SZMNF & Ors v Minister for Immigration
[2008] FMCA 983
•8 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMNF & ORS v MINISTER FOR IMMIGRATION | [2008] FMCA 983 |
| MIGRATION – Off‑shore humanitarian visas – application by several family members – interpretation of delegate’s file note and formal decision record – delegate failed to address applicants’ separate claims under primary criteria – promise to consult migration agent concerning dependency – not considered by delegate – jurisdictional error established – matter remitted. |
| Migration Act 1958 (Cth), ss.36, 55, 56(2), 58, 62(2), 63(1), 65(1)(b), 66, 66(2)(b), 66(3), 91X, 476 Migration Regulations 1994 (Cth), regs.1.03, 1.05A, 1.05A(1), 1.05A(2), 1.12(e), Sch.2 cll.200.211(1)(a), 200.221, 202.211(1)(a), 202.221, 202.225, 202.311(a) |
| Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 Deputy Commissioner of Taxation v Boxshall (1988) 19 FCR 435 |
| First Applicant: | SZMNF |
| Second Applicant: | SZMNG |
| Third Applicant: | SZMNH |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 3968 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 11 June 2008 |
| Date of Last Submission: | 25 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2008 |
REPRESENTATION
| Counsel for the Applicants: | Mr D Jenkins |
| Solicitors for the Applicants: | Simon Jeans & Associates |
| Counsel for the Respondent: | Mr J Mitchell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the respondent, quashing the decision made by his delegate and notified to the applicants on 26 November 2007, in so far as it refused their applications for Class XB visas.
A writ of mandamus issue directed to the respondent, requiring the respondent to determine according to law their applications for Class XB visas dated 3 April 2006.
The respondent must pay the applicants’ costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3968 of 2007
| SZMNF |
First Applicant
| SZMNG |
Second Applicant
| SZMNH |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
In May 2006 the applicants, whom I shall also refer to as “the mother”, “the son” and “the younger daughter”, were included in an application with another daughter (“the elder daughter”) for Class XB visas to enter Australia for permanent residence. On 25 November 2007 a delegate of the Minister found that the elder daughter satisfied primary criteria, and should be granted a subclass 202 “global special humanitarian” visa, but refused to grant visas to her mother, brother and sister. They had no right to seek merits review, but have invoked this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) to set aside the delegate’s decision on the ground of jurisdictional error. They have remained overseas, and have relations in Australia who have proposed their settlement here and are anxious about their condition.
Although s.91X of the Migration Act does not require it, I consider that it is consistent with the policy of that section, and appropriate in the circumstances of this application, not to publish the names of the applicants in this judgment. I shall give them pseudonyms, as if they were applicants for protection visas.
Class XB visas are only granted to applicants who have not entered Australia. They include subclass 200 “refugee” visas, for applicants who are “subject to persecution in the applicant’s home country” and are living outside that country (see Migration Regulations 1994 (Cth), Sch.2 cll.200.211(1)(a) and 200.221) Subclass 201 visas have similar primary criteria, but are available to persons subject to persecution who remain in their home country. Subclass 202 visas include the primary criteria at time of application and of decision that the applicant “is subject to substantial discrimination, amounting to gross violation of human rights in the applicant’s home country”, and is living outside that country (see cll.202.211(1)(a) and 202.221). Subclass 203 has primary criteria requiring “persecution” in the applicant’s home country and specified sponsorship. Subclass 204 is available for female primary applicants who are “subject to persecution or registered as being of concern to the United Nations High Commissioner for Refugees”, and are living outside their home country.
The reference to being “subject to persecution” in the above criteria is not defined in the Migration Act or Regulations, and therefore is not confined to persecution on a ground covered by the definition of “refugee” in the Refugees’ Convention or any other grounds.
This contrasts with protection visas available to applicants in Australia (see s.36).
All of these subclasses also contain primary criteria that there are “compelling reasons for giving special consideration to granting” permanent residence in Australia. Some of them also contain requirements of Australian sponsorship or support. For example, in subclass 202, an applicant’s entry must be “proposed” by an Australian citizen, permanent resident, or “body” (see cl.202.225).
The criteria for each of the subclasses of Class XB visas also allow eligibility for “other applicants who are members of the family unit … of the applicant who satisfies the primary criteria”, but who do not themselves satisfy primary criteria. For example, under cl.202.311(a) an applicant can qualify under the secondary criteria, if at the time of application he or she “is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 202.211(1)(a)”. This relationship must also exist at time of decision, in relation to a person who has become the holder of the relevant visa by satisfying primary criteria.
The term “member of the family unit” of another person, called “the family head”, is defined in reg.1.12(e) to include “a relative of the family head who: (i) has never married or is widowed, divorced or separated; and (ii) is usually resident in the family head’s household; and (iii) is dependent on the family head”. Under reg.1.03 the term “relative” means and includes “a close relative”, which includes a “parent, brother or sister of the person”. All the present applicants satisfied these tests in relation to the elder daughter and each other.
