QAAX of 2004 v Vanstone

[2005] FCA 623

FEDERAL COURT OF AUSTRALIA

QAAX of 2004 v Vanstone [2005] FCA 623

QAAX OF 2004 v AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

QUD 291 OF 2004

DOWSETT J
28 APRIL 2005
CAIRNS

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 291 OF 2004

BETWEEN:	QAAX OF 2004 APPLICANT
AND:	AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	28 APRIL 2005
WHERE MADE:	CAIRNS

THE COURT ORDERS THAT:

1.        The objection to competency be struck out. 

2.        The application be dismissed. 

3.        The applicant pay the respondent’s costs of the application, including reserved costs

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 291 OF 2004

BETWEEN:	QAAX OF 2004 APPLICANT
AND:	AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	28 APRIL 2005
PLACE:	CAIRNS

REASONS FOR JUDGMENT

1. This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) (the “Judiciary Act) for an order setting aside a decision of the Refugee Review Tribunal to uphold the decision of a delegate of the respondent refusing to grant a protection visa to the applicant. The circumstances of the case appear from the following extract from the Tribunal’s reasons at AB 307-309 (pp 5-7 of the reasons):

   ‘The Applicant stated that she had married Mr Salhel Laghaifar on 8 November 2001.  Her maiden name was Adi Erez and she was a citizen of Israel.  She was born in Haifa on 24 January 1980 and had attended schools from 1986 to 1998.  She was an accountant by profession.  After leaving school she undertook her compulsory military training, working as an accountant.  She obtained a tertiary qualification in accountancy.  From March 2000 until July 2001, she was employed in the private sphere, also as an accountant. 

   The Applicant stated that she had left Israel because she feared that her family and other Israelis would come to know that she intended to marry a non-Jew.  Her husband would never have been allowed to enter Israel for the marriage to take place there.  If she had stayed in Israel she would have been socially and racially victimised.  She claimed that her uncles and other family members had already threatened her husband because he was by birth an Iranian.  Her family was politically powerful.  She said that if she returned to Israel, her aunt, who was the manager of passports, would prevent her from returning to Australia and to her husband.  She stated that this was her second visit to Australia.  She had cousins in Sydney but she made no contact with them now because she feared the above repercussions. 

   In an undated letter, a Department officer wrote to the Applicant advising her that her application was invalid as she had failed to fill in Part C of the application.  The application contained in the Department file and made available to this Tribunal does not bear out the claim that she failed to complete the form and provide reasons for her claim for protection.  The officer also advised, correctly, that the Applicant’s husband was unnecessary as he was an Australian citizen. 

   The Applicant entered Australia on a 3 months multiple travel visa which had a ‘No Further Stay’ condition attached to it.  On 21 December 2001, the Applicant signed a statutory declaration indicating that she had not been informed when her current visa was granted that it had that restrictive proviso.  She described the reasons why she did not want her family, Israeli Jews, to discover that she intended to marry an Australian citizen of Iranian background and a Muslim.  She had no idea that her visa would prevent her from regularising her situation once she arrived in Australia and married.  The application for a waiver was accompanied by a copy of her birth certificate, her husband’s Australian citizenship certificate, her marriage certificate and supporting letters, one from a businessman who stated that he knew them both and spoke for their character and skills and another from the Director of the Queensland Institute of Property Studies.

   Also attached to the application was a statutory declaration from the Applicant’s husband which supported his wife’s reasons for coming to Australia for the marriage and their ignorance of the ‘No Further Stay’ condition attached to her visa. 

   The Applicant and her husband informed the Department, as well as this Tribunal that they had been given incorrect advice by the Department officers as to their situation vis-a-vis, her right to remain in Australia as a spouse.  The Applicant’s husband stated that in December 2000 he went to the Gold Coast office of the Department of Immigration to request a Spouse Application Kit (Partner Migration).  He did not send the application because he was anxious about others getting to know about it in Israel.  In January 2001 he returned to the same office and asked for advice.  He was told that if his fiance came to Australia on a tourist visa, they could marry and then he could lodge a spouse visa application.  He warned his fiance to be very careful and, as she had to have an invitation to come to Australia, she contacted her Sydney-based cousins who provided the required letter.  She told them as well as their family in Israel that she no longer had any contact with her Iranian fiance and that he had left Australia.  He claimed that it took six months for her to convince her family that she should travel to Australia again.

