SZDKP v Minister for Immigration
[2005] FMCA 445
•13 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDKP v MINISTER FOR IMMIGRATION | [2005] FMCA 445 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no reviewable error – application dismissed. |
Freedom of Information Act 1982 (Cth)
Migration Regulations 1994 (Cth), Sch 2 subcl 850.221, Sch 4 items 4001, 4007
Migration Act 1958 (Cth), ss.65(1)(b), 91R, 417
Judiciary Act 1903 (Cth), s.39B
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration, Local Government & Ethnic Affairs v Mok Gek Bouy (1994) 36 ALD 225
Commission for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829
Kioa v West(1985) 159 CLR 550
NAJK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 163
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
Minister for Immigration v NAMW [2004] FCAFC 264
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22
NAVM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
Re Minister for Immigration & Multicultural Affairs; Ex parte Yusuf [2001] HCA 30
Sein v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 370
Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Ali v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 674
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565
| Applicant: | SZDKP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1230 of 2004 |
| Delivered on: | 13 April 2005 |
| Delivered at: | Sydney |
| Hearing dates | 11 & 13 October 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Solicitors |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1230 of 2004
| SZDKP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the following decisions of a delegate of the respondent (“the delegate”), being:
a)The decision to refuse the applicant’s application for a protection (subclass 866) visa made on 11 December 1996
b)The decision to refuse the applicant’s application for a Resolution of Status (subclass 850) visa made on 13 August 2002; and
c)The decision to refuse the applicant’s application for a Resolution of Status (subclass 851) visa made on 21 October 2002.
Background
The applicant arrived in Australia in December 1990 shortly before the former Yugoslavia began to separate in the face of declarations of independence from Slovenia, Croatia and Macedonia during 1991. The Bosnia-Herzegovina declaration of independence followed in 1992. The independence claims of these previous component republics of the former Yugoslavia subsequently resulted in warfare between the Belgrade led former Yugoslav National Army and local opponents of the independent and secessionist regimes, firstly in Slovenia (1991) then in Croatia (1991-1994) and Bosnia-Herzegovina (1992-1995).
The issues underlying the conflicts in the former Yugoslavia are political being the maintenance of a federated Yugoslav State under one government or its break up into independent republics with their own chosen governments. The republics have essentially identified themselves in terms of the national/religious status of the majority of their populations (Croatians/Serbs/Muslims/Slovenians/Macedonians). The result has been a general movement by all sides towards “ethnic cleansing” in order to create states with political and geographical boundaries that encompass populations homogeneous in their national/religious backgrounds.
The applicant claimed he faced persecution for reasons of nationality/ethnicity and also simply because he is a “displaced person” in an ethnically and territorially divided country which is internally at war. The applicant claimed he was concerned about his formal status within the former Yugoslavia because although he is a Croatian citizen he is of mixed background and only lived in Croatia for the first six years of his life, after which time he lived in Serbia. The applicant is the product of a mixed marriage between his Serbian mother and Croatian father. His parents and teenage sisters were recently granted a protection visa on this basis. The applicant claimed if he was forced to return to the former Yugoslavian Republic of Croatia he would be singled out and discriminated against in every facet of Croatian society due to the fact he is the product of a mixed marriage.
The applicant was born on 7 October 1963 in Zagreb, Croatia, formerly Yugoslavia. He speaks, reads and writes Serbo-Croatian and English. The applicant was married but separated in 1990 with his wife and son remaining in Belgrade. His occupation is house painter. He had completed thirteen years of education and has completed his national service in the Yugoslav People’s Army between October 1981 and September 1982.
The applicant has made two applications for refugee status within Australia. The first application is identified as File No: A99/065768 which was made on 15 September 1992. This file was destroyed on 26 September 2001 by an Administrator within the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) (see the affidavit of Sarah Ainslie Thompson). The second application, which is the subject of this review, is identified as File No. N95/0465 and was filed on 31 May 1995 with the assistance of Barlow & Co, Solicitors and Attorneys.
The Department wrote to the applicant on 1 March 1996 inviting the applicant to attend an interview on 25 March 1996 and bring any additional material that he wished to submit in relation to his application (Court Book p.53) (“CB”). The applicant was unable to attend due to illness and the Department advised the applicant by letter dated 11 July 1996 that a new hearing date had been re-scheduled for 29 July 1996 (CB p.67). The applicant failed to attend the re-scheduled hearing and no reasons for his non attendance were provided to the Department. On 11 December 1996 the Department wrote to the applicant advising him that his application for the grant of a protection visa was refused as he failed to meet the criteria and attached the decision record giving the reasons for that refusal (CB pp.69-70).
The delegate’s decision: Protection (subclass 866) visa
The delegate’s decision in relation to the protection (subclass 866) visa is contained in the Court Book (CB pp.69-82). The delegate found that although the applicant claimed to have lived in Serbia (now part of the Federal Republic of Yugoslavia) from 1969 until his departure to Australia, this did not confer any rights of Federal Republic of Yugoslavia citizenship upon him. He was in effect a citizen of Croatia. The delegate noted that the applicant had married a citizen of the Federal Republic of Yugoslavia and. in order for the applicant to achieve citizenship due to marital status, he would first need to be granted permanent residency and then obtain a release from his Croatian citizenship before lodging an application for citizenship of the Federal Republic of Yugoslavia.
In assessing whether the applicant had a well-founded fear of persecution on return to Croatia, the delegate applied the ‘real chance test’ established by the High Court in the case of Chan v Minister for Immigration & Ethnic Affairs (“Chan”). The Court in Chan held that a fear of persecution is well founded if there is “a real chance that the refugee will be persecuted if he returns to his country of nationality”. The delegate also applied the test in Minister for Immigration, Local Government & Ethnic Affairs v Mok Gek Bouy that the relevant time frame for assessing an applicant’s risk of being persecuted was the immediate foreseeable future. The delegate, in assessing whether the harm feared by the applicant was of sufficient gravity to amount to persecution, was guided by the decision of the High Court in Chan and the human rights “standards of civilised nations” codified by the international community in the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on Economic, Social and Civil Rights (ICESCR).
After the delegate considered a range of material available, it concluded all the material described the period before the Krajina region was “liberated” by Croatian troops and this event, combined with the Dayton peace accords and a treaty of mutual recognition signed by the Presidents of Croatia and Serbia, could be reasonably expected to have mollified tensions between ethnic Croats and Serbs within Croatia. It was noted that the applicant acknowledged that he and his wife had been separated for some period of time prior to his departure for Australia for reasons not all of which were related to the mixed ethnicity marriage. The delegate found that any psychological pressure and social snubbing for reasons of his mixed marriage would not be a violation of the applicant’s human rights as expressed in the ICCPR or the ICESCR of sufficient gravity to amount to persecution (CB pp.79-80).
The delegate also considered UNHCR material regarding Croats married to Serbs having been dismissed from work. However, the delegate accepted a dismissal from work to be persecutory if the applicant was totally denied the right to work for reason of his wife’s ethnicity. The delegate did not accept the applicant would be asked questions about his wife’s ethnicity at every place he sought work.
