Plaintiff P40/2019 v Minister for Home Affairs

[2020] FCCA 568

FEDERAL CIRCUIT COURT OF AUSTRALIA

PLAINTIFF P40/2019 & ORS v MINISTER FOR HOME AFFAIRS [2020] FCCA 568

Catchwords:
MIGRATION – Protection Visa – whether Delegate’s decision affected by jurisdictional error – where no error established in Delegate’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.51A, 56, 57, 58, 359B, 422B, 425, 473DD,

Migration Regulations 1994 (Cth), reg.200.222, 201.222, 202.222, 203.222, 204.224

Cases cited:

 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63

First Applicant: PLAINTIFF P40A/2018

Second Applicant: PLAINTIFF P40B/2018

Third Applicant: PLAINTIFF P40C/2018

Fourth Applicant: PLAINTIFF P40D/2018

Respondent: MINISTER FOR HOME AFFAIRS

File Number: PEG 74 of 2019

Judgment of: Judge Vasta

Hearing date: 9 March 2020

Date of Last Submission: 9 March 2020

Delivered at: Perth

Delivered on: 9 March 2020

REPRESENTATION

Counsel for the Applicants: Mr M. Crowley

Solicitors for the Applicants: AUM Legal

Counsel for the Respondent: Mr P.R. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That all outstanding applications filed in these proceedings are dismissed.

2. That the Applicant pay the Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 74 of 2019

PLAINTIFF P40A/2018

First Applicant

PLAINTIFF P40B/2018

Second Applicant

PLAINTIFF P40C/2018

Third Applicant

PLAINTIFF P40D/2018

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This is an application by Plaintiff P40A and her three children asking this Court to review a decision not to grant the four of them a Humanitarian visa.  This matter has had a quite unfortunate history, spanning almost 10 years, but to make some sense of the matter I need to go through it. 

2. On 8 July 2010, the Proposer’s family applied for a refugee and Humanitarian (Class XB) visa.  The application was proposed by the Proposer who, at that time, was still a minor but he was an Australian resident who had been granted a visa.  The Proposer gave a submission and a statutory declaration about the matter. 

3. The visa Applicant’s representative provided additional personal particulars by way of Form 80 on 16 January 2013. 

4. On 17 January 2013, the visa Applicants were invited to an interview.  That interview occurred on 18 February 2013.  There were further submissions provided by the representative on 7 July 2014.  There was an interview with the Proposer and a second interview done by telephone with the Applicant. 

5. On 5 September 2016, the Delegate refused the application for the visas.  The Proposer sought judicial review of that decision in the High Court’s original jurisdiction.  On 13 January 2017, Nettle J quashed the decision and remitted the matter back to the Minister.  That was done by consent. 

6. There were further submissions made by the visa Applicant’s new representative on 5 April 2017.  On 9 April 2018, the Delegate of the Minister, who was another Delegate, not the first Delegate, made a decision not to grant the visa Applicants the (Class XB) visas. 

7. On 16 July 2018, the Proposer filed an application and supporting affidavit in the High Court, again, in its original jurisdiction, seeking review of the Delegate’s decision. On 11 February 2019, Gordon J of the High Court made orders, by consent, remitting the matter to this Court, and that the visa Applicants were substituted as Plaintiffs for the Proposer. 

8. The matter has been in this Court since then, and there were some orders made by me on 3 March 2020 allowing the Applicant to file a further Amended Application.  It is that application that with which this proceeding was concerned.  The history that I have given probably does not fully articulate what has occurred. 

9. The Proposer was a minor from Afghanistan.  He claimed that he and his family were persecuted in Afghanistan.  This included an allegation that the Taliban targeted the Proposer’s father in that the Proposer’s father apparently did some work for the government or the foreign companies that were in Afghanistan. 

10. The Proposer’s father was warned not to do this or that there were would be trouble.  The Proposer’s father declined, or ignored, that threat and he was apparently shot by the Taliban, and his body was taken back to his wife and family.  He was buried there in Afghanistan.  His land and his property was to then pass to his family. 

11. The claim is that the brother of the Proposer’s father, that is the Proposer’s paternal uncle, wanted to claim the Proposer’s father’s land for himself.  The eldest brother of the Proposer resisted this and he, the brother, was killed by the uncle. 