   He stated that he had moved from the Gold Coast to Cairns and in the process lost the Spouse Application form.  On 14 December 2001 they went to the Cairns office of the Department and that was where they were first informed of the ‘No Further Stay’ condition of the visa.  They took advice from a migration agent and filed an application for a waiver. 

   On 17 January 2001 they returned to the Immigration Department but were informed that the waiver could not be granted.  He asked for a letter to that effect but claimed he was told that there would be no written statement as to the reasons for the refusal of the waiver.  That was why they lodged a protection visa application.  Over the next two months the Applicant and her husband made numerous inquiries as to their situation.  Documents sent to the Department by registered post apparently went missing. 

   On 9 January 2003, the Applicant’s husband advised the Tribunal of their efforts to locate the Department officer who refused to grant a waiver.  He claimed that after again visiting the Cairns office of the Immigration Department, he was given a copy of the decision which listed the reasons why the Applicant was not deemed to fulfil the conditions of a granting of a waiver.

   In accordance with the advice of a Department officer, the Applicant filled in another Part C of the required application form repeating the same personal details as in the previous application.  However, she now claimed that she had tertiary training in military matters and that she had worked for military intelligence while undertaking her compulsory military service.  She claimed that she was “well-trained in military Intelligence Force with access to highly confidential documents”.  She could not discuss what she knew because it would put people at risk.  She claimed that since she had entered Australia there had been a ‘red alarm’ among some people in Israel.  She had not mentioned this in her previous application as she was wary of divulging information which could hurt others and she wanted to ensure confidentiality.

   The Applicant emphasised that she had drawn away from the political and military policies of Israel.  She did not like extreme views in politics and religion.  She feared that what she had done would be construed as a betrayal of Israel.  Even her own family would think this.  She had sought information from a friend in Israel who had informed her that she would be arrested.  She feared she would be cross-examined if she returned to Israel as the Bridging Class visa was entered into her passport and so would expose her to such questioning.  She stressed throughout the application the need for the information in it to remain confidential.

   She attached a number of documents to this application, including documents which related to the acceptance of her husband into Australia as a refugee as well as information on legal issues concerning her husband.  She also stated that she spoke to her mother weekly.’

2. At AB 310 and 311 (pp 8 and 9 of the reasons), the Tribunal recorded the applicant’s claims concerning incidents which she claimed had occurred whilst she was in Australia.  The Tribunal observed that:

   ‘She related an incident of 10^th June 2002 when her husband was shot while on the balcony of their apartment.  Her account of those involved and the police investigation links this with matters relevant to her husband’s situation and not to her refugee claim. 

   She claimed that on 20 December 2002 a house [i]n which her husband’s mother was living was broken into and a knife was found stabbed through a photograph of the Applicant.  However, it was not there by the time she arrived at the house; her husband’s mother told her it had been taken away by the police.  Her husband’s friend found a photograph of her dropped around the side of the house.  She claimed that it was of a photograph which she knew to be in Australia.  She claimed that soon after she realised that a number of photographs of her had disappeared in the previous weeks.’

3. As to her fears of persecution for a Convention reason, the Tribunal said at AB 314-315 (pp 12 and 13 of its reasons):

   ‘The Applicant has expressed serious anxiety about leaving her husband and returning to Israel.  The Tribunal accepts that she particularly has feared the reactions of her family to her choice of husband.  She expressed this by telling her family that he had left Australia, that she had nothing more to do with him and that her second visit here was to revisit her cousins.  It is plausible that she was very anxious to make her plans without her family and others knowing her true intentions.  The Tribunal rejects her claim that she fled from Israel with no luggage and no documents except her passport and her birth certificate.  This contradicts her own evidence as to the lengths to which she went to convince her family that she had no intention of resuming a relationship with Mr Laghaifer.  It is implausible that she would then have attracted attention to herself by leaving in a manner sure to cause comment, that is, on an international flight without any luggage.  Her family was well aware that she was making a second trip to Australia.  The Tribunal finds that she was anxious about being allowed to marry a man of her choice: she has expressed this as fear.

