Papic v Minister for Immigration & Multicultural Affairs
[1999] FCA 493
•23 APRIL 1999
FEDERAL COURT OF AUSTRALIA
Papic v Minister for Immigration & Multicultural Affairs [1999] FCA 493
MIGRATION – Citizens of Former Yugoslavia (Displaced Persons) Visa – Criteria to be satisfied at time of decision – Minister to be satisfied that permanent settlement in Australia is the appropriate course for applicant – Minister not satisfied – Review of non‑satisfaction – Whether Minister applied policy without regard to applicant’s particular circumstances – Applicant’s solicitors outlining circumstances in 1995 – Whether Minister obliged to update circumstances to time when decision made.
Migration Act 1958 ss 56, 65(1)(a)(ii), 476(1)(a), (d) and (e).
Velmir v The Minister [1998] FCA 882 cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 citedMILAN PAPIC v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 306 OF 1998
SUNDBERG J
23 APRIL 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 306 OF 1998
BETWEEN:
MILAN PAPIC
ApplicantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
SUNDBERG J
DATE OF ORDER:
23 APRIL 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applicant have leave to amend his Application in the manner appearing in the Further Amended Application for an Order of Review filed on 2 November 1998.
2.The application be dismissed.
3.The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 306 OF 1998
BETWEEN:
MILAN PAPIC
ApplicantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
SUNDBERG J
DATE:
23 APRIL 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BACKGROUND
In June 1995 the applicant and his wife applied for a Citizens of the Former Yugoslavia (Displaced Persons) Visa, a class of permanent visa recognised in the Migration (1994) Regulations. The application was supported by a fourteen page submission, which was prepared by the applicant’s solicitors and was accompanied by a further twenty pages of supporting material. The applicant claimed that he was born in 1946 in Croatia and is of Serbian ethnicity, as is his wife, who was born in 1939 in Bosnia. They fled Croatia for Bosnia in April 1995, where they remained in a hostel until May 1995 when they went to Serbia. They have been recognised as refugees by the Serbian authorities. The application was refused in July 1997. The applicant sought a review of the decision. In December 1997 an order was made by consent setting aside the decision and remitting the matter for reconsideration by the respondent. In April 1998 the respondent’s delegate refused the application on the ground that criterion 209.222(a) in Schedule 2 of the Regulations had not been met.
THE LEGISLATION
Section 65(1) of the Migration Act 1958 provides in part as follows:
“After considering a valid application for a visa, the Minister:
(a)if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied …
…
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.”
The prescribed criteria are contained in Schedule 2, clause 209 of the Regulations. Clause 209.22 is as follows:
“Criteria to be satisfied at time of decision
209.221The applicant continues to satisfy the criteria in clauses 209.214 and 209.215.
209.222The Minister is satisfied that permanent settlement in Australia:
(a)is the appropriate course for the applicant; and
(b)would not be contrary to the interests of Australia.”
(Clauses 209.214 and 209.215 are two of the criteria that must be satisfied at the time of application. The former requires the Minister to be satisfied that the applicant has a well‑founded fear of substantial discrimination because of his ancestry or ethnic or religious affiliation. The latter requires him to be satisfied that the applicant is unable to resume living in his former home.)
THE DELEGATE’S DECISION
The delegate’s reasons for refusing the application on the ground that criterion 209.222(a) had not been met were as follows:
“Australia supports three durable solutions for refugees and displaced persons endorsed by the UNHCR and the international community. These are, firstly, voluntary repatriation; secondly, local integration in the country or region of first refuge; and thirdly, where other options cannot be secured, resettlement in a third country.
It is widely expected within the international community that the majority of people displaced by the conflict in the former Yugoslavia will find solutions based on the first two of these options.
The applicant has been residing in the Federal Republic of Yugoslavia (FRY) since arrival and no restriction has been imposed on the length of time the applicant has been permitted to remain in the FRY. There is no evidence to suggest that the applicant has been denied protection or access to services generally available to displaced persons in the FRY and, notwithstanding the current economic conditions, it is not unreasonable to expect that the applicant could integrate into the local community.
Both Mr Papic and his wife are of Serbian ethnicity and are amongst those cases for whom the prospect of local integration in the FRY remains possible. Mr Papic’s claims and current circumstances were taken into account in reaching this decision.
