Dinkha v Minister for Immigration and Multicultural Affairs

[1999] FCA 1672

FEDERAL COURT OF AUSTRALIA

Dinkha v Minister for Immigration & Multicultural Affairs [1999] FCA 1672

MIGRATION – offshore application for permanent visa – whether decision-maker failed to consider valid application for a visa – whether decision-maker failed to make findings in relation to certain allegations made by applicant – whether decision-maker obliged to make a written note of factual findings in the absence of an obligation to give written reasons

Migration Act 1958 (Cth), s 476(1)(a), s 47

RAMZEYA DINKHA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N805 OF 1999

EMMETT J
23 NOVEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N805 OF 1999

BETWEEN:	RAMZEYA DINKHA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	23 NOVEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N805 OF 1999

BETWEEN:	RAMZEYA DINKHA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	23 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iraq.  She made an application for a permanent visa in subclass 202.  The primary criteria to be satisfied in respect of such a visa include that the applicant is subject to substantial discrimination amounting to gross violation of human rights in the applicant's home country and is living in a country other than the applicant's home country.  The applicant is presently in Syria.

2. The application was rejected by the Minister's delegate in the Australian embassy in Lebanon.  It is common ground that that decision is a “judicially reviewable decision” within the meaning of section 475(1)(c) of the Migration Act 1958 (Cth) (“the Act”). The applicant has therefore sought a review of that decision pursuant to Part 8 of the Act.

3. When the matter was called on this morning, leave was given to the applicant to file an amended application.  That was not opposed.  The grounds specified in the amended application are as follows. 

   “(1) The respondent did not observe the procedures that were required by the Migration Act or Migration Regulations to be observed in connection with the make [sic] of its decision in contravention of section 476(1)(a) of the Migration Act 1958.

   Particulars.

   The Minister's delegate was obliged under section 47 of the Migration Act 1956 [sic] to consider a valid application for a visa but failed to do so.  The Minister's delegate did not make findings in relation to claims made by the applicant namely that she was arrested and harassed by Iraqi authorities for no legal reason.

   (2)      The respondent made a decision that involved an error of law being an error involving an incorrect interpretation of the applicable law or incorrect application of the law to the facts as found by the person who made the decision.

   Particulars.

   The Minister's delegate failed to consider the application of Part 202.211(2) of Schedule 2 of the Migration Regulations 1994.”

4. Mr Diab, who appears for the applicant, indicated in the course of argument that he did not press the second ground. Accordingly, the only question before me is whether the respondent failed to observe the procedures that are required by the Act and, in particular, whether the Minister's delegate was obliged pursuant to section 47 to make findings in relation to claims made by the applicant.

5. Section 47 of the Act must be considered in the context of subdivision AA, dealing with applications for visas, in which it appears. Section 45 requires that, subject to the Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class. Section 46 specifies the circumstances in which an application for a visa will be valid. Section 47 then provides as follows:

   “(1)     The Minister is to consider a valid application for a visa.

   (2)      The requirement to consider an application for a visa continues until

   (a)       The application is withdrawn;

   (b)       The Minister grants or refuses to grant the visa

   (c)The further consideration is prevented by section 39 which limits the number of visas or 84 which deals with suspension of consideration.

   (3)      To avoid doubt the Minister is not to consider an application that is not a valid application.

   (4)      To avoid doubt a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.”

6. Section 48 contains a restriction on successive applications for visas.  It may be significant, at least for the applicant in this case, that that provision would not prevent a further application by the applicant if she is unsuccessful.

7. Subdivision AB then deals with the procedure for dealing “fairly, efficiently and quickly” with visa applications and contains a detailed provision for communication between Minister and an applicant.  Subdivision AC is concerned with the grant of visas.  Section 65 provides that, after considering a valid application for a visa, the Minister if satisfied as to certain matters, is to grant the visa.  If he is not so satisfied, he is to refuse to grant the visa.

8. Section 66 requires that the Minister, when he grants or refuses to grant a visa, must notify the applicant of the decision in the way prescribed. Notification of the decision must contain certain particulars. Thus, if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, that criterion must be specified. If the grant of the visa was refused because a provision of the Act or regulations prevented the grant, that provision must be specified. Unless section 66(3) applies, the Minister must give written reasons why the criterion was not satisfied or the provisions prevented the grant of the visa.