The delegate summarised his findings as follows:
“I find that there is not a real chance that the applicant will be persecuted on return to Croatia because he is perceived to be of Serb ethnicity (race, nationality) and there is not a real chance that he will be persecuted on return to Croatia for his membership of a particular social group (mixed marriage family unit) or any other Convention reason.
As the applicant is not a citizen of the [Federal Republic of Yugoslavia], I have not considered his claim to fear persecution on return to the [Federal Republic of Yugoslavia].” (CB p.80)
The delegate’s decision: Resolution of Status (subclasses 850 and 851) visas
The Departmental file relating to the applicant’s Resolution of Status visa applications dating from March 1998 to October 2002 was obtained under the Freedom of Information Act 1982 (Cth) and appears at annexure A to the affidavit of Nigel James Dobbie affirmed on
11 October 2004 (“the affidavit of Mr Dobbie”). The delegate’s decisions in relation to the applications form part of the file and are thus contained within the annexure.
In a letter from the Department dated 1 August 2002 and marked “Final Request”, reference was made to four previous requests for the submission of data. The material identified in the letter as outstanding was as follows:
·Report from Albion Street Clinic regarding staging of HIV disease and treatment required
·Form 80
·Australian Federal Police Certificate
·Form 1190
The letter then contained the following message:
“If you do not respond within 7 working days from the date of this letter, a decision will be made on your application based on the information already held by the Department. This will result in the refusal of your application.”
In a letter from the Department dated 13 August 2002 the applicant was advised that the Resolution of Status (subclass 850) visa application lodged on 31 March 1998 had been refused on 13 August 2002. The letter indicated that the information held by the Department was insufficient to assess the applicant against the criteria specified in Part 850 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) because the applicant had not made any attempt to contact the Department to explain the delay or forward the information or documents requested.
In a letter from the Department dated 21 October 2002 the applicant was advised that the Resolution of Status (subclass 851) visa application lodged on 31 March 1998 had been refused on 21 October 2002. The reason for the refusal was the applicant’s failure to satisfy the relevant Regulations. A letter marked “Final Request”, in the same form as detailed in paragraph 14 above, was forwarded to the applicant on 1 August 2002 and identified the same four outstanding documents and gave the same warning in respect of failure to comply with that final request.
Application for review of the delegate’s decisions
On 28 April 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). Immediately prior to the adjournment of the hearing on 11 October 2004, the applicant’s Counsel sought leave to file an amended application due to a deficiency in the pleadings which became apparent during that morning’s hearing. No objection was raised by the respondent’s Counsel provided that the amended application could be provided in time to allow appropriate submissions to be prepared. On this condition leave was granted and the amended application was filed in chambers on 12 October 2004 and served on the respondent.
Prior to the adjournment of the matter at the completion of evidence, an application was made by the applicant’s Counsel to file a further amended application to rectify further problems that had become apparent during the hearing. The respondent’s Counsel did not raise objection to the amendment but sought costs to the cause by the amendment and liberty to file further submissions in response to the further amendment. Leave was granted and the further amended application was filed in chambers on 14 October 2004 and served on the respondent.
The grounds in the further amended application were as follows:
“In relation to the decision on the applicant’s protection visa application
1.The applicant was denied procedural fairness.
Particulars
The delegate failed to disclose to the applicant, and invite comment upon, the existence or contents of the following documents,
(a)CISNET Doc. No. CX2138 (Serbs and Muslims in Croatia) 23 September 1993,
(b)CISNET Doc. No. CX2086 (Balkans Conflict) 12 April 1994,
(c)CISNET Doc. No. CX2637 (UNHCR response to various DIEA questions) 10 August 1994,
(d)CISNET Doc. No. CX18491 (Politicians view Milosevic-Tudjman meeting in Athens) 13 August 1996.
2.The delegate failed to lawfully consider and address the applicant’s claim that he had been and would in the future be viewed as a Serbian spy if he were to attempt to settle in Croatia, and so failed to complete the exercise of his jurisdiction.
Particulars
(a)The Tribunal’s finding, at CB 78, that the applicant would not be labelled as an ethnic Serb does not address the claim that he would be considered a spy in the service of Serbia.
3.The delegate failed to consider whether the applicant had a well founded fear of persecution according to law, in that he variously asked himself the wrong question and failed to ask himself the right questions.
Particulars
(a)The delegate erroneously required the break up of the applicant’s family, were that to occur, to be solely for a Convention reason.
(b)The delegate failed to consider that psychological pressure could cause harm sufficiently serious to constitute persecution.
(c)The delegate failed to consider whether the aggregation of the harm feared by the applicant could amount to persecution.
In relation to the decision on the Resolution of Status applications
4.The delegate misinterpreted the applicable law.
(a)The delegate found, on the basis of the information held, that she could not assess the applicant against the criteria specified in Migration Regulations, Sch 2, Part 850.
(b)The delegate misinterpreted or misapplied items 4001-4010 of Schedule 4 of the Migration Regulations.
(c)The grounds and particulars set out at paragraphs 12 and 13 below are repeated.
5.The delegate took into account an irrelevant consideration.
Particulars
(a)The delegate took into account a deferred medical opinion of a medical officer of the Commonwealth (“MOC”) that was not authorised under the Act for the purposes of subclause 850.221 and item 4007 of Schedule 4 of the Migration Regulations 1994 by:
(i)relying on the deferred opinion of the MOC that the applicant provide a report from the Albion Street where the MOC had failed to turn her mind to the task at hand; namely whether or not the applicant satisfied subitems 4007(a), 4007(b) and 4007(c) for the purposes of the applicant’s application for a subclass 850 visa and a subclass 851 visa (Class UH), being an application to remain permanently in Australia. Rather, the MOC had given a deferred opinion in relation to prescribed health criteria in relation to the grant of a visa to travel to Australia or of an entry permit, of which the subclass 850 visa and the subclass 851 visa are neither (Affidavit of Nigel James Dobbie of 11 October 2004 at page 51); entry permit being defined at Regulation 1.03.
6.The delegate constructively failed to exercise her jurisdiction by failing to obtain the medical opinion required for the purposes of item 4007 and or by relying on a deferred medical opinion and the demands made in that opinion that was not made in relation to the subclass 850 visa and subclass 851 visa applications:
Particulars
(a)The applicant had to be assessed against subclause 850.221 and item 4007 of Schedule 4 of the Migration Regulations 1994.
(b)The applicant undertook a medical examination for the purposes of item 4007.
(c)The MOC failed to assess the applicant against subitems 4007(a), 4007(b) and 4007(c) for the purposes of the applicant’s application for a subclass 850 visa and a subclass 851 visa, being an application to remain permanently in Australia. Rather, the MOC had given a deferred opinion in relation to prescribed health criteria in relation to the grant of a visa to travel to Australia or of an entry permit, of which the subclass 850 visa and the subclass 851 visa are neither.
(d)Regulation 2.25A requires the delegate to seek the opinion of the MOC in relation to subitems 4007(a), 4007(b) and 4007(c) and is required to take the opinion as being correct for the purposes of deciding whether or not a person meets a requirement or satisfies a criterion.
