SZREO v Minister for Immigration
[2012] FMCA 1189
•12 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZREO v MINISTER FOR IMMIGRATION | [2012] FMCA 1189 |
| MIGRATION – Application to review decision of a delegate of the Minister for Immigration to refuse the applicant’s application for an offshore humanitarian visa – where no obligation to give written reasons – whether failure to have regard to all the applicant’s claims. |
| Freedom of Information Act 1982 (Cth) Migration Act 1958 (Cth) ss.66, 214, 430, 477 Migration Regulations 1994 (Cth), cll.200.222, 201.222, 203.222, 204.224 of Schedule 2 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 63 Kioa and Others v West and Another (1985) 159 CLR 550; [1985] HCA 81 Lafu v Minister for Immigration & Citizenship & Another (2009) 112 ALD 1; [2009] FCAFC 140 Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZNZU v Minister for Immigration & Anor [2010] FMCA 197 Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851 |
| Applicant: | SZREO |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 361 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr S Lloyd SC and Mr Kaplan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The time for making the application is extended up to and including 17 February 2012.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 361 of 2012
| SZREO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Background
By application filed in this court on 17 February 2012 the applicant seeks review of a decision of a delegate of the respondent of 24 November 2011 to refuse to grant her a Refugee and Humanitarian (Class XB) visa.
The applicant is a citizen of Afghanistan of Hazara ethnicity and Shia Islam religion who has lived in Pakistan since January 2004. On 30 August 2011 she applied for a Class XB visa.
The applicant has ten children. Six of her children live in Australia as permanent residents or citizens. One of her sons was her proposer. At the time of the visa application three of her children in Australia were under the age of 18. They obtained permanent residence in Australia as dependents of another brother and his partner.
In her visa application, the applicant described herself as an Afghani citizen illegally resident in Pakistan and a widow. She left Afghanistan in January 2004. In response to the question, “What do you believe may happen to you…if you were to return to that country?” the applicant claimed she would be “seriously abused or killed” and added, “see accompanying details”. There is no accompanying statement by the applicant but a number of other supporting documents were lodged. In response to the question, “Who do you think may harm or mistreat you if you go back to that country?” she claimed:
· The people who killed my husband
· The Taliban
· The local people who are jealous and who believe my family overseas are rich
· My deceased husband’s family who want the land.
In a submission provided in support of the visa application the applicant’s migration agent categorised the applicant as a “woman at risk” and “widow alone”. The agent claimed that the applicant’s three youngest children had “developed severe psychological, mental and emotional problems” in the absence of their mother. It was claimed that the applicant had been left alone in Pakistan in an extremely vulnerable position without any family members to support her. Issue was taken with what was said to be an earlier Departmental decision to “accept” the children but leave the applicant behind in Pakistan. The agent also claimed that the applicant was being harassed and threatened by a male family member who sought access to land owned by her late husband that should pass to her sons.
In addition, it was claimed that the applicant’s husband had been shot and killed outside the family home in Afghanistan and that as a result the family fled to Pakistan. The migration agent claimed the killing had “deeply affected all the children in Australia”. The agent claimed that the applicant could not return to Afghanistan where she feared for her life and safety. It was contended that “[w]omen in her situation ha[d] no place in Afghanistan”, that “a woman like her” could not live in Jaghori (where her family came from) “without male family support”, and that while she “might survive” in Kabul, she “would need to beg on the streets” and that she would be:
… vulnerable to sexual attack and death because of the fact of the land still held in her husband’s name and therefore her sons are able to claim that land should they ever return. Killing the Applicant would be one way of decreasing the likelihood of the sons ever returning to make a claim.
It was also claimed that Hazaras were under attack in Quetta (where the applicant lives in Pakistan), that no woman of Hazara ethnicity could go out alone to shop and that without her children or a husband the applicant was “extremely vulnerable and in daily danger even from male family members”. Reference was made to accompanying documents.
It was submitted that the separation of the applicant from her children was having an adverse effect on her health as well as on the health of the children. The migration agent addressed the cost to the Australian community of resources spent on counselling the children. This was said to be evidenced by reports provided in support of the application.
It was reiterated that the applicant was “in an extremely vulnerable and untenable situation in Pakistan”. Reference was made to UNHCR guidelines stressing that a family should not be split, but should be processed as a unit. It was contended that there was no doubt that the applicant was a refugee who could not return to Afghanistan and that she was not safe in Pakistan. It was also pointed out that the majority of her children and grandchildren lived in Australia.
In support of the application, the applicant’s migration agent provided a number of letters of support from teachers and psychologists in Australia describing and expressing concern about the impact on the proposer and the minor children of the absence of their mother and documentation in relation to several of the applicant’s children, including a copy of the refugee claim to UNHCR made by the proposer. He was recognised as a refugee by UNHCR and granted a class XB visa.
The letters and psychological reports provided in support of the application recounted the applicant’s children’s claims, including in relation to their father’s murder outside the family home in Afghanistan in 2004. One of the letters of support (from a school counsellor) recounted a claim made by one of the applicant’s children that a paternal uncle had “added further stress to the situation as he ha[d] tried to take over the family assets by trying to marry [the visa applicant]” and that this was a cultural situation which left the applicant in great emotional difficulty, being socially isolated and stateless.
