FEDERAL CIRCUIT COURT OF AUSTRALIA
| EHF17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 499 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Egypt – Coptic Christian – whether unreasonable conclusion concerning whether the applicant has no well-founded fear of persecution – whether unreasonable and illogical conclusion having regard to extensive unrest and violence in Egypt and particular threats against Coptic Christians – whether conclusion unreasonable and illogical where Australian Federal Government recognises threat to Christian Copts of being persecuted in Egypt – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 417, 499 |
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- Case
- [2019] FCCA 499
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the AAT's conclusion that the applicant had no well-founded fear of persecution was unreasonable and illogical, having regard to the evidence of unrest and violence in Egypt and the specific threats faced by Coptic Christians. This involved considering whether the AAT had properly applied the legal principles and standards required under the Migration Act 1958 (Cth), specifically the tests for a "real chance" and a "real risk" of harm.
In its reasoning, the court distinguished the role and constraints of the AAT from those of the Minister under section 417 of the Migration Act. The court emphasised that the AAT is obliged to review decisions and make determinations based on the strict criteria of the Act, applying the same legal principles and standards to all matters. The court referred to the Senate Committee's report on Ministerial Discretion in Migration Matters, which highlighted that ministerial discretion under section 417 acts as a safety net for circumstances not anticipated by the legislation, allowing for intervention in cases with compelling, compassionate, and humanitarian circumstances. However, the AAT must adhere to the statutory provisions and apply the relevant tests to the individual's circumstances. The court also drew upon the principles established in *Mok v Minister of Immigration, Local Government & Ethnic Affairs & Anor (No 1)*, where it was held to be improper for a Prime Minister to make public statements that could intimidate decision-makers and prejudice them against applicants, thereby preventing a fair consideration of the merits of their cases. The court indicated that if the AAT were to adopt a lenient approach based on ministerial statements or policy outside the parameters of the Act, it would lead to unfairness and undermine the integrity of the Tribunal as an independent review body.
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Ratio Decidendi
Legal Principle Established
The purpose of s.417 of the Migration Act is to enable the Minister to “intervene”, or to substitute a more favourable decision. In the Inquiry into Ministerial Discretion in Migration Matters conducted by a Senate Committee, the Committee’s Report published in March 2004 stated as follows with reference to s.417 of the Migration Act:2.9 A subsequent bill introduced in the Senate in December 1989, amending Act 59 of 1989, established the limited context under which the minister is able to exercise discretion in immigration matters, especially in relation to humanitarian claims for visa applications which fall outside the visa categories codified in the Migration Act. The bill was supposed to provide balance for an otherwise inflexible set of regulations to allow the minister a public interest power to grant a visa in circumstances not anticipated by the legislation where there are compelling, compassionate and humanitarian circumstances for doing so. Ministerial discretion conceptualised in this way was to act as a safety net:The Bill was welcomed by the opposition parties for its recognition of the need to restore a residual power of ministerial discretion in immigration matters, particularly in relation to applicants who do not meet the strictness of the new codified visa categories, but whose individual circumstances warrant humanitarian consideration.(Emphasis added). The Tribunal was obliged to review the Delegate’s Decision and make a determination as to whether the applicant satisfied the criterion to be granted a Protection Visa in the context of the “strictness of the…codified visa categories”. The question the Tribunal is required to ask is whether the individual, that is the applicant, met the criteria in s.36(2)(a) or (aa) of the Migration Act in her particular circumstances. The Minister (or Assistant Minister) is not so constrained. The lesser level of constraint that applies to the Minister (or Assistant Minister) is reflected in s.417 of the Migration Act, and at a political level, in the Former Prime Minister’s Remarks and the Khalil Speech. The Tribunal must apply the same legal principles and standards to each matter before it, namely a “real chance” and a “real risk” of the respective harm in s.36(2)(a) and (aa) of the Migration Act. It must assess the circumstances of the individual and apply the relevant tests. If it were to do otherwise, or adopt a lenient approach on the basis of Ministerial statements or policy to a particular identified group, or otherwise outside of the parameters imposed under the Migration Act (including by s.499 of the Migration Act) this would cause unfairness to applicants not of this particular group, and call into question the integrity of the Tribunal as an independent review body and whether it was truly performing a review of the decision with a view to arriving at the correct and preferable decision on the basis of the materials before it and the statutory provisions it is mandated to apply. That point was brusquely made in in Mok v Minister of Immigration, Local Government & Ethnic Affairs & Anor (No 1) (1993) 47 FCR 1 (“Mok”), where the Federal Court considered whether comments made by then Prime Minister Mr RJL Hawke and a then current Senator concerning “Cambodian Boat People” were prejudicial and biased to such a degree that it influenced the administrative decision-maker to determine that the applicant was not a refugee. The Federal Court found there was not a policy, though noted a policy need not be formal but may be at a Departmental level, that “Cambodian Boat People” were not to be found as refugees: Mok at 32 per Keely J. Nevertheless, the Federal Court did find that the decision-maker was biased in finding the applicant was not a refugee because of the comments made by the then Prime Minister. In Mok at 20 per Keely J the Federal Court made the following observations:In my view it was quite improper for Mr Hawke, as Prime Minister, to express publicly any opinion on the question of whether the Cambodian “boat people” were genuine refugees. It was however far worse for him to say “I will be forceful in ensuring that that is what’s followed” (i.e. he would take forceful measures to make sure that his opinion would be acted upon by Departmental decision-makers). In my opinion it was grossly improper for him to state publicly, with all the authority, prestige and influence of the office of Prime Minister, that he would “be forceful in ensuring that” his opinions would be “followed”. That statement was likely to intimidate the respondent Minister’s delegates and prejudice them against the Cambodian “boat people”; the obvious danger was that the merits of the cases of the Cambodian applicants for refugee status would not be fairly considered by the delegates and applicants would be wrongly denied refugee status. It should be inferred that Mr Hawke knew that applications by Cambodian ‘boat people’ for refugee status would be considered by “middle management” public servants. If he did not know, then he ought to have made enquiries before making those statements on national television in prime time; he should have borne in mind what Dr Flick called “a temptation on the part of the decision-maker not to needlessly offend potential future employers by controversial decisions” (Flick G A, Natural Justice (2nd ed, 1984), p 162). The temptation not to offend a “forceful” Prime Minister would have been stronger.