On the basis of the evidence before me I am not satisfied that resettlement in Australia is the appropriate course for the applicant.”
GROUNDS OF REVIEW
Failure to observe procedureThe first ground of review is that the delegate “failed to consider only the criterion specified for the visa class as required by s 65(1)(a)(ii) of the Migration Act”. Counsel explained that this was intended to convey that the delegate was permitted to take into account only the criterion in clause 209.222(a), but she had in fact taken into account other matters, namely the “three durable solutions”. This was said to be a failure to observe a procedure that the Act or the Regulations required to be observed in connection with the making of the decision. See s 476(1)(a). On the assumption that s 65(1)(a)(ii) precluded the delegate from considering the three durable solutions, she did not as a result of considering them fail to observe a “procedure” for the purposes of s 476(1)(a). A “procedure” in this context is a mode or method of going about making a decision. Section 65(1)(a)(ii) is not concerned with mode or method. It provides that if the Minister is satisfied that the criteria have been met, he must grant the visa, and if he is not, he must refuse to grant it. This ground of review is really a claim that the delegate took into account an irrelevant consideration. That is not an available ground. See s 476(3)(d).
Even if, in requiring the decision maker to consider only the relevant criterion, s 65(1)(a)(ii) does prescribe a procedure, the delegate did not fail to observe it by taking into account the three durable solutions. The question posed by the criterion is whether permanent settlement in Australia is the appropriate course for the applicant. A relevant matter for the delegate to take into account in this connection is the view endorsed by the UNHCR and the international community that resettlement in a third country is an option to be considered only where the other durable solutions cannot be secured. Counsel for the applicant did not take issue with the delegate’s statement about the endorsement of the three durable solutions. The policy so endorsed is plainly relevant to whether permanent settlement in Australia is the appropriate course for the applicant.
Improper exercise of power
The second ground is that the delegate’s decision was an improper exercise of the power conferred by s 65. This was said to be because the delegate refused the visa by reference to an international policy as to the resettlement of displaced persons, and failed to consider the personal circumstances of the applicant. In arguing this ground, counsel accepted that it was appropriate for the delegate to have regard to the three durable solutions. The vice lay in allowing them to smother the circumstances of the particular case. In my view the delegate did not fail to consider the applicant’s personal circumstances. Having described the three durable solutions, the delegate referred to the applicant’s circumstances – that he and his wife are of Serbian ethnicity, that he has been living in Belgrade, which is in Serbia, since his arrival there, that no restriction has been imposed on the length of time he can remain there, and that there was no evidence that he had been denied protection or access to services generally available to displaced persons in the Republic. Based on these considerations, she concluded that he should be able to integrate into the local community. She concluded by saying that she had taken into account the applicant’s claims and his current circumstances. This was no mere hollow incantation, for the delegate had already set out the salient circumstances of the applicant’s case.
Two variants of this ground were pleaded. The first was that the delegate exercised her power under s 65 at the direction of the respondent. The second was that she exercised the power in accordance with policies promulgated by the Minister and without regard to the merits of the applicant’s case. There is no evidence to support the first variant. For the reasons I have given, the second has no substance.
Incorrect interpretation of the law
The ground appearing in the Amended Application is that the delegate failed to construe the phrase “the appropriate course for the applicant” in clause 209.222(a) “by reference to the circumstances of the applicant alone”. This ground does not sit well with counsel’s acceptance that the delegate was entitled to have regard to the three durable solutions. But in any event, the delegate did not commit the error asserted. What she did was to take into account, when determining whether permanent settlement in Australia was the appropriate course for the applicant, the fact that the international community had endorsed the three durable solutions which, as I have said, are clearly material in determining the appropriate course for the applicant. However, during argument it became apparent that the contention that was being advanced was not the ground pleaded. Rather, it was submitted that the delegate was required to be satisfied at the time of her decision that permanent settlement in Australia was the appropriate course for the applicant. The delegate had before her information about the applicant’s circumstances which had been provided by his solicitors in June 1995. That information was not current at the time she made her decision, and thus she was not able to determine whether at the date of her decision permanent settlement in Australia was the appropriate course for the applicant. This was said to be an incorrect interpretation of the law for the purposes of s 476(1)(e). The same point was made by a submission that the delegate’s exercise of discretion was so devoid of logic as not to be a lawful exercise of the power conferred by s 65(1). The delegate’s failure to consider the applicant’s up to date circumstances disabled her from determining the appropriate course for him, so that, it was said, any conclusion she reached about him had no logic underpinning it.
