SZOXM v Minister for Immigration
[2011] FMCA 564
•22 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOXM & ANOR v MINISTER FOR IMMIGRATION | [2011] FMCA 564 |
| MIGRATION – Persecution – review of decision of ministerial delegate – visa – protection visa – applicants citizens of two countries – whether their protection visa applications were valid applications – review of discretionary decision to not lift the bar on the validity of protection visa applications made by citizens of two countries – whether Federal Magistrates Court has jurisdiction to review such decisions. |
| Migration Act 1958, ss.36, 47, 91M, 91N, 91P, 91Q, 417, 474, 476 Border Protection Legislation Amendment Act 1999 |
| Koe v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 508 SZOUY v Minister for Immigration & Citizenship [2011] FMCA 347 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 House v R (1936) 55 CLR 499 Ozmanian v Minister for Immigration, Local Government & Ethnic Affairs (1996) 137 ALR 103 Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1 S1083/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1455 Raikua v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 158 FCR 510 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
| First Applicant: | SZOXM |
| Second Applicant: | SZOXN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 20 of 2011 |
| Judgment of: | Cameron FM |
| Hearing dates: | 4 May 2011, 24 June 2011 |
| Date of Last Submission: | 24 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2011 |
REPRESENTATION
| Solicitors for the Applicants: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondent: | Ms A. Mitchelmore |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 20 of 2011
| SZOXM |
First Applicant
| SZOXN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
The first and second applicants, who are mother and son respectively, are citizens of both the United Kingdom and another country and before coming to Australia in 2010 were resident in the United Kingdom. They claim to fear harm in the United Kingdom from the first applicant’s former husband who has made against them threats of death and disfigurement.
After their arrival in Australia on 28 August 2010 the applicants lodged applications for protection visas. On 14 December 2010 a delegate of the Minister wrote to the applicants’ migration agent advising that the applications were invalid. The delegate found the applications to be invalid pursuant to s.91P(2) of the Migration Act1958 (“Act”) because the applicants were nationals of two countries. The applicants requested that the Minister lift the bar on s.91P to allow valid protection visas to be lodged. This request was not referred to the Minister; his department finding that the case did not fall within his guidelines because the applicants had successfully accessed effective state protection in the United Kingdom. The applicants have applied to this Court for judicial review of the delegate’s decision.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Subdivision AK of div.3 of pt.2 of the Act contains ss.91M, 91N, 91P and 91Q. Section 91M provides:
91M Reason for this Subdivision
This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.
Section 91N identifies the non-citizens to whom subdiv.AK of div.3 of pt.2 of the Act applies. It relevantly states:
91N Non‑citizens to whom this Subdivision applies
(1)This Subdivision applies to a non‑citizen at a particular time if, at that time, the non‑citizen is a national of 2 or more countries.
…
Determining nationality
(6) For the purposes of this section, the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
Section 91P provides that if s.91N applies to a non-citizen then any application for a protection visa by the non-citizen is invalid. Section 91P(2) states:
91P Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas
…
(2)Despite any other provision of this Act but subject to section 91Q, if:
(a)this Subdivision applies to a non‑citizen at a particular time; and
(b)at that time, the non‑citizen applies, or purports to apply, for a protection visa; and
(c)the non‑citizen is in the migration zone and has been immigration cleared at that time;
neither that application, nor any other application made by the non‑citizen for a protection visa while he or she remains in the migration zone, is a valid application.
However, the Minister has the power under s.91Q to determine that s.91P does not apply to certain non-citizens, ie to lift the bar, if he considers that it is in the public interest to do so. Section 91Q relevantly provides:
91Q Minister may determine that section 91P does not apply to a non‑citizen
(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 91P does not apply to an application for a visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.
(2)For the purposes of subsection (1), the matters that the Minister may consider include information that raises the possibility that, although the non‑citizen satisfies the description set out in subsection 91N(1) or (2), the non‑citizen might not be able to avail himself or herself of protection from the country, or any of the countries, by reference to which the non‑citizen satisfies that description.
