Elw17 v Minister for Immigration
[2019] FCCA 2191
•15 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELW17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2191 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Refugee visa application – application for judicial review of decision of Delegate of the Minister for Immigration refusing to grant a Refugee and Humanitarian (Class XB) (Subclass 200) visa to the applicant because he did not satisfy the compelling reasons criterion – applicant claims denial of procedural fairness and that the Delegate did not consider all of the relevant material – grounds of application not made out – applicant fails to establish jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.54, 56, 66, 411, 476, 477 Migration Regulations 1994 (Cth) |
| Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 CJR17 v Minister for Immigration & Border Protection [2018] FCA 1627 |
| Applicant: | ELW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3092 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 17 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2019 |
REPRESENTATION
| The Applicant appeared in person by telephone from Moscow, Russia. |
| Counsel for the First Respondent: | Mr J. Pinder |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to appear at the delivery of judgment on 15 August 2019 by telephone from Thessaloniki, Greece.
Pursuant to s.477(2) of the Migration Act 1958 (Cth) the time for the Applicant to file his Application in this Court be extended to 6 October 2017.
The Application filed in this Court on 6 October 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3092 of 2017
| ELW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Russia aged 37 years, having been born on 9 November 1981, and at all material times was resident in Moscow, Russia.
By Application filed in this Court on 6 October 2017, he sought to quash and have re-determined two decisions, namely:
a)the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 September 2017 which found that it did not have jurisdiction to review the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 20 July 2017 refusing to grant to him a Refugee and Humanitarian (Class XB) (Subclass 200) visa (Refugee visa); and
b)the Delegate’s decision of 20 July 2017 itself.
However, by his affidavit sworn or affirmed on 15 October 2017 the Applicant stated that he was only seeking judicial review of the Delegate’s decision, and not the decision of the Tribunal.
I note that as the Applicant was a non-citizen who was not physically present in Australia at the date of the decision of the Delegate, such decision was not reviewable by the Tribunal as it was not a Part 7-reviewable decision by force of s.411(2)(a) of the Migration Act 1958 (Cth) (the Act) and the Tribunal was therefore correct to find that it had no jurisdiction to review the decision of the Delegate. For the same reason, the decision of the Delegate was not a primary decision under s.476(4), which this Court would otherwise have no jurisdiction to review. It follows and I find that this Court has jurisdiction to review the decision of the Delegate under s.476(1) of the Act.
The Applicant lodged his Application to this Court 7 days outside the 35 day time limit prescribed by s.477(1) of the Act to make his substantive application. The Applicant claimed in support of his extension application that he did not receive the decision of the Delegate until 5 September 2017 by email, although it was deemed under the applicable statutory provisions to have been received by him on 10 August 2017. The Minister consents to an extension being granted and I will so order pursuant to s.477(2), considering that it is necessary in the interests of the administration of justice to do so.
An application for a Refugee visa cannot be lodged unless the applicant is outside Australia: Item 1402(3)(b) of Sch.1 to the Migration Regulations 1994 (Cth) (Regulations). The Applicant lodged his Refugee visa application in Moscow on 21 October 2016, with his mother, wife and two children being dependant applicants. It was received and processed at the Australian Embassy in Berlin, where the Delegate made his decision. The dependant applicants have not joined in the Application filed in this Court.
Claims for Protection
The Applicant claimed to fear harm in Russia because of his political opinions. In a typed statement in English dated 19 October 2016 forming part of his Refugee visa application he made the following claims:
a)he is critical of the current authorities in the Stavropol region of Russia, and in the Russian Federation as a whole;
b)the Russian authorities carried out a threat to his liberty and subjected him to unlawful arrest to prevent him carrying out socio-political events such as political rallies relating to the removal from power of the President of Russia, Mr Putin;
c)he was accused of participation in an unauthorised protest on 24 January 2016 and detained by Russian police on 18 February 2016;
d)he was treated in a degrading fashion by the Russian authorities who organised a public campaign to publically discredit him as a member of society in the media and via the internet;
e)The state power and Russian authorities created significant economic hardship that threatens his ability to subsist because of his political beliefs;
f)the Russian security services have denied him the opportunity to work and provide for himself and for his family;
g)on 12 October 2016 he received a phone call from an investigator of the Investigative Committee of Russia who informed him that he may be prosecuted under the Russian Criminal Code for extremism; and
h)he has not been able to leave Russia to seek refuge elsewhere because he would need to get a special passport used for travel abroad from Russia. The Russian authorities could create obstacles for him in that regard and take preventative measures to ban him from travelling abroad.