12. This combination of the trouble with the Taliban and trouble with the uncle caused the Proposer’s mother to take four of her children with her to Quetta in Pakistan where she still is today.  Somehow, which is not relevant to this application, the Proposer, notwithstanding that he was a minor, was able to travel somewhere to get on a boat to come to Australia. His claims for protection were accepted, and he then received what is known as a Subclass 866 visa.  He has subsequently become an Australian citizen. 

13. In making the application in 2010, he reiterated his story, which seems to have been accepted by the authorities, and that which then led to the mother being contacted, who then had to make her application.  Her application had details that were not dissimilar to that of the son.  Those claims have been reproduced in the Court. 

14. In the first interview that was held between the Applicant and the Department, the Applicant was asked a number of questions that went to identity of her and the children.  I should say, at that time, there was a cousin that is the child of the Proposer’s mother’s sister that was living with the Proposer’s mother, and he had been part of the original application.  The mother in the interview admitted that that child was not a biological child of hers. 

15. The interview, of which a record is contained at pages 147 to 150 of the Court Book, ends with this:

    Assessment/Comment:  See detailed comments above in relation to [redacted] being declared at interview not to be a biological child of the PA.  TOOK PHOTOS I have concerns that the others are even a family unit. Certainly claimed ages are completely inaccurate. No medicals issued. Serious consideration of who to request for DNA. 

16. As I indicated before, that assessment occurred on 18 February 2013.  The Proposer was interviewed again, and there is a record of that at page 212 of the Court Book.  Again, the interview seemed to focus upon the family unit and whether they were a true family unit, and the Proposer gave some details as to his three natural siblings and his mother and what he understood was their situation. 

17. There was DNA testing done which showed that the claims that the Proposer’s mother was his biological mother and that the three secondary Applicants were the children of the mother and therefore, full siblings of the Proposer, were correct assertions. 

18. The next interview that occurred between the Department and the Primary Applicant mother is reproduced at page 281 of the Court Book.  In that interview, the questioning really concerned the sister of the Proposer, or the child of the Primary Applicant, as to, firstly, her being married and, secondly, her having studied at university in Quetta. 

19. The original application said that the children were single and that they had not had any education because they were non-citizens of Pakistan.  The Facebook profile and photos on Facebook of the sister seemed to indicate otherwise.  The interviewer had these comments at the end of the interview record, found at page 284 of the Court Book: 

    Based on social media check, [the sister] had been married to a [the husband] since 14/10/2014 but the PA, [the sister] herself, and the Proposer denied that information.  After repeated questioning, the Proposer claimed that [the sister] is not yet married however she received a proposal from [the husband] who resides in Europe. 

20. There were comments about the Tazkiras that the family had, and that the sister’s Facebook page indicated that she attended university in Pakistan and that the Applicants had strong Pakistani accents during the interview.  The interviewer said, words to this effect, that they were not satisfied that the Applicants were Afghan nationals as claimed and found that they had provided false and misleading information regarding their circumstances and identity. 

21. That was then used by the Delegate who first looked at the matter.  In that Delegate’s reasons, at page 288 of the Court Book, it is clear that the Delegate disbelieved the Secondary Applicant, the sister, and therefore said:

    Based on the information obtained from social media and contradictory claims provided by the applicants and the Proposer, I find the applicants, in this case, to be non-credible.  Therefore, I give no weight to their claims of discrimination in Afghanistan. 

22. When the matter went to the High Court and was then remitted back to the Delegate by consent, the reasoning was that the Minister conceded that the Delegate had not looked at the fact that the DNA evidence had actually been supportive or corroborative of the family claims that the Applicants had made.  It was then that the whole of the matter was given to another Delegate. 

23. That Delegate, in that Delegate’s reasons, proceeded upon what would seem a more orthodox course.  That Delegate referred to the fact that the refugee and humanitarian visa contained five visa subclasses, and noted, to be granted a visa in this class, one of the applicants must satisfy the primary criteria in one of these subclasses, and that if one family member satisfies a primary criteria it may be that other applicants will be able to meet the secondary criteria. 

24. The Delegate found that the Applicants met the “time of application” criteria for a Global Special Humanitarian visa, but then looked at the “time of decision” assessment against the compelling reasons criteria. The compelling reasons criteria are in Reg.200.222, 201.222, 202.222, 203.222 and 204.224 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”).

25. Those Regulations require that there be compelling reasons for giving special consideration to granting the Applicant a permanent visa having regard to:

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

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

    (iii) 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;

    (iv) the capacity of the Australian community to provide for the permanent settlement of the applicant in Australia. 