Regulations 1.03 and 1.05A define what is meant by being “dependent on another person” under the regulations, in two ways. A restricted meaning under reg.1.05A(1) requires a dependent person to be “wholly or substantially reliant on the other person for financial support” in specified circumstances. A significantly more relaxed meaning is provided under sub‑reg.(2) for the purposes of an application for a Class XB visa and some other classes of visa. This is not confined to a consideration of “financial support”. It requires that “the first person is wholly or substantially reliant on the other person for financial, psychological or physical support”.
It was held in Huynh v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 576 at [43] and [52] that the concept of “reliant upon” in reg.1.05A(1) does not carry implications of necessity, requiring that the dependent person must “have a lack of choice” as to his or her need for financial support, and in my opinion this interpretation should be carried over to reg.1.05A(2).
The present applicants’ application for a Class XB visa used form 842. Unlike many other visa application forms, this does not require an applicant to nominate whether they are putting themselves forward as either a primary or a secondary applicant. Rather, the form required the identification of all the “people included in this application”, with the nomination of a “main applicant” before detailing “all other people included in this application”. Prima facie, therefore, the application form requires the Minister or his delegates to address the eligibility of all applicants under primary criteria before considering their eligibility under secondary criteria.
The form was completed in the present case, so that the elder
daughter, born in 1960, was identified as the main applicant.
The “other people included” were identified as the younger daughter (wrongly described as her daughter) born in 1971, the son born in 1972, and the mother born in 1931.
The form did not require the applicants to identify a particular subclass of Class XB visa being sought, but requested information concerning their relatives overseas and in Australia, their past and present places of residence, and descriptions of the “humanitarian claims” relating to all of the applicants. These sections were completed to show that all the family members were nationals of Iraq, of Sabean Mandaean religion, who were living together in Amman, Jordan. Their reasons for leaving Iraq, and fearing harm if they returned, were stated to be found in “attached statement”.
The form contained few questions addressing questions of inter‑dependency of the family members. However, it showed that the elder sister had been “self employed” as a dressmaker in Iraq until 2003, and now had “home duties” in Jordan. The younger sister had a similar occupation in Iraq until 2004, and was now “not working”. The son had been self employed as “student goldsmith” in Iraq until 2001, and was now “not working”. He was the only member shown as having secondary schooling, and he also had a tertiary qualification in fine arts. The mother was shown at all times as being a “housewife”.
Attached to the form was a statement of the elder daughter. In this she said she had lived with her parents and the unmarried younger daughter, after she was deserted by her husband in 1996. She had lost contact with her own 5 married daughters. In 2004 she had been abducted and very seriously mistreated by a group of men, who abused her for being a Sabean and not Muslim, and held her for ransom for five days. She required hospitalisation after her family paid for her release, and when she recovered she fled to Amman with her mother and sister. The son had previously sought refuge there. She said: “I feel terror and fear when I think about the idea of going back to Iraq. I would rather remain in Jordan than return there. I am a Sabean woman, alone. We escaped from the terror and kidnapping in Iraq”. She attached medical and other records which corroborated her abduction and its traumatic effects on her.
Her statement also referred to the family’s material position:
15.My sister in Australia sends me money to support myself. I do not get any money from any other relatives, including [another] brother, in Denmark. [He] is only a temporary resident and cannot sponsor me to go and live there. The only chance I have to escape persecution in Iraq is to live with my sister in Australia.
16.It is very difficult to live in Jordan. We are not allowed to work here. The authorities are catching Iraqis and sending them back to Iraq. I mostly stay at home with my mother. It is like living in a prison.
The visa application was lodged in Melbourne by a Sydney solicitor, Mr Jeans. His covering letter submitted that “Ms [elder daughter] and her family meet the criteria for the grant of a subclass 200 visa or in the alternative, a subclass 202 visa”. The letter referred to the three women’s flight to Amman, where they had joined the son who had left Iraq in 2001. It submitted:
Ms [elder daughter] was persecuted and her family subjected to systematic discrimination in Iraq within the meaning of Article 1A(2) of the Refugees Convention because of their religion and social group membership. …
Moreover, the independent information confirms that Sabean Mandaeans and Sabean Mandaean women are both unable to access effective state protection from those who persecute them and are unable to relocate within Iraq to avoid harm.
The letter noted that all family members were registered with UNHCR, and enclosed Australian sponsorship evidence. It repeated and addressed the personal history of the elder daughter, focusing on what were perceived to have been reasons for the refusal of earlier visa applications. These appear to have related to whether the elder daughter could look elsewhere than Australia for family support, and not to doubts about the inter‑dependency of the four visa applicants.
It concluded:
Ms [elder daughter] has put forward compelling claims of persecution in her home country, Iraq. We submit her claims fall directly within the definition of “refugee” in Article 1A(2) of the Refugees Convention.
In particular, Ms [elder daughter] has been persecuted because of her religious beliefs and membership of several particular social groups. Ms [elder daughter’s] claims are credible and objectively consistent with the enclosed country information.
Her family members remaining in Iraq live in an area with high‑level insurgent activity and are unable to offer her any protection. Her relatives outside Iraq, except Australia, cannot offer any assistance in the way of resettlement sponsorship.
The authorities in Iraq, including the Multinational Forces are either unable or unwilling to protect her and her family from fundamentalist Muslim or insurgent groups.
In all the circumstances of this case, it would be unreasonable for Ms [elder daughter] and her family to relocate elsewhere within Iraq.
