NAMG v Minister for Immigration (No.2)
[2004] FMCA 181
•23 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAMG & ORS v MINISTER FOR IMMIGRATION (No.2) | [2004] FMCA 181 |
| MIGRATION – Review of Refugee Review Tribunal decision and primary decision of a delegate – refusal of protection visas – applicants claiming political persecution in Peru – no jurisdictional error in the RRT decision – RRT finding it had no jurisdiction in relation to fourth applicant – decision of delegate in respect of the fourth applicant infected with jurisdictional error due to a want of procedural fairness – Minister conceding the error before trial – costs order in favour of the Minister in the circumstances. |
Australian Citizenship Act 1948 (Cth), s.10
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth), ss.36, 476, 477
Cachia v Hanes (1994) 179 CLR 403
NAMG v Minister for Immigration [2003] FMCA 541
Singh v Commonwealth
| First Applicant: Second Applicant: | NAMG NAMH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1199 of 2003 |
| Delivered on: | 23 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 23 March 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
No appearance by or on behalf of the applicants
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Court declares, by consent, that the decision of the delegate of the Minister in respect of the protection visa application by NBAX made on 30 August 2001 is invalid and of no effect.
The application for judicial review be otherwise dismissed.
The respondent is to pay any application fee paid by the applicants, as well as the setting down fee of $327, payable prior to the hearing of this matter.
The first applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1199 of 2003
| NAMG, NAMH, NAMI, NBAX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 July 2002 and handed down on 13 August 2002. The RRT affirmed a decision not to grant protection visas to three of the four applicants in the proceedings before me. The application was subsequently amended on 11 December 2003 to add a claim for judicial review in respect of the decision of the delegate in respect of the fourth applicant, a child.
The matter has been before me on several previous occasions. In NAMG and Ors v Minister for Immigration [2003] FMCA 541 I asserted the jurisdiction of the Court to review a primary decision, at least to the point of deciding whether or not it is a privative clause decision. I also asserted the right of the Court to hear migration proceedings concurrently with family law proceedings to the extent that that is an appropriate course in a particular case. I invited an application from the applicant mother under the Family Law Act 1975 (Cth) and indeed an application has been made.
The background facts and circumstances are somewhat complex but they are accurately set out in written submissions prepared on behalf of the Minister by Mr Bromwich and filed on 17 November 2003. I adopt paragraphs 1, 2 and 3 of those written submissions for the purposes of this judgment:
The first applicant is a citizen of Peru, the second applicant is the first applicant’s de facto husband, and the third applicant is the son of the first and second applicants. The second and third applicants are citizens of the United States of America. [The fourth applicant, added later, is also the child of the first and second applicants]. As the first applicant was the only person to put a substantive claim for refugee status, she will be referred to in these submissions as the applicant.
On 28 September 2000, the applicants arrived in Australia. On 8 November 2000 they applied for protection (class XA) visas. The basis for the applications was a claim for refugee status by the applicant based upon political opinion or imputed political opinion arising from her exposure of corruption in Peru.
On 19 January 2001, a delegate of the respondent refused the grant of the protection visas. On 23 January 2001 the RRT affirmed the delegate’s decision, after having given the applicant an opportunity to comment on adverse country information, which she took advantage of (court book, pages 205-213, 214-241). The RRT accepted the applicant’s claims as to what she said she had done and as to what had happened to her (court book, pages 264.7-265.3), but did not accept that this gave rise to a well-founded fear of persecution. In particular, the RRT:
(a)accepted the applicant’s account of her personal and business background;
(b)accepted that through her business dealing become aware of, and to an extent involved in, corrupt and illegal financial conduct that had been orchestrated by or on behalf of a senior military person (a General Cano) and other government officials;
(c)accepted that she had money extorted from her and was mistreated when she raised this with General Cano;
(d)accepted that she had threatened to take action against General Cano for sexual harassment;
(e)accepted that when she raised the topic of corruption with another general, who was also a government Minister, this was denied and she was told to stop;
(f)noted that the applicant claimed that soon afterwards she began to encounter problems and that if she returned to Peru she will be at risk of serious harm from reprisals, especially if she exposes their corruption and cooperates with the new government in Peru;
(g)accepted that during 1999, money due to the applicant was retained and that she suffered hardship as a result (court book, page 267.1);
(h)accepted that she threatened to expose General Cano and his supporters with the intention of forcing the to pay her and subsequ4ently became aware of being followed and had her car stolen by armed men (court book, page 267.2), but later in the decision noted that the response by police indicated they took her situations seriously and investigate the incident although those responsible were not found (court book, page 268.9);
(i)accepted that the applicant had received threatening telephone calls after her car was stolen (court book, page 267.4);
(j)noted that no further incidents occurred and despite this adverse interest in her on the part of General Cano and his supporters was not confronted personally again or harmed in any way (court book, page 267.5);
(k)accepted that the applicant was greatly concerned by the threats and other conduct to which she was subjected (court book, page 267.6);
(l)did not accept that these person would do her more serious harm if she returned to Peru – if that had been intended it is likely it would have happened when General Cano had both a clear opportunity and was in a position of power (court book, page 367.7);
(m)noted that even if this assessment was wrong, was satisfied that the authorities would be able and willing to offer adequate protection against any serious harm from General Cano or his supporters, given the major changes in Peru since late 2000 (court book, page 267.8), later finding the chances of General Cano harming her to be remote given his loss of power and position (court book, page 269.2);
(n)described the independent information as suggesting a level of optimism about the political direction in Peru since the inauguration of President Toledo in July 2001, with many stops taken towards reinstating full democracy and putting an end to institutionalised corruption (court book, page 2665.5);
(o)accepted that it will take time to root out institutionalised corruption from the prior Fujimoro regime, but that significant steps had been taken in that direction (court book, page 266.5);
(p)described the evidence as indicating that the government intends to do all it can to put an end to corruption in the military, police and institutions of government (court book, page 266.8);
(q)concluded that if the present government ere keen to obtain the applicant’s testimony it would be in a position to offer her witness protection (court book, page 268.4), accepting as genuine an invitation to give written testimony of her allegation (court book, page 267.6);
(r)found that any investigation of her financial affairs would not be due to a Convention reason, but rather due to the legitimate application of the general criminal or other law and not due to serious discrimination or persecution (court book, page 270.5);
(s)noted that the applicant did not have actual fears about the police or present government, but rather about their capacity to protect her (court book, page 270.7).
