was granted a protection visa. In particular, the second respondent accepted that the first applicant’s husband was of interest to the Iranian authorities (the Basij or Ete’last) but it did not consider the first applicant to be of the same level of interest. As the first respondent submits, those findings are not inconsistent with each other but demonstrate that separate consideration was given to the first applicant’s claims, something the second respondent was bound to undertake. Moreover, the latter finding involved the second respondent’s determination of a different issue to that which the first respondent had to determine on different materials in respect of the first applicant’s husband’s protection visa application.
I accept the first respondent’s submission that at best, all the findings or the decision in this case demonstrates, if it is indeed inconsistent with the decision to grant the first respondent’s husband a protection visa, is that the second respondent’s decision was one upon which reasonable minds differed. As the first respondent submits, that it not sufficient to establish illogicality or irrationality having regard to the test that must be applied.
In my view, this ground of review is not made out.
Unreasonableness
Ground 5 of the amended amended application provides:
5. The Second Respondent has made a decision that is so unreasonable that no reasonable decision maker would have made and a jurisdictional error has occurred.
Particulars
(a) The First Applicant’s Husband was granted protection by the First Respondent;
(b) All of the Applicants by having to return to Iran, shall be separated from their husband and father.
The applicants’ argument is that because the first applicant’s husband received a protection visa in 2012, the applicants’ visas should have been granted. To do otherwise was plainly unreasonable because the first applicant’s husband and the second and third applicants’ father now resides here in Australia and without a visa the applicants will have to return to Iran. The argument is formulated thus (footnotes omitted):
A decision has been made that the Applicants are unable to join their husband/father in Australia even though the latter has been granted protection in Australia. It is in the best interests of all of the Applicants, that they be provided protection in Australia and particularly with the Third Applicant. In the plurality judgment in Li, Their Honours, stated that an administrative decision must be set aside where adequate weight was not given to a factor of great importance, and decisions could be unreasonable in more ways than one.
In this regard, the Second Respondent has not taken into account a factor of great importance, namely that the husband/father had been provided with a Protection Visa and had been assessed by the First Respondent as a person that Australia owed protection to. It is difficult to reconcile these decisions. given that they emanated from a similar factual scenario.
However, this argument is an attempt to point out the unsympathetic nature of the decision under review. It raises no jurisdictional error on the part of the second respondent. The second respondent was cognisant of the fact that the first applicant’s husband had been granted a protection visa. It was its task to assess the weight that matter attracted in the second respondent’s decision making. Having regard to the second respondent’s reasons, that matter attracted little if no weight. But that does not mean that the second respondent’s decision is unreasonable in the sense that needs to be established to make out this ground of review.
The first respondent accepts that there is an implied legislative intention that all administrative decisions be made reasonably. However, that principle applies only to matters involving an exercise of discretion. That is not the case here. No relevant discretion is enlivened: SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [7].
The applicants’ arguments focus not on unreasonableness in the sense to which I have just referred, but unreasonableness in the sense discussed by the Full Court of the Federal Court of Australia in cases such as Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158. That is to say the argument focusses upon the outcome or the conclusion without identifying any specific jurisdictional error. In such cases, where the reasons of the decision maker are available the focus must be on whether or not the reasons disclose an “evident and intelligible justification” for the decision: Eden at [60] - [64]. This is because Parliament has vested the authority to make the decision in the repository of the power, not the Court: Singh at [45]. In cases where the repository’s reasons disclose an evident and intelligible justification for the decision, it would be a rare case for a Court to find that a decision was unreasonable: Singh at [47].
Those principles have application here. There was an evident and intelligible justification for the second respondent’s decision. The second respondent came to the view that the first applicant did not have the same adverse profile as her husband and that, having regard to country information and the first applicant’s profile, the first applicant was not at any risk of persecution or harm on her return to Iran. I accept the first respondent’s argument that the second respondent’s conclusion was a conclusion grounded on probative evidence and was a conclusion which the second respondent explained in a logical and intelligible manner.
Finally, the applicants’ written submissions also tend to tell against a finding of unreasonableness because, the applicants’ suggest, they will be reunited with their husband and father in Australia in any event:
If this application is not successful and the Applicants do not seek Ministerial Intervention from the Minister and the Applicants do have to return to Iran, then the First Applicant may apply for a Spouse/Partner visa for herself, the other Applicants being dependants. Sponsored by the husband/father. All of the Applicants will ultimately reside in Australia, barring exceptions, where they do not pass the health or character tests.
This ground of review reveals no jurisdictional error.
