MZXQN v Minister for Immigration
[2008] FMCA 445
•10 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXQN v MINISTER FOR IMMIGRATION | [2008] FMCA 445 |
| MIGRATION – Whether delegate considered the application or relied on findings in previous applications – no error of law or reviewable error of fact established. |
| Migration Regulations 1994 (Cth), reg.1042, sub-cls.200, 201, 202, 203, 204, 447, 451 Migration Act 1958 (Cth), ss.66, 474 |
| Applicant: | MZXQN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 638 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 12 March 2008 |
| Date of last submission: | 12 March 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 10 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Mr Donaghue |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed 17 May 2007 and amended by application filed 20 July 2007 are dismissed.
The applicant pay the First Respondent’s costs fixed in the sum of $5,000.00 within 30 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 638 of 2007
| MZXQN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision signed on 12 April 2007 which refused to grant the applicant a Refugee and Humanitarian (Class XB) visa.
Background
On 27 February 2007 the applicant applied to Department of Immigration and Citizenship (“DIA”) for a Refugee and Humanitarian (Class XB) visa. The application stated that the applicant is a Somali national, from the Rahaweyn Tribe who resides in Egypt and claims fear of persecution as a result of his status as a member of a minority tribe (Rahaweyn).
The matter is before this Court pursuant to an application for judicial review filed on 17 May 2007 and an amended application filed on
20 July 2007.
Issues for determination
The main issue before the Court is “whether the delegate of the Minister considered the application afresh or relied on determinations in previous hearings?”
The application
In his application, the applicant set out three grounds with particulars. The application was abandoned at the hearing.
The applicant proceeded with ground 1(i) of the amended application which is as follows:
“1. The decision of the Respondent was made in breach of an imperative duty imposed on him or an essential pre-condition to or an inviolable limitation or restraint upon his power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application. The Respondent exceeded his jurisdiction and/or constructively failed to exercise jurisdiction in that:
Particulars
i)He failed to undertake or complete the jurisdictional task pursuant to s65 of the Migration Act 1958 and/or failed to consider the time of decision criteria as to whether he was satisfied that there were compelling reasons for giving special consideration to granting the Applicant and permanent or subclass 200, 202 or 204 visa and/or imposed (sic) an impermissible gloss on the test he was required to apply.”
A Refugee and Humanitarian (Class XB) Visa has seven visa subclasses (subclasses 200, 201, 202, 203, 204, 447 and 451 (Migration Regulations 1994 reg.1402(4)).
Subclass 200 Refugee
Regulation 200.2 provides:
“200.2 Primary criteria
Note The primary criteria must be satisfied by all applicants except certain applicants who are members of the family unit, or members of the immediate family, of certain applicants who satisfy the primary criteria. Those other applicants need satisfy only the secondary criteria.”
Regulation 200.21 provides criteria to be satisfied at time of application.
Regulation 200.22 provides criteria to be satisfied at time of decision.
Regulation 200.222 provides:
“The 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 persecution 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 persecution; and
(d)the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.”
Subclass 201 In-country Special Humanitarian
Regulation 201.2 provides:
“201.2 Primary criteria
Note The primary criteria must be satisfied by all applicants except certain applicants who are members of the family unit, or members of the immediate family, of certain applicants who satisfy the primary criteria. Those other applicants need satisfy only the secondary criteria.”
Regulation 201.21 provides criteria to be satisfied at time of application.
Regulation 201.22 provides criteria to be satisfied at time of decision.
Regulation 201.222 provides:
“The Minister is satisfied that there are compelling reasons for giving special consideration to granting to the applicant a permanent visa having regard to:
(a)the degree of persecution 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 persecution; and
(d)the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.”
Subclass 202 Global Special Humanitarian
Regulation 202.2 provides:
“202.2 Primary criteria
Note The primary criteria must be satisfied by all applicants except certain applicants who are members of the family unit, or members of the immediate family, of certain applicants who satisfy the primary criteria. Those other applicants need satisfy only the secondary criteria.”
Regulation 202.21 provides criteria to be satisfied at time of application.
Regulation 202.22 provides criteria to be satisfied at time of decision.
Regulation 202.222 provides:
“The Minister is satisfied that there are compelling reasons for giving special consideration to granting to 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 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.”
Subclass 203 Emergency Rescue
Regulation 203.2 provides:
“203.2 Primary criteria
Note The primary criteria must be satisfied by all applicants except certain applicants who are members of the family unit, or members of the immediate family, of certain applicants who satisfy the primary criteria. Those other applicants need satisfy only the secondary criteria.”
Regulation 203.21 provides criteria to be satisfied at time of application.
Regulation 203.22 provides criteria to be satisfied at time of decision.
Regulation 203.222 provides:
“The Minister is satisfied that there are compelling reasons for giving special consideration to granting to the applicant a permanent visa, having regard to:
(a)the degree of persecution 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 settlement and protection from persecution; and
(d)the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.”
Subclass 204 Woman at Risk
Regulation 204.2 provides:
“204.2 Primary criteria
Note The primary criteria must be satisfied by all applicants except certain applicants who are members of the family unit, or members of the immediate family, of certain applicants who satisfy the primary criteria. Those other applicants need satisfy only the secondary criteria.”
Regulation 204.21 provides criteria to be satisfied at time of application.
Regulation 204.22 provides criteria to be satisfied at time of decision.
Regulation 204.224 provides:
“The Minister is satisfied that there are compelling reasons for giving special consideration to granting to the applicant a permanent visa, having regard to:
(a)the degree of persecution 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 settlement and protection from persecution; and
(d)the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia”
Subclass 447 Secondary Movement Offshore Entry (Temporary)
Regulation 447.2 provides:
“447.2 Primary criteria
Note The primary criteria must be satisfied by at least 1 member of a family unit. Other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.”