It is therefore submitted that Ms [elder daughter] and her family meet the requirements for the grant of a Class XB visa.
The enclosed independent information about persecution of Sabean Mandaeans in Iraq, described the Mandaeans as “ancient Baptists honouring John the Baptist”. It supported Mr Jeans’ summary of their general situation, which was:
1.Sabean Mandaeans in Iraq have been discriminated against and persecuted throughout history because of their religious beliefs;
2.The incidence and severity of the persecution inflicted on Sabean Mandaeans in Iraq has increased since April 2003;
3.Extremist Muslims and insurgent groups have killed or tortured those who they imputed with an adverse political opinion, such as supporting the American forces in Iraq;
4.Women, Sabean Mandaean women and Sabean Mandaean children in Iraq constitute particular social groups within Iraq society;
5.Women, Sabean Mandaean women and Sabean Mandaean children in Iraq are at a greater risk of persecution than the community at large;
6.The Iraqi authorities are unable to provide effective protection from persecution; and
7.That it is not reasonable in the circumstances for Ms [elder daughter] and her family to relocate within Iraq.
Mr Jeans’ submission did not address issues of inter‑dependency within the family group. In my opinion, it would have appeared to assume that these issues were irrelevant or uncontroversial.
Mr Jeans presented himself as the authorised recipient for correspondence about the visa application, and also, it would seem, a number of other off‑shore visa applicants in Amman. On 6 June 2006, he received an acknowledgement of the application, which stated:
The application will be considered along with others in order of receipt. There is no need to contact the Victorian Offshore Humanitarian Processing Centre about the progress of the application. We will advise you of any decision on the application or if the application is referred to the responsible overseas mission.
By letter dated 14 September 2006, Mr Jeans was informed:
The application has been transferred to the Australian Embassy in Amman for further consideration. Please note that the Melbourne Office will not be able to provide further information in relation to this application.
The Australian Embassy in Amman will notify you of any further requirements or arrangements regarding the application. If you wish to notify of any changes of address or circumstances, please contact the Australian Embassy in Amman.
It appears from the Department’s file, that in January 2007 the Amman Embassy received various documents confirming the identity, religion, history, marital status, and good character of the applicants. It also received a large body of further general information from Mr Jeans confirming the plight of Iraqi Mandaeans, and the vulnerability of all unprotected women and girls in Iraq to kidnapping and rape.
For example, an October 2005 UNHCR report said:
4.The Situation of Mandaeans in Iraq
The Mandaeans (also Nazareans or Sabeans) do not constitute a Christian denomination, but another independent monotheistic religious community. According to current estimates by different organisations, approximately 60,000 people world‑wide practice the Mandaean religion, of which some 30,000 live in Iraq, mainly in the larger cities after having been forcibly relocated by the former regime from the Marsh areas in Southern Iraq. A significant Mandaean community resides in exile in Australia. Due to their traditional engagement as gold and silversmiths, jewellers or in other highly skilled professions, many Mandaeans belong or belonged to the wealthy middle class in Iraq.
According to information from the German NGO Society for Threatened People, Mandaeans in Iraq were persecuted and suppressed in the past, in particular by Islamic and Christian communities. Portuguese Christian Catholic missionaries were especially persistent in attempting to relocate the Mandaeans from their traditional areas of settlement to other parts of the country in order to facilitate religious indoctrination. During the reign of the former regime, the Mandaeans suffered further persecution, in particular during ‘cleansing’ campaigns in the Marsh areas during which Mandaean places of worship were systematically destroyed.
While the general attitude towards Mandaeans had become more tolerant during the last years of the former regime, the situation of the Mandaean community in Iraq deteriorated remarkably after its collapse in April 2003 due to the above‑mentioned trend of embracing stricter Islamic values by the society. The current situation of Mandaeans in Iraq is most similar to that of Christians. In addition, it must be taken into consideration that Islam does not recognize and protect the Mandaeans as ‘people of the book’.
A disproportionately high number of Mandaeans have left Iraq since the fall of the former regime. The major reasons for the ongoing flight of Mandaeans from Iraq are: fear from assaults by radical segments of the Muslim society, fear of forced conversions, restrictions on the freedom of worship, concerns regarding security (in particular of women and children) as well as increasing social discrimination against Mandaeans in general. These fears are further fuelled by several religious edicts (fatwas) issued against the Mandaean community, characterising them as ‘impure’ and denouncing their beliefs. A recently issued fatwa accuses Mandaeans of systematic adultery and trickery and Muslims were called upon to ‘lead’ them to Islam. The majority of these fatwas was issued by Sunni teacher Al‑Saied Al‑Tabtabee Al‑Hakeem and/or by the ‘Information Foundation of Al‑Sadr Office’ in Basra. It is worth mentioning that no similar fatwas were issued or adopted by Grand Ayatollah Ali Al‑Sistani, the highest and most influential religious figure among the Shia community in Iraq.
The Mandaean religion strictly prohibits the use of violence and the carrying of weapons. Accordingly, Mandaeans have little means to protect themselves against violent attacks. (emphasis in original)
Folios 249 to 244 of the Department’s file, are a print‑out of a computer guided “Class XB interview report for humanitarian entry (Claims‑based, not split family)”. It records an interview conducted by “SMO Creevey” with the visa applicants on 15 January 2007 in Amman, in the absence of Mr Jeans. There is no evidence that Mr Jeans was ever sent a copy of this record before a decision was made, and I would infer that he probably was not sent it.