Asking the wrong question
Ground 6 of the application is in the following terms:
6. The Second Respondent has asked the wrong question and a jurisdictional error has occurred.
Particular
The Second Respondent never considered the link between the gravity of the decision of the First Respondent to grant the First Applicant’s husband protection and that the First Applicant would be subject to persecution, as her husband had been, if all of the Applicants were to return to Iran.
The applicants’ written submissions on this ground are (errors in the original):
The Second Respondent has not asked the correct question, as set out above. The husband/father was granted protection because he had a well-founded fear of persecution and the Second Respondent has not considered this.
In S395/2002 v Minister for Immigration and Multicultural Affairs, Their Honours held that the wrong question had been asked when the Tribunal had stated that homosexuals in Pakistan, must conduct their lives discreetly, rather considering whether the Applicant in that instance, was subject to a well-founded fear of persecution’. It was held that the Tribunal asked the wrong question. It is submitted that this is a similar instance and the Second Respondent has asked the wrong question.
The applicant’s do not identify the correct question that they assert the second respondent should have asked.
In my view, the second respondent’s reasons do not disclose that it asked itself the wrong question. It considered the question raised for consideration by s.36(2)(a) and s.36(2)(aa) of the Migration Act.
To the extent that the applicants’ argument is that the second respondent did not consider the fact that the “husband/father was granted protection because he had a well-founded fear of persecution”, it is clear that the second respondent was aware of and did consider that the first applicant’s husband had been granted a protection visa. As the first respondent’s counsel points out:
a)the second respondent specifically allowed the first applicant to submit “new information” under s.473DC of the Act in the form of the statement of claims her husband submitted in connection with his Protection visa application;
b)the second respondent specifically noted (at paragraph 30 of its reasons) that the first applicant’s “husband has been granted a permanent protection visa in Australia”;
c)one of the first applicant’s claims, which the second respondent considered, was that the first applicant feared returning to Iran as a single mother with no male protection by reason that her husband was in Australia on a Protection visa (and could not, therefore, accompany her back to Iran); and
d)the second respondent indicated that it had had regard to the material referred to it by the Secretary under s.473CB of the Act. Such material outlined the fact that the first applicant’s husband had been granted a protection visa in Australia.
However, to ask the question that the applicants’ appear to contend was the right question having regard to their argument, namely “should the applicants be granted a protection visa because it has been found that their father had a well-founded fear of persecution for a convention reason?” would be to ask the wrong question. The second respondent’s reasons reveal that it turned its mind to the correct questions that arose before the second respondent.
This ground of review does not reveal jurisdictional error.
Failure to take into account the Convention on the Rights of the Child
Ground 7 of the application provides:
7. The Second Respondent has not taken a number of relevant considerations into account and jurisdictional error(s) have occurred.
Particulars
The Second Respondent has not taken the following relevant considerations into account:
(i) The best interests of the Third Applicant is a primary concern when making a decision that may affect her, as set out in Article 3 of the Convention on the Rights of the Child;
(ii) (a) The Third Applicant has a right to be cared for by her parents, as set out in Article 7 of the Convention on the Rights of the Child;
(b) The father of the Third Applicant is not able to return to Iran, so the Third Applicant would be unable to be cared for by her and by her father;
(iii) (a) The Third Applicant has a right to live with her parents, unless it is bad for her, as set out in Article 9 of the Convention on the Rights of the Child;
(b) The father of the Third Applicant is not able to return to Iran, so the Third Applicant would be unable to live with her father;
(iv) ‘Ensure(ing) that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country’ as in accordance with IVB(1) “Principal [sic] of Unity of the Family” in Convention and Protocol Relating to the Status of Refugees
(v) (a) Given that all of the above relevant consideration in D (i) to (iv) have not been taken into account, and if these had of been taken into account, then the Third Applicant would have been granted protection. Another relevant consideration then needs to be taken into account, and is:
(i) If the husband and father and the Third Applicant have been granted protection, then the First Applicant who is the mother and the Second Applicant who is the sibling, should not be separated from the husband and father and the Third Applicant, as they have been together all of their lives and draw support and succour from each other.
(ii) The First Applicant and the Second Applicant should also be granted protection.
The second respondent was not required to take into account The Convention on the Rights of the Child. It is not a mandatory consideration that the second respondent was bound to take into account. The provisions of an international treaty which Australia has ratified does not form part of Australian domestic law and cannot operate as a direct source of individual rights and obligations unless and until those provisions are legislated into Australian domestic law: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287.