Regulation 447.21 provides criteria to be satisfied at time of application.
Regulation 447.22 provides criteria to be satisfied at time of decision.
Regulation 447.222 provides:
“The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a temporary visa, having regard to:
(a) the extent of the applicant's connection with Australia; and
(b)if the applicant continues to meet the requirement in subparagraph 447.211 (a) (i) -- the degree of persecution to which the applicant is subject in the applicant's home country; and
(c)if the applicant continues to meet the requirement in subparagraph 447.211 (a) (ii) -- the degree of discrimination to which the applicant is subject in the applicant's home country; and
(d)if the applicant continues to meet the requirement in subparagraph 447.211 (a) (iii) -- whether the applicant has the protection of a male relative and is in danger of victimisation, harassment or serious abuse because of her sex; and
(e)whether there is any suitable country available, other than Australia, that can provide for the applicant's stay and protection from persecution, discrimination, victimisation, harassment or serious abuse; and
(f)the capacity of the Australian community to provide for the temporary stay of persons such as the applicant in Australia.”
Subclass 451 Secondary Movement Relocation (Temporary)
Regulation 451.2 provides:
“451.2 Primary criteria
Note The primary criteria must be satisfied by at least 1 member of a family unit. Other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.”
Regulation 451.21 provides criteria to be satisfied at time of application.
Regulation 451.22 provides criteria to be satisfied at time of decision.
Regulation 451.222 provides:
“The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a temporary visa, having regard to:
(a)the extent of the applicant's connection with Australia; and
(b)if the applicant continues to meet the requirement in subparagraph 451.211 (a) (i) -- the degree of persecution to which the applicant is subject in the applicant's home country; and
(c)if the applicant continues to meet the requirement in subparagraph 451.211 (a) (ii) -- the degree of discrimination to which the applicant is subject in the applicant's home country; and
(d)if the applicant continues to meet the requirement in subparagraph 451.211 (a) (iii) -- whether the applicant has the protection of a male relative and is in danger of victimisation, harassment or serious abuse because of her sex; and
(e)whether there is any suitable country available, other than Australia, that can provide for the applicant's stay and protection from persecution, discrimination, victimisation, harassment or serious abuse; and
(f)the capacity of the Australian community to provide for the temporary stay of persons such as the applicant in Australia.”
Previous applications
The applicant had made three previous applications in terms consistent with the present application to the Minister. Those claims had all been rejected (CB p.211.9). The question before the Court is whether the delegate “considered the latest claim afresh?”, or “whether the delegate merely relied on the earlier rejections to reject the latest claim?” If the Court finds that the delegate considered the claims afresh it is conceded for the applicant that such finding would dispose of the application for review.
The Migration Act 1958 does not require a delegate to set out their reasons for decision (ss.66(2)(c) and 66(3)).
The notes at CB p.211 set out some of the reasoning of the delegate but do not necessarily set out all of his reasoning – the application could have been refused for a reason that was not set out in those notes.
To fall within any of the above subclasses an applicant must meet the primary criterion that there are “compelling reasons”. The delegate found that the applicant failed to meet that primary criterion.
The applicant has not shown any error of law, or reviewable error of fact.
It is clear from the following statements that the delegate considered the applicant’s latest application afresh, and did not rely simply on a rejection of three previous applications (where the claims were consistent with the present):
“Your application was considered against the criteria in each of the subclasses. Your application was refused because I (as a delegate of the Minister) am not satisfied that a criterion in each of the subclasses was met. In summary, I am not satisfied that there are compelling reasons for giving special consideration to granting you a visa, having regard to particular factors in the criteria. The attached page shows the criteria not met by you for each of the subclasses.” (underlining added) (CB p.206)
That passage shows that the application was considered against the criteria in each subclass and that the delegate personally was not satisfied that a criterion in each of the subclass was met. The delegate personally was not satisfied that there are compelling reasons for giving special consideration.
The following statement shows that the delegate considered the content of the claims in the current matter:
“The claims relating to the PA’s circumstances are consistent to claims presented in three previous applications…” (CB p.211.9)
The following is a clear statement that the current claims were assessed in light of current circumstances:
“… The applicant’s current circumstances have been assessed…” (CB p.211.10)
The statement “and no new substantive information regarding his claims has been included” should be understood as saying “no new information of substance has been included”. That statement referred to all information included with the claims, including country information.
The following statement indicates that the delegate gave detailed consideration to the actual current claims by the applicant:
“… I find that that the PA’s current claims are consistent with the answers PA gave at interview…” (sic) (underlining added)
(CB p.212.2)The following statement shows an individual assessment by the delegate of the latest application:
“I have assessed this case and, on the basis of the information available, I find that there are no compelling grounds to grant the applicant a visa. Therefore, I determine that the applicant is unable to satisfy the requirement of subclause 202.222.”
(CB p.212.3)The following shows that the delegate considered the claims against all subclasses, including subclause 202.22 of the relevant type of visa:
“I have also considered the applicant’s claims against the prescribed criteria for all subclasses of Refugee and Humanitarian (Migrant) visa (Class XB)…” (CB p.212.4)
Having regard to the finding that the delegate considered the claims afresh, the Court is not called on to decide the respondent’s second contention that it was open to the delegate to have regard to the three previous rejections of the applicant’s application in deciding whether there were “compelling circumstances” in this matter. Were it necessary to decide this point, the Court would decide that previous rejections of the same claims are relevant in deciding that there were no “compelling circumstances” in the latest application made on the same grounds.
For the reasons stated above, ground 1(i) is rejected. No error of law has been shown. No reviewable error of fact has been established.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 10 April 2008
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