Furaha v Minister for Home Affairs

[2019] FCCA 532

FEDERAL CIRCUIT COURT OF AUSTRALIA

FURAHA & ORS v MINISTER FOR HOME AFFAIRS [2019] FCCA 532

Catchwords:
MIGRATION – Application for review of delegate’s decision – Refugee and Humanitarian (Class XB) visa – no failure to take into account particular information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.54, 56, 58, 66, 499.

Migration Regulations 1994 (Cth), sch.2, cl.202.211, 202,222.

Cases cited:

Maurangi v Honourable Chris Bowen MP, Minister for Immigration and Citizenship (2012) 200 FCR 191

Plaintiff M64/2015 v the Minister for Immigration and Border Protection (2015)

258 CLR 173

First Applicant: WIVINE FURAHA

Second Applicant: BIENVENU MUBALAMA FURAHA

Third Applicant: LUCIEN MASUDI FURAHA

Fourth Applicant: BINJA NACHAMBU BATULIRE

Fifth Applicant: SYLVIA MULUME BATULIRE

Sixth Applicant: HILAIRE BIRINGANINE BATULIURE

Seventh Applicant: DIVIN MUSHAGALUSA BATULIRE

Respondent: MINISTER FOR HOME AFFAIRS

File Number: MLG 126 of 2018

Judgment of: Judge Hartnett

Hearing date: 26 February 2019

Delivered at: Melbourne

Delivered on: 8 March 2019

REPRESENTATION

Counsel for the Applicant: Ms Germov

Solicitors for the Applicant: Hanna Jackson Lawyers

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 126 of 2018

WIVINE FURAHA

First Applicant

BIENVENU MUBALAMA FURAHA

Second Applicant

LUCIEN MASUDI FURAHA

Third Applicant

BINJA NACHAMBU BATULIRE

Fourth Applicant

SYLVIA MULUME BATULIRE

Fifth Applicant

HILAIRE BIRINGANINE BATULIURE

Sixth Applicant

DIVIN MUSHAGALUSA BATULIRE

Seventh Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. On 6 December 2017, the Applicants, who are located offshore, applied for Refugee and Humanitarian (Class XB) visas. The application indicated that the Applicants sought to satisfy the criteria for a Subclass 202 (Global Special Humanitarian) visa. The First Applicant in the proceeding was the identified primary Applicant in the visa application.  The other Applicants include her brothers and adopted children. 

2. The Applicants challenge a decision of a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant to the Applicants Refugee and Humanitarian (Class XB) visas (‘the Class XB visas’). The visas were refused by notification to the First Applicant in correspondence from the Department of Immigration and Border Protection (‘the Department’), dated 13 December 2017. Attached to that correspondence was a Decision Record of the delegate.

3. On 29 January 2019, the Applicants filed an amended application. By that amended application, the Applicants rely upon two grounds of judicial review, being that:-

   “1. The delegate of the Respondent failed to exercise their statutory duty to give realistic and genuine consideration to all the evidence and claims provided as part of the application for a Refugee and Humanitarian (Class XB) visa as required by section 54 of the Migration Act 1958 and the common law.

   Particulars

   a. The visa application was received by the Sydney office of the Respondent on Wednesday 6 December 2017, comprising approximately 148 pages of application forms, supporting evidence and legal submissions.

   b. A decision was taken to refuse the visa application on Wednesday 13 December 2017, being 5 working days later.

   c. No interview was conducted with the visa applicants or Australian proposer as part of the consideration of the visa application.

   d. A copy of the Respondent’s file provided pursuant to Freedom of Information request on 10 January 2018 shows no internal records, file notes or consideration of any nature in relation to this application, including any consideration of government policy concerning Cl 202.222(2) of part 202 of Schedule 2 to the Migration Regulations 1994.

   2. Further or in the alternative to ground one above, the Respondent’s delegate (“the delegate”) fell into jurisdictional error by misconstruing or failing to apply the statutory criteria.

   Particulars

   a. The delegate found that the Applicant suffered “some degree of persecution or substantial discrimination” in her home country.

   b. Clause 202. 111 required the delegate to determine whether the Applicant is subject to substantial discrimination amounting a gross violation of human rights in the applicant’s home country.

   c. Clause 202.222(2) required the delegate to determine the degree of discrimination suffered by the Applicant and whether this gave rise to compelling reasons for giving special consideration to granting the applicant a permanent visa.

   d. Contrary to the Respondent’s policy guidelines, the delegate’s decision record does not contain any reference to the matters raised by the Applicant in relation to meeting the criteria referred to in paragraphs 2(b)-(c) above.

   e. It is not apparent from the decision record what matters raised by the delegate were accepted for the purpose of determining whether compelling reasons existed for giving special consideration to granting the applicant a permanent visa.”