Relevant Criteria and Law Applicable to Refugee Visa Applications
To obtain the grant of the Refugee visa the Applicant had to satisfy the Minister at time of decision under cl.200.222 of Sch.2 to the Regulations that there were compelling reasons for giving special consideration to granting him the Refugee visa. At the time of decision cl.200.222 relevantly provided as follows:
The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
(a) …
(b) in any other case—the following:
(i) the degree of persecution to which the applicant is subject in the applicant’s home country; and
(ii) the extent of the applicant’s connection with Australia; and
(iii) whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from persecution; and
(iv) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
(emphasis added)
Decision of Delegate
By force of s.66(2)(c) and (3) of the Act the Delegate was not required to give a statement of reasons in relation to his decision to refuse to grant the Refugee visa to the Applicant. Nevertheless, in his Decision Record the Delegate stated as follows:
Reasons for Decision
Under migration law, an application is made for a class of visa and your application must be considered against the criteria for all subclasses within that visa class.
Your application has been considered against the criteria for the following subclasses within REFUGEE AND HUMANITARIAN visa class.
200- REFUGEE
201- IN-COUNTRY SPECIAL HUMANITARIAN PROGRAM
202- GLOBAL SPECIAL HUMANITARIAN PROGRAM
203- EMERGENCY RESCUE
204- WOMAN AT RISK
Your application is refused because you do not satisfy the criterion of the Migration Regulations at 200.222, 201.222, 202.222, 203.222, and 204.224, which state:
(see [8] above for the terms of cl.200.222)
Please note that as you did not meet the 'compelling reasons' criterion in each of the five subclasses, I did not assess you application against the other criteria in those subclasses.
It may assist you to understand this decision if I explain the context in which the 'compelling reasons' criteria are applied.
The assessment of the four factors included in the 'compelling reasons' criteria is made in the context of the Australian Government's annual decision on the size of the Humanitarian Programme, and the reality of a very large number of applicants who are subject to persecution or substantial discrimination. Australia does not have the capacity to resettle all the people who apply for a Refugee and Humanitarian visa.
The Australian Government has decided that the fairest way to deal with the high number of applications is to give priority to applicants who are outside their home country and are either assessed as refugees by the UNHCR and formally referred to Australia for resettlement, or proposed by a close family member under the Special Humanitarian Programme. I note that your application does not fall into either of these priority categories.
I appreciate that you wish to resettle in Australia, and I understand you will be disappointed with this decision. I assure you that I have considered all the information included in your application. However, I must consider the information you have provided having regard to the four factors mentioned above, including the capacity of the Australia community to provide for resettlement of persons such as yourself. Having done that, I was not satisfied that there are compelling reasons for giving special consideration to granting you a permanent visa.
(emphasis added)
Accordingly, the Delegate refused the application of the Applicant and his family members for the Refugee visa.
Grounds of Attack on Decision of Delegate
The Applicant’s Grounds, which are diffuse and argumentative in their terms, are verbatim as follows:
1. My application for a REFUGEE AND HUMANITARIAN (Class XB) REFUGEE (Subclass 200) visa was lodged at Moscow on 21 October 2016.
2. 05.09.2017 I was noticed about the decision David Gilks Position Number: 11582 Second Secretary Australian Embassy Berlin Department of Immigration and Border protection by email (to my mailbox [omitted]). The decision was dated 20 July 2017
3. I was not satisfied with the decision because it can not be reviewed by Administrative Appeals Tribunal (Migration & Refugee Division) and there is no explanation why there is no right to merits review for this decision. If the reason is that the Australian Security Intelligence Organization assess me as a threat to the security of Australia, so it is a complete nonsense. Up to the present day I have never personally had a criminal record. In the meaning of the law and in the sense of justice a person needs to know why he’s threatening Australia. And it is in the interests of Australia because only in this case the man is able to consciously change the situation to decrease the threat of Australia for his part. I honestly reported in the application that my relative (my wife’s father) was an officer of the secret service of Russia (FSB). Any way I did not hid this information, showing my integrity to the interests of Australia security.