…
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
If an application is an invalid application, the Minister cannot consider it. Section 47(3) provides:
47 Consideration of valid visa application
…
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
Background facts
In her protection visa application, the first applicant made the following claims:
a)on 22 August 2010 her former husband visited her house in the United Kingdom and told her that he wanted to take their son to their country of birth. When she refused he became angry and threw objects at her and threatened, if she involved the police, to kill their son and then her, to burn her, their son and himself, and to throw acid in her face. After he left, she went to the police to report the incident but asked that they not arrest her former husband as she did not want to anger him;
b)her former husband returned to her house that night. He said to her “from this moment all I am looking for is a simple excuse to make the rest of your life such a hell” and that if she wanted to stay alive and her son to stay alive, she had to accept everything he said. He also told her that even if he went to prison, when he was released he would disfigure her face with acid;
c)she received many threatening telephone calls from her former husband;
d)she found a bottle of caustic soda on her doorstep;
e)her former husband telephoned her on 24 August 2010 and said that he had all the equipment ready to take his revenge against her and that he was planning on “bathing” her in a chemical. Because of these threats, she made a full statement to the police on 25 August 2010;
f)after her arrival in Australia, her own mother, who still lived in the first applicant’s county of birth, told her that the former husband had telephoned threatening to kill the applicants. The former husband told the first applicant’s mother that he had been arrested but that he would find the applicants and “take his revenge”. He said that he had a needle infected with HIV and that he wanted to inject the first applicant with it. He also said that he had hired someone to shoot both applicants and that his friends had promised to shoot the first applicant;
g)a few days after her arrival in Australia she received an email from the police in the United Kingdom saying that her former husband had been arrested, interviewed and granted bail;
h)while the applicants were still in the United Kingdom, the first applicant’s former husband had told their son that he could cut people’s heads off and had shown him a violent movie, which the first applicant identified; and
i)she cannot return to her country of birth because there her former husband will have the power to take her son from her. Further, her divorce is not legally accepted there and there would be no one to protect her from her former husband.
The second applicant lodged a separate protection visa application but relied on the same claims as those of the first applicant.
Proceedings in this Court
The grounds of the further amended application were pleaded as follows:
1.The Respondent misconstrued and misapplied the relevant law.
2.The decision maker failed to consider all integers of the Applicant’s application.
3.The decision maker failed to carry out his or her statutory duty.
4. The decision maker applied the wrong test.
Ground 1
Applicants’ submissions
The applicants referred to the objects of subdiv.AK of div.3 of pt.2 set out in s.91M and to the fact that, amongst other things, that section says that applicants who can obtain protection from a third country because of their nationality “should seek protection from the third country instead of applying in Australia for protection”. The applicants said that this objective, of requiring applicants who can obtain protection from a third country do so instead of applying to Australia, was supported by s.36 of the Act. Amongst other things, s.36 provides that Australia does not have protection obligations to persons who have rights of residence in third countries where they are not at risk of persecution.
The applicants also referred to s.91N which makes subdiv.AK of div.3 of pt.2 applicable to, relevantly, all persons of dual nationality. They submitted that that section was inconsistent with the objects of subdiv.AK of div.3 of pt.2 of the Act and could only have a meaning consistent with those objects and with s.36 if its reference to other countries was a reference to countries where an applicant could obtain effective protection. They submitted that, interpreted in this way s.91N, and thus s.91P, only prevent dual citizens from applying for a protection visa if they have effective protection in one or more of their countries of nationality. The applicants submitted that as one of the first applicant’s countries of nationality was her country of birth, where a single mother would not enjoy effective state protection, and as they feared returning to her other country of nationality, the United Kingdom, subdiv.AK of div.3 of pt.2 of the Act did not apply to them.
The applicants submitted that it could not be a valid operation of the Act to place vulnerable non-citizens directly in harm’s way and that s.91N should not be given such an operation.
The applicants also submitted that when applying s.91N the delegate failed to give proper consideration to whether they were, in fact, nationals of two countries and in this regard referred to s.91N(6). They said that the delegate was obliged to identify if there were two countries of which they were nationals and, if so, which countries they were. They said that the delegate then needed to determine the relevant content of the laws of those two countries in order to determine whether they were, at that time, citizens of two countries. They submitted that although the delegate had before him their British passports, there was no evidence of the first applicant’s citizenship of her country of birth nor whether the second applicant, born in the United Kingdom, might nevertheless be a citizen of his parents’ country of birth.
Consideration
The applicants’ submissions concerning how the objects of subdiv.AK of div.3 of pt.2 of the Act as expressed in s.91M should affect the interpretation and operation of the other provisions in the subdivision gives undue emphasis to ss.91N and 91P and too little attention to s.91Q. On the one hand, ss.91N and 91P do have the effect that a person who is a national of two or more countries, who is in the Australian migration zone and is immigration cleared, may not make a valid application for an Australian protection visa but, on the other hand, s.91Q permits the Minister to lift the s.91P bar on the making of a valid visa application. Although ss.91N and 91P are expressed in imperative terms and would, in the absence of s.91Q fail to reflect the objects of the subdivision as expressed in s.91M, s.91Q makes it clear that when considering whether to lift the bar the Minister may consider information that raises the possibility that the non-citizen might not be able to obtain protection from his or her countries of nationality.