That letter also explained the manner in which the children had obtained residence in Australia. The applicant’s oldest son, who obtained a protection visa after coming to Australia by boat in 1999, was said to have unsuccessfully applied for visas for his mother, four sisters and two brothers (apparently in 2005). However in 2007 one of her children successfully lodged a spouse visa application. His three youngest siblings were included in the application as dependents. Initially his mother had also been included in this application, but it was stated that in November 2009 a caseworker had advised that although it was likely his spouse and siblings would be considered for the visa, his mother would not. He was said to have withdrawn her application.
Also included in the documents annexed to the application was a copy of the refugee claims of the proposer made to the UNHCR. The proposer was said to be of Hazara ethnicity with six sisters and three brothers. He claimed he was born in the Jaghori district of Ghazni Province in Afghanistan. The UNHCR form stated that:
…at the beginning of 2004 his father was killed by a commander of the …[indistinct] who believed him to be involved with the Nenzat and Sepah Party. The Applicant states that after his father’s murder, members of the Nasr party came to his family’s house and slapped them. Because of this mistreatment, the Applicant and his family (mother and siblings) left the Jaghori district and moved to Quetta, Pakistan three days after his father’s death.
It was recorded that the proposer claimed to fear that if he returned to Afghanistan he would be harmed on account of being Hazara and Moslem Shi’a and that because of this he would be targeted and killed by the Taliban.
The applicant’s migration agent subsequently provided further information to the Department about the position of women in Afghanistan. It was submitted that Hazaras faced a “terrible situation” in Pakistan and claimed that the situation was “intolerable” for a widow like the applicant. It was claimed that the applicant was a woman at risk and “should be considered as such even if not designated as such by UNHCR”. It was said to be “impossible to get to UNHCR in Pakistan”. The agent also provided the Department with information about a sharp increase in targeted killings of Hazaras in Quetta in Pakistan.
Notification of Refusal of the Application
By letter of 24 November 2011 a delegate of the respondent notified the applicant that her application for a Class XB visa had been refused. The letter stated that “[a]fter careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa” and that the application was refused because the applicant did not satisfy cll.200.222, 201.222, 202.222, 203.222 and 204.224 of the Migration Regulations 1994 (Cth). The delegate was not identified by name, but only by case officer position number. The letter explained that there were five visa subclasses in Class XB and that the applicant had to meet all of the primary criteria for one subclass.
It was explained that the delegate was not satisfied that the applicant met the criterion in subcl.202.222, which is as follows:
The Minister is satisfied that there are compelling reasons for giving special consideration to granting to the applicant a permanent visa, having regard to:
(a) the degree of discrimination to which the applicant is subject in the applicant’s home country; and
(b) the extent of the applicant’s connection with Australia; and
(c) whether or not there is any suitable country available, other than Australia, that can provide for the applicant settlement and protection from discrimination; and
(d) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
The delegate stated that an identical criterion applied to the other subclasses, except that references to discrimination were replaced with references to persecution and that the applicant did not meet such criteria. The letter advised that as the applicant did not meet the “compelling reasons” criterion in each of the five subclasses, the delegate had not assessed the application against the other criteria for those subclasses.
The letter continued:
It may assist you to understand this decision if I explain the context in which the ‘compelling reasons’ criteria are applied.
The assessment of the four (4) factors included in the ‘compelling reasons’ criteria is made in the context of the Government’s annual decision on the size of the Humanitarian Program, and the reality of a very large number of applicants who are subject to persecution or substantial discrimination. Australia does not have the capacity to resettle all the people who apply for a humanitarian visa.
There is no evidence that you have options for resettlement to another country. I accept that your proposer is willing to provide you with assistance with settlement services. I acknowledge your links to Australia. The claims you have presented are general and lack detail. I accept that you are a member of an ethnic minority group and as such you are subject to harassment in Afghanistan. However, due to the generalised nature of the information provided in the application, I do not accept that you have demonstrated a degree of discrimination or persecution such as to constitute a compelling reason to give ‘special consideration’ to granting you a permanent visa.
I appreciate that you wish to resettle in Australia, and I understand you will be disappointed with this decision. I assure you that I considered all the information included in your application. However, I must consider the information you have provided having regard to the four (4) factors mentioned above, including the capacity of the Australian community to provide for the permanent settlement of persons such as yourself. Having done that, I was not satisfied that there are compelling reasons for giving special consideration to granting you a permanent visa.
Extension of time
Under s.477(1) of the Migration Act 1958 (Cth) (the Act) an application for review of a migration decision must be made within 35 days of the date of the migration decision. It is not in dispute that the decision of 24 November 2011 is a migration decision.
The present application was not brought until 17 February 2012, which is outside the period of 35 days from the date of the migration decision. An extension of time is sought under s.477(2) of the Act. It is not in dispute that s.477(2)(a) of the Act has been met by the written application for an extension of time in the application filed on 17 February 2012. Hence it is necessary to determine whether it is necessary in the interests of the administration of justice to extend the time for making the application to review the decision of the delegate of the respondent.
The principles in relation to the grant of an extension of time are not in dispute (see SZNZU v Minister for Immigration & Anor [2010] FMCA 197 and SZQUQ v Minister for Immigration & Anor [2012] FMCA 672). The application for an extension of time was heard at the same time as arguments in relation to all of the substantive grounds in the application. Thus the respondent had the opportunity to address all the grounds on which the applicant seeks to rely.