To the extent that there may be certain circumstances where the mere ratification of a treaty can give rise to legitimate expectations, authority suggests that those legitimate expectations will only arise in respect of a decision-maker exercising a statutory discretion. It does not, however, have any application outside of that context. In M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 the Full Court said:
[53]….Rather, in Teoh, the Court held that Australia’s ratification of the United Nations Convention on the Rights of the Child gave rise to a legitimate expectation, in the absence of statutory or executive indications to the contrary, that persons making administrative decisions would act conformably with that Convention. Since s 198(6) of the Act does not confer a discretion and, instead, imposes a duty, no such issue arises in this case.
…
[54] Unlike the statutory discretion considered in Teoh, s 198(6) does not give an officer a choice. He or she is obliged to remove a person from Australia if the conditions set out in the provision are satisfied. If the language of the various provisions of the Act are compared and contrasted, it is apparent that the Act draws a sharp distinction between provisions that confer a power to act, exercisable in the decision-maker’s discretion (e.g., ss 48B and 417) and provisions that impose a duty to act, the performance of which is imperative. Considered as a whole, the Act does not leave open the possibility that the word “must” in s 198(6) merely confers a power, rather than a duty, to act, although such a conclusion may be open in other statutory contexts: cf In re Davis (1947) 75 CLR 409, at 424 per Dixon J.
Section 65 of the Act does not confer a discretion. That section of the Act imposes a duty on a decision-maker to grant or refuse a protection visa if he or she is satisfied (or not satisfied) that an applicant meets the relevant visa criteria: SZTAP (above) at [7]. There is no question of the exercise of a statutory discretion.
Judge Riethmuller dealt with a similar argument in MZZIA v Minister for Immigration [2014] FCCA 717 where his Honour said:
[39] Counsel was unable to articulate how it is said that this provision in the Convention (which it was not argued has been expressly adopted into Australian law) would affect the operation of the relevant provisions of the Migration Act. Indeed, it is difficult to conclude that any decision to grant a protection visa would not be a decision in the best interests of a child, enabling them the option to reside in another country free from harm of the type identified in their protection visa application. To suggest that the Convention would require the Tribunal to go on to consider generally what is in the best interests of the child would be erroneous for a number of reasons, not the least of which is that it is not a provision that has been expressly adopted in the Migration Act and would effectively allow a provision of the Convention to override an express Australian legislative provision.
[40] On a practical level it would also be unworkable as it would result in tribunals such as the Refugee Review Tribunal attempting to determine what is in a child’s best interests when their purpose is to determine whether or not a child ought to be entitled to a protection visa. If a child is entitled to a protection visa they will be allowed to reside in Australia and it would at that point be appropriate for any proceedings relating to the care arrangements of the child to be brought in a court of appropriate jurisdiction (either Australia or the other country), and if such proceedings were brought in Australia the Convention provisions in Art.3 would inevitably be fulfilled by the operation of the relevant provisions of the Family Law Act 1975.
[41] However, the provisions of the Family Law Act do not govern the question of the entitlement of persons to visas nor how they should be dealt with as unauthorised arrivals or those seeking protection visas (see generally Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365; [2004] FLC 93-174; 206 ALR 130; (2004) 78 ALJR 737; (2004) 31 Fam LR 339; 77 ALD 640).
[42] It is unfortunate that in many applications for protection visas that are coming before the courts involving persons under 18, Art.3 of the Convention on the Rights of the Child is being argued as some form of catch-all provision when it is neither “engaged” by the legal framework nor the circumstances of the cases, and serves only to obfuscate what is already a complex task in assessing the person’s need for a protection visa.
The second respondent had no duty to consider the matters contained in the Convention on the Rights of the Child as the applicants contend. The applicants could have no legitimate expectation that it would do so. This ground of review reveals no error.
Failure to take into account a relevant consideration
Ground 8 of the application provides:
8. The Second Respondent has not taken a relevant consideration into account
Particulars
The Second Respondent has not taken into account properly that the Applicant’s husband and father was granted a Protection Visa on 3 September 2012. The Applicant’s husband and father, is a member of the same family unit, as the Applicants.
In my view this is a restatement of the earlier grounds of review that each relied upon the grant of a Protection visa to the first respondent’s husband. The ground is based upon a factually incorrect premise, namely that the second respondent did not consider that matter. It plainly did so.
This ground reveals no jurisdictional error.
Conclusion
None of the grounds of review relied upon by the applicants reveals jurisdictional error.
The amended amended application for review must be dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 30 June, 2017.
Date: 30 June 2017
11
3