It is not the isolated operation of ss.91N or 91P which is to be tested against the statutory purpose expressed in s.91M but the operation of the entire subdivision. If ss.91N, 91P and 91Q are considered together they can be seen properly to embody the purpose of the subdivision as expressed in s.91M. Evidence before the delegate supported the conclusion that each of the applicants was a citizen of the United Kingdom and of the first applicant’s country of birth. Consequently, his conclusion and subsequent advice in the letter dated 14 December 2010 that ss.91N and 91P operated to invalidate the applicants’ protection visa applications was not erroneous as they alleged.
But in any event, the unambiguous terms of s.91N(1) make it clear that subdiv.AK of div.3 of pt.2, and thus s.91P, applies to persons, inter alia, simply on the basis that they are citizens of two countries. The operation of the section is not conditional upon an applicant having or not having protection rights in either of those countries, in which respect the insertion of these provisions by the Border Protection Legislation Amendment Act 1999 marks a departure from the situation considered by the Full Court of the Federal Court in Koe v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 508. In that case, Mr Koe had dual nationality and the issue arose whether, in such circumstances, Australia had protection obligations to him. In determining that question the Full Court held that the significance of Mr Koe’s second nationality was to be assessed by reference to a proper construction of Art 1A(2) of the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Full Court said:
In these circumstances, to construe "nationality" where it first appears in the second paragraph of Art 1a(2) of the Refugees Convention as referring to nationality that is effective as a source of protection and which is not merely formal is, in our view, to interpret Art 1a(2) in the manner required by the Vienna Convention as explained in the High Court in "Applicant A", that is to say, in accordance with the ordinary meaning of the text but considering also the context and the object and purpose of the Refugees Convention. (at 521)
In Koe’s case the question was whether Australia owed the applicant protection obligations, an issue which does not arise in this case because consideration of such obligations could only arise if the Minister had lifted the s.91P bar to the applicants making valid protection visa applications, which he has not done. Because the consideration of “nationality” in Koe’s case was undertaken in the context of whether protection obligations were owed to Mr Koe, it was necessary for the Federal Court to consider the meaning of that word, and thus the content of Australia’s obligations, in light of a proper understanding of the Convention. However, s.91N does not require consideration of the Convention. Although it is related to the question whether a person is entitled to protection under the Convention, s.91N is concerned with different matters. It is part of a subdivision which provides for an administrative step which, in the case of the applicants, presents a preliminary hurdle to the potential, ultimate consideration of whether Australia owes them protection. It is concerned with procedure related to the determination of applications for protection visas, not with the fundamental substance of refugee law as incorporated into Australian law by the Act: SZOUY v Minister for Immigration & Citizenship [2011] FMCA 347 at [20]. As a result, the meaning of “nationality” as discussed in Koe’s case is not relevant to the operation of s.91N where the word is to be accorded its ordinary meaning: SZOUY v Minister for Immigration & Citizenship [48]. This was the construction which the delegate gave to the word and, as a result, I conclude that he did not err in concluding that subdiv.AK of div.3 of pt.2 of the Act applied to the applicants’ applications for protection visas.
Finally, as to whether the applicants were, in fact, dual nationals, it should not be overlooked that this is what they themselves alleged in their protection visa application forms. In circumstances where the delegate was, apparently, willing to accept the applicants’ claims in this regard, there was no need for him to go further and undertake an independent verification of them.
Ground 2
Applicants’ submissions
The applicants referred to the statement in the delegate’s letter of 14 December 2010 that:
Your request to the Minister to lift the bar in s.91P and allow a valid Protection visa application to be lodged has been considered. As your clients have successfully accessed effective state protection in the UK, as evidenced by the judicial action taken against her ex-spouse, it is considered that this case does not fall within the Minister’s guidelines and will therefore not be referred.
The applicants submitted that the delegate had failed to consider the first applicant’s claim to have a well-founded fear of persecution as a result of the actions of her former husband’s friends and those whom he said he had hired to kill her.
Consideration
The decision of the delegate whether or not to refer to the Minister the applicants’ request for an exercise of the s.91Q discretion was itself a discretionary decision and one informed by guidelines, approved by the Minister, which assisted and assist departmental officers to determine whether such requests should be referred to the Minister for his consideration. The guidelines relevant in this case were annexed to the affidavit of Matthew David Alderton sworn 18 May 2011.
When deciding whether to refer the matter to the Minister for his consideration the delegate was required to exercise his discretion according to law and by reference to the scope and purpose of the Act: R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 per Kitto J; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 per Mason J. As was said in House v R (1936) 55 CLR 499:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. (at 504-505 per Dixon, Evatt and McTiernan JJ)
Importantly in this case, s.91Q(2) provides that the matters which the Minister may consider when exercising his discretion include the possibility that, although an applicant holds dual citizenship, the applicant might not be able to access protection in either of his or her countries of nationality. The guidelines annexed to Mr Alderton’s affidavit also include as a circumstance to be considered by the official dealing with the matter whether the applicant is able to access state protection in his or her countries of nationality. In this case, the delegate expressly considered that issue.