The interviewer confirmed various aspects of the application, and the following notes are relevant:
17.OBTAIN COMPLETE DETAILS OF PA’S MOVEMENTS TO COUNTRY WHERE INTERVIEW IS BEING CONDUCTED-CHECK AGAINST TRAVEL DOCS IF AVAILABLE, RECORD DETAILS:
Arrived at different times? Yes.
Who came first? [The brother] was in Jordan and after the incidents affecting the PA he invited them to come to Jordan. What were you doing here then? I was living with my sister and her husband who went to Australia. After that I called the others to come to Jordan.
Arrived 1st in Juy [sic] 11th 2001. No other countries? No stayed here until now. Original intention in coming to Jordan? I left because of the situation as it was not comfortable as Mandaean people so like any ambitious young man [sic] I intended to come to Jordan to find work but could not do so because of the Jordanina legfla [sic] restrictions.
18.EXPLORE AND DOCUMENT CLAIMS AGAINST THOSE SUBMITTED IN FORM 842/UNHCR RRF-WHY DID YOU LEAVE YOUR HOME COUNTRY, WHY CAN’T YOU RETURN ETC-CONSIDER RELEVANT DOCUMENTARY EVIDENCE TO SUPPORT CLAIMS, RECORD DETAILS:
[The interviewer confirmed various details of the elder daughter’s history]
Irrevocable decision to leave Iraq. When formed? In 2004 we were afraid that our life was at risk and came after the incident. What about the 2002 application, this was before the incident. [The brother] answered – it was [the brother’s] decision to lodge the application while in Jordan, he decided.
Never returned? No not since August 2004.
Who supports the family? Sister in Australia. All of you? Yes.
Explained the issue of dependency and the fact that PA claims affect her individually. [The brother] was in Jordan at the time prusing [sic] his own life.
[The younger sister’s name]
Explained I would make an assessment of whether separate applications after assessment and consultation with Migration Agent Simon Jeans.
PA and family agreed for issue of separate apps to be explored with Agent.
19.ARE OTHER POSSIBLE RESETTLEMENT OPTIONS APPLICABLE, ESPECIALLY WHERE PA AND/OR SPOUSE HAVE LINKS TO OTHER COUNTRIES THAT MAY HAVE RESETTLEMENT PROGRAMS?: Yes / No
IF ‘YES’, EXPLORE OTHER POSSIBLE RESETTLEMENT OPTIONS, OBTAIN DETAILS OF ANY APPLICATION HISTORY/OUTCOMES TO OTHER COUNTRIES, RECORD DETAILS:
Yes but equally limited.
20.EXPLORE PA’S (AND FAMILY’S IF APPLICABLE) LIVING SITUATION IN COUNTRY OF TEMPORARY STAY, EG IF RESIDED FOR MANY YEARS DO THEY WORK WITH HOST GOVT APPROVAL OR NOT, CHILDREN ATTEND SCHOOL WITH APPROVAL OR NOT, OPTIONS FOR HOST COUNTRY INTEGRATION ETC, RECORD DETAILS:
Temp res in Jordan? No all illegal. PPT has expired too. No work not allowed nby Jordan
Item 27 directs: “Provide PA with opportunity to ask questions here, record as appropriate:”, but nothing is recorded. Item 30 recorded:
30.NOTES OF SUMMARY / FINDINGS / FURTHER PROCESSING REQUIRED BY INTERVIEWER:
PA claims based on unknown incidental attack and kidnapping plus rape. Depend on psychologist report (respected)
PA was not totally convincing about the attack, very vague on details.
Given opportunity to be iv’d alone about rape but declined.
PA mother clear dependant
Dependency on claims of PA for brother and sister not convincing. Brother lodged independent unsuccessful application in 2002.
Check previous applications and interviews for inconsistencies
In the period between 15 January 2007 and 25 November 2007, Mr Jeans made four inquiries to discover the progress in determining the applicants’ visa application. He received two responses. On 24 May 2007 he received an email from Mr Creevey, referring to a number of outstanding applications, and indicating in relation to this one that “file with me for consideration … we will inform you of any further developments with these cases on a pro rata basis”. At no time did Mr Creevey, or any other immigration officer, invite submissions or material from Mr Jeans about issues of dependency or “separate applications”, as he had suggested to the applicants at their interview.
On 3 November 2007, Mr Jeans received an email from Ruth Haigh, “refugee and humanitarian team” at the Australian Embassy in Amman, which attached an update on 42 cases. In relation to this application, the schedule said: “a letter regarding the dependants will be sent shortly”. The Minister has led no evidence from a witness to explain this communication, nor, indeed, explaining any of the documents on the file. As I shall indicate, Ms Haigh seems to have taken responsibility for processing the file at this stage, after a decision had been made by a delegate, Mr Copas, on 27 September 2007. However, Mr Jeans was not then told about Mr Copas’ decision, nor the grounds upon which it had been taken.