26. The Delegate considered the Applicants against each of those four factors.  With regard to the degree of persecution or discrimination, the Delegate said that he had taken those claims into consideration but found the claims to be unsubstantiated, noting that the Applicants had not provided any evidence which indicates that they have been personally subject to discrimination or persecution in Afghanistan. 

27. There was no evidence that the Applicants had been registered with or mandated as refugees by the UNHCR.  The Delegate accepted that the Applicants were fearful of returning to Afghanistan, however, he was not satisfied they are subject to a degree of persecution or discrimination which would constitute compelling reasons for giving special consideration to the grant of a permanent visa. 

28. With regard to the extent of the Applicant’s connections with Australia, the Delegate noted that the application had been proposed by the Primary Applicant’s son and there was given significant weight to this factor. 

29. The third criteria was whether there were any suitable country available other than Australia that could provide for the settlement and protection from discrimination or persecution, and the Delegate noted there was no evidence that the Applicants have options for resettlement in any other country. 

30. Finally, with respect to the capacity of the Australian community to provide for the permanent settlement of persons such as the Applicants in Australia, the Delegate noted that whilst he acknowledged the willingness of the Proposer to provide resettlement support to the Applicants, he also has to take into consideration Australia’s limited capacity to provide resettlement under special humanitarian program. 

31. The Delegate noted that as of April 2018 there were over 49,000 humanitarian applicants, including close family members of Australian proposers awaiting a visa decision with only around fifteen and a-half thousand places available in the offshore humanitarian program for 2017-2018.  The Delegate said this at page 319 of the Court Book: 

    As a result, Australia does not have the capacity to provide for permanent settlement of all close family proposed applicants at this time. 

32. Then summarising the compelling reasons assessment, the Delegate said that he had “considered all the information” and “acknowledge the applicants have strong family connections with Australia.  While it appears they do not have an option for resettlement in a third country, I also note that Australia does not have the capacity to provide for permanent settlement to all applicants proposed by family members”. 

33. The Delegate noted the Applicants have not provided any evidence to support the degree of discrimination or persecution in Afghanistan or any other country as of such a compelling nature as to warrant special consideration. 

34. Therefore, the Delegate said he was not satisfied the Applicants have demonstrated a significant degree of substantial discrimination or persecution, which distinguishes them from other people in their home country, and that, weighing those factors together, he was not satisfied that there were compelling reasons for giving special consideration to granting the Applicants a (Class XB) visa.

35. Then in the refusal column, he has reiterated that, as no Applicant satisfies the primary criteria in any subclass, the application was refused.  The Delegate noted that as no Applicant met the time of decision criteria in any of the five subclasses, he did not assess the application against the remaining criteria in those subclasses on that basis.  

36. There are two grounds to the Amended Application.  They are that:

    (2) the decision of the Minister’s delegate refusing the primary and secondary applicant’s visa applications was vitiated by a constructive failure to exercise a power required to be exercised in that the delegate, in expressly declining to consider the extent which, under regulation 200.223, ‘permanent settlement of the applicant[s] 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’, the delegate failed to consider the extent to which such a consideration might also inform the ‘compelling reasons for giving special consideration’ having regard to ‘the extent of the applicant[s’] connection with Australia’ under regulation 200.222(a), 203.222(b), and 204.224(a).

37. The second ground (actually numbered “3”) is that:

    (3) the decision of the Minister’s delegate refusing the primary and secondary applicant’s visa applications was vitiated by a failure to take into account a mandatory consideration, or denied the applicant’s procedural fairness, or misconstrued or misapplied the statutory test involving ‘discrimination’ and/or ‘persecution’. 

38. Both the Applicant and the Minister argued that ground first.  In effect, what has been argued here is that when one looks at the history of how this matter has gotten to this point, one can see that the focus of the Delegate, up until the point of quashing of the decision by the High Court, was focusing on who the Applicants were and whether their identity had been proven sufficiently. 

39. However, once that decision was quashed, the new Delegate considered the question on a totally different aspect; that is whether or not the Applicant had satisfied the compelling reasons criteria.  It was submitted that procedural fairness dictated that this aspect should be put to the Applicants and they have an opportunity to make submissions as to that aspect. 