(e)The delegate constructively or actually failed to seek the opinion required, as the opinion was given and measured against legislation in relation to entry permits (pre-1 September 1994) and visas to travel to Australia, rather than in relation to the subclass 850 and subclass 851 visa applications, which were applications to remain permanently in Australia.
(f)Alternatively, the delegate was not permitted to rely upon the MOC’s deferred opinion or the MOC’s request for a report from the Albion Street clinic to make demands on the applicant for the same and to refuse his case on the basis that that information had not been forwarded.”
The hearing
Counsel for the applicant sought to have two affidavits read into evidence. The first affidavit was of the applicant affirmed and filed on 28 April 2004 (“the applicant’s affidavit”). The second was an affidavit from the applicant’s instructing solicitor, Nigel James Dobbie, affirmed on 11 October 2004 (“the affidavit of Mr Dobbie”). Leave was sought to file the affidavits in Court and rely upon them. Counsel for the respondent did not object to the filing of the affidavits however two objections were raised to the content of the applicant’s affidavit, namely paragraphs 10 and 11 on the ground that the contents were hearsay, and part of paragraph 13 on the same ground.
The applicant also sought to tender Exhibit AA (Department letter dated 11 February 2004 indicating that the s.417 application been rejected), document MFI 1, which became Exhibit RR1 (Parish Patience Immigration Lawyers letter dated 18 August 2004) and document MFI 2 which became Exhibit RR2 (Parish Patience Immigration Lawyers letter dated 24 September 2004). Both Exhibits RR1 and RR2 were noted as confidential exhibits.
Filed and served by the respondent on 24 August 2004 was an affidavit of Sarah Ainslie Thompson of the Department sworn on 16 August 2004 (“the affidavit of Ms Thompson”).
Submissions
Both Mr L Karp, Counsel for the applicant, and Mr J Smith, Counsel for the respondent, filed written submissions prior to the hearing and supplementary submissions during the hearing. These submissions were supported by detailed oral submissions during the hearing and further supplementary submissions after the hearing. These submissions have been most helpful in the resolution of this matter.
Reasons: Protection (subclass 866) visa
Firstly, I will deal with the delegate’s decision in relation to the applicant’s protection visa application.
Ground 1 – denial of procedural fairness
The first ground that was pleaded in the applicant’s further amended application was that the applicant was denied procedural fairness. The particulars of that claim were that the delegate failed to disclose to the applicant and invite comment upon the existence or contents of four CISNET documents. The applicant claimed that matters raised in the documents were relied upon by the delegate to refuse the protection visa application and the applicant was denied the opportunity to respond to or otherwise address those matters. The applicant submitted that the statement of principle was contained in the Full Court judgment of Commission for Australian Capital Territory Revenue v Alphaone Pty Ltd at 591-592 and was referred to with approval by the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme per Gleeson CJ, Gummow and Hayden JJ at [22]:
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
Also noted was Kioa v West; NAJK v Minister for Immigration & Multicultural & Indigenous Affairs.
The four documents in dispute were identified in the delegate’s decision, Part C “Evidence Before Me” as:
· Document (5), Doc. no. CX2138, Serbs and Muslims in Croatia, 23 September 1993;
· Document (6), Doc. no CX2086, Balkans Conflict, 12 April 1994;
· Document (7), Doc. no. CX2086 [CX2637], UNHCR Response to various DIEA questions, 10 August 1994; and
· Document (9), Doc. no. CX18491, Politician’s view Milosevic Tudjman meeting in Athens, 13 August 1996 (CB pp.74-75).
The delegate noted the variety of information available concerning the treatment of members of mixed-ethnicity marriages in Croatia and referred to Document (5), a Department of Foreign Affairs and Trade (“DFAT”) cable dated 23 September 1993. In answer to a question about what treatment an ethnic Serb or Muslim married to a Croat was likely to receive in Croatia, DFAT had replied:
“It is undeniable that since the beginning of a war in June 1991, unofficially, the attitude of many Croats towards Serbs has been hostile. This has meant that officially expressed [benevolent] attitudes have often been compromised. Such individuals [Croats or Muslims married to Serbs] may experience a degree of discrimination or mistreatment, not to mention severe marital strains …” (CB p.79)
The applicant’s Counsel quite rightly pointed out that this was not a single quote but a combination of two separate quotes from the same article being consolidated with a substantial section being omitted without any reference to that omission. The delegate’s decision also referred to Document (6), a DFAT cable dated 12 April 1994 that confirmed the views expressed in Document (5):
“… the treatment that Serbs and Muslims could expect in Croatia would add up to less than uniformly discriminatory treatment, and that a Serb or Muslim from Croat-controlled Croatia would have no automatic grounds for claiming discrimination”. (CB p.79)
The delegate also referred to Document (7), a UNHCR report dated
10 August 1994 that stated:
“UNHCR has observed that anti-Serbian resentment by large parts of the population has negatively affected mixed marriages. However most pressure is of a psychological nature … dismissals of Croats married to Serbs have been reported … ” (CB p.79)
Counsel for the applicant submitted that the information contained in these three extracts should have been disclosed to the applicant, giving him the opportunity to address the contents and respond to any issues. The delegate then went on to draw the following conclusion:
“All this information describes the period before the Krajina region was ‘liberated’ by Croatian troops. This event, combined with the Dayton peace accords and a treaty of mutual recognition signed by the Presidents of Croatia and Serbia [see Document (9)] could be reasonably expected to have mollified tensions between ethnic Croats and Serbs within Croatia.” (CB p.79)
It was the applicant’s submission that the documents could not be read to infer that the tension between the ethnic groups would be mollified when the documents suggest the contrary. Consequently, the applicant’s submission was that there was a breach of natural justice in the non disclosure of these documents because the “adverse material is credible, relevant and significant to the decision to be made”. To support this view, the applicant’s Counsel referred to the decision of NARV v Minister for Immigration & Multicultural & Indigenous Affairs where the majority of Ryan and Finkelstein JJ at [15] stated:
“The Minister has taken this statement to stand as authority for the proposition that the rules of procedural fairness do not require the Tribunal to provide to an applicant for a visa country information which is not personal to the applicant. This is not so. First, it has never been the law that the requirements of procedural fairness are only enlivened in the case of adverse information which is about (in the sense of being concerned solely with) the person who may be affected by the decision. The principal aspect of the rules of natural justice with which this case is concerned is covered by the following statement by Brennan J (as he then was) in Kioa (at 629): “[i]n the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.” This statement has been adopted in later cases: see, for example, Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57, Muin v Refugee Review Tribunal (2002) 190 ALR 601,631, 653. Brennan J’s statement of the applicable principle is in conformity with the statement of principle found in earlier cases: see, for example, De Verteuil v Knaggs [1918] AC 557, 562–563 Kanda v Government of the Federation of Malaya [1962] AC 322, 337 R v Industrial Injuries Commissioner ; Ex parte Howarth (1968) 4 KIR 621, 626 Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, 1260 Mahon v Air New Zealand Ltd (PC) [1984] 1 AC 808, National Companies and Securities Commission v The News Corp Ltd (1984) 156 CLR 296, 316. Secondly, Mason J did not in the quoted passage purport to state a principle of law. If one takes the trouble of reading his judgment in full one can see that his statement that a decision-maker is obliged to disclose adverse information which is personal to the applicant is but one instance of a wider duty to disclose adverse information significant to the making of the decision.”
