Plaintiff P25 of 2017 v Minister for Immigration and; Plaintiff P26 of 2017 v Minister for Immigration

[2020] FCCA 728

FEDERAL CIRCUIT COURT OF AUSTRALIA

PLAINTIFF P25 of 2017 v MINISTER FOR IMMIGRATION and
PLAINTIFF P26 of 2017 v MINISTER FOR IMMIGRATION [2020] FCCA 728

Catchwords:

MIGRATION – Protection Visa – Whether the Delegates’ decision was affected by jurisdictional error – where findings and reasons are exactly the same notwithstanding that they are made by two different Delegates – where the decision lacks independent intellectual assessment of the claims – where jurisdictional error has been established in Delegate’s decision – writs issued.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), Schedule.2

Cases cited:

XA v Minister for Home Affairs [2019] FCAFC 166

Plaintiff M64/2015 v the Minister for Immigration and Border Protection [2015] HCA 50

Applicant: PLAINTIFF P25 OF 2017

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: PEG 593 of 2018

Applicant: PLAINTIFF P26 OF 2017

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: PEG 594 of 2018

Judgment of: Judge Vasta

Hearing date: 11 March 2020

Date of Last Submission: 11 March 2020

Delivered at: Perth

Delivered on: 11 March 2020

REPRESENTATION PEG 593 of 2019

Counsel for the Applicants: Mr F. Crowley

Solicitors for the Applicants: AUM Legal

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

REPRESENTATION PEG 594 of 2019

Counsel for the Applicants: Mr F. Crowley

Solicitors for the Applicants: AUM Legal

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDERS IN PEG 593 of 2018

1. That a writ of certiorari issued directed to the Department of Immigration and Border Protection quashing its decision dated 17 May 2017.

2. That a writ of Mandamus issue directed to the Department of Immigration and Border Protection requiring it to determine the Applicant’s application dated 22 April 2016 according to law.

3. That the Respondent pay the Applicant’s costs to be agreed or assessed, and taxed in accordance with Schedule 1 of the Federal Circuit Court Rules 2001.

ORDERS IN PEG 594 of 2018

1. That a writ of certiorari issued directed to the Department of Immigration and Border Protection quashing its decision dated 17 May 2017.

2. That a writ of Mandamus issue directed to the Department of Immigration and Border Protection requiring it to determine the Applicant’s application dated 22 April 2016 according to law.

3. That the Respondent pay the Applicant’s costs to be agreed or assessed, and taxed in accordance with Schedule 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 593 of 2018

PLAINTIFF P25 OF 2017

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

PEG 594 of 2018

PLAINTIFF P26 OF 2017

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 17 May 2017, a Delegate of the Minister, whose position number ended in the numerals 74, made a decision that the Plaintiff P25 not be given a humanitarian Class XB visa.  The very next day, 18 May 2017, another Delegate, whose position number ended in the numerals 73, made a similar finding that the Applicant, Plaintiff P26 also not be given a humanitarian class XB visa. 

2. The Applicants then sought review of both their matters in the High Court through its original jurisdiction.  The High Court, through His Honour Nettle J, remitted the matter to this Court to be determined. 

3. The background of Plaintiff P25 is that that Applicant is a citizen of Iraq who is currently residing in Turkey, having arrived there on 29 October 2015.  The proposer is a relative of the Applicant.  In Plaintiff P26, a similar relationship is shown by the proposer and the Applicants who are citizens of Iran living in Turkey. 

4. What is striking is that apart from the names of the Applicants, the findings and reasons of the respective Delegates are word for word the same in the matters of Plaintiff P25 and Plaintiff P26, and I will say something about that fairly soon.  In both of these matters, the Delegate has said that they have considered the application, the supporting documentation and other evidence. 

5. They have noted that there are five subclasses; subclasses 200, 201, 202, 203, 204 and that the Applicant must meet all of the primary criteria in one of the subclasses. Because the subclause in each of the subclasses in 200, 201, 203 and 204 is exactly the same (and the subclause in 202 talks about discrimination rather than persecution), it is convenient for Delegates to look at whether there are compelling reasons for giving special consideration to granting the Applicant a visa by combining the criteria.

6. In looking at whether there are compelling reasons, there are four factors that must be looked at, and are found in Schedule.2 of the Migration Regulations 1994 (“the Regulations”). They are:

   (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.

7. In each of the matters of Plaintiff P25 and Plaintiff P26, the Delegate has said, with regard to the degree of persecution or discrimination that the Applicants have demonstrated, that they are subject to some degree of persecution or substantial discrimination in their home country. 

8. In both matters, the Delegates have said that looking at all of the factors and weighing them together, they were not satisfied that there are compelling reasons for giving special consideration to granting the Applicant a Class XB visa. Therefore, subclauses 200.222, 201.222, 202.222, 203.222 and 204.222 of Schedule.2 of the Regulations were not met, and therefore the applications could not succeed.