A number of factors have been identified as of particular relevance in the context of s.477(2) of the Act. In SZMFJ v Minister [2009] FMCA 771 (at [44]), Nicholls FM referred to relevant circumstances as including the extent of the delay and the reason for the delay, whether there was any merit in the application, whether there was any prejudice to the respondent, the impact on the applicant, the interests of the public at large as well as the court’s discretion itself. It is necessary to have regard to all of the relevant circumstances. In a case such as the present, of most significance are the reasons for not applying within the 35 day time limit and whether the application has any prospect of success (see Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591 at [35] per Stone J and SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] per Smith FM.)
The applicant submitted that it was necessary in the interests of the administration of justice that the time for making the application be extended because an explanation for the delay had been provided and there were substantial grounds for contending that the decision of the respondent was affected by jurisdictional error. In addition, it was submitted that the consequences for the applicant would be severe should the extension of time not be granted. It was said that no real prejudice would be suffered by the respondent if the application were to be considered and that the court’s general discretion to extend the time should be exercised.
The respondent opposed the application for an extension of time on the basis that the grounds of review did not have reasonable prospects of success, the delay was not for an insubstantial period and the applicant’s reasons for the delay were not compelling.
The delay in commencing these proceedings was approximately seven weeks after the date by which the application should have been filed. The delegate’s decision was sent to the applicant’s then migration agent under cover of a letter dated 24 November 2011. In an affidavit affirmed on 17 February 2012, the applicant’s son and proposer claimed that he did not find out about the visa application refusal until December 2011. His unchallenged evidence is that he sought a letter of support from a Member of Parliament on 7 December 2011. When he subsequently received the letter of support he noticed it was incorrectly addressed. He called the MP’s office. The proposer claimed that the MP called him back and asked why he had asked him for a letter of support as his mother’s application had been refused. The proposer’s evidence is that at that time he did not know that the application had been refused. His brother contacted the migration agent who sent a copy of the decision to him about two days later. The proposer claimed that it was not until late December 2011 that they knew that there was a right to seek judicial review of the decision. On 9 January 2012 a copy of the file was sought from the Department under the Freedom of Information Act 1982 (Cth). This was received on 10 February 2012. On that day the applicant’s lawyers were instructed to act and to seek judicial review. The application was filed on 17 February 2012. The applicant submitted that these circumstances demonstrated that the applicant had acted in a timely manner.
In written submissions the respondent contended that the delay was not insubstantial and that the reasons for the delay were not compelling. It was submitted that ignorance of one’s review rights was not an adequate explanation for delay and pointed out that, had a judicial review application been filed in late December 2011, the application would have complied with the time limit in s.477(1) of the Act.
The letter notifying the applicant (who is in Pakistan) of the refusal of the visa application was sent to her migration agent as a person authorised to receive correspondence on behalf of the applicant and her proposer. The letter advised that the applicant had not been sent a copy of the letter. It stated that there was no merits review. It did not advise that there was any judicial review right. The proposer’s unchallenged evidence, which I accept, is that he did not find out about the refusal until informed about it approximately two days after 7 December 2012. While it is the case that this evidence relates to the proposer rather than the applicant in Pakistan, on balance I am satisfied that an adequate explanation has been provided for the delay prior to that time.
I also accept that the proposer did not become aware of the right to seek judicial review until late December 2012, although his explanation in this respect is somewhat lacking in detail. While there is no suggestion that there was any obligation on the delegate to notify the applicant of the availability of judicial review rights, the absence of any information from the Department in that respect is part of all the circumstances to be taken into account in considering whether there is an adequate explanation for the delay. It is also relevant to have regard to the time of year at which the delay occurred, the fact that an application for a copy of the file was made early in the new year and the timely institution of proceedings after the file was obtained. It was not unreasonable for the applicant to seek a copy of the file (particularly as the delegate was not required to give reasons, as discussed further below).
Having regard to the length of the delay, the time at which it occurred and the circumstances in which the delay occurred (including the time taken to obtain a copy of the file), I am satisfied that in this particular case there has been an adequate explanation for the delay. In that respect I bear in mind that, as discussed below, the grounds relied on by the applicant cannot be said not to be arguable. The strength of the applicant’s case is a matter to be balanced against any inadequacy in the explanation for delay (SZJYR v Minister for Immigration and Citizenship [2010] FCA 135 at [3]).
The grounds in the application of 17 February 2012 are, in essence, that the delegate failed to determine a clearly articulated claim made by the applicant or failed to take into account information provided in support of the application, failed to accord the applicant procedural fairness or made the decision in the absence of probative evidence or that the decision was so unreasonable as to be infected with jurisdictional error. Each ground is particularised. The parties made detailed written and oral submissions.
Senior counsel for the respondent contended that there was not sufficient merit in the application to justify the grant of an extension of time. I am satisfied that the grounds relied on by the applicant (discussed further below) are of sufficient merit to warrant an extension of time having regard to all the circumstances, including the explanation for the delay, the severe consequences for the applicant should the application be refused, the absence of prejudice to the respondent and the fact that if the application for an extension of time were to be refused, there would be no possibility of any appeal rights in relation to the decision of this court. In the particular circumstances of this case I am satisfied that it is necessary in the interests of the administration of justice to grant an extension of time under s.477 of the Act up to and including the date on which the application was filed. However, for the reasons given below, I am of the view that none of the grounds relied on by the applicant are made out and that the application should be dismissed on that basis.
Whether delegate failed to address a claim made by the applicant
The first ground in the application is as follows:
The delegate failed to determine a clearly articulated claim made by the Applicant
Particulars
(i). The delegate failed to determine the Applicant’s claim that she faced discrimination and or persecution in Afghanistan and in Pakistan on the basis of being a widowed, single female of Hazara ethnicity, without male protection, and who is being threatened and harassed by a male member of her extended family.