Mr Bromwich deals with the original application for review of the decision of the RRT in paragraphs 4 to 7 of his written submissions. Subject to what I will say in respect of the application by the fourth applicant (NBAX), I agree with and adopt those submissions for the purposes of this judgment:
The application for review alleges an excess of jurisdiction and an error of law in arriving at the decision to affirm the delegate’s decision. These claims are particularised by assertions that:
(a)the RRT identified the wrong issues and asked itself the wrong questions in relation to the applicant’s claims to have been persecuted;
(b)ignored relevant material in relation to the applicant’s claims of persecution (unspecified).
None of these allegations have any substance. All of the grounds upon which the applicant failed were factual. There was no complicated Convention issue involved and the reasons of the RRT indicate a conscientious exercise of its proper function.
Most of the applicant’s claims were accepted, but were found to be insufficient to give rise to a well-founded fear of persecution. The change of government in Peru was decisive as it gave rise to findings that these accepted past events did not give rise to any well founded fear of persecution, and to an alternate finding of effective protection. The applicant in substance takes issue with those conclusions. However they are matters properly within the fact-finding role of the RRT.
The allegation of ignoring relevant material is not particularised and therefore presently impossible to answer specifically. However if the complaint is that some portion of the material relied upon by the applicant has not been specifically referred to, that is not enough. The RRT does not have to list and detail everything that is placed before it.
The applicant mother, the first applicant, NAMG, has filed several documents, in particular, letters filed on 4 February 2004 and 23 March 2004 which raise issues that might be relevant to a consideration of her visa application on its merits, but which do not assist me in resolving the legal issues in dispute. The applicant mother was previously appointed by me as the litigation guardian of applicants NAMI and NBAX. She has not appeared for today's hearing, despite being notified of it. The matter was called twice and attempts to contact her by telephone were unsuccessful.
The second applicant, NAMH, the applicant father, has taken no part in the proceedings and a statement from him was filed in court on
9 February 2004. That statement refers to his unsuccessful efforts to obtain entry for his family into the United States of America. It appears that he does not wish to take any part in the proceedings.
Having regard to the non-appearance of the applicant mother and applicant father today, it would have been open to me to dismiss the application. However, I elected instead to hear it, having regard to further written submissions filed on behalf of the respondent Minister on 22 March 2004, in respect of the amended application filed on behalf of NBAX. Those submissions prepared by Mr Kennett very properly point to a jurisdictional error identified in the decision of the delegate. I have considered the book of relevant documents filed in relation to the decision of the delegate. I agree with the written submissions prepared by Mr Kennett and adopt them for the purposes of this judgment:
The amended application filed on 11 December 2003 seeks to add NBAX as the fourth applicant although no separate grounds are articulated in relation to him.
In truth, the application of NBAX raises a separate matter from the application pursued by the other applicants. He made a separate visa application (court book, NBAX, page 1) and it was the subject of a separate decision by a delegate of the Minister (court book, NBAX, page 38). No application was made to the RRT in relation to the delegate’s decision.
The RRT, in considering the application made by NAMG, NAMH and NAMH, determined that no application was before it in relation to NBAX and that it had no jurisdiction in relation to his claims (court book, pages 271-272). No attack appears to have been made on that part of the RRT’s reasoning. In any event, it is clearly correct. The decision which the RRT had before it for review did not deal with any visa application by NBAX. It was therefore outside the RRT’s power, in reviewing that decision, to make any determination as to whether NBAX was entitled to a visa. Such a determination could have been made on review of the delegate’s decision relating to NBAX, but no application for review had been made.
The addition of NBAX must therefore be understood as an application for review of the delegate’s decision in relation to him.[1]
[1] As was contemplated in the orders of the Court made on 20 November 2003.