The Court was also referred to the recent judgment of the Full Court in the decision of Minister for Immigration & Multicultural & Indigenous Affairs v NAMW, of the joint majority of Merkel and Hely JJ at [144]-[145]. On this basis, it was submitted that the delegate committed an error of law and a jurisdictional error.
It was the respondent’s contrary contention that there were no authorities to suggest that favourable information had to be given to the applicant. It was submitted that the information from Documents (5), (6) and (7) set out in the delegate’s decision (CB p.79) and reproduced at paragraph 25 above was undeniably favourable to the applicant. It was submitted Document (5) related to the attitude of many Croats towards Serbs being hostile, as was the case being made by the applicant. Further, the information in the document was not used by the delegate as criteria to deny the applicant the visa. Document (6) concluded that Serbs and Muslims from Croat-controlled Croatia would have no automatic ground for claiming discrimination and it was submitted that the delegate had again accepted the presence of discrimination. Document (7) observed anti-Serbian resentment, relevantly in Croatia by Croatians, that there was pressure of a psychological nature and it was submitted that this again was favourable to the applicant’s case.
The delegate’s decision also referred to Document (9) (CB p.79), a document which contained information about the Dayton Peace accords and a treaty of mutual recognition signed by the Presidents of Croatia and Serbia. The relevant section of the paragraph that identifies the report is reproduced at paragraph 29 above. The respondent conceded that, at first glance, the passage appeared to be somewhat adverse to the applicant. The document described events that lessened the effect of the tension between the two ethnic groups such that it may lessen the chance that the applicant would be persecuted as a result of his membership of one of those groups or at least having been married to a person from the other group. The applicant argued that this circumstance may lead to persecution and must be disclosed and later further argued that the document itself must be disclosed.
Although the applicant claimed this document was adverse to his situation because it lessened the effect of the tensions between the two ethnic groups, such that it might lessen the chances that he was persecuted, the respondent took an alternative view. The respondent submitted that not all adverse information must be disclosed to the applicant. In support of this proposition, Counsel referred to the decision of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal per Hayne J. (In this case the Indonesian Government had changed some time before Mr Muin gave evidence.) At [276] his Honour said:
“… and the circumstances in which the change occurred were very well known, and it was not, and could not have been, suggested that both Mr Muin and the Migration Agent whom he had retained to assist him in the preparation of materials submitted to the Tribunal were unaware of these matters at the time that Mr Muin appeared to give evidence. So notorious were these matters that in the absence of positive demonstration that Mr Muin and his adviser were either unaware of them, or were misled about their relevance to the claim he was making, the absence of some formal notification of their relevance would not constitute a breach of procedural fairness. Because the ability and willingness of Indonesia to afford protection to Mr Muin was critical to his claim, there could be no doubt that the change in government, and the circumstances attending and following that change, were relevant to his claim to Australia's protection.”
Counsel for the respondent did draw to the Court’s attention that Hayne J was in the minority, however this was a proposition he put as consideration as to whether or not there was an obligation and was nevertheless the correct statement of the law. Other aspects of that case particular to the facts swayed the majority to find that there was an obligation.
Another case in support of the respondent’s contentions is the Full Court decision in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“VHAP”) per Giles and Conti JJ at [15] where their Honours set out in agreement what Finkelstein J said at first instant:
“Most of the information contained in the documents relied on was uncontroversial, in many respects in the public domain, and much of it was likely to be known to the applicant.”
In the same decision Allsop J considered the obligation of natural justice at [27] as follows:
“Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.”
Then at [28]:
“Natural justice is ultimately a question of fairness. The appellant here came to the Tribunal armed with her material about her country of origin in order to persuade the Tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of the Migration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant’s claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.”
It was the respondent’s contention that the full effect of the so called adverse information which the delegate was obliged to put to the applicant was simply that there had been a change in the Serbian Croatian political scenario after the war. It was logical in this instance to expect there to have been mollified tensions. It was submitted the information was about events which were obvious, uncontroversial and within public knowledge. There was no evidence to suggest that the applicant, having Serbian Croatian ethnicity, was unaware of the situation. It was submitted that in those circumstances there was no obligation on the delegate to put that specific information to the applicant.
The applicant claimed in reply, that the respondent sought to excuse the non disclosure of Document (9) on the basis of information in the public domain and cited four Federal Court cases to that effect. Counsel for the applicant referred to Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (“Miah”) per Gaudron J at [99]:
“The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity.”
The applicant contended that in Miah the failure on the part of the delegate to afford procedural fairness was a failure to give an opportunity to deal with a person’s circumstances with reference to a change of government; a well known, notorious fact. Similarly, a treaty between Serbia and Croatia may be notorious but if there were to be conclusions drawn about that, then the applicant should have been given an opportunity to address the effect of the treaty on him. The submission was that he was not given that opportunity.
The other element to this ground, raised by both Counsel but not the subject of detailed submissions, was that the applicant was invited to a hearing before the delegate but did not attend. The Department forwarded a letter to the applicant dated 1 March 1996 indicating “So that your claims can be assessed, you will need to be interviewed by an officer of this department”. That interview was set down for 25 March 1996 at 1.45 p.m. The Department’s letter contained the following information:
“With this letter is a document called ‘Important Information about your Interview’. Please read it carefully before you phone me to arrange your interview.
It is in your interest to come to the interview. If you do not, I may decide on your application for a Protection Visa without further delay, based on the information held on your file at the time.” (CB p.53)
The applicant claimed he did not attend that interview because of reasons of ill health and a medical certificate for that absence was forwarded to the Department (CB p.66). A further invitation was extended to the applicant by a letter dated 11 July 1996 for an interview to take place on 29 July 1996 at 1.45 p.m. (CB p.67). This letter also contained the same advice as contained in the original invitation letter. The applicant failed to attend this second interview and did not provide any explanation for his absence. There was no further contact between the applicant and the Department prior to the decision being handed down on 11 December 1996. I believe there was no jurisdictional error either in the form of a failure to afford procedural fairness or a failure to comply with procedures apparent in the manner in which the delegate proceeded. Although there was no obligation on the delegate to offer a second hearing this was done. Having granted a new hearing date there was nothing to suggest the applicant sought a postponement, an adjournment or offered an explanation to explain his failure to appear at the hearing.
I accept the respondent’s submissions in relation to ground 1 and find that the applicant was not denied procedural fairness as claimed. The form that disclosure of material must take will depend on the nature and context of the decision. The delegate’s decision drew on a body of accumulated knowledge as evidence which encompassed a large number of documents (CB pp.74-75). In NAVM v Minister for Immigration & Multicultural & Indigenous Affairs Beaumont J said at [33]:
“The authorities confirm that procedural fairness requires an applicant to be acquainted with the issues upon which the decision will turn, so that he or she may put a case concerning them. In protection visa decisions, that does not (at least ordinarily) require provision of, or reference to, particular documents. It is sufficient if the ‘substance’ of the ‘information’ is conveyed, so that the applicant may put arguments about its relevance or adduce whatever competing material is available to him or her. In my view, that was done in the present case.”