The applicant submitted that the delegate did not determine the applicant’s claim in the way it was put. This submission was made on the basis that the delegate’s decision and the reasons for decision were to be found in the part of an electronic Departmental file described as a Migration Record Case Dump headed “Case Notes”.
The applicant submitted that the notification letter of 24 January 2011 was not the delegate’s reasons for decision, but merely an attempt to summarise the decision, and that the reasons were given, notwithstanding that the delegate did not have an obligation to do so, in the material appearing in the Case Notes (see Singh v Minister for Immigration [2012] FMCA 497). It was submitted that such reasons only addressed the applicant’s claim as an Hazara and that there was no intellectual engagement with the remaining aspects of her claims separately or cumulatively or with the evidence provided.
It was acknowledged that a decision-maker who gave reasons, whether or not he or she had to do so, did not have to set out a finding on every point made or on every piece of evidence tendered, provided the findings subsumed such aspects of the claim. However the applicant contended that in this case the delegate had not addressed the complexities of the claim as put by the applicant, but rather had treated it in a superficial way as a claim that she was a member of an ethnic minority group and as such subject to harassment in Afghanistan.
It was submitted that it was apparent from the visa application and the accompanying documents that the applicant claimed not only to be a woman of Hazara ethnicity, but also that she was a Shia who was widowed, that her husband had been shot outside the family home and that as a result she and her family had fled to Pakistan. Reference was made to the fact that the applicant’s son, the proposer for the visa, had been recognised as a refugee. It was said to be clear that the applicant claimed that she was being harassed and threatened by a male family member so that he could get access to land owned by her deceased husband and that she feared harm or mistreatment from her deceased’s husband’s family who wanted the land. She was also said to have claimed that she could not live alone in Afghanistan without male support and that she feared harm or mistreatment from the people who killed her husband, from the Taliban and also from the “local people” who were jealous and who believed that her family overseas was rich. Reference was made to various articles provided in support of the visa application in relation to the persecution of women in Afghanistan and Pakistan.
It was submitted that the “reasons” as they appeared in the Case Notes were not at such a level of generality that they subsumed all of the applicant’s claims that were not expressly mentioned and that being a member of an ethnic minority group was but a small part of her claim. Notwithstanding the manner in which this ground is pleaded, issue appeared to be taken with the alleged failure of the delegate to refer to the detail of every claim made in the visa application, in the agent’s letter and as could be said to arise on material annexed to the agent’s submission. In particular, it was submitted that in the assessment of the proposer’s refugee claims in the Case Notes, there was no detailed reference to the circumstances in which the applicant’s husband (the proposer’s father) was murdered and by whom, or to the consequential departure of the family for Pakistan. This was said to be a very specific and detailed claim reflected in the migration agent’s submission that as a result of the murder the family had fled to Pakistan and the applicant could not return to Afghanistan where she feared for her life and safety.
It was also said to be apparent that the delegate had failed to deal with the applicant’s claim to be a female who could not live alone without male support and her claim to fear harm, not only from the Taliban, but also from the community at large because of their perception that her family was rich. This was said to be a specific claim made by a person whose husband had been a landowner. A further part of the claim was said to be that the deceased husband’s brother was trying to gain access to that land and the applicant, according to her agent’s submission, feared she would be murdered to discourage her sons from claiming their rightful inheritance. The applicant submitted that the delegate did not address this claim.
Reference was also made to the fact that independent country information provided to the delegate in support of the application addressed issues other than ethnicity, in particular the applicant’s claims to be a Shia and to face a forced marriage or other persecution as a woman.
It was submitted that the delegate had failed to deal with a substantial, clearly articulated argument arising on established facts in the sense considered by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [23] – [33].
The respondent contended first that in the absence of a duty to provide reasons the court could not infer that what was in the letter of 24 November 2011 or the Case Notes constituted a comprehensive statement of the issues considered by the delegate (cf Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 in relation to the obligation of the Refugee Review Tribunal under s.430 of the Act).
It was submitted that in these circumstances the court should not infer from the notification letter and the Case Notes that the delegate failed to consider the applicant’s claims (Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 at [9] – [10], Vishnumolakala v Minister for Immigration and Multicultural Affairs (No 2) [2007] FCA 594 at [3] and SZMNF & Ors v Minister for Immigration [2008] FMCA 983 at [43]), that there may be reasons supporting the delegate’s decision which he or she did not state (Hu v Minister for Immigration & Multicultural Affairs [2004] FCAFC 63 at [13] and [18]), and that the court could not infer from an absence of reasons that the delegate had no good reason for the decision (Vishnumolakala at [13]). In any event it was submitted that the delegate did not fail to consider and determine the applicant’s claims.
It is not in dispute that the delegate was not obliged to give written reasons for the decision. Section 66 of the Act is relevantly as follows:
(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.
Where, as in this case, the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, the notification must specify that criterion. However it is not in dispute that s.66(3) applied. The applicant had no right to have the delegate’s decision reviewed under Part 5 or Part 7 of the Act and s.66(3)(a) of the Act was applicable. Hence the Minister’s obligation was limited to an obligation to notify the applicant of the decision in accordance with s.66(1) and 66(2)(a) and (b). The Minister was not obliged to give written reasons why the criterion was not satisfied (see Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25 at [3] and see s.66(2)(c)).
As Smith FM stated in SZMNF (at [43] – [44]):
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])…
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.