9. The grounds of review in both cases are exactly the same; that is:

   1A The decision of the Minister’s delegate in refusing the application or applications for a visa was vitiated by a misconstruction or misapplication of subclauses 200.222(b), 201.222(1)(a), 202.222(2), 222(b), 202.222(2), 203.222(b) or 204.224(b).

10. There are two particulars given.  The first particular is that:

    1A.1 The delegate’s satisfaction that there were no ‘compelling reasons’ was based upon a failure to engage in an intellectual process of evaluating the degree of either persecution or discrimination, or was based on a misconstruction that it was not necessary to do so.

11. The second particular is that:

    1A.2 The delegate’s satisfaction that there were no ‘compelling reasons’ was based upon a failure to consider the extent to which the considerations relevant to Australia’s ‘regional and global priorities’ under subclauses 200.233, 201.233, 202.233, 203.223 and 204.223 as set out under the Procedures Advice Manual 3 were also capable of informing the ‘extent of the applicant’s connection with Australia’ under 200.222(b)(ii), 201.222(1)(b), 202.222(2)(b), 203.222(b)(ii) and 204.224(b)(ii).. 

12. To understand these grounds, it really is necessary to look at the legislative regime in each of the subclasses.  Subclass 200 is the Refugee subclass.  Subclass 201 is In-country Special Humanitarian.  Subclass 202 is Global Special Humanitarian.  Subclass 203 is Emergency Rescue.  Subclass 204 is Woman at Risk.  In each of those subclasses, there is, at subclause .21, the ‘Criteria to be satisfied at time of application’. 

13. The criteria in .211 of four of the subclasses is:

    (1) The applicant:

    (a) is subject to persecution in the applicant’s own country and is living in a country other than the applicant’s home country”. 

14. The criteria under subclass 202.211 is:

    (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…

15. When one then looks at the other criteria to be satisfied at the time of application, there are other aspects to it. 

16. Then one gets to the criteria to be satisfied at time of decision.  The first of those criteria is that the Applicant continues to satisfy the criteria in the subclause.211, and then the .222 criteria is that “the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa”, having regard to those four aspects that I had already mentioned. 

17. It is obvious, then, when one has a look at the aspect that both “the time of application” criteria and “the time of decision” criteria must be satisfied.

18. When one is looking at “the time of decision” criteria, it means that “the time of application” criteria must still be satisfied.  Because of that, it would seem to me that it is obvious that unless the criteria in .211 has been satisfied, and continues to be satisfied, that one cannot even consider subclause.222 in each of the subclasses. 

19. However, I do concede that that has not been judicially considered, or in any event that there is no binding authority on me in relation to that matter.

20. It is then that one has a look at what the Delegates have said. The Delegates have come to the conclusion that the Applicants have demonstrated that they are subject to some degree of persecution or substantial discrimination in their home country. It has been argued that there has been no real active intellectual process directed to evaluating the degree of persecution or discrimination that can be seen in the decision record.

21. Much reliance has been placed by both the Minister and the Applicant on a decision of the Full Court of the Federal Court in XA v Minister for Home Affairs [2019] FCAFC 166 (“XA”). It is a decision of their Honours Kerr, Lee and Thawley JJ. In that matter, the Delegate had recorded their findings and reasons in an almost identical way as the way these two Delegates have recorded their reasons. However, there is one significant difference. In the matter of XA, the Delegate said this, three paragraphs into their reasons:

    As the applicants have been assessed as meeting time of application criteria at 200.211(1), 201.211(1), 202.211(1), 203.211(1) and 204.211(1), I must assess the application against the requirement in subclauses 200.222(1), 201.222(1), 202.222(2), 203.222(1)(b) and 204.224(1)(b) that there be compelling reasons for giving special consideration to granting the applicant a visa, having regard to the following factors…..

    which are the four that I have already mentioned.

22. In these two matters, the subject of this review, both the Delegates have written in both matters:

    As no applicant is a member of the immediate family (as defined at regulation 1.12AA) of a proposer who holds or held a Class XB visa and as the application is not proposed by an approved proposing organisation, I must assess the application against the requirement in subclauses 200.222(1), 201 .222(1), 202.222(2), 203.222(1)(b) and 204.224(1)(b)…

23. That is quite a significant difference.  Whilst the decision in XA is quite a voluminous decision, it seems to me that what it boils down to is this: because the Delegate has considered and made a decision that the Applicant in XA (Supra) had fulfilled or met the time of application criteria, that is, that they suffered persecution or discrimination that amounted to a gross violation of their human rights, that determination obviously involved an active intellectual process. 