4. Also I was failed to provide two protocols of the FSB in time because of the Departments of Immigration and Border Protection formal approach with me. But it is not my fault in whole. No one contacted with me, I had no interviews, so I was unable to update information. So my case was not studied by Second Secretary Australian Embassy (Berlin Department of Immigration and Border Protection) at all items that might have value. I did not lodge the FSB-protocols originally submitted with my application because rightly feared tightening of persecution if the Russian authorities would be alerted about provided by me these documents to Australian authorities. The Australian mechanism does not provide the opportunity to submit the refugee application online via the Internet (or by another method which can ensure a sufficient level of inaccessibility of a massage to Russian authorities). A delivery by mail or personal delivery by sender (using personal transport) available for inspection by the FSB. In its power to check mail and it has the right to carry out checking (personal inspection) of any persons moving on territory of Russia.
5. The decision record states that there are no compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to: (i) the degree of persecution to which the applicant is subject in the applicant’s home country; and (ii) the extent of the applicant’s connection with Australia; and (iii) whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from persecution; and (iv) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia. I don’t agree with it because the conclusions were made without all the necessary information (including me the FSB-protocols that I want to provide). There also a few words about the assessing the capacity of the Australia community to provide for resettlement of persons such as me in the decision. But this category should be dictated by the interests of Australia. The migration officials must not being apply one size fits to all approach, instead they must study specific of the personality and the ability of the applicant to be useful for the country. Mr. David Gilks did not used this approach.
6. The facts allow to assert there were a few jurisdictional errors (see following). The decision-maker not adopting a fair process in making the decision; ignoring materials the decision-maker was required to look at. Due to an insufficient level of communication between the Department of Immigration and Border Protection and the applicant there was failing to provide the FSB-protocols which in details reveals the essence of the facts related to the impact of the state on the applicant. In particular, these evidence clearly characterize the degree “of persecution to which the applicant is subject in the applicant’s home country”.
7. The reason for decision is that I did not meet the “compelling reasons” criterion on each of the five subclasses. But because of the fear of being punished in Russia, I did not attach all important documents (“Evidence supporting claim” or “Two protocols of the FSB” – 10 pages in PDF) to my application. The acts of the applicant (my acts) to provide the authorities of another state information about the investigative activities of the FSB can be considered under section 275 of the Russian Criminal code. That referred as a treason through a provision of foreign government information classified as state secret. The punishment for this in Russia – imprisonment from 12 to 20 years. The Australian system does not allow to submit documents via the Internet using privacy features of items, including encryption. So that is not my fault that I was not able to provide all the information at once. The same applies in respect of “international organization”. That is why the complainant (me) was not able to take action to obtain the status of a person being assessed as a refugee by the UNHCR. The term international organization is explicitly mentioned in article 275 of the Russian Criminal code.
8. As for the fact that I couldn’t go to any other country to explain that because of my plight and deterioration of my financial situation due to the impact of the Russian authorities, I had debts. The debts arose largely because of persecution justified by the applicant the original application caused by political motives of the state (seizure from the applicant his tools of production and labour – computers and electronic equipment). Debts not allowed to leave the Russian Federation. This follows from the practice of section 67 of the Federal law of the Russian judicial enforcement proceedings. This section the so-called “Temporary restrictions on leaving the debtor of the Russian Federation”. I have attached proof of my debt to the present application.
9. These evidence (documents – two protocols of the FSB) is the compelling provement of the facts: Being persecuting me for political reasons (specified in my application originally filed), the Russian authorities seized the items I use my work (to ensure the sustenance of my life and the lives of my family members). It is 9 items (total). Computers and electronic equipment. This fact confirms the illegal actions and evil intent on the part of the authorities. To this date the Russian authorities have not filed any criminal or administrative proceedings against me. They just took my property, which I need in order to survive. In particular this resulted in the inability to legally leave Russia.
10. The process of consideration and adoption of a decision on my question in the absence of any contact with me from the Department of Immigration and Border Protection resulted in the impossibility of any argument from my side, including the inability to provide important information and evidence referred to above. This constitutes a violation of substantive law implemented by the Migration Act 1958.