Hence it is relevant to have regard to what evidence there is before the court concerning how the decision was made (as discussed by Smith FM in SZMNF at [44] – [45]). As the Full Court of the Federal Court stated in Rashid (at [16] – [17]):
On judicial review the court may receive evidence and enquire into what were in fact the reasons for the impugned administrative decision: Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26; (1940) 78 CLR 353 at 369, The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1980) 151 CLR 170 at 253, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176. This is so whether or not the decision-maker is legally obliged to give reasons. There may well not be such an obligation; there is no inherent legal requirement for an administrative decision-maker to give reasons: Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656. Or the relevant statute may deny or, as is the case here, limit any such obligation. But if evidence founds a conclusion as to what in fact were the reasons, despite the decision-maker being under no obligation to provide them, those reasons could be relevant to judicial review, to the extent that review is permitted (as for example in the present case where review is limited to jurisdictional error).
Whether or not a particular document records what in fact were the decision-maker’s reasons for the decision is a question of fact: Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7; (2003) 196 ALR 332 at [56]. Commonly in administrative organisations there will be internal documents such as memoranda, briefing notes, aides-memoire and the like recording advice to the decision-maker or documents recording the decision-maker’s own preliminary thoughts or working notes. Such documents will not necessarily record why the decision-maker made the decision, that is to say the mental process by which he or she actually reached the decision in question.
The respondent conceded that the material in the notification letter and the Case Notes may reveal matters that were considered by the delegate that may be aspects of reasoning, but submitted that it should not be inferred that this material amounted to comprehensive reasons such that inferences could be drawn that other matters were not considered based on what was not contained in such material. It was also pointed out that in the notification letter the delegate had stated that she had given careful consideration to all the information provided.
In this case the material before the court includes the notification letter of 24 November 2011 described above and also the electronic Departmental file and Case Notes, which includes a comprehensive statement of issues relevant to the visa application.
The Departmental file records the same officer’s name (Cassie) in relation to the Case Notes, the sending of the refusal letter and the entry of the decision. There is no suggestion that the Case Notes were not prepared by the decision-maker (cf Rashid at [19]).
The Departmental file also records various steps taken in processing the application, including the sending of an acknowledgement letter to the applicant’s migration agent on 7 September 2011, an attempt to contact the applicant on 26 October 2011, and a conversation recorded on 28 October 2011 in which the Departmental officer informed the migration agent that while the application had been lodged under what was described as the “split family provisions”, as the proposer was over 18 years of age it would not be assessed under those provisions. The notes recorded that it was suggested that if the agent wished the application to be assessed as a split family case she could lodge another application with the proposer’s 14 year old sister as the proposer. However a notation of 23 November 2011 records that it appeared that the applicant did not have any family members who could propose her under the split family provisions and that the officer had spoken to the migration agent who understood that the application would “be assessed as a normal Special Humanitarian Program visa application”.
The Case Notes record that the refusal letter was sent to the migration agent only, set out details of the visa application and state that there was no special priority such as split family or medical issues.
The Case Notes set out the details of the applicant, who (relevantly) was described as a 52 year old widowed, female, Afghan, Hazara, Shia Muslim who had been in Pakistan since 27 January 2004. Under the heading “Family or other links to Australia” the Case Notes record the applicant’s family composition, including the fact that six of her 10 children were in Australia, and that she had not registered with UNHCR. The Case Notes state that the proposer was the applicant’s son born in 1990 and that she had three granddaughters and one grandson as “other links to Australia”. A previous refusal file number was noted, but it was stated that no related files had been located.
Under the heading “Summary of applicant’s claims” the Case Notes recorded that the applicant’s migration agent had complained that “[a] DIAC case officer overseas made a decision to accept the children of the applicant and grant them visas but to leave the applicant behind in Pakistan alone”. However the Case Notes stated that the 2007 file for the applicant’s children’s visa application recorded that the applicant was “happy for her children to travel to Australia”, that she had declared that she had “relinquished parental responsibility for the three children”, that the “SP” (presumably a reference to the sponsor) was their guardian and that the applicant had no objection to “SP” taking the children to Australia. It appears that this is a reference to the circumstances in which one of the applicant’s adult male children sponsored his wife and three of his siblings as described above.
The Case Notes also record the migration agent’s claims that:
The applicant’s children in Australia are unable to concentrate and have developed severe psychological, mental and emotional problems.
The applicant’s son … left his employment in order to care for his siblings.
The applicant is alone in Pakistan without any family members to support her.
The applicant is being harassed by a male family member over land owned by her late husband that should be given to her sons.
The applicant’s husband was shot outside the family home.
The applicant is unable to return to Afghanistan as she fears for her life and safety.
The applicant deals with the distress of hearing her children on the phone who cry to her.
The migration agent also believes the applicant is a woman at risk.
The Case Notes referred to and summarised supporting documentation, in particular the letter of support from a counsellor about the depressed, stressed and anxious state of the proposer; the letter from a psychologist stating that the proposer was concerned about his mother’s wellbeing and was anxious and depressed; the letter from a head schoolteacher stating that the applicant’s 13 year old daughter had gone from being a normal 13 year old to an anxious and unhappy individual; and the letter from a counsellor at the same school stating that two of the applicant’s children were sad and unhappy and that it was affecting them psychologically and academically. In addition, the Case Notes referred to a letter from STARTTS stating that a psychologist had been seeing the proposer who had feelings of guilt, flashbacks, nightmares, anxiety and other issues.