Background

1. The relevant background is as set out in the Applicants’ contentions of fact and law, namely:-

   a)the First Applicant is a female national of the Democratic Republic of the Congo (‘DRC’);

   b)all Applicants currently reside in a refugee camp in Malawi and are registered with the United Nations High Commissioner for Refugees;

   c)the First Applicant is a widow. She applied for a Subclass 202 (Global Special Humanitarian) visa on 6 December 2017 on the basis of a proposal by Families of Hope Australia;

   d)the First Applicant has no immediate living family members in the DCR;

   e)amongst the First Applicant’s claims were that her husband has been assassinated, the parents of her adopted children murdered, and that she was gang-raped by five DRC police officers because of her human rights activism and criticism of the DRC government; and

   f)the First Applicant was employed by a human rights organisation called Collectif d’Actions pour la Defense des Droits de l’homme (‘CADDHOM’). The First Applicant headed the CADDHOM’s Department of Women and Children, and her role was to educate women in remote areas of the DRC. The Applicant claimed to broadcast human rights violations committed by the DRC authorities on her radio program. The Applicants fled the DRC in September 2016 with the assistance of the Red Cross.

2. For the Applicants to obtain the Class XB visas, the primary Applicant was required to satisfy, inter alia:-

   a)a “time of application” criterion in cl.202.211(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’); and

   b)a “time of decision” criterion in cl.202.222(2) of the Regulations.

3. The “time of decision” criterion in cl.202.222(2) of the Regulations was as follows:-

   “…[T]he Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:

   (a)  the degree of discrimination to which the applicant is subject in the applicant’s home country; and

   (b)  the extent of the applicant’s connection with Australia; and

   (c)  whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from discrimination; and

   (d)  the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.”

4. The “time of decision” criterion was the subject of consideration by the High Court in Plaintiff M64/2015 v the Minister for Immigration and Border Protection (2015) 258 CLR 173 as noted in the First Respondent’s submissions. The majority (French CJ, Bell, Keane and Gordon JJ) held, relevantly, as follows:-

   “30. … Clause 202.222(2) does not state several criteria by reference to which the decision is to be made: it raises only one criterion for the grant of the relevant visa. The criterion is that the Minister (or a delegate) is "satisfied" that "there are compelling reasons for giving special consideration to granting the applicant a permanent visa". As was the case in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, the nature of the decision entrusted to the Delegate was not a "determination" but, rather, "satisfaction". That state of satisfaction must be informed by the factors mentioned in pars (a) to (d), to which the Minister must have regard in making the single evaluation required in order to grant a Subclass 202 visa…

   31. In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to "reasons" that are "compelling"; that is, those reasons must "force or drive the decision-maker" "irresistibly" to be satisfied that "special consideration" should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that "special consideration" should be given to granting the application.

   32. The rationale of the criterion of "compelling reasons for giving special consideration" is that there are, indeed, more applicants in the general category of persons described in pars (a), (b) and (c) than can, in the Government's judgment, be settled permanently within the Australian community...

   38. …To give "special consideration" is to distinguish the application for the grant of a visa from the general run of candidates who, individually, might have merit under cl 202.222(2)(a) to (c). The Australian community's "capacity" to provide for the permanent resettlement of such persons who apply for Subclass 202 visas is a factor in the assessment of whether there are "compelling reasons for giving special consideration" to granting permanent visas to the Visa Applicants. This is because cl 202.222(2)(d), in referring to "persons such as the applicant", is naturally apt to include all persons who may qualify for the same visa.

   39. An evaluation of "the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia" involves an evaluation that is so open-textured that it may be doubted whether a challenge to its correctness is viable at all unless a misunderstanding of this factor on the part of the decision-maker can be demonstrated by reference to what the decision-maker has actually said on that subject...”

Consideration

1. It is not a matter for the Court to substitute its views for the delegate’s.[1]

   [1] Maurangi v Honourable Chris Bowen MP, Minister for Immigration and Citizenship (2012) 200 FCR 191, 70

2. The Applicant referred in submissions to the Department’s policy guidelines as set out in ‘Procedures Advice Manual 3 Refugee and Humanitarian-Offshore humanitarian Program-Visa application and related procedures’ and, in particular, at page 27 therein wherein the document states, relevantly:-

   “…Decision records should clearly and logically summarise the officer’s assessment of relevant factors based on the information available, and be consistent with legislation and policy, in such a way as to stand up to scrutiny by the public or an Australian court.”