The next communication received by Mr Jeans was a notification on 26 November 2007 by way of email from Huda Abdul‑Hadi “senior visa officer”, informing him the elder daughter was granted a visa but that the other family members were not. The covering email stated:
Ms [elder daughter] has been referred today to undergo medical examination. She has also been requested to provide new Jordan penal certificate as the one on file will expire shortly. The case is now pending health and character checks.
I regret to advise that the other 3 x members included in the application [the younger sister, brother and mother] have been refused as they were assessed as not meeting the definition of member of Ms [elder daughter’s] family unit. Attached are copies of the decision records for the 3 members (original copies were delivered to the applicants today).
In his affidavit sworn on 17 April 2008, Mr Jeans states:
10.If I had been provided with an opportunity to comment on the issue of membership of the family unit and dependency, I would have taken instructions from my clients in Amman and the sponsor in Sydney and provided further information in the form of either statutory declarations or further country information. I would have provided detailed written submissions on the question of membership of the family unit and dependence on Ms [elder daughter].
I allowed this paragraph to be read as evidence, over the objections of the Minister. Authorities in the High Court leave room for debate whether such evidence is necessary to establish prejudice arising from a contended denial of procedural fairness (Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]‑[38], [106], [122], [149], cf. Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 at [34] and [74]‑[75]. See also NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 at [17]; Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 at [91] and [97], and WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at [56]‑[58]). I therefore admitted the evidence, subject to further consideration of its relevance. The Minister did not then seek to cross‑examine or challenge Mr Jean’s evidence.
Copies of the Department’s emails to Mr Jeans are not reproduced in the Court Book prepared by the Minister’s solicitors. According to the Court Book, the next record on the Department’s file after Mr Creevey’s January 2007 interview record is a file note dated 27 September 2007. From its contents, and the fact that its author is subsequently described as the decision‑maker, I find that this note is a contemporaneous record made by the Minister’s delegate, SMO Copas, of his decision on the visa application and of his reasons. It states:
4. When considering the information provided in this application, it appears that the PA’s primary motivation for leaving Iraq in 2004 was her claimed abduction and rape. While I note the interviewing officer’s comments that the PA did not appear completely credible when recounting this event at interview, I am conscious of the documentation that has been submitted, which supports this claim and indicates that the PA suffers from related post‑traumatic stress disorder. I also note that, although it has been claimed in this application that the attack on the PA was related to her religion (ie. PA is Sabian Mandean), the PA’s comments at interview suggest more that it was a random act of violence, and that the PA’s religion only became an issue after the initial abduction. While this causes me to question the level of personal discrimination experienced by the PA on the basis of her religion, I accept that this incident could contribute to the PA having a well‑founded fear of returning to her home country. Noting the PA’s family links to Australia (ie. her sister), and that country information suggests that religious minorities are increasingly subjected to acts of persecution in Iraq, on balance, I am satisfied that the PA meets the requirements of clause 202.211(1)(a).
I am not satisfied, however, that any of the secondary applicants included in this application can be regarded as dependent on the PA. Having considered the comments of the interviewing officer, the ages and cultural background of the parties, and that the PA’s brother left Iraq in 2001 to seek work in Jordan, it appears more likely that the PA and her siblings are independent and that the PA’s mother is dependent on the PA’s brother. On this basis, I will refuse the secondary applicants and refer the PA for further processing.
CHRISTOPHER COPAS (CHRISTOPHER)
27-SEP-2007
Also contained in the same “case notes” is a record made by “Ruth Haigh STM” dated “01-Nov‑2007”. This reads as an instruction to “Huda”, to “prepare refusal letter for dependants”, “request security clearance for PA” and also “health and penal checks”, and “check file to see if character stat dec has been signed”. This tends to confirm that Ms Haigh was a subordinate officer who had been given responsibility by the delegate, Mr Copas, for implementing his decision which he had made and recorded on 27 September 2007.
Ms Haigh’s signature appears on three identically completed pro‑forma documents, headed “decision record for offshore humanitarian visa”, in respect of each of the present applicants. These documents were emailed to Mr Jeans on 26 November 2007, attached to “Huda’s” email which I have extracted above. They have the date “25/11/2007” inserted, but it is unclear who did this. Each record refers to the name of one of the present applicants, and commences:
I have considered this application against the criteria set out in the Migration Regulations and find that the applicant is NOT eligible for the grant of a Class XB visa. The visa criteria not met are indicated below.
Decision maker’s signature: RH Haigh [her signature], for
Decision maker’s name: Christopher COPAS [typed]
Title/Office: Senior Migration Officer / AMMAN
Below this statement, each decision record commenced:
You and all members of your family unit have been assessed against the Primary Criteria for each Class XB visa. You do not meet all of the Primary Criteria for any subclass of visa in Class XB. No member of your family unit meets all of the Primary Criteria for any subclass visa in Class XB.
As you do not meet the Primary Criteria for any subclass of visa in Class XB, the members of your family unit are unable to meet the relevant Secondary Criteria for any subclass of visa in Class XB (ie, one person in the application must meet all the Primary Criteria for one subclass for other members of the family to qualify for a visa–Migration Regulations 200.321, 201.321, 202.321, 203.321, 204.321, 447.321, 451.321).