In the present case it is my view that the essence of the information was available to the applicant. I agree with the respondent’s submissions that this country information was in the public domain and the applicant, having Serbian Croatian ethnicity and background, was likely to have been aware of the substance of the country information. I accept the line of authority given by the respondent, particularly the reasoning of the Full Court in VHAP. In addition, I do not believe that the information in question significantly undermined the applicant’s claims. On the contrary, it is my view that Documents (5), (6) and (7) were favourable to the applicant’s case.
Ground 2 – failure to make findings
The second ground concerned the applicant’s claim that he had been and would continue to be viewed as a Serbian spy. This claim was made in the applicant’s statement lodged in support of his visa application. In paragraph 12 he stated:
“While living in Belgrade before coming to Australia - where I had lived most of my life - I was singled out by Serbs who called me a Ustashi spy who should return to Croatia. On the other hand when I visited Croatia during the summer before I came to Australia I was called a Serbian spy who was also singled out for special treatment.” (CB p.51)
The delegate dealt with this claim in the following manner:
“The applicant claims that he has spent most of his life in Belgrade and he has not lived in Croatia since he was a small child. He claims that he has no affinity, loyalty, or links with that country. This may be the case, and it may pose some problems for the applicant in settling in Croatia due to unfamiliarity, loneliness, and economic hardship. I find that these problems would not be for reasons of the applicant’s ethnicity and therefore are not Convention related.” (CB p.78)
It was submitted that the passage in the delegate’s decision addressed the question of whether the applicant would be seen as an ethnic Serb, which was not the claim the applicant made. The claim the applicant made was that he would be seen as a Serbian spy. It was submitted that the delegate did not address the claim that was being made.
The applicant indicated a challenge to the delegate’s decision in the following passage:
“The applicant has indicated that his wife is of Serb ethnicity, although they are currently separated. He indicated during the interview in his application for refugee status (see folio 54 of Departmental file no. A92-065768) that before he left the [Federal Republic of Yugoslavia] their marriage was experiencing problems, which were compounded by their different ethnicities.” (CB pp.78-79)
The delegate cited country information in regard to marital problems between the ethnically different couple:
“As mentioned above, the applicant acknowledged that he and his wife were separated for some period of time prior to his departure for Australia for reasons not all of which were related to their mixed ethnicity marriage. Psychological pressure applied by such incidents as ethnically motivated verbal abuse could exacerbate existing marital tensions between the applicant and his wife. I find, however, that the breakup of the applicant’s marriage, if it were to occur, would not occur solely for reasons of this psychological pressure as it is already weak for other reasons. I consider that psychological pressure and social snubbing for reasons of his mixed marriage would not be a violation of the applicant’s human rights as expressed in the ICCPR or ICESCR of sufficient gravity to amount to persecution. (CB pp.79-80)
The first issue raised by the applicant was that the delegate failed to look at the cumulative aspects of his claims. The elements of those claims were that he was a Croatian national living in Belgrade and was not at home in Croatia, he was of mixed parentage and was the spouse in a mixed marriage. It was submitted the threshold of sufficiently serious harm might be surpassed if the claims were looked at cumulatively rather than individually.
The applicant then returned to a passage within the delegate’s reasons:
“I find, however, that the breakup of the applicant’s marriage, if it were to occur, would not occur solely for reasons of this psychological pressure as it is already weak for other reasons.” (CB p.79)
It was submitted that the law, as installed prior to the insertion of s.91R of the Migration Act 1958 (Cth) (“the Act”), did not require that a particular reason be the sole or even primary cause of persecution: Chen Shi Hai v Minister for Immigration and Multicultural Affairs at 304.
In respect of ground 2, the respondent contended that the claim that the delegate failed to make findings must fail because there was no obligation to make findings. Reliance was placed on Re Minister for Immigration & Multicultural Affairs; Ex parte Yusuf where McHugh, Gummow & Hayne JJ said at [75]:
“It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits. If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations.”
In respect to the applicant being labelled a Croatian or Serbian spy, the respondent contended that the delegate had in fact considered this claim. The delegate set out his reasons in his decision record at Part B, paragraph 4 (CB p.72) and Part B, paragraph 9 (CB p.73). The claim was made on the basis that the applicant would be singled out because he was of mixed background. The delegate found, however, that the applicant would not be singled out on that basis (CB p.78). The ‘Croatian spy’ claim was only relevant if the applicant were to return to the Former Republic of Yugoslavia. Since the delegate found that the applicant was a Croatian citizen, it was not necessary for him to consider what would happen if the applicant were to return to the Former Republic of Yugoslavia and did not do so.
The second issue raised by the applicant was whether the applicant was or would be perceived to be of mixed ethnicity. The delegate did make a finding on this point. The delegate found that “the possibilities of the applicant being labelled as an ethnic Serb by either the authorities or by the general populous of Croatia are far fetched” (CB p.78). The delegate concluded that large numbers of ethnic Croats were returning to live in Croatia from all parts of the former Yugoslavia, so the applicant’s situation would not be unique. It was submitted that the delegate had regard to the document produced by the applicant and was entitled to draw the conclusion that this document said nothing about the Serb ethnicity of either of his parents but did say something about their Croatian ethnicity, that was prima facie they were Croatian nationals. That information had some probative force in respect to ethnicity. It was submitted that it was not true to say there was no evidence whatsoever to support the delegate’s finding in that regard. The respondent contended that the applicant failed to make the distinction. The applicant in paragraph 1 of his statement (CB p.49) said his father was not a Croatian national, while at paragraph 14 (CB p.51) he talked of having Croatian citizenship and his wife having Serbian citizenship. The respondent contended there was nothing wrong with failing to make a distinction between nationality, ethnicity and citizenship, but that was the applicant’s case of mixed background whereas the delegate relied on the facts of the documents supplied by the applicant in support of his case. The delegate had relied upon the fact that there was nothing on the records that indicated the applicant was of Serbian ethnicity. There was nothing legally wrong with the delegate referring to the applicant’s ability to display his birth certificate.
In respect to the applicant being labelled a Croatian or Serbian spy, I accept the respondent’s submissions that the delegate did in fact consider this claim (CB pp.72, 73, 78). In respect to whether the applicant was or would be perceived to be of mixed ethnicity, I also accept the respondent’s submissions that the delegate considered this claim (CB p. 78) and in doing so referred to country information provided by the applicant.
Ground 3 – failure to make relevant considerations
The third ground contended that the delegate failed to consider whether the applicant had a well founded fear of persecution according to law in that he variously asked himself the wrong questions and failed to ask himself the right questions. The nature of this ground changed considerably between the original pleadings filed on 28 April 2004, the amended application filed on 12 October 2004 (which was between the two hearing days) and the further amended application filed on
14 October 2004 (which was after the completion of the hearing). The nature of the change was in respect to the nature of the particulars.
In relation to this ground, the first particular argued by the applicant was that the delegate erroneously required the break up of the applicant’s family, were it to occur, to be solely for a Convention reason. It was submitted that the delegate found that, if a family were to be forced to separate, it would not be solely for reasons of psychological pressure caused by different ethnicities.