   She also has claimed to be fearful because of events occurring in Australia, after her marriage.  This includes a shooting of her husband and vandalism of property at a house belonging to him.  The Applicant’s submissions to the Department and the Tribunal indicate that her husband has been involved in a number of Court cases, for reasons not relevant to her.  These involve the disposition and alleged loss of funds following a compensation payment to him after an industrial accident and his pursuit of private individuals, various law firms and judicial offices in an attempt to reclaim what he regards as his rightful property and entitlements.  The Tribunal accepts that the Applicant has been placed by these events in a situation of considerable anxiety which can amount to fear.  The matter as to the relevance of these events to the Applicant’s claim is assessed below. 

   The Applicant also has claimed that she fears the long arm of Israeli intelligence has reached her and that she is or might be under surveillance and that, should she return to Israel, she would be questioned and perhaps suffer serious harm.  She has then submitted that she holds a strong fear for her safety.  It is the Tribunal’s task to assess whether her subjective fears are objectively well-founded. 

   The Applicant has claimed that she fears she will be subjected to questioning and investigation by Israeli intelligence and that she might even be seriously harmed or killed by members of her family or others linked to the Israeli Intelligence.  The Tribunal does not accept that questioning and investigation by the authorities of her country are, in themselves persecutory.  Any country, especially one so beset by actual and active enemies, has the right to question its citizens as long as that is done according to law.  However, serious physical harm would amount to persecution.  The Applicant also has claimed that there have been anonymous threats, a shooting of her husband and property destruction which are acts of persecution.  The Tribunal accepts that if such occurred or were to occur in the past, these are circumstances in which they could be deemed persecutory.’

4. In her application for review the applicant advances the following grounds:

   ‘1)The Respondent’s decision was wrong in fact, in that, the applicant did satisfy the criteria set out in Section 36(2) of the Migration Act 1958.

   2)        The Respondent’s decision took into account irrelevant considerations.

   3)The Respondent’s decision took into account unreasonable considerations.

   4)The Respondent’s decision to refuse the application failed to take into account relevant considerations.

   5)The Respondent failed to take into account relevant facts in making the decision.

   6)        The Respondent’s decision was contrary to the evidence.

   7)The Respondent did not provide the decision of the Refugee Review Tribunal, in compliance with the mandatory provisions of s 430(b)(6) of the Migration Act 1958.’

5. The applicant’s counsel did not argue that ground 7 went to validity of the decision.  It rather relates to another aspect of the case, namely, whether the application was filed within any relevant statutory time limit.  For reasons which follow it will not be necessary to consider that question.  As can readily be seen the grounds smack strongly of an application for merits review rather than an allegation of jurisdictional error.  The applicant filed particulars of her claim which are exhibit 1.  They also suggest merits review.  The particulars of ground 1 raise matters of disagreement with the outcome rather than any factual error.  As to the particulars of ground 2, it is difficult to see how any of the matters alleged could be said to be totally irrelevant to the Tribunal’s decision-making process.  Ground 3 alleges ‘unreasonable considerations’, whatever they may be.  The particulars suggest disagreement with the decision rather than jurisdictional error.  Similar comments apply to the particulars of grounds 4, 5 and 6.  It is fair to say, however, that none of these grounds was pursued with any great enthusiasm because, as will be seen, the case has focussed upon one matter to which I will come in a moment. 

6. On 28 January 2005 the respondent filed a notice of objection to competency pursuant to O 54B r 3.  The grounds are two-fold, namely:

   ۰that the decision was a privative clause decision pursuant to s 474 of the Migration Act 1958 (Cth) (the “Migration Act”) and that the applicant had not applied for review within the prescribed time; and

   ۰that the jurisdiction conferred by s 39B of the Judiciary Act had not been engaged.