The burden of the applicants’ submission was that although the delegate may have given proper consideration to the threat posed by the first applicant’s former husband, whom the evidence indicated had been in the process of being dealt with by the British authorities, he failed to turn his mind to the threat posed by the former husband’s friends and agents. The fact that the applicants were able to access effective state protection in the United Kingdom in relation to the first applicant’s former husband does not necessarily mean that such protection would be available in respect of the other risks they faced. Given that these other risks were an important element of the applicants’ claims to fear persecution, the delegate was required to turn his mind to them when considering the question of effective state protection.
However, I conclude that he did not. The delegate’s statement that the applicants were able to access state protection in the United Kingdom, by reference to action taken by British authorities against the first applicant’s former husband, implies that that was the only risk which was considered. This is particularly so as the evidence indicates that there was no information before the delegate that the British authorities had addressed the risk posed by third parties. In those circumstances, I infer that the delegate did not consider the question whether the applicants could access effective state protection in relation to the risks allegedly posed by the friends and agents of the first applicant’s former husband. The delegate’s failure to take this matter into account means that his exercise of the discretion whether to refer the matter to the Minister miscarried.
However, the miscarriage of the delegate’s discretion is insufficient to provide this Court with jurisdiction to give the applicants the relief they seek. The discretion in question was provided by s.91Q. Section 474(7) of the Act relevantly states that a decision of the Minister to not exercise or to not consider the exercise of his power under s.91Q is a privative clause decision within the meaning of sub-s.474(2) of the Act. Section 476(2)(d) provides that this Court does not have jurisdiction in relation to a privative clause decision or purported privative clause decision mentioned in s.474(7).
The Court’s lack of jurisdiction extends to include decisions of departmental officers whether to refer s.91Q requests to the Minister. In this regard, the combined effect of the decisions of Merkel J in Ozmanian v Minister for Immigration, Local Government & Ethnic Affairs (1996) 137 ALR 103; of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1, the appeal from Merkel J’s decision at first instance; of Moore J in S1083/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1455; and of Lindgren J in Raikua v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 158 FCR 510 is that:
a)a departmental officer’s decision whether to refer to the Minister a request for him to exercise a discretionary power of intervention, when made pursuant to guidelines or directions made or approved by the Minister, is a decision “of the Minister” for the purposes of whichever section of the Act provides for the ministerial discretion in question. In this regard the discretion provided by s.91Q and the procedure for its exercise is relevantly the same as the s.417 discretion and procedures discussed in the above-mentioned cases;
b)if an officer’s decision is made in connection with a request that the Minister exercise a discretion provided by one of the sections cited in s.474(7), then the officer’s decision is a privative clause decision or a purported privative clause decision for the purposes of s.474. In this regard, the statutory provisions discussed in the above-cited cases were either the same as, or relevantly the same as, the statutory provisions relevant in the present matter, ss.474(7) and 476(2)(d);
c)because the officer’s decision is a privative clause decision or purported privative clause decision, s.476(2)(d) of the Act operates to deny this Court jurisdiction to review it; and
d)the officer’s decision cannot be reviewed by way of an allegation of jurisdictional error. In Raikua’s case, Lindgren J considered s.417, which is relevantly identical to s.91Q, and observed that as the decision of the departmental officer was not something provided for by the Act and did not affect legal rights it was not susceptible to judicial review. In this regard his Honour referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-338. His Honour also said:
The only decision that might conceivably be susceptible to judicial review is that of the Minister. However, it was permissible for the Minister [scil: to] take the decision not to consider exercising his power under s 417(1) by laying down guidelines as to the classes of case that were not to be referred to him … and because of s 417(7), the jurisdiction-denying provisions, whether found in the former s 476(2) or in the present ss 474(1), (2) and (7), 476(2) and 476A(1)(a), cannot be avoided in relation to the Minister’s decision by resort to the notion of jurisdictional error. (at 522-523 [64])
Section 417(7) is relevantly identical to s.91Q(7) and provides that the Minister is not obliged even to consider the exercise of his discretion.
Consequently, the Court has no jurisdiction to review the delegate’s decision.
Ground 3
In the third ground of the further amended application the applicants allege that the delegate failed to carry out his statutory duty by failing to determine the applicants’ nationality according to s.91N(6) of the Act. For the reasons given in relation to the first ground of the further amended application, in the circumstances the delegate had no obligation to do this.
Ground 4
In the fourth ground of the further amended application the applicants allege that the delegate incorrectly applied the Minister’s guidelines for the submission to him of requests to exercise his discretion under s.91Q. For the reasons given in relation to the second ground of the further amended application, the Court has no jurisdiction to review the actions of the delegate relevant to this allegation.
Conclusion
As the Court does not have jurisdiction to review the delegate’s decision, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 22 July 2011
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