Reference was also made to “[e]vidence provided” consisting of certain country information including news articles about women in Afghanistan, Hazaras, women and the Taliban and the applicant’s son’s UNHCR mandate.
Under the heading “Refugee and Humanitarian (Class XB) visa” the Case Notes described the subclasses of visa within Class XB. It was stated: “I am required to assess the applicants against all of the subclasses”. The Case Notes recorded that the applicant had been proposed by her son who was the holder of a subclass 200 visa and continued, “I have therefore considered the applicant first against the immediate family provisions of subclass 202”. The Case Notes contain discussion of this criterion and the meaning of “member of the immediate family” under the Migration Regulations and state that, as the proposer was over the age of 18, the “applicant, his mother, is therefore not a member of the immediate family of the proposer at the time of decision” and therefore that she “does not meet clause 201.221 as they do not continue to meet the immediate family provision at 202.211(2)”. It appears that the reference to cl.201.221 is a typographical error and should be a reference to cl.202.221.
Under the heading “compelling reasons” the compelling reasons criterion in each applicable subclass is listed. The Case Notes state that “[f]or all Class XB visa subclasses, it is a requirement that there be compelling reasons for giving describe that there be compelling reasons for giving special consideration to granting the applicant a visa, having regard to” the four factors in each of these provisions which are set out (see [17] above). In this part of the Case Notes a distinction is drawn between subclass 202, which refers to the degree of “discrimination”, and the other subclasses which refer to the degree of “persecution” to which the applicant is subject in his or her home country.
The Case Notes then state “I have considered the supporting material provided with the visa application” and go on to address the four factors specified in each compelling reasons criterion.
Under the heading “Degree of persecution or discrimination” the writer of the Case Notes acknowledged that ethnic minorities such as Hazaras were “vulnerable in the absence of law and order in Afghanistan and that the applicant is subject to a degree of discrimination/persecution in [her] home country”. The applicant’s claims that she was being harassed by a male relative over a piece of land she wanted to hand down to her sons and that she stated her husband had been shot dead were recorded. The Case Notes further state that, “[i]t appears that the harassment the applicant is receiving is due to a dispute over a piece of land” and that her “claims of being lonely and a woman at risk are of a generalised nature”.
Under the heading “Connection with Australia” the writer acknowledged that the applicant had “strong links to Australia”.
Under the heading “Other suitable country” the writer acknowledged the absence of evidence that the applicant had options for resettlement in another country.
Under the heading “Settlement” the writer referred to the indication of support from the proposer who had agreed to pay the applicant’s airfares and provide her with accommodation on arrival and assistance with resettlement.
Under the heading “Compelling reasons assessment” and the subheading “Analysis of 4 Factors – compelling reasons” the writer stated:
The assessment of the four (4) factors included in the ‘compelling reasons’ criteria is made in the context of the Government’s annual decision on the size of the Humanitarian Program, and the reality of a very large number of applicants who are subject to persecution or substantial discrimination. Australia does not have the capacity to resettle all the people who apply for a humanitarian visa.
There is no evidence that the applicant has options for resettlement to another country. I accept that the proposer is willing to provide assistance with settlement services for the applicant. I acknowledge the applicant’s links to Australia. The claims presented by the applicant are general and lack detail. I accept the applicant is a member of an ethnic minority group and as such is subject to harassment in Afghanistan. However, due to the generalised nature of the information provided in the application, I do not accept that the applicant has demonstrated a degree of discrimination or persecution such as to constitute a compelling reason to give ‘special consideration’ to granting her a permanent visa.
Weighing these factors together I am not satisfied that there are compelling reasons for giving special consideration to granting the applicant (or any dependants) a class XB visa.
Finally under the heading “Refusal” the Case Notes state:
As stated above I find that the applicants do not satisfy subclauses 200.222, 201.222, 202.222, 203.222, 204.224. I have not assessed the remaining criteria. No applicant satisfied all of the primary criteria in any subclass of the Refugee and Humanitarian Class (XB) visa. Therefore the applications are refused.
While it is not in dispute that the delegate was not legally obliged to give written reasons or to explain why the criterion in issue was not satisfied, in this case the Case Notes adopt the format and language of reasons and address the mandatory factors contained in the compelling reasons criterion in issue. Unlike working or other internal documents, which may not necessarily record why the decision-maker made the decision, in this case it can be inferred that the Case Notes do provide some record of “the mental process” by which the delegate reached the decision that the applicant did not satisfy the compelling reasons criterion in each of the subclasses of the Class XB visa (see Rashid at [16] – [17]). The Case Notes address the delegate’s “considerations and assessment and decision” (see Asghar v Minister for Immigration [2012] FMCA 256 at [6] per Lindsay FM). The respondent does not dispute that the Case Notes emanated from the person who made the decision (cf Rashid at [18] – [19]).
The Case Notes address the criterion specified in the notification letter as the criterion not met by the applicant and the reasons why such criterion was not satisfied. However while the notification letter stated that as the applicant did not meet the compelling reasons criterion in each of the five subclasses the delegate did not asses the application against the other criteria in those subclasses, the Case Notes also stated that the applicant did not meet the immediate family provisions of Subclass 202 (because the proposer was over 18 at the time of the decision). Given the distinction between the criteria addressed in the Case Notes and in the notification letter it cannot be inferred that the Case Notes constitute a statement of the reasons for decision. Rather, akin to the situation considered in Rashid (at [20]), it can be inferred that at the time of preparation of the Case Notes the delegate had in mind two possible reasons why the applicant failed to meet the criteria for a Subclass 202 visa, but by the time of the notification letter had decided that non-satisfaction of the compelling reasons criterion in subcl.202.222 was the only reason in respect of that subclass (as well as in respect of the other four subclasses).