In response to the first particular, the respondent argued that the difficulty with the applicant’s argument in that respect was that it only went so far as to say that psychological pressure, or the harm flowing from psychological pressure, could amount to persecution and that may well be so. This issue was irrelevant because it was for the decision maker to determine whether, in the circumstances of this case and in the light of all the evidence before it, it did or would or it might. It was the respondent’s submission that this was precisely what the delegate did in this case. The delegate said “No” it does not amount to persecution. It was not so serious as to amount to persecution in light of the circumstances of the case.
The second particular argued by the applicant was that the delegate failed to consider that psychological pressure and social snubbing could cause harm sufficiently serious to constitute persecution. The applicant submitted that contrary to the delegate’s finding, forced separation of a family can indeed amount to persecution. The family is the “natural and fundamental group unit of society and is entitled to protection by society and the State”: see International Covenant on Civil and Political Rights; Article 23(1). To rend a family asunder may itself cause immense suffering and that such suffering could be described as psychological, or that separation may be caused partly by psychological pressure, did not make it any less painful or persecutory. It was submitted that nothing in the Convention or authorities binding on this Court draws a distinction between physical and psychological harm in the context of Convention based persecution. In addition it was submitted that psychological pressure could take many forms. These may include social snubbing, as stated by the delegate (CB p.79.10), as well as continuous and oppressive verbal hostility to both adults and children (including being abused as a “Serbian spy”) and complete social ostracism. It was submitted that as a matter of law, the harm caused can be sufficiently serious to amount to persecution. In so far as the delegate failed to recognise this and consider whether the effects of psychological pressure in all its forms on the applicant may be persecutory, it was submitted he erred in law by misconstruing the meaning of the term persecution. It was noted that the decision under review pre-dates the commencement of s.91R of the Act and thus the common law, as expressed in Chan at 429-430 and the cases which followed it, apply as to the word ‘persecution’. The applicant submitted that the delegate failed to consider according to law whether the psychological pressure expected to be placed upon the applicant because of his mixed marriage could itself be persecutory or whether the effect of such pressure (that is, forced separation of the family) could be persecutory.
In respect of the second particular pleaded under this ground, the applicant claimed that there was yet another error, namely that even if the delegate’s decision as to psychological pressure was legally unassailable, he still erred by failing to take into account the cumulative effect of the harm that the applicant claimed he feared. In this respect, the delegate found that there would be psychological pressure placed upon the applicant. He also appeared to find that the applicant may have difficulty in obtaining or retaining work, but found that he was not denied work entirely (CB p.80).
The third particular argued by the applicant was that the applicant’s case was the accumulation of all his claims. To fail to consider the cumulative effect of the claims that the delegate accepted, or did not reject, was to fail to address those claims and therefore fail to exercise jurisdiction: Sein v Minister for Immigration & Multicultural Affairs; Kaur v Minister for Immigration & Multicultural Affairs at [11]-[12]. It was submitted that the delegate addressed claims individually in sequence. He found that certain harm may be caused to the applicant for Convention reasons, but failed to aggregate the consequences of that harm. It was submitted he therefore failed to take into account relevant considerations, and failed to exercise his jurisdiction according to law.
It was the respondent’s submission that the authorities relied upon by the applicant did not say that the delegate or a decision maker must determine the effect, on a cumulative basis, of the claims made but rather of the facts as found by the delegate or the decision maker. So that if the delegate or the decision maker rejected a particular claim, then he or she did not have to go and make a cumulative assessment of the effect of those claims of a real chance of persecution in relation to that person. The respondent submitted that, in this case, there were effectively two claims. Firstly, that the applicant would be persecuted because he was of a mixed parental background. Secondly, that the applicant would be persecuted because of his mixed marriage. The Tribunal rejected the first claim and held that the applicant would not be persecuted. In respect of the second issue, the delegate acknowledged that while there may be some harm, it was not sufficient or serious enough to amount to persecution. The delegate having made that finding, continued:
“In addition to the preceding analysis, I have looked at the totality of the applicant’s claims and circumstances and have considered all the possibilities relating to persecution, past, present and future, in assessing whether a real chance of persecution exists in this case. I have concluded that there is not a real chance of persecution in this case.” (CB p.80.7).
There the delegate expressly stated that he had had regard to all the matters in totality.
I accept the respondent’s submissions in respect of ground 3. The delegate was entitled to make the factual finding that the applicant’s fear of persecution as a consequence of his mixed parental background or the break up of his mixed marriage was not well founded and not for a Convention reason. Given this finding, the delegate was also entitled to find that psychological pressure for reasons of the applicant’s mixed marriage would not be of sufficient gravity to amount to persecution.
I am satisfied that this finding of the delegate was open on the material before him. In respect of aggregation, I accept the respondent’s submissions that the delegate looked at the applicant’s claims and circumstances in totality (CB p. 80.7).
I will now turn to the decisions on the applicant’s application for resolution of status visas.
Reasons: Resolution of Status (subclasses 850 and 851) visas
Leave was granted to allow Mr Dobbie, Solicitor appearing for the applicant to address the Court in respect of the applicant’s resolution of status application. It was the applicant’s contention that the delegate misinterpreted and misapplied the law because the delegate misunderstood the Regulations. The resolution of status visa contains two subclasses; 850 and 851. The delegate requested certain documentation from the applicant in relation to the processing of the application. The delegate made the following comments on the information supplied by the applicant in response to that request:
“The information held is not sufficient to assess the Applicant against the criteria specified in reg 850. [The applicant] has not made any attempt to contact the Department to explain the delay/ or to forwarded [sic] the information documents requested.
Therefore [the applicant] has failed to satisfy the legal requirements relevant to the s/c 850 visa grant.” (the affidavit of Mr Dobbie, annexure A, p.17)
Critical at the time of the decision was that pursuant to subclause 850.221 of Schedule 2 to the Regulations the applicant was required to satisfy public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010. The Department had issued a request in relation to the provision of certain information pertinent to the applicant’s health and character. The Department had before it a medical report from Health Services Australia which showed the applicant was HIV positive and indicated that a further report from the Albion Street Clinic was required (the affidavit of Mr Dobbie, annexure A, pp.50-52). It was submitted that the mere fact the Department did not receive the report from Albion Street Clinic regarding the staging of HIV disease and treatment required or the Australian Federal Police certificate did not mean that the applicant automatically failed to satisfy the requirements of Schedule 4 to the Regulations.
It was the applicant’s submission that the delegate appeared to predicate item 4001 being satisfied or not being satisfied merely because the penal clearance was not provided. However, it was submitted the exercise the delegate had to undertake in relation to item 4001 was twofold. Firstly, the delegate had to determine whether she was satisfied that the applicant passed the character test. Secondly, if not so satisfied, the delegate had to determine whether to exercise her discretion not to refuse to grant a visa to the applicant so that the applicant should still be found to pass the character test. It was submitted that this did not happen, either because the delegate misunderstood the law or misapplied it. It was for that reason the applicant claimed the decision was flawed to an extent where it was a jurisdictional error.