24. Then, when the Delegate in XA said that the Applicants have demonstrated that they are subject to some degree of persecution or substantial discrimination in their home country, there must necessarily follow that there was an active intellectual process directed at looking at the degree.  The fact that the Delegate has said that they are subject to some degree of persecution means that they have considered what that degree is, and, so therefore, have complied with the necessity to make a full assessment with regard to each of the subclasses.

25. What is argued here is that the “active intellectual process” is missing because there is no reference by either Delegate in Plaintiff P25 or Plaintiff P26 that there has been a similar active intellectual process as occurred in XA.  As I had eluded to before, one could assume that there must be some finding that the subclauses.211 time of application criteria had been met before there was any active consideration of the subclauses.222.  However, it seems that in XA, the fact that the majority of that Court could point to the statement of the Delegate that they had assessed that the time of application criteria had been met, showed that there had been that active intellectual engagement.

26. The Respondent relied on what the High Court said at paragraph 25 of Plaintiff M64/2015 v the Minister for Immigration and Border Protection [2015] HCA 50 where the High Court said:

    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, 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. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”; 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…

27. The Minister submits that what I have already spoken of, that is, that the category in subclauses.211 must have been met at the time of decision criteria to be considered, and, therefore, any conclusion that there had been some degree of persecution or discrimination must, therefore, have been evaluated.

28. There is merit to that submission. However, the Delegate has specifically said, in the last paragraph of the decision and in each of the matters, that:

    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.

29. One of those remaining criteria is, of course, subclause.200.221, which says that “the applicant continues to satisfy the criteria in clause 200.211”.

30. Even though the Delegate in XA says the same thing, it is obvious that by finding that the time of application criteria have been met, that subclause.221 had actually been met. That is the difference between the two.

31. There is another aspect to this matter, and that is that the findings and reasons are exactly the same in Plaintiff P25 and Plaintiff P26, notwithstanding that they are made by two different Delegates. As is obvious, the Delegate must exercise an independent intellectual mind in the consideration of these matters. It may be that a Delegate can use a particular template for that Delegate that encapsulates exactly what that Delegate feels about many of the matters that that Delegate sees. Many Judges use the same sort of formula in many of their judgments. There is nothing wrong with that.

32. However, when it is seen that another Delegate uses exactly the same words, or maybe even exactly the same template, it causes doubt that the second Delegate has actually performed the independent intellectual assessment of the claim. It could easily be claimed that the findings and reasons are, without wanting to sound pejorative, plagiarised.

33. In the case of Plaintiff P26, where the decision was made one day later by a different Delegate using exactly the same terminology, I am not satisfied that that Delegate has conducted an independent active intellectual process directed to evaluating the claim. For that reason, I am of the view that a jurisdictional error has been established in the case of Plaintiff P26.

34. In Plaintiff P25, and this obviously also applies to Plaintiff P26, I am of the view that a jurisdictional error has also been established because the Delegate has expressly denied assessing the criteria at subclauses.221 of the respective clauses. Therefore, there is nothing in the reasons that can demonstrate that there actually has been an evaluating process to come to the conclusion that there has been some degree of persecution. These reasons are distinguishable from what the reasons were in XA. It would seem to me that such then, in this case, demonstrates jurisdictional error.

35. Having regard to the second particular that the Applicant relies upon, that is, that the subclause.223 can inform the process in evaluating subclause.222, I am not convinced that there has been a jurisdictional error. That subclause requires the Delegate to assess whether the permanent settlement of the Applicant in Australia would be consistent with the regional and global priorities of the Commonwealth in relation to the permanent settlement of persons in Australia on humanitarian grounds. To my mind, that is quite a different consideration to the consideration in subclause.222.

36. The Applicant points to the Procedures Advice Manual (PAM3) that talks of priorities to be given.  The priorities that the manual speaks of go to the question of the priority that each Delegate is to take into consideration when looking at what matters to deal with. In other words, if a Delegate has 50 files on their desk, then the priority is to be given to the matters as is dictated to in the policy manual. 

37. But that priority has nothing to do with the assessment of merit. It is analogous to how the Federal Circuit Court operates when looking at a number of applications for visa refusal review. If a person is in detention then this Court gives them priority of hearing over someone who is not in detention. The fact that the person is in detention may give them priority, but it does nothing to affect the merit of the judicial review application at all.

38. In my view, the submission of the Applicant in this ground is somewhat misguided, and has sought to conflate priority with merit.  It has not been demonstrated to me how it is that this subclause.223 can, and should, inform subclause.222. Therefore, I do not find any jurisdictional error in relation to that aspect of the grounds.

39. In summary, I have found that there is jurisdictional error. I order that the decision of the Delegates in Plaintiff P25 and Plaintiff P26 be quashed, and that a writ of Mandamus issue to direct the Delegates to determine both these applications according to law.

40. I will give you your order that costs be agreed, and if no agreement, taxed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:   6 April 2020