The criteria which you have NOT met are marked with an “n” below. The criteria not marked have NOT been considered by the decision maker. [The number in brackets is the relevant subclause from Schedule 2 of the Migration Regulations.]
PRIMARY CRITERIA FOR EACH VISA SUBCLASS Subclass 200 (REFUGEE)
[ x ]
You are subject to persecution in your home country and you are living in a country other than your home country. [200.211(1)]
[ ]
Since leaving your home country you have not ever resided for a continuous period of at least 7 days in a country in which you could have sought and obtained effective protection:
(a) of the country; or
(b) through the offices of the United Nations High Commissioner for Refugees located in that country. [200.212(1)]
(emphasis in original)
It is to be noted that neither of the boxes which refer to the alternative criteria under cl.200.211(1) are marked with an “n”, but that one box in each section is marked with an “x”. A similar approach was taken to completing the remainder of the form, where alternative criteria for other subclasses of Class XB visas were identified in a similar manner. That is, under each subclass one box was marked with an “x” and other boxes were left blank. The end of the form contained provision for the Department to indicate what “information from the following sources was considered”, but this was left blank in the present records. Each form then contained what I find to be the only verbal insertions made to the forms. It said in identical terms in relation to each applicant, even where this inappropriately referred to the mother being the “sister” of the elder daughter:
As you have been included in your sister’s [the elder daughter’s name and file number] application as a member of her family unit, you must be assessed as coming within the definition of member of her family unit. As it is not possible for you to be considered [the elder daughter’s] dependant, you cannot be considered to be a member of her family unit.
The applicants now challenge the three decisions purportedly made by the Minister’s delegate, Mr Copas, on numerous grounds set out in an amended application. These were elaborated in written and oral submissions. I consider that two central grounds arise, and that it is unnecessary for me to address other arguments presented by the applicants’ counsel. They are:
i)Whether Mr Copas confined his consideration of the applicants’ eligibility for the visas by addressing only whether they were dependent on the elder sister, and did not consider their own claims to satisfy primary humanitarian criteria.
ii)Whether a procedural irregularity occurred by reason of the failure of Mr Copas to warn the applicant’s representative, Mr Jeans, that he contemplated refusing the visas on grounds of dependency, and by reason of his failure to invite further submissions on the applicants’ inter‑dependency on the elder daughter.
The delegate’s consideration
On Mr Copas’ own record of his decision placed on the file, it appears clear that he addressed the applicants’ visa application on the assumption that only the elder daughter was a “PA”, ie “primary applicant” putting herself forward as satisfying primary humanitarian criteria. His brief note addressed her claim in its first paragraph. In the second paragraph, he then addressed the other applicants only as “secondary applicants” in relation to the secondary criteria, and considered only whether they were dependent on the elder daughter.
If his note is accepted as a reliable, if brief, record of his reasons for refusing the grant of visas to the applicants, a clear inference arises that he failed to address their primary humanitarian claims which, in my opinion, were in fact before him. As I have indicated above, it is clear from Mr Jeans’ submission that he had presented all members of the family as persons who had each faced serious discrimination and persecution in Iraq in the past, and would do so in the future if they returned, as Sabean Mandaeans. He presented a body of information which gave serious content to their separate claims. The visa form itself did not present the applicants only as “secondary applicants”, and Mr Copas’ terminology clearly misread the visa application form in this respect.
Some confirmation that Mr Copas may have overlooked that the applicants had presented their own humanitarian cases for consideration, might appear from the manner in which his predecessor as SMO,
Mr Creevey had recorded his conclusions at the end of his January 2007 interview. Mr Creevey’s “notes of summary/findings/further processing required by interviewer”, extracted above suggest that he too had regarded only the elder sister as a “primary applicant”, and that he directed his attention at the other applicants only as possible dependents. It is quite possible that Mr Copas was misled by Mr Creevey’s concluding note in this respect, particularly since he also seems to have overlooked Mr Creevey’s earlier suggestion that further submissions should be obtained from Mr Jeans about dependency and “separate applications”.If Mr Copas did confine his consideration of the visa application when he arrived at his decision, so as not to give real and genuine consideration of the individual humanitarian claims of each of the applicants, it is well established that he would have failed to exercise his power according to a jurisdictional requirement, and the applicants would be entitled to the relief claimed (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1).
In response to this contention, the Minister relies upon the absence of any statutory obligation on Mr Copas to record or provide reasons for his decision, and upon the pro‑forma “decision records” later signed by Ms Haigh.
It is apparent that the forms signed by Ms Haigh, had been designed to assist effortless compliance with s.66 of the Migration Act when delegates refused Class XB visa applications, and to provide minimal reasons to unsuccessful visa applicants. That section provides:
66Notification of decision
(1)When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2)Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c) unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i)that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii)who can apply for the review; and
(iv)where the application for review can be made.
(3)This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4)Failure to give notification of a decision does not affect the validity of the decision.
(5)This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
As I have noted, it is common ground that the present applicants had no right of merits review of any decision made by Mr Copas. This has the important added consequence that s.66(3) applied, so as to exclude any obligation to give written reasons why the grant of the visa was “prevented”. The only obligation under s.66(2)(b) was that a notification was required to “specify” the provision of the regulations which prevented the grant of the visa. The present pro‑forma decision record signed by Ms Haigh purported to do this by paraphrasing the significant primary criteria for each subclass visa, and citing the relevant subclause of Schedule 2 of the Migration Regulations, with a box to be marked to indicate whether it was regarded as not satisfied.