9. Section 66(3) applies to an application for a visa if:

   (a)The visa is a visa that cannot be granted while the application is in the migration zone, and

   (b)The Act does not provide under Part 5 or 7 for an application for a review of the decision to refuse to grant the visa.

   It is common ground that the Minister had no obligation to give written reasons pursuant to section 66. 

10. Section 69 then provides that non-compliance by the Minister with sub-division AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision.  It only means that the decision might have been the wrong one and might be set aside if reviewed.

11. That general description of the scheme is significant in terms of the obligations of the Minister that arise under section 47. Once it is accepted that the Minister has no obligation to give reasons for the decision under review, it is difficult to see how there could be an obligation on the part of the Minister to record findings in relation to claims made. Effectively, such an obligation would require that a decision-maker make a note of findings but not necessarily give reasons for those findings.

12. It may be that, in some cases, evidence would be available to indicate that the Minister's delegate had not given proper consideration to a valid application. If there were evidence as to arbitrary or capricious dealing with an application, then section 47 would not have been complied with. Section 47(1) imposes an obligation on the Minister to consider a valid application. That must require that the delegate of the Minister give bona fide consideration to the assertions made and to take those into account in making the decision.

13. There could be circumstances where it could be demonstrated that the delegate, in effect, contumeliously failed to take account of the contentions and submissions made on behalf of an applicant.  There is some evidence as to the manner in which the matter was considered by the Minister's delegate, being a note which has been produced from the Minister's file.  The note is one made by the decision-maker. 

14. The note is relevantly in the following terms:

    “54 Y/O Iraqi woman, Assyrian Christian, husband missing.  Left Iraq legally January 1999 (according to application, but her passport shows only one exit stamped in September 1994 at Trebeel).  In 1992 she was arrested, mistakenly believed to be trying to smuggle gold out of the country.  In fact she was taking it to her relative's house as a wedding present.  Following her arrest and until her departure in 1999(?) the authorities placed her under strict surveillance.  They kept questioning her, searching her home. 

    The applicant's husband was arrested and has not been heard of since.  There is no explanation in the claim of the reason for his arrest, nor is there any indication of when this happened. 

    Claims do not present evidence of persecution or discrimination.  I do not recommend an interview. 

    In 1994 the Iraqi authorities granted her an exit permit and stamped her as departed Iraq (an indication that they had no problems with her);  it appears they then discovered that she was transporting gold and charged her with illegal trafficking and cancelled her approval to depart. 

    ……………

    Arrest for attempted smuggling is not in itself persecution or substantial discrimination and I do not find credible her claims to subsequent harassment.  There is no explanation as to the claimed belief that the husband may be in detention and were he arrested I do not accept the applicant would be so vague about the matter.  Apart from possible inquiries leading from the departure of other families and her charge for removing gold without permission, there is no convincing indication of troubles with the authorities, no political or other profile.  I have reviewed at today's date the comments of the officer who screened the application and also I have looked closely at all submissions associated with the application.  After considering these I find there is no credible indication of current treatment amounting to persecution or substantial discrimination of the applicant.

    ………….

    The applicant does not meet all the requirements of any of the sub-classes of class BA.  I have refused the application.”

15. Then a further note appears:

    “Applicant's son called.  I explained on the information before us I did not accept his mother met the requirements of the visa class, ie. no convincing indication of persecution or substantial discrimination.”

16. If any conclusion is to be drawn from that note, it is that the delegate did in fact consider the application made on behalf of the applicant.  The application was accompanied by a statement in support prepared by an agent in Australia.  The statement in support is some 12 pages of detailed submissions referring to reports concerning circumstances in Iraq and making detailed submissions concerning the applicant's position.  It refers to the applicant's missing husband. 

17. My attention was drawn particularly to two passages concerning the assertions by the applicant:

    “It all appears to have begun quite innocently when Mrs DINKHA sought to attend the wedding of a close relative in Jordan with DIANA, while her husband remained at home with the rest of the family.  She was taking some jewellery, "not big", with her as presents.  This comprised a wedding ring, another small gold ring, a chain and cross and two bangles.  It was found on her and she was accused of trying to smuggle gold out of Iraq.”