3. The delegate was not required to give a statement of reasons for her decision. [2] This is well stated in Plaintiff M64/2015 v the Minister for Immigration and Border Protection (2015) 258 CLR 173 at paragraph 25. Contrary to the Applicant’s submissions, and in agreement with those of the First Respondent, the Court accepts the delegate was not under a general legal obligation to “apply policy”. There was no binding direction that the delegate comply with government policy not the subject of direction under s.499 of the Act. It was, rather, permissible for a delegate to do so.

   [2] Migration Act 1954 (Cth), ss 66(2)(c), (3).

4. The delegate, whilst not providing a comprehensive statement of her reasons for decision, did provide a Decision Record in which there are no adverse findings in respect of the First Applicant’s credibility. Indeed, the delegate accepted that the Applicants satisfied the “time of application” criterion in cl.202.211(1)(a) of Schedule 2 to the Regulations. That criterion was as follows:-

   “(1)  If the application does not include a proposal by an approved proposing organisation, the applicant:

   (a)  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…”

5. That satisfaction as to the time of the application criterion did not mean however, that the delegate was obliged to grant the Class XB visas. The delegate’s failure to be satisfied that there were “compelling reasons for giving special consideration” to granting the Applicants Class XB visas was clearly informed by the delegate’s concern as to “the capacity of the Australian community to provide for the permanent resettlement of persons such as the applicant in Australia”.

6. It is accepted by the Minister that the delegate was required by s.54 of the Migration Act 1958 (Cth) (‘the Act’) to have regard to all of the information in the application and that breach of s.54 of the Act would, at least, generally speaking, involve jurisdictional error. However, as submitted by the First Respondent, the Applicant’s suggestion that “the common law” provides some additional source of such a duty is wrong. Subdivision AB (including s.54) of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

7. Further, the delegate was not required to interview the Applicants as suggested by the Applicants’ submissions. The power in ss.56(1) and 58(1)(d) of the Act is discretionary. I agree with the First Respondent that it cannot be inferred from the delegate’s decision not to interview the Applicants, that the delegate did not consider the information in the visa application.

8. The Applicants argue that a period of five working days from the Department’s receipt of the application of the Applicants to the delegate’s decision, was an insufficient period of time for the delegate, as decision maker, to give genuine and realistic consideration to the matter before her. It is not possible to draw any inference that there was insufficient time for the delegate to read the Applicant’s material, consider it, and make an informed decision. The documents forming part of the application were not voluminous. The statement setting out the primary Applicant’s claims was 10 pages long. 

9. Under the heading ‘Finding and Reasons’ in the Decision Record of the delegate, the delegate commenced by saying:-

   “I have considered the application for a Refugee and Humanitarian (Class XB) visa, supporting documentation and other evidence against the legislative requirements contained in the Migration Act 1958 and the Migration Regulations 1994.”

   The delegate concluded the Decision Record as follows:-

   “On the basis of all of the information available to me, including the documents and information the applicants provided, I find that the criteria for the grant of a Refugee and Humanitarian (Class XB) visa are not met by the applicants.

   I find that the applicants do not satisfy the primary criteria in clauses 200.222, 201.222, 202.222, 203.222, 204.224 of Schedule 2 to the Migration Regulations 1994, nor do they satisfy the secondary criteria in clauses 200.311, 201.311, 202.311, 203.311 and 204.311. As such, I have not assessed the remaining criteria and the application has been refused.”

10. There is no evidentiary basis before the Court that supports an inference that the delegate failed to consider any particular information in the visa application. The Applicants “cannot invite the inference that an erroneous view has been taken of some material aspect of the matter simply because that aspect has not been expressly addressed and made the subject of findings.” [3]

    [3] Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 36.

11. For the above reasons, the submissions of the First Respondent are apt and accepted by the Court. The delegate’s failure to give a comprehensive statement of reasons for her decision does not invite an inference that the delegate failed to consider any particular matter. The delegate did not misunderstand or misapply the visa criteria, and no material error that would justify a conclusion of jurisdictional error attending the decision of the delegate can be found.

12. The Court shall dismiss the amended application with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 8 March 2019