As has been pointed out in other cases, s.66(3) may make it difficult for a Court to draw inferences of inadequate consideration of relevant statutory and factual matters, from the terseness of decision records provided to visa applicants (see Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209 at [4], and on appeal: [2007] FCA 248 at [9]‑[15] and [2007] FCA 594 at [3]). For example, in the present case, in the absence of an obligation on Mr Copas to record his findings on material issues of fact, this means that it is difficult to conclude confidently whether he failed to appreciate that the applicants could rely upon only their psychological and physical inter‑dependency, without establishing financial reliance, by reason of the more generous definition in reg.1.05A(2), although such a mistake seems quite possible from his brief note.
However, s.66(3) does not exclude the possibility that the evidence concerning how a decision was, in fact, made off‑shore, might allow the Court to conclude that jurisdictional errors were made by the delegate who purported to exercise the Minister’s power. The Court must address the records of the actual decision‑making, to arrive at findings on what probably was considered or not considered.
In the present case, there is no evidence that Mr Copas ever saw or adopted the “decision record” signed by Ms Haigh. Nor was any evidence presented by the Minister to explain how it came to be completed before she signed it. The Court is left to draw the best inferences from the documents and the sequence of events shown in relation to the handling of the file. When drawing these inferences, I note that the Minister did not call any witnesses to dispel the inferences which I draw below, nor any evidence that relevant witnesses were unavailable to give evidence.
In my opinion, the significant conclusion to be drawn from the file is that Mr Copas in fact probably made his substantive decision when he recorded his file note on 27 September 2007. He then directed the further processing of all administrative matters for implementing his decision to be done by more junior officers, who did not themselves have Ministerial delegations. The end of his personal involvement in the matter appears from the last sentence in his note: “On this basis, I will refuse the secondary applicants and refer the PA for further processing”. There is no evidence suggesting that he gave any further consideration to the application, or to the subsequent “decision record”, and I would infer that he did not.
The further processing was performed by Ms Haigh, and “Huda”.
In effect, in my opinion, they probably treated the completion and signature of the “decision record” as being a mechanical or administrative implementation of Mr Copas’ recorded decision.
The evidence suggests that Ms Haigh was not herself a delegate of the Minister. Assuming that it was legally open to Ms Haigh to sign the decision record “for” Mr Copas, she was at most exercising an agency to perform a mechanical administrative step (cf. Deputy Commissioner of Taxation v Boxshall (1988) 19 FCR 435 at 438, and O’Reilly v State Bank of Victoria (1982) 153 CLR 1 at 11). She cannot be taken herself when endorsing this “decision record” to have been performing a delegate’s consideration of the Minister’s power to refuse a visa application under s.65(1)(b) of the Migration Act.
In this situation, the better inference from Mr Copas’ file note and from how the Departmental form of “decision record” was subsequently completed and signed, is that the parts of the form which purported to address “primary criteria for each visa subclass” were completed in a mechanical way because this was required by the form, rather than as a record of actual consideration having been given to these matters by Mr Copas.
The manner in which the “primary criteria” parts of the form were completed tends to confirm that Mr Copas’ decision treated the visa applications as if the applicants had presented themselves only as secondary applicants. Thus, the forms were duplicated in their manner of completion in relation to each applicant, rather than appearing to show separate consideration of his or her circumstances. A superficial approach to the form is also suggested by the insertion of an “x” rather than a “n” throughout the form, and to the unconsidered “cut and paste” into each record of the verbal statement under “any other comments”.
In this context, the insertion of the conclusion about dependency in the “any other comments” section, also tends to confirm that the preparation of the “decision record” for each applicant was not regarded as doing more than administratively implementing a decision by Mr Copas which, in fact, was based solely upon consideration of dependency. The terms of those “comments” confirm that it was thought that the present applicants had sought only to be “included in your sister’s … application as a member of her family unit”. That this was how Mr Copas and Ms Haigh had understood the visa application, is then also confirmed by “Huda’s” reference to dependency as the sole ground of refusal, when sending his or her covering email to Mr Jeans.
On all the evidence, I am persuaded that Mr Copas’ file note of 27 September 2007 reveals that he did not consider the applicant’s separate primary humanitarian claims, but addressed only the secondary criteria in relation to their visa application. I am not persuaded that the later “decision record” signed by Ms Haigh shows otherwise. I therefore consider that this ground of jurisdictional error is established.
The delegate’s procedures
The applicants submitted that, although as a general proposition there is no obligation on a delegate to consider inviting further material on an issue which has been inadequately addressed in a visa application, the circumstance of the present case gave rise to this obligation in relation to the applicants’ membership of one family unit with their elder sister.
I have above noted that the manner in which Mr Jeans submitted the visa application, properly read, suggested that all the applicants had put themselves forward principally as primary applicants, being Sabean Mandaeans at risk in Iraq, rather than as members of their elder sister’s family unit. This explained the lack of submissions and supporting material on issues of dependency, in a visa application which was otherwise presented comprehensively by Mr Jeans.