Item 4007 relates to the applicant’s health conditions and requirements and critically the delegate had before it the medical report showing the applicant was HIV positive and therefore for the purposes of item 4007 the applicant had a disease or a condition that may result in the applicant being a threat to public health in Australia. The applicant contended that under item 4007 there is also a waiver and again the delegate had to determine whether to exercise her discretion before refusing the visa. The applicant submitted that again the delegate was required to undertake a twofold exercise. Firstly, the delegate had to undertake a process of assessing on the basis of the available information whether or not item 4007 was satisfied without looking at the waiver. Secondly, if the delegate was not so satisfied, the delegate had to determine whether to exercise the discretion so that the applicant should still be found to satisfy item 4007.
The passage from the decision which explained the course taken by the delegate has been reproduced above at paragraph 62.
It was the applicant’s submission that in the process of deciding whether or not to refuse the application, the delegate had to consider on two critical items an exercise of discretion. The discretion was never exercised on the basis that the applicant never provided the information or documents requested and therefore it was submitted the delegate either misinterpreted the applicable law or misapplied it to the facts.
The respondent’s contentions in respect of the resolution of status (subclasses 850 and 851) visas were that the applicant’s arguments in support of this ground were based on two misconceptions. Firstly, as to the role of the decision maker in respect of the visa applications, and secondly, as to the meaning of the reasons given for the decision.
In relation to the first misconception upon which the applicant’s argument is based, it was submitted that it was for the delegate to determine whether she was satisfied that the applicant had satisfied the criteria for the grant of the visa. If she was not satisfied, she was obliged to refuse to grant the visa: s.65(1)(b) of the Act. The criteria for the grant of the visa included that “the applicant satisfies public interest criteria … 4007” is set out in the Regulations, Schedule 1, subclause 850.221. Item 4007(1) (which is in Schedule 4 to the Regulations) set as criteria that:
“The applicant:
(a)is free from tuberculosis; and
(b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
(c)subject to subclause (2), is not a person who has a disease or condition that, during the applicant's proposed period of stay in Australia, would be likely to:
(i)result in a significant cost to the Australian community in the areas of health care or community services; or
(ii)prejudice the access of an Australian citizen or permanent resident to health care or community services; and
(d)if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment, the applicant has provided such an undertaking.”
The respondent contended a delegate is required to seek the opinion of the Commonwealth medical officer as to whether an applicant meets the requirements of item 4007(1)(b): r.2.25A(1). That was what happened in this case. However, on 7 April 1999 the medical officer told the Tribunal that she was unable to reach the required opinion without additional information (the affidavit of Mr Dobbie, annexure A, page 51). On 4 May 1999 the Department wrote to the applicant seeking this and other information. The applicant received this request and telephoned the Department to say that he would provide the information (the affidavit of Mr Dobbie, annexure A, page 37). However, he did not. Despite a further request, the applicant still failed to provide the information. It was in this context that the delegate made the finding reproduced above at paragraph 62.
The respondent submitted it was for the applicant to provide all the material he wished to rely on to show that he satisfied the criteria for the grant of the visa. The delegate must then assess whether that material was sufficient to satisfy her that those criteria had been met. That was precisely what the delegate did in this case. She was clearly of the view that there was insufficient information to satisfy her that item 4007(1)(b) was met.
The same argument applied to the question of the discretion. Firstly, the respondent noted that the discretion does not apply to item 4007(1)(b), but only to the application of item 4007(1)(c) which was additional to (1)(b). Accordingly, even if (1)(c) was not applied, the applicant would still have to have meet (1)(b). Item 4007(2) provides:
“(2)The Minister may waive the requirements of paragraph (1)(c) if:
(a)the applicant satisfies all other criteria for the grant of the visa applied for; and
(b)the Minister is satisfied that the granting of the visa would be unlikely to result in:
(i)undue cost to the Australian community; or
(ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.”
The discretion could not arise because the applicant had not satisfied “all other criteria for the grant of the visa”, especially here, 4007(1)(b). Further, there was simply no evidence or other material to support a satisfaction under 4007(2)(b).
In relation to the second misconception upon which the applicant’s argument was based, the respondent contended that the delegate was required to spell out in detail her consideration of each of the criteria. This approach to the meaning of the delegate’s reasons ignored the High Court’s warning against an overly pernickety or nit-picking approach to reasons of decision makers and that a broad or beneficial reading must be adopted: Minister for Immigration & Ethnic Affairs v Wu Shan Liang, Minister for Immigration & Ethnic Affairs v Guo Wei Rong (“Guo Wei Rong”), Re Minister for Immigration and Multicultural Affairs; Ex parte Miah. In light of the constant requests for information by the delegate herself, particularly relating to the health criterion (in response to the Commonwealth Medical Officer’s report), it would be odd indeed if suddenly the delegate proceeded on the basis suggested by the applicant, namely, to say that a failure to respond to requests meant that the visa should not be granted.
I accept the respondent’s submission that it was for the delegate to determine whether she was satisfied that the applicant had satisfied the criteria for the grant of the visa. The applicant contended that on items 4001 and 4007 the delegate’s discretion was never exercised on the basis that the applicant never provided the information or documents requested. This ground therefore cannot succeed. It was for the applicant to persuade the reviewing decision-maker that all of the statutory elements were made out: (Guo Wei Rong at 596) and it was for the delegate to assess whether the material provided by the applicant was sufficient to satisfy her that those criteria were met. I accept the respondent’s submissions that the delegate, not being so satisfied, was obliged to refuse to grant the visa. (See s.65(1)(b) of the Act.
I accept the applicant’s submissions that the exercise the delegate had to undertake in relation to items 4001 and 4007 was twofold. However, after making an assessment on the basis of the information before her whether or not the items were satisfied, the delegate then had to determine whether to exercise her discretion not to refuse to grant a visa to the applicant. In the circumstances, it was clear the delegate elected not to exercise her discretion in item 4001. This was a decision that the delegate was entitled to make. In respect of item 4007, I accept the submissions made by the respondent at paragraph 72 above.
Reasons: Delay
The applicant’s affidavit raised the question of delay. Following the delegate’s decision in the protection (subclass 866) visa application of 11 December 1996, the applicant instructed his then lawyers, Barlow & Co, to seek a review of the delegate’s decision before the Tribunal. He was later advised by Barlow & Co that his review to the Tribunal had not been successful. However, in actual fact, an application for review had never been lodged. Subsequently, the applicant was advised by Barlow & Co that he had exhausted his options in relation to the protection (subclass 866) visa, and on their advice, the application lodged resolution of status (subclasses 850 and 851) visa applications on 31 March 1998.
The applicant then retained his current solicitors after Barlow & Co ceased to operate in 1999. Mr N Dobbie, Solicitor, gave sworn evidence and was cross examined in respect of the preparation of the applicant’s affidavit which set out the details in respect of the applicant’s various applications. Mr Dobbie gave evidence that he could no longer obtain client files from Barlow & Co as they had been disbursed to a number of other legal practitioners. Mr Dobbie indicated that he had requested and had been granted access to the applicant’s files from the Department under the Freedom of Information Act 1982 (Cth) to establish whether various applications had in fact been filed and, in circumstances where they had, the outcome of those applications.