7. The first ground in the objection relates to the applicant’s complaint that she was not properly served with the Tribunal’s reasons and, as a result, was unable to commence proceedings within the prescribed time. As I have said, it will not be necessary to consider that question. The second ground is, in effect, that the application and particulars do not disclose a jurisdictional error sufficient to engage s 39B of the Judiciary Act as contemplated in Plaintiff S157 of 2002v The Commonwealth (2002-3) 211 CLR 476.

8. The respondent accepts that the first ground of objection will fail if jurisdictional error is shown. Counsel correctly submits that if such error is not shown, the question of time is irrelevant. As to the engagement of s 39B of the Judiciary Act the applicant’s grounds as particularized are so diffuse that it would be difficult to dismiss the application without, in effect, hearing argument on the merits of the case, that is the merits of any alleged jurisdictional error.

9. In addition to the grounds of review identified in the application and the particulars, counsel for the applicant advanced two other grounds in written and oral submissions.  Firstly, he submitted that the decision was bad for unreasonableness.  Secondly, in his written submissions, and to some extent in oral argument, there was reference to a denial of procedural fairness.  However, with one exception, counsel conceded that such references were to the issues identified above, namely failure to consider relevant material, consideration of irrelevant material and unreasonableness.  In other words, each of these grounds was said to be a head of procedural fairness.  Whether or not that is so need not concern me for the moment.  In the end, counsel for the applicant conceded that all grounds of review depended upon one aspect of the case to which I now turn. 

10. As appears from the extract from the Tribunal’s reasons cited above, the applicant entered Australia on a multiple travel visa which was subject to a condition that prevented her from seeking to remain in Australia past its expiry date, subject only to the possibility of her being granted a protection visa.  She asserts that she did not become aware of this condition until after she had entered Australia.  Her application for waiver of the condition was rejected on 14 January 2002.  From that time she has taken steps to find out why the condition was imposed and why it has not been waived.  She subsequently applied for a protection visa.  She says that she raised her concern about the reasons for imposing the condition with the Tribunal when it was considering her application for a protection visa.  At some time after the Tribunal refused her application, she discovered that an officer of the Australian Embassy in Israel had given the following reasons for imposing the condition on her multiple travel visa (AB 82):

    ‘Condition 8503 was imposed given the relatively high non-return rate for people in her circumstances and the fact that she was unemployed, unskilled and supported by parents.  This added to her stated links in Australia (cousins) resulted in the decision maker having residual concerns that she may seek to remain.

    As to the claims that she was unaware of condition 8503 we do not accept the claim.  She completed and lodged the application in person.  The form 48R is in Hebrew and contains comprehensive information and a declaration about continued condition 8503.  Additionally, a locally developed insert was also attached to the application reminding applicants that they should examine their visa prior to travel, in particular in relation to condition 8503.

    As to getting married in Israel, many ‘mixed’ couples are unable to marry in Israel.  They marry overseas and return to Israel to register the marriage with local authorities.  The restrictions are not related to the citizenship of the parties, but their religion (there are no civil marriages in Israel.  However, foreign marriages may be registered and recognised by the authorities).’

11. The applicant’s complaint concerning this document focuses upon the first paragraph, in particular the assertion that she was unemployed, unskilled, and supported by her parents.  The applicant asserts that she was employed, skilled and self-supporting, and that the condition was therefore imposed on a basis which was factually incorrect.  Before me, she sought to lead evidence that her application for the relevant visa had contained information contrary to the factual basis upon which the officer claimed to have acted.  I rejected that evidence because it was not before the Tribunal.  In argument, counsel asserted, perhaps correctly, that the applicant did not know of the reasons for imposition of the condition on her multiple travel visa at any time prior to the Tribunal’s decision concerning her protection visa as she had not been given access to the document which stated the reasons.  It was said, again perhaps correctly, that had she known of the reasons for imposing the condition, she could have demonstrated that they were incorrect and that the officer must have known that they were incorrect, the true position appearing from the relevant visa application.  It is then submitted that in those circumstances, the applicant would have asked the Tribunal to infer that the officer had imposed the condition for some ulterior purpose, in particular that he acted at the behest of a member of the applicant’s family who was, in turn, motivated by a desire to prevent her marriage.  It is then said that this inference would have supported the applicant’s claim to fear persecution by her family for a Convention reason.  It is submitted that the Tribunal’s decision is therefore flawed because:

    ۰the document containing the officer’s reasons should have been disclosed to the applicant; or

    ۰the Tribunal should, itself, have investigated the matter and established the true reasons for imposing the condition.

1. Prima facie, the circumstance in which the multiple travel visa was issued and the condition imposed were not relevant to the question of whether the applicant was a person to whom Australia owed protection obligations.  The applicant asserts that the statement upon which the officer acted in imposing the condition was, nonetheless, before the Tribunal.  That is probably correct.  It was probably in the departmental file which was sent to the Tribunal.  However the Tribunal appears to have acted on a factual basis which differed from that upon which the officer acted.  It accepted that the applicant had tertiary qualifications in accounting and had worked in that area until July, 2001.  No doubt the applicant could have provided more information, but there is no complaint that the Tribunal acted upon any incorrect information concerning her work or financial history.  Her complaint is rather that the reasons given by the officer in question went to demonstrate her family’s willingness to take steps to prevent her marriage.  It is not immediately clear to me how the condition could have had that effect.  After all, the visa permitted her to enter Australia. 

2. There is no evidence that the applicant had, at any time prior to the Tribunal’s decision, claimed a connection between the imposition of the condition and her family.  Counsel was given every opportunity to demonstrate to the contrary, but could not do so.  From the Tribunal’s point of view, the statement of the officer as to why he imposed the condition was irrelevant to its task, that task being to determine whether Australia owed protection obligations to the applicant.  Until the applicant made her allegation of a connection between imposition of the condition and her family (after the Tribunal’s decision), it was not apparently relevant.  It is true that the applicant now asserts a connection with her family, relying upon her allegation that the factual basis upon which the condition was imposed was incorrect, and that this demonstrates such connection.  Of course, it does no such thing.  The generalized comments by the officer may have honestly reflected his views of the material available to him, whatever that was.  The applicant’s claims are purely speculative.  In any event, the information could not go to the applicant’s fear of persecution as at the time of the decision.  She did not then know about it. 

3. I should add that the applicant does not raise absence of procedural fairness as a ground in either the application or the particulars.  As I have said, in written submissions a breach of the rule of natural justice was asserted, but counsel conceded that the reference was merely to the other grounds, namely consideration of irrelevant considerations, failure to consider relevant considerations and unreasonableness.  Similarly, it cannot be said that the document containing the information should have been disclosed to the applicant by the respondent for any reason akin to the discovery obligation in litigation.

4. It is also significant that the Tribunal rejected her claim that her family desired to persecute her.  That conclusion was based on the applicant’s evidence as to her relationship with her family, in particular her mother.  The applicant’s conspiracy theory could not, of itself, improve her case because it effectively assumed what the Tribunal had rejected.  There is no basis for the assertion that the Tribunal’s decision is tainted with error because of the failure to give access to the officer’s statement.  The relevance now alleged by the applicant could not have been discerned by the Tribunal at the time of its decision.  It was submitted that the Tribunal should, itself, have investigated this matter.  This submission fails for the same reason. 

5. In the course of these proceedings, the applicant has alleged quite serious misconduct by public servants and a conspiracy between the Israeli and Australian governments.  She has alleged that the applicant’s husband was shot at (inferentially by a government agency) and that she was raped whilst in immigration custody.  The latter claim arose after the Tribunal’s decision and is not relevant for present purposes, serious as it is.  The allegation concerning her husband was dealt with by the Tribunal in its reasons. 