The applicants then point to an unfairness in the procedures followed in Amman, from the fact that the first SMO, Mr Creevey, appears in January 2007 to have appreciated that it was desirable to clarify issues of separate primary claims and issues of dependency with Mr Jeans.
From his interview notes at the end of item 18, he appears (mistakenly, in my opinion) to have thought that the applicants’ eligibility could only be addressed against secondary criteria under their current visa application, and to have had some doubts about issues of inter‑dependency of the members of the family. He records a promise being made to the applicants about a future communication from the Department to Mr Jeans:
Explained I would make an assessment of whether separate applications after assessment and consultation with Migration Agent Simon Jeans.
PA and family agreed for issue of separate apps to be explored with Agent.
The Minister did not contest that these statements were made to the applicants, and did not contest that in fact Mr Jeans was never invited to clarify whether the applicants were putting themselves forward for satisfaction of primary or secondary visa qualifications or both, and, in the latter case, to present further supporting material on dependency.
Nor is it suggested that there is any evidence that these promises to explore these issues with Mr Jeans were ever addressed by Mr Copas, before he made his decision in September 2007 and it was communicated in November 2007. I find that it is more probable than not that he overlooked the undertaking given to the applicants by Mr Creevey. If he had noticed it, I can see no reason why he would not have directed the inquiry to be made to Mr Jeans, or, at least, recorded why he decided against doing so. The processing of the visa application had not been rushed, and it would have been easy to further communicate with Mr Jeans by email.
In these circumstances, the situation appears analogous with that which was addressed by the High Court in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1. In that case, the decision‑maker identified a concern about factual inconsistencies at a hearing attended by the applicant, and said: “I will have to write to you about those”, but never followed that procedure, nor explained why it was not followed. The majority judgment concluded:
43.The Tribunal member at one important stage had the impression that there might be a benefit for the appellant in the review as a whole in having a further opportunity to answer her questions in writing on the subject of detention; she never explained why that impression was wrong or whether it had changed; it is thus a likely inference that the impression was sound. Hence the appellant’s deprivation by the Tribunal member of that opportunity is a breach of procedural fairness going to jurisdiction.
The decision‑maker in that case was a Tribunal member, who was under a statutory obligation to afford a hearing. This obligation informed the High Court’s opinion that there was a jurisdictional defect. They said:
27.One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.
The procedural obligations on the Minister and his delegates lack an obligation to afford an oral hearing in all cases. However, in my opinion, the “code of procedure” on the Minister under Subdivision AB of Part 2 of the Migration Act, gives rise to an implication of a similar obligation of procedural fairness, at least where there is no right of merits review. Thus, although the Minister is not under any obligation to request additional relevant information, nor to delay making a decision until it is given (see s.55), he has a power to “invite, orally or in writing, the applicant for a visa to give additional information in a specified way” (see s.56(2)), and this can occur in an interview (see s.58). If further information is requested in the course of an interview or otherwise, the Minister must wait until it is provided within a specified time, and must have regard to it (see s.62(2) and s.63(1)).
In my opinion, it is implicit in these procedural discretions of the Minister that they should be exercised in a procedurally fair manner.
If undertakings are given to a visa applicant at an interview, in effect, that an officer intends to exercise powers to invite further submissions and material from a visa applicant’s migration agent, then it would be consistent with the legislation for the Minister to follow the promised procedure or, at least, to give notice of a change of intended procedure. In my opinion, in those circumstances, the considerations which caused the High Court in NAFF to find jurisdictional defects in the procedures of the Tribunal also give rise to similar obligations on the Minister before he exercises the power to determine the application under s.65.
Counsel for the Minister submitted that there was no evidence that the delegate promised the applicants that a decision would not be made until the issues identified at the interview had been raised with Mr Jeans. However, in my opinion, this was the gist of Mr Creevey’s record of the interview. Moreover, it was an obviously fair procedure to have followed, in circumstances where it should have appeared to the delegates that Mr Jeans might not have apprehended that he should submit material addressing issues of dependency as well as the applicants’ humanitarian claims (cf. SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 and Herft v Minister for Immigration & Anor [2007] FMCA 756).
Counsel for the Minister also submitted that there was no evidence that the applicants or Mr Jeans held any legitimate expectation arising from what occurred at the interview with Mr Creevey, nor that any practical injustice occurred (citing Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]). However, in the circumstances of the present case, I consider that specific evidence of reliance on Mr Creevey’s statements is not necessary, nor that the applicants must better explain how Mr Jeans might have responded. As in NAFF at [34] and [74]‑[75], the unfairness did not arise from the applicants being misled, but from the failure of Mr Copas to consider whether the procedure of obtaining further submissions from Mr Jeans, promised by Mr Creevey, should have been pursued before he made his decision. If this had been done, I do not accept the Minister’s contention that Mr Jeans would not have been able to present arguments which might have caused Mr Copas differently to address the applicants’ humanitarian claims under primary criteria, and also to have better addressed the issues of dependency in the beneficial manner allowed under reg.1.05A(2).
I therefore consider that this ground of review is also made out.
The applicants are entitled to the relief they seek, with costs which have been agreed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 8 August 2008
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