On 14 January 2004, the applicant instructed his current solicitors to lodge a Ministerial appeal under s.417 of the Act. This application was refused on 17 February 2004 on the basis that the applicant had not sought a review of the delegate’s decision to refuse the protection (subclass 866) visa application before the Tribunal. It was submitted this was the first time the applicant was made aware of the failure of Barlow & Co to lodge a review with the Tribunal as instructed. It was the applicant’s contention that at no stage did the applicant acquiesce to the protection (subclass 866) visa decision. It was submitted the delay was occasioned by Barlow & Co’s failure to lodge the review as instructed, and by their subsequent misleading advice that the Tribunal application had been lodged and determined. It was submitted the applicant had no adequate remedy against his former lawyers who have subsequently ceased to practise.
It was the applicant’s submission that he did, within time, instruct his former solicitors to file an application. The applicant’s sworn evidence was that Barlow & Co had informed him of the failure of his Tribunal application but in fact his application appears not to have been lodged. The applicant requested that the delay be excused based on the subsequent visa application which was lodged. However, it was conceded that this contention was contrary to the decision of the Honourable Federal Magistrate Smith in Ali v Minister for Immigration & Multicultural & Indigenous Affairs.
The respondent contended that the applicant had attempted to explain why almost eight years have passed since the delegate’s decision without any attempt to exercise a right to either merits review or judicial review by attributing fault to the inaction of Barlow & Co who were instructed to act on his behalf in May/June 1995. It was submitted the evidence available to support the applicant’s contentions in this regard was at best scant.
In any event, the applicant conceded that he was informed by his former solicitors in a letter dated 17 December 1996 that his application for a protection visa had been refused by the Department on 11 December 1996. The applicant was also invited at that time by Barlow & Co to sign and return the necessary forms to submit a review application to the Tribunal. Whilst the applicant now contended that he returned the forms but that they were never submitted to the Tribunal on his behalf, he also conceded that, at some later time, he was informed by a Linda Ogrizovic of Barlow & Co that his review application to the Tribunal had been refused. The applicant was also advised by and later instructed Barlow & Co to submit an application for a subclass 850 visa. This was apparently done on his behalf as the applicant later obtained copies of the relevant decision records refusing applications for subclass 850 and subclass 851 visas. Those decisions were dated 13 August 2002 and 21 October 2002 respectively. The subclass 850 decision record noted the Department’s repeated and unfulfilled requests of the applicant to provide information in support of his visa application. It was in this context, that the applicant asked the Court to excuse his unwarrantable delay in seeking review of the delegate’s decision made on 11 December 1996.
In respect of delay, the respondent submitted that there were two issues; namely delay in respect of the protection (subclass 866) visa application and the resolution of status (subclasses 850 and 851) visa applications. In respect of the protection visa, the respondent contended that regardless of whether or not the application was lodged to the Tribunal, the applicant was aware that it had failed one way or other, either because it was invalid or because the Tribunal rejected it or because it was never made. An application was later filed in April 2004 for relief under s.39B of the Judiciary Act 1903 (Cth) and despite the fact that at the end of 1998 an application could have been made to the High Court under s.57(5) that application was never made and there was no explanation as to why that application was not made. The applicant simply applied for another type of visa under subclasses 850 and 851. The respondent submitted that the applicant acquiesced in the final disposition of his protection (subclass 866) visa application. The applicant took no further steps from the end of 1998 until April 2004, being a period of six years, to do anything in relation to his protection (subclass 866) visa application. The s.417 application was unsuccessful as there had been no appeal to the Tribunal and consequently no decision was made. The applicant provided no explanation for the period of delay from 1998 to 2004. For that reason, it was submitted, given the public interest of administrative law finally determined, that relief for this delay should be refused.
In respect of the resolution of status (subclasses 850 and 851) visa applications it was submitted the matter was a little more complicated because Barlow & Co had ceased to practise. The difficulty for the applicant was that he relied on the fact that he was never told about the progress of his visa applications. The applicant made this claim in paragraph 7 of his affidavit. However, this evidence changed during the course of his oral evidence where he indicated under cross examination that in May 2002 he had already received a number of pieces of correspondence from the Department requiring him to provide medical reports. The applicant, in fact, spoke to the delegate who made the decision regarding this issue of the reports. He indicated to the delegate that he would furnish the information but he obviously failed to do so.
At the hearing the applicant raised, under cross examination, the fact that he was sick but the affidavit prepared to explain the reasons for the delay, did not contain any reference to the applicant’s sickness or that illness had contributed to the delay. It was submitted that this explanation of illness as a cause of delay should be rejected. It was submitted that the applicant knew full well because of advice given to him by Mr Dobbie, who had helped him prepare the affidavit, that this had to be a full, proper and frank explanation of why there had been a delay. It was submitted that the provision of advice did not sit well with the explanation given by the applicant during cross-examination that he was sick. The evidence did not establish when the applicant was ill, the severity of the illness or the effect of the illness on the applicant. Also the fact that there was no interpreter present with Mr Dobbie during the preparation of the affidavit should be disregarded. There was no evidence or any suggestion from the applicant in evidence that the absence of an interpreter affected his understanding, either of the legal importance or the issue to be addressed by the affidavit. The instructions that the applicant gave, in English, to Mr Dobbie did not result in errors or meaning or effect of the words in the affidavit that he affirmed on 28 April 2004.
It was submitted, that even where a clear case of want or excess of jurisdiction has been made out, the Court retained a discretion to refuse to issue constitutional writs: R v Ross-Jones; Ex parte Green per Gibbs CJ at 133. Relevant to the exercise of this discretion was whether there had been unexplained or unwarrantable delay: Re Refugee Review Tribunal; Ex parte Aala at [53], [148 – 9].
In this case, the respondent submitted that, even if there was some jurisdictional error in the decision of the delegate, the long and unwarrantable delay was sufficient to warrant a refusal of the application.
The respondent’s submission was that, in the absence of any acceptable explanation, delay warranted dismissal of the proceedings. The applicant’s overall delay was such to enable the dismissal of the application on entirely discretionary grounds because the nature of the relief claimed was such that the Court had a discretion whether to entertain and whether to grant relief: M211 of 2003 v Refugee Review Tribunal at [16] the Full Court refers to the decision of McHugh J in Re Commonwealth of Australia; Ex parte Marks:
“A ‘case would need to be exceptional’ before the time for commencing proceedings was enlarged by many months.”
When the Court is faced with an enlargement of time of the application, the relevant considerations that it must take into account is the explanation for the delay and the prospects of success of the substantive issue: R v Australian Broadcasting Tribunal; Ex parte Fowler.
In Ex parte Marks, McHugh J states at [17]:
“An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant’s search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.”
It was acknowledged that in this case there was not an application for enlargement of time, but if the matter was put to the High Court after some eight years, the applicant would have great difficulty in obtaining an enlargement of time especially where there was no satisfactory explanation for the delay and where the applicant did not present to the Court a formulation of jurisdictional error which raised a real and arguable case in respect of the particular delegate’s decision.
Conclusion
I have had the benefit of detailed written and oral submissions from both parties. However, in respect of the grounds raised in the application I accept the submissions made by the respondent’s Counsel and, as I have indicated in the Reasons above, I do not believe that the applicant’s claims can be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullen
Date: 13 April 2005
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