I am unable to accept this argument in either of its forms. The matter had been remitted to the respondent in December 1997. The applicant’s solicitors did not seek to update the information in their June 1995 submission. If the applicant’s circumstances had changed since June 1995, this was the occasion for his solicitors to point it out. They did not do so, and the delegate was entitled to treat the information already put forward by the solicitors as the current information about the applicant’s circumstances. That the solicitors did not desire to provide additional information is confirmed by their letter to the Department of Immigration of 12 May 1998 in which they requested an update as to the current status of the application, and asked whether any further information or documentation was required prior to the decision being made. In fact the delegate had made her determination before the solicitors’ letter was written, but for present purposes nothing turns on that. The point is that the letter shows that the solicitors were not concerned to update the applicant’s circumstances, but were only interested in whether the delegate wanted further information. In that context, for the delegate to treat the information in her possession as still current was not incorrectly to interpret the law. No question of interpretation was involved. What the applicant’s current circumstances were in early 1998 is a question of fact. Further, nothing was put to me to suggest that his circumstances had in fact changed between 1995 and April 1998.
But then it was submitted that the delegate should have brought herself up to date with the applicant’s circumstances in 1998 before reaching her decision. The structure of Subdivision AB of Division 3 is opposed to the submission that a delegate is under a duty to make inquiries. The Subdivision is headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. Section 54(1) requires the Minister, in deciding whether to grant a visa, to have regard to all the information in the application. Section 55 enables an applicant, at any time before the Minister has decided whether to grant or refuse a visa, to give the Minister any additional relevant information, and the Minister must have regard to that information in making the decision. The Minister is not required to delay making a decision because the applicant might give, or has told the Minister that he intends to give, further information: sub‑s (2). Section 56(1) empowers the Minister to acquire any relevant information, and if such information is acquired it must be taken into account in making a decision. The cases on s 56 have stressed the obvious, namely that the section does not require the Minister to seek further information. See Velmir v The Minister [1998] FCA 882. If, which I doubt, there are exceptional circumstances in which a delegate should make inquiries of her own (contrast the legislative regime considered in The Minister v Singh (1997) 144 FCR 280), this was not one of them. I refer to what I have said about the applicant’s solicitors’ 12 May 1998 letter, to the fact that they did not ask the delegate to make any inquiries, and to the fact that counsel did not suggest that the applicant’s circumstances had changed since 1995.
No evidence
Attention was drawn to the delegate’s statement that “there is no evidence to suggest that the applicant has been denied protection or access to services generally available to displaced persons in the FRY”. The delegate did not refer to any evidence that the applicant had not been denied protection or access. This was said to show that there was no evidence to justify the decision to refuse the visa. The delegate said that there was evidence from which it was possible to conclude that resettlement in Australia was not the appropriate course for the applicant, and added that he had not provided evidence to the contrary (such as evidence that the applicant had been denied protection or access to services). In those circumstances, the first‑mentioned evidence being unanswered, the delegate was not satisfied that resettlement in Australia was the appropriate course for the applicant. Accordingly, there was evidence from which the delegate could reasonably be satisfied that resettlement was not the appropriate course. Cf s 476(4)(a).
Counsel submitted that s 476(4)(a) was satisfied here because the delegate had not turned her mind to the applicant’s circumstances at the date of decision, and accordingly there was no evidence before her on that day by reference to which she could have decided what was the appropriate course. The evidence on which the delegate was being invited to make her decision was that contained in the applicant’s solicitors’ letter of June 1995. The solicitors had passed up the opportunity to update the evidence. Their letter of 12 May 1998 shows that they did not want to provide further information. The delegate was entitled to assume that the material upon which the solicitors wished her proceed was that put forward in 1995. I have already rejected the argument that the delegate was obliged to make her own inquiries to ascertain whether the applicant’s circumstances had changed since he made the application.
CONCLUSION
None of the grounds of review has been made out, and the application must be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate:
Dated: 23 April 1999
Counsel for the Applicant: E Cooke Solicitors for the Applicant: N Barlow & Co Counsel for the Respondent: M Kennedy Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 April 1999
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