This distinction highlights the caution necessary in drawing any inference that a document such as the Case Notes can be regarded as a complete, comprehensive and accurate statement of the reasons for decision. Further, as Smith FM pointed out in SZMNF (at [43] – [44]) s.66(3) of the Act does not preclude the drawing of inferences from the evidence as to how the decision was made, but it may make it difficult for inferences of inadequate consideration to be drawn. In the absence of a duty to provide reasons, an inference that the decision-maker did or did not do some act in the course of decision-making should not be drawn lightly (see SZGUR at [70]).
I am of the view that the notification letter and the Case Notes together reveal matters that were considered and provide some record of the mental process of the delegate. However the Case Notes are not such that it can be inferred that any matters not expressly mentioned therein were not considered by the delegate (see SZGUR and Vishnumolaka), given the context, the claims made and the fact that the delegate stated in the notification letter that she “considered all the information included in [the applicant’s] application” and in the Case Notes that she had considered the supporting material provide. There is not a sufficient factual basis to find that the delegate did not consider all the applicant’s claims, insofar as it was necessary for the delegate to do so in the context of the criterion in issue.
In particular, it has not been established that the delegate failed to consider and determine all the integers of the applicant’s claims, insofar as it was necessary to do so in the context of considering the criteria for a Class XB visa. Not only did the delegate state in the notification letter that she had carefully considered all of the information included in the application, but also that she was not satisfied there were compelling reasons for giving special consideration to granting a Class XB visa to the applicant as her claims were “general and lack[ed] detail”.
In considering whether the delegate failed to determine a substantial, clearly articulated claim relying upon established facts in the sense considered in Dranichnikov it is important to bear in mind the context. Relevantly, in considering the compelling reasons criterion the decision-maker was not determining whether the applicant had a well-founded fear of persecution for a Convention reason, as would be the case in relation to a protection visa application. Rather, one of the factors to which the decision-maker was required to have regard in determining whether he or she was satisfied that there were compelling reasons for giving special consideration to granting the applicant a permanent visa under subcl.202.222 was “the degree of discrimination to which the applicant is subject in the applicant’s home country” (emphasis added). The equivalent criterion for other subclasses required the delegate to have regard to “the degree of persecution to which the applicant is subject in the applicant’s home country” (emphasis added), which in the applicant’s case was Afghanistan (not Pakistan, where she had been living since 2004).
The matters in paragraphs (a) to (d) of subcl.202.222 (and in the equivalent subclauses in the other relevant subclasses) are not independent visa criteria, but rather are matters to which regard must be had in the determination of whether or not there are compelling reasons for giving special consideration to granting an applicant a permanent visa.
The claims made on the applicant’s behalf by her migration agent and in her visa application were fairly characterised by the delegate as being general and lacking in detail (and hence not such as to establish a “degree” of discrimination or persecution such as to constitute a compelling reason to give special consideration to granting her a permanent visa). In her visa application the applicant claimed to fear she would be seriously abused and/or killed. While she referred to “accompanying details”, there was no accompanying statement, other than that of the applicant’s agent. She claimed to fear possible harm or mistreatment consisting of serious abuse or being killed (in Afghanistan) by the people who killed her husband, the Taliban, the local people who were said to be jealous and to believe her family overseas was rich and her deceased husband’s family “who want the land”. She did not elaborate on these claims. Her migration agent raised a number of issues and concerns. Several of those related to the applicant’s situation in Pakistan (as a Hazara and a single woman), including concerns about male family members. The agent’s submissions about the applicant’s husband’s death referred primarily to the impact on the children. The agent also referred to the accompanying letters of support in relation to the impact on the children. There was no basis provided for a present fear of harm from the people who had killed the applicant’s husband in 2004.
Moreover, even if the Case Notes were to be regarded as a comprehensive statement of the delegate’s reasons or as an indication of the delegate’s reasoning in relation to the compelling reasons criterion, the Case Notes recognised that the applicant was a widowed, female Afghani Hazara Shia Muslim who had been in Pakistan since 2004. The delegate referred to the applicant’s claims and, importantly, stated that she had considered the supporting material provided with the visa application. Such material included the submission from the applicant’s migration agent, the country information and the proposer’s UNHCR mandate. As part of the consideration of the “compelling reasons” criterion in the Case Notes, the delegate expressly acknowledged not only that ethnic minorities such as Hazaras were vulnerable in the absence of law and order in Afghanistan, but also, critically, that the applicant was subject to a degree of discrimination/persecution in Afghanistan. This clearly encompassed the various claims made in that respect. The Case Notes also referred to the applicant’s claim that she was being harassed by a male relative over a piece of land. The delegate then stated that the applicant’s claims of being lonely and a woman at risk in Pakistan and Afghanistan were of a generalised nature.
It has not been established that the delegate only considered the applicant’s claims as a member of an ethnic minority. While brief, in this part of the Case Notes the delegate referred not only to the applicant’s claimed fear as a member of an ethnic minority, but also to her claim of harassment by a relative (and its apparent connection to a dispute over land), her claim her husband was shot dead and her claim of being a woman at risk and lonely. Her other relevant characteristics were outlined.