It was claimed on behalf of NBAX, among other things, that he was not a citizen of either Peru or the United States, and was thus effectively stateless. The delegate found that NBAX had access to citizenship in Peru (both his parents being citizens of that country) and the United States (his father and brother being citizens) (court book, NBAX, pages 39, 41). This conclusion was based on country information to which the delegate referred.
There is no evidence that the substance of this country information was raised with NBAX. The Minister does not contend that any submissions NBAX could have made on that issue could not possibly have affected the delegate’s decision. Accordingly, the Minister accepts that the decision was vitiated by a failure to provide procedural fairness.
It follows from that conclusion that neither the restriction on this Court’s jurisdiction in s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) nor the time limit in s.477(1A) applies to the delegate’s decision.
Accordingly, the Minister would consent to an order setting aside the decision of the delegate in relation to NBAX.
The citizenship of the children[2]
[2] Cf. order 6 made on 9 February 2004.
NAMI
NAMI was born in Peru and is apparently a US citizen (court book, pages 35, 249).
If (as seems likely) that means that NAMI has a right of permanent residence in the US, that consideration would probably be fatal to any attempt by him to establish that Australia owed him protection obligations under the Refugees Convention.[3] However, he did not seek a protection visa on that basis. Rather, he applied on the basis that he was a dependant of his mother who was (it was claimed) a refugee (court book, pages 1, 13, 24). If that claim were to succeed, it would not matter that NAMI was a citizen of the US.
[3] Cf. s.36(2)(a) of the Migration Act.
In those circumstances the RRT did not need to determine (and the Court need not determine) whether NAMI is a citizen of Peru, the US or both.
NBAX
NBAX was born in Australia, but neither of his parents is an Australian citizen or permanent resident. Accordingly, by virtue of s.10(2) of the Australian Citizenship Act 1948 (Cth), he is not an Australian citizen.
The conclusion expressed in the previous paragraph might prove to be incorrect if the applicant in Singh v Commonwealth (heard by the High Court on 10-11 February 2004) were to succeed. However, the applicants do not contend that NABX is an Australian citizen; and such a contention would not assist him in the present proceedings. If NBAX were an Australian citizen, that would presumably be an overwhelming reason for concluding that Australia did not owe him protection obligations under the Refugees Convention. It would also mean that he did not require a visa in any event, and further consideration of whether he qualified for a protection visa would be academic.
These considerations do not arise in the present case (which is concerned with the validity of the delegate’s decision, not with whether NBAX has a right to remain in Australia on some other basis). In any event, the Minister has conceded above that the decision of the delegate is liable to be set aside.
The Minister has conceded that the decision regarding NBAX be remitted to the delegate. As noted above, the delegate concluded that NBAX had “access to” both Peruvian and US citizenship. This matter will need to be considered by the delegate on remittal.
In relation to the decision of the delegate concerning NBAX, the Minister consents to a declaration that the decision is invalid (or alternatively an order in the nature of certiorari to quash the decision).
The Application should be otherwise dismissed.
The Minister would not resist an order that she pay NBAX’s costs of his application, but notes that costs are limited to professional fees[4]. Counsel for the Minister is not presently aware of any expenses incurred by NBAX or his litigation guardian that would be appropriately reflected in an assessment of costs.
The first to third applicants should pay the Minister’s costs of the remainder of the proceedings.
[4] Cachia v Hanes (1994) 179 CLR 403.
No jurisdictional error has been identified in the decision of the RRT. However, a jurisdictional error has been identified in the decision of the delegate in relation to applicant NBAX. That decision of the delegate, being infected by jurisdictional error, is not a privative clause decision and it is open to the Court in the circumstances to grant relief in the form of a constitutional writ or a declaration or injunction. In his written submissions, Mr Kennett states that the Minister will consent to a declaration that the decision of the delegate is invalid and of no effect, or alternatively, an order in the nature of certiorari to quash the decision.
In the circumstances of this matter I think that all that is required is a declaration. I will, therefore, order that the Court declares, by consent, that the decision of the delegate of the Minister in respect of the protection visa application by applicant NBAX made on 30 August 2001, is invalid and of no effect. I will order, secondly, that the application for judicial review be otherwise dismissed.
On the question of costs, the applicant has been partially successful, but only in respect of the fourth applicant in NBAX. The applicants have been wholly unsuccessful in relation to the review of the decision of the RRT. Generally, in my view, the Minister has been the successful party, and the only respect in which the Minister has been unsuccessful is that part of the application which the Minister conceded prior to the hearing. In the circumstances, in my view, the applicant mother, NAMG, who has been the active party on the applicants’ side, should pay the Minister's costs and disbursements of and incidental to the application. I am told that those costs exceed $6,000, which is not surprising given that the matter has been before me at least three times and an additional book of relevant documents was required to be prepared following my order to that effect. On a party/party basis an order fixed in the sum of $5,000 would be appropriate.
Having regard to the limited success of the applicants, I will order that the Minister pay any application fee paid by the applicants and that the Minister pay the setting down fee payable for the hearing of this matter of $327. I will order that applicant NAMG pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 March 2004
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