40. The crux of the argument centred upon what the High Court had said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63 (“SZBEL”). At paragraphs 33 to 35, the Court said this:

    33. The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal.  The applicant is to be invited to “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.  The reference to ‘the issues arising in relation to the decision under review’ is important. 

    34. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language ‘arising in relation to the decision under review’ is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but, also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

    35. The Tribunal is not confined to whatever may have been the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues that the delegate considered dispositive are ‘the issues arising in relation to the decision under review’. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. 

41. In that case, the Tribunal decided a matter against an Applicant on a point that was different to that which the Delegate had decided, and the Tribunal did not inform the Applicant as to the thoughts that they were having about that particular issue.  It may be said that that case of SZBEL revolved around what the Tribunal was mandated to do pursuant to s.425 of the Migration Act 1958 (“the Act”). That section reads as follows:

    Tribunal must invite applicant to appear

    (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review,

    (2) Subsection (1) dos not apply if:

    (a) the Tribunal considers it should decide the review in the applicant’s favour on the basis of material before it; or

    (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c) subsection 424C(1) or (2) applies to the applicant… 

42. That maybe seen to be a different situation that applied to this matter. Again, it is somewhat easy to say that the provisions of s.51A, s.359B and s.422B, which were inserted into the Act, were attempts by the Parliament to regulate what were the total extent of the procedural fairness obligations that applicants had in matters where the Delegate was deciding the matter; or in matters where the then Migration Review Tribunal was deciding the matter; that is student visas, spousal visas, business visas and the like; and, matters that the then Refugee Review Tribunal were deciding, that being protection visas and the like.

1. In Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (“Saeed”), the Court was looking at whether s.51A of the Act, which talked about the exhaustive statement of procedural fairness and natural justice in relation to the Delegate’s decision-making, was indeed valid or if it applied to both onshore and offshore applicants.

2. At paragraph 19, the Court said this: 

   Brennan J in Kioa v West said that in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is “credible, relevant and significant”.  That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.  Mason J in Kioa v West went further. In his Honour’s view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person.  Brennan J’s approach would not deny that this may be necessary in a particular case. 

3. In Saeed, the Court then went on to look at the requirements of s.56, s.57 and s.58 of the Act. For reasons that are not needed to go into here, the Court ended up finding that s.51A of the Act did not apply to matters that related to offshore applicants. So the question really boils down to this; that having regard to the way in which the previous Delegates had looked at the matter, whether it was incumbent upon the new Delegate in exercising procedural fairness to warn or invite the Applicants to speak to what it was that the Delegate was now going to decide.

4. It seems to be me, though, that after the quashing of the decision by the High Court, the new Delegate, that looked at the matter, had a duty to look at all of the material afresh.  That is, to not have any pre-judgment, to not blindly follow what a previous Delegate had done, but to bring a totally new set of eyes to bear upon all the information that was before it. 

5. It seems to me that that was also the attitude of the representative for the Applicant, because, after the quashing of the decision, the representative wrote submissions that are reproduced at page 295 of the Court Book.  Those submissions run the gamut of what it is that the Delegate would have to look at and included submissions upon what the previous Delegate had found. 

6. Interestingly enough, the representative did look at the question of compelling reasons and the four sub aspects of the compelling reasons criteria, and made submissions as to that.  The submissions are at page 297 of the Court Book, and contain these observations: 

   That the applicant lives in Mariabad in Quetta, which is occupied by Hazaras and Shia Muslims.  She faces danger from militants such as Taliban, Daesh Lashkar and Wayabi who are target killing the Hazaras on sectarian grounds. 

   The applicant cannot leave Mariabad to get to the main bazaar because since March 2017 the Pakistani police (Government) have been arresting the refugees and deporting them back to Afghanistan. The applicant faces risk being deported back to Afghanistan where they fear they will suffer significant harm from the anti-government agencies such as the Taliban and other militants and also from the primary applicant’s brother-in-law who has taken their land and has killed her elder son [name redacted].  The primary applicant is also a woman without male protection living in a dangerous area. We urge the delegate to seriously consider the dangers she faces daily in Quetta and come to a conclusion that these are sufficient reasons to hold that the primary applicant satisfies the compelling reason ground. 

7. The situations that obtained in SZBEL and Saeed, had that adverse information that the Tribunal or Delegate found was used as the basis of the refusal of those applications.  In this case, it was simply that the Delegate came to a position of non-satisfaction.  That is the Delegate was not satisfied that the Applicants had compelling reasons.  There was no extra information that was used to come to this state of non-satisfaction. 