    It appears that the applicant was then sentenced to a penalty. 

18. The second passage to which my attention was specially drawn was the following:

    “They keep arrested her, after she was accused and arrested, that they said she is doing business with others, like selling gold to people and get the money out of iraq [sic] and anybody visiting her at home, that mean [sic] she is dealing with sell or buy gold, and take it out of Iraq so she was followed during all these years from 1992 to 1998, she run away.”

    It appears to me that those assertions are expressly addressed in the note which I have set out above.  The note deals expressly with the applicant’s assertion of having been arrested for attempted smuggling. 

19. The general contention advanced on behalf of the applicant before me was that there was a claim of discrimination and persecution implicit in the material to which I have just referred.  However, it is significant that the detailed submission, after referring to independent reports indicating that physical security and human rights of the Iraqi Assyrians are currently at an all time low, went on to say:

    “This has not meant of course that all Christian Iraqi nationals lodging on-shore applications for Protection visas have been assured of success solely on these general grounds.  Neither has it entitled all offshore applicants to sanctuary here.  Nevertheless, it is indicative of a prima facie case within which each person's individual circumstances can be considered.”

20. And another passage:

    “But Mrs DANKHA [sic] are [sic] not seeking sanctuary in Australia for herself and her 14-year old daughter only on grounds which apply to Iraqi Christians generally.  There are, as has been seen, considerations which set them apart.  Christian Assyrians in a Muslim Arab society, their male head of household is almost certainly dead at the hands of the regime and her other three children, LINDA, NEENA and YAKUB have been granted sanctuary in Australia under the R.S.H.P.”

21. Then finally:

    “Mrs DANKHA [sic] is not seeking sanctuary in Australia for herself and DIANA only on grounds which apply to Iraqi Christians generally.  As has been shown in this submission - and as will be confirmed at interview, there are considerations which set them apart even in the oppressed ethnic and religious minority to which they belong.”

22. Those comments, if anything, certainly support the finding, recorded in the decision-maker's note, that there is no credible indication of current treatment amounting to persecution or substantial discrimination of the applicant.  I consider that, insofar as the note of the decision-maker is relevant, it indicates almost unequivocally that the decision-maker did in fact make findings on the assertions made by or on behalf of the applicant.

23. The thrust of the submissions in support of the application was really that, on humanitarian and compassionate grounds, the applicant should be permitted to come to Australia.  I make no comment on that question other than to acknowledge that it must be a matter of real concern for Mrs Dinkha to be separated from her children in the circumstances that appear to have arisen.  As I have said, that is not a matter that is before me.

24. I was directed to the documentation that was before the decision-maker which included travel documentation for one of the applicant's adult children who was in fact granted a sub‑class 202 visa.  It was said that an inference should be drawn from that grant that the recipient of that visa was subject to substantial discrimination amounting to gross violation of human rights in the grantee's home country, namely, Iraq, and that a further inference should therefore be drawn that a member of his family, namely his mother, was also subject to the same discrimination.

25. That, it seems to me, is really a way of asking me to make the decision that the decision-maker himself made.  The notes of the decision-maker state that he had looked closely at all submissions associated with the application.  There is no reason to doubt the veracity of that statement.  Notwithstanding that, the decision-maker reached the conclusion that there was no credible indication of current treatment amounting to persecution or substantial discrimination of the applicant.

26. Even if there were an obligation to make a note of findings as to substantial matters, it seems to me that the note constitutes just that. It may well be that, in the course of considering a valid application, as required by section 47, a decision-maker would have to reach certain conclusions and make certain findings. However, there is no obligation to produce a note of those findings for the benefit of an applicant. As I have said, it may well be that, if the evidence showed that the treatment of an application was arbitrary or capricious, there would be a failure to comply with section 47.

27. However, on the basis of the material before me, I am not satisfied at all that there has been any failure to comply with the requirements of section 47. It follows, in my view, that the application must fail.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             1 December 1999

Solicitor for the Applicant:	John H. Maait & Co
Counsel for the Respondent:	S. Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 November 1999
Date of Judgment:	23 November 1999