11. I pose no threat to the security of Australia and I meet the requirements (according to the prosecution, the degree of the relationship to Australia (representative of English-speaking people), the capacity of the Australian community in relation to people such quality like me). But the Department probably thought otherwise. The Australian Government has decided that the fairest way to deal with the high number of applications is to give priority to applicants who are outside their home country and are either assessed as refugees by the UNHCR and formally referred to Australia for resettlement, or proposed by a close family member under the Special Humanitarian Programme. I think that it was the incorrectly interpreting and applying the law because of the next. The decision of a government of Australia cannot be a substitute of the Migration Act 1958. Also the decision of the government may not have legal force above the law. The Migration Act 1958 states that “The object of this Act is regulate, in the national interest, the coming into, the presence in, Australia of non citizens” (Section 4) and that “Despite any legislative instrument made for the purposes of section 39, the Minister must take all reasonably practicable measures to ensure the grant in a financial year of at least the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that is determined by the Minister under subsection (3) of this section for that year.” (section 39F). However, in the Migration act 1948 there are no rules establishing mandatory automatic denial of a migration visa persons applying for it and not having the status of refugees by the UNHCR and not formally referred to Australia for resettlement, or proposed by a close family member under the Special Humanitarian Programme.
12. According to section 4 of the Migration Act 1958 (1) The Object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Getting all the necessary information about the person who is coming into Australia consistent with the national interests, including security interests. The Department of Immigration and Border Protection has not done this although he had the opportunity. The decision was not made in accordance with the Migration Act 1958 and is not a ‘privative clause decision’ within the meaning given by subsection 474 (2) of the Migration Act 1958.
Consideration
Grounds 1 and 2
These Grounds simply make correct factual assertions, but do not comprise Grounds meaningfully contending for jurisdictional error, and are not made out.
Ground 3
This Ground also does not constitute an assertion of jurisdictional error.
At the hearing the Applicant complained about aspects of Australia’s immigration law as being outdated “in accordance with the modern times” and that it did not “meet the interests of Australia”. I pointed out to the Applicant that there was not much point in his complaining about Australian law and that the case involved whether or not he established that the decision of the Delegate was affected by jurisdictional error. The letter dated 20 July 2017, under cover of which the Decision Record of the Delegate was forwarded, advised him that there was no right of merits review of the Delegate’s decision, which was entirely in accordance with s.411(2)(a) of the Act.
Otherwise, Ground 3 does not constitute an assertion of jurisdictional error and fails.
Grounds 4, 7 and 10
By these Grounds the Applicant appears to contend that he was denied procedural fairness on the basis that the Delegate did not communicate with him or hold an interview with him and that he was unable to participate in the decision-making process or make arguments.
These Grounds also fail to establish that the decision of the Delegate is affected by jurisdictional error.
First, there is no evidence before me that the Applicant ever sought an actual interview with the Delegate or sought to provide further information.
Second, s.54(3) of the Act provided that the Minister might make a decision to grant or refuse a visa “without giving the applicant an opportunity to make oral or written submissions” and s.56(2) provided that “the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way”.
In other words, the Delegate for the Minister was not obliged to invite the Applicant to an interview, or to give him an opportunity to provide additional information. The Delegate had a discretion whether or not he wanted to interview the Applicant, and the Applicant has not established that any exercise of discretion in this regard miscarried, or was legally unreasonable. Further, it is quite uncertain how the Applicant would have attended an interview in Berlin before the Delegate, having regard to his protection claim that the Russian authorities would create obstacles to him travelling abroad: see [7(h)] above, Ground 8 and the last sentence of Ground 9 as to not being able to leave Russia.
Third, the Refugee visa application of the Applicant which was lodged in Moscow comprised some 199 pages. In his Decision Record the Delegate assured the Applicant that he had “considered all the information included in your application” and no reason has been advanced as to why this assurance should not be accepted.