8. It cannot be said that the Applicants should have been afforded an opportunity to give an explanation to adverse information; there was no adverse information and the Applicants had given all their information.  It was matter for the Delegate to assess and the Delegate assessed it. 

9. There was no breach of procedural fairness in this respect because, unlike the situations that are spoken of in SZBEL or in Saeed, there was no necessity for the parties to know of any adverse information.  There was no adverse information here, it was simply a state of non-satisfaction. 

10. For those reasons, I do not find that there has been any jurisdictional error with regard to that ground and it, therefore, fails. 

11. With regard to the second ground, that revolves around the reasoning of the Delegate as to being satisfied that there were no compelling reasons. The Delegate said that was no need to go to any other subcategory. It has been noted by the counsel for the Applicant that if the Applicants had actually convinced the Delegate of there being compelling reasons that the Delegate would then have had to look at the other aspects of the Regulations, more particularly, would have to of had a look at the Reg. 200.223 and its analogous counterparts. That subclause says this:

    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. 

12. The Applicant has argued that this subclause is also information that would help inform whether there were compelling reasons. The Applicant has likened this to the situation which obtains in s.473DD of the Act. In s.473DD, when looking at new information, the Court must look at whether this new information would satisfy it that there were exceptional circumstances to justify considering it and that the Applicant satisfies the authority that, in relation to the new information given, it was not and could not have been provided to the Minister before the Minister made the decision; or it was credible personal information which was not previously known and had it been known, may have affected the consideration of the referred Applicant’s claims.

13. It is trite to say that the Full Court of the Federal Court have interpreted that aspect as saying that s.473DD(b) of the Act can inform the AAT in relation to s.473DD(a) as to whether there were exceptional circumstances to justify considering that new information. The Applicant says that this is an analogous situation.

14. Of course the two aspects are quite different and s.473DD(a) and (b) of the Act are linked by the use of the word “and”. There is no such link between subclause 200.222 and 200.223 of Schedule 2 of the Regulations. Those clauses are separate and distinct. One can see, straightaway, that there is a difference between the two matters that shows that they are not quite analogous.

15. But, nevertheless, the question remains, is 200.223 of Schedule 2 of the Regulations, and its analogous provisions, something that should be looked at in a mandatory way in informing 200.222 compelling reasons?

16. The Applicant argues that the sub criteria of compelling reasons, that is the extent of the Applicant’s connection with Australia, can certainly be informed by looking at the permanent settlement of the Applicant in Australia being consistent with the regional and global priorities of the Commonwealth. 

17. What the Applicant argues is that if one goes through and has a look at the procedures advice manual, or Procedural Advice Manual (“PAM3”), that this manual says that the phrase “regional and global priorities” refers to “caseloads, identified by nationality, ethnic or religious groups or other characteristics and country, to which places are allocated, by region, post and subclass, each program year, to the offshore humanitarian program as determined by the government.  An applicant satisfies this criteria if there is a place available for the grant of a visa to a person, such as the applicant - referred, to The Offshore Humanitarian Program - Planning and Prioritising”.

18. However, that aspect of the manual is talking about the priority to be given to matters when they are being assessed by Delegates.  In other words, if a Delegate has a case load of 50 matters, then priority has to be given to certain matters, especially where an Applicant has a permanent resident of Australia as a family member. 

19. But, to my mind, that is far as it goes.  That is where the priority lies.  It is not a matter of merit.  As I said during the course of the hearing, this Court gives priority to migration cases where an applicant is in detention.  If there are two matters, and only one can be heard, and one of the applicants is in detention and the other is not, then this Court will give priority to the matter in detention.  That decision to give it priority does not, in any way, impinge upon the merits of the application. 

20. In this case, it does not seem to me that the aspect that the Applicant has highlighted from the PAM does anything other than set the priorities to be given to a Delegate as to when matters are to be decided.  It certainly does not give any added merit to the claim that has been made. 

21. I do not accept that subclause 200.223 of Schedule 2 of the Regulations and its analogous provisions in the other subclauses is a subclause that informs the decision-making in subclause 200.222 and its analogous subclauses.

22. Therefore, a failure to consider subclause 200.223 in looking at subclause 200.222 will not constitute a jurisdictional error.  It does not do so in this case. I therefore find that this ground also fails. 

23. I dismiss the application with costs in the sum of $7,467.00. 

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 16 March 2020