6. I should say a little more about the Tribunal’s decision.  It identified the applicant’s claims to fear persecution as involving fear of her family, fear from unspecified persons possibly connected with the Israeli and/or Australian governments, and fear of Israeli intelligence, she having had military service in that area.  The Tribunal rejected her fear of persecutory conduct by her family.  It accepted that they may have tried to prevent her marriage but considered that her own evidence indicated that the applicant’s relationship with them was not consistent with such a fear.  It also considered that the State of Israel would punish any criminal conduct by family members, thus offering her the usual protection against such conduct.  The Tribunal accepted that some family members might be in high government positions but considered that the law would protect her from any abuse of power. 

7. As to the claims of threats, including the shooting involving her husband and associated matters, the Tribunal considered that these incidents were attributable to her husband’s business dealings and not to her.  It rejected some aspects of this evidence.  As to Israeli security, the applicant’s claim centred upon her assertion that she possessed sensitive information derived during her military service.  The Tribunal rejected this evidence.  She claimed that she would be questioned on returning to Israel, and that she would be at risk of physical harm.  The Tribunal considered that the State of Israel was entitled to question citizens according to law.  It did not accept that conduct amounting to persecution would occur in that context. 

8. It is appropriate that I say a little more about jurisdictional error.  In Andary v Minister for Immigration & Multicultural Affairs [2003] FCAFC 211, the Full Court considered that the decision in Plaintiff S157 of 2002 established that jurisdictional error primarily included the deficiencies in process identified in the earlier decision in The King v Hickman; Ex parte Fox (1945) 70 CLR 598 at 615-616. That case established that jurisdictional error occurs where a decision is not a bona fide attempt to exercise the relevant power, does not relate to the subject matter of the relevant legislation or is not reasonably capable of reference to the power.  I accept that jurisdictional error occurs where there is a denial of procedural fairness.  Error in determining a fact upon which jurisdiction depends or a failure to address an aspect mandated by the relevant legislation may also be jurisdictional error.  See Plaintiff S157 at [73] and Minister for Aboriginal Affairs v Peko Wallsend (1986-87) 162 CLR 24 at 39.

9. Whether or not the concepts of “unreasonableness” and “disproportionality” lead to jurisdictional error is undecided.  See Andary v Minister [2004] HCA 242. In the present case, as I have pointed out, there is no question of denial of procedural fairness. The applicant has not sought to rely upon any of the three Hickman “principles”.  There has been no failure to comply with a statutory mandate as to facts.  I see no basis for the assertion of unreasonableness or disproportionality.  The applicant’s case was severely compromised by the fact that she had come to Australia as a visitor and only applied for a protection visa when she found that other visas were not available on account of the condition imposed on her multiple travel visa.  One should not under-estimate the difficulties which this posed for her in establishing a well-founded fear of persecution for a Convention reason.  Her case also has many unlikely aspects.  It may be that her understandable frustration and disappointment at being unable to live here with her husband have clouded her judgment and that this has undermined her case.  In any event, no aspect of the Tribunal’s reasons could be classified as unreasonable or disproportionate.  The outcome was fairly open. 

10. In this judgment, I have paid more attention to the Tribunal’s findings than did counsel for the applicant.  I have done so in order to demonstrate that there is no apparent reason to suspect jurisdictional error.  I do not mean any criticism of counsel in saying that.  He said everything that could be said in support of the applicant’s case. 

11. I am not without sympathy for the applicant.  It may well be appropriate for the Minister to reconsider this matter, free of the complications which have been caused by the applicant’s ill-advised and desperate attempts to achieve her goal. 

12. In the circumstances, it is not necessary to deal with the objection to competency.  It should be struck out.  The application should be dismissed.  I will hear submissions as to costs.

13. There seems to be no reason why costs should not follow the event.  I will order that the applicant pay the respondent’s costs of the application, including reserved costs. 

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            17 May 2005

Counsel for the Applicant:	Mr A Wrenn
Counsel for the Respondent:	Mr P G Bickford
Solicitor for the Respondent:	Clayton Utz
Dates of Hearing:	26, 27 & 28 April 2005
Date of Judgment:	28 April 2005