Further, it was up to the Applicant to advance whatever evidence, claims or arguments he wished to advance, and it was for the Delegate then to decide whether his claims had been made out: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ. The position was, as agreed by the parties with the evident approval of Banks-Smith J in CJR17 v Minister for Immigration & Border Protection [2018] FCA 1627 at [50], as follows:
[50]Both parties acknowledged that:
(a)the proceedings before the Tribunal are not inter partes but inquisitorial, and the Tribunal is not in the position of a contradictor: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [11], [30]; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187];
(b)it was for the appellant to have advanced whatever evidence or argument he wished to advance in support of his claim that he was entitled to the visa. The Tribunal must then determine whether that claim is made out: Abebe v Commonwealth at [187];
(c)the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] and [49]; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; and
(d)there was no duty on the Tribunal to make its own enquiries: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1].
To similar effect Graham J had said of proceedings before the Tribunal in SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at 506 [37]:
[37]The Act does not require that the tribunal actively assist an applicant in putting his case nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; 75 ALD 151; [2003] FCAFC 126 at [36].
The principles referred to in [22] – [23] above apply equally to a Delegate of the Minister.
In any event, the Applicant himself concedes by his Ground 7 that he was not legally able to send out of Russia what he calls “all important documents” to the Delegate.
Otherwise, these Grounds fail to establish that the decision of the Delegate is affected by any form of jurisdictional error, including procedural unfairness.
Grounds 5, 6, 8 and 9
These Grounds appear to contend that the Delegate did not consider all of the relevant material, ignored relevant material and ignored the fact that the Applicant owed debts in Russia.
In my view these Grounds are also not made out and do little more than invoke a merits review of the decision of the Delegate, which is not available in this Court.
The Applicant has failed to establish from the terms of the Decision Record of the Delegate that the Delegate ignored relevant material and the assurance of the Delegate that he had considered all of the material provided by the Applicant must be accepted.
Otherwise, the passage from the judgment of French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173 (Plaintiff M64) at 185 – 186 [25] is applicable:
[25]It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282). It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision (Migration Act 1958 (Cth), s 66(2)(c), (3).), and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605-606 [31]-[33], [66]-[73]). Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power” (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 175 [27]; see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 [82]-[84]); but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
These Grounds fail to establish jurisdictional error.
Grounds 5, 11 and 12
Ground 5 further appears to argue with the priorities established under Australian Government policy applicable under the Special Humanitarian Program, as do Grounds 11 and 12.
However, the priorities policy was considered by the High Court in Plaintiff M64 and held not to be inconsistent with cl.202.222 as it then relevantly stood, as was stated by the plurality at 194 [54]:
[54]Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike (R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 201-202, 204-205; Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325 at 333-335; 34 ALR 639 at 646-647). In particular, policies or guidelines may help to promote consistency in “high volume decision-making” (Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206), such as the determination of applications for Subclass 202 visas. Thus in Drake v Minister for Immigration and Ethnic Affairs [No 2] ((1979) 2 ALD 634 at 642), Brennan J, as President of the Administrative Appeals Tribunal, said that “[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable” because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by “diminishing the importance of individual predilection” and “the inconsistencies which might otherwise appear in a series of decisions” (Drake v Minister for Immigration and Ethnic Affairs [No 2] (1979) 2 ALD 634 at 642). The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of “compelling reasons for giving special consideration” is readily apparent.
At 198 [68] of Plaintiff M64 Gageler J said as follows:
[68]It is open to the Minister in the exercise of non-statutory executive power to lay down a policy for the guidance of his or her delegates in making those determinations. Indeed, it is inconceivable that the Minister would not do so. In Nevistic v Minister for Immigration and Ethnic Affairs (Contrast Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 194 [107]-[109]), Deane J emphasised the importance of the adoption and consistent application of policy to the avoidance of substantial injustice in administrative decision-making, which involves “competition or correlativity between rights, advantages, obligations and disadvantages”. Each applicant must always be entitled to have his or her application for the exercise of a decision-making power determined on its merits. But the merits of an application cannot always adequately be considered by reference to the circumstances of the applicant alone.
In his Decision Record the Delegate specifically referred to the priorities policy and the Special Humanitarian Program: see [9] above, as emphasised.
These Grounds also fail to establish that the decision of the Delegate is affected by jurisdictional error.
Conclusion
The Applicant has failed to establish any kind of jurisdictional error and the Application filed by him in this Court is to be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 15 August 2019
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