Moreover, the delegate not only accepted the vulnerability of Hazaras in Afghanistan but also that the applicant was subject to a degree of discrimination/persecution in her home country of Afghanistan. Insofar as the applicant’s claims related to Pakistan they would not be factors that had to be considered in relation to discrimination/persecution in her “home country”.
Further, if the “analysis” in the Case Notes is to be seen as indicative of the delegate’s reasons for decision, given the reference to the applicant’s claims and the supporting material, the delegate’s finding that the applicant’s claims were “general and lacked detail” was sufficient to deal with all aspects of her specific claims to fear harm in Afghanistan. It was a finding at a higher level of generality in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (at [91]) and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (at [47]). In the context of considering “the degree of discrimination [or persecution] to which the applicant is subject in [her] home country”, the delegate’s statement in relation to claims other than those based on ethnicity that “due to the generalised nature of the information provided in the application” the delegate did not accept that the applicant had demonstrated a degree of discrimination or persecution such as to constitute a compelling reason sufficiently addressed the other aspects of her claims.
Ground one is not made out.
Whether delegate failed to take information into account
Ground two in the application is as follows:
The delegate failed to take into account the information provided in support of the visa application
Particulars
(i) The delegate found that
‘…due to the generalised nature of the information provided in the application, I do not accept that you have demonstrated a degree of discrimination or persecution such as to constitute a compelling reason to give ‘special consideration’ to granting you a permanent visa.’
(ii) In so finding, the delegate failed to take into account detailed information provided by the Applicant that she faced discrimination and or persecution in Afghanistan and in Pakistan on the basis of being a widowed, single female of Hazara ethnicity, without male protection, and who is being threatened and harassed by a male member of her extended family, and that her husband was murdered outside the family home.
The applicant submitted that the information provided in relation to the applicant’s claims was not generalised, but was very specific in nature, albeit that much of it was provided separately from and in support of the application.
In written submissions it was contended that the decision-maker had failed to undertake the active intellectual process required by law in the sense considered by the Full Court of the Federal Court in Lafu v Minister for Immigration & Citizenship & Another (2009) 112 ALD 1; [2009] FCAFC 140 at ([48] – [54]) in relation to information going towards integers of the claims. This submission was put on the basis that while the delegate referred to generalised claims, there were in fact specific claims that were not given the consideration required by law.
The solicitor for the applicant conceded that the weight to be given to the material before the delegate was a matter for the delegate (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] – [13]). It was also acknowledged that it was not necessary for the delegate to refer to every item of evidence, but it was nonetheless submitted that the information before the decision-maker was not given the active intellectual engagement required.
The applicant appeared to abandon ground two in oral submissions. In any event, as contended for by the respondent, in the notification letter the delegate said that she considered all of the information in the application. In the Case Notes she summarised the migration agent’s submission, referred to the letters and other supporting information and also stated that the supporting material provided with the visa application had been considered. In the absence of an obligation to give reasons, it was not necessary for the delegate to record her findings on material issues of fact. It cannot be inferred that the delegate failed to take into account the information provided in support of the application.
Insofar as the applicant appeared to be taking issue with the merits of the delegate’s finding that the applicant’s claims were “general” and “lack[ed] detail” and suggested instead that the claims were very specific in nature, this seeks impermissible merits review.
The applicant relied upon Lafu, a case in which an inference was drawn and was available to be drawn by reference to the reasons for the decision of the Administrative Appeals Tribunal. However, as discussed above, the delegate was under no obligation to give reasons for her decision in this case. I am not satisfied that an inference can be drawn that the delegate erred in failing to undertake an active intellectual engagement. I also note the limits on reliance on the necessity for an active intellectual engagement considered by the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 85 ALJR 306; [2010] HCA 48.
Ground two is not made out.
Whether decision unreasonable
Ground three is that the delegate’s decision was so unreasonable as to be infected with jurisdictional error. The particulars to this ground are as follows:
The decision of the delegate, based on a finding that the Applicant’s information relating to discrimination and or persecution was of a generalised nature, and given the evidence before the delegate, is so unreasonable as to be infected with jurisdictional error.
Issue was taken by the applicant with the delegate’s finding that the information was of a generalised nature on the basis that it was very specific to the applicant (including the killing of her husband, her fear of the Taliban, her fear of her deceased husband’s brother, and her fear of people in the community targeting her for her family’s perceived wealth and for being a single woman).
It was also submitted that it was relevant that the delegate had found that the applicant did not have options for resettlement in another country, that her proposer was willing to provide assistance with settlement services and that she had links to Australia.
The applicant submitted that the delegate’s decision and her opinion as to her state of satisfaction was one that could not be formed by a reasonable person. It was submitted that this was not a case in which minds could differ, as the evidence was all one way in favour of the applicant meeting the requirements of subcl.202.222 so that it could be said that the decision of the delegate was so unreasonable as to be infected with jurisdictional error. In these circumstances, it was contended that there was illogicality or irrationality sufficient to give rise to jurisdictional error in the sense considered by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [129] – [130]).
However, the delegate’s finding that the applicant’s claims were general and lacked detail was open to her on the material before her (as was the conclusion that the applicant did not meet the compelling reasons criterion, having regard to the degree of discrimination or persecution established). It has not been established that the delegate’s lack of satisfaction in relation to compelling reasons within subcl.202.222 or the equivalent criteria in the other subclasses was an opinion as to a state of satisfaction that could not be formed by a reasonable person.
As pointed out above, under subcl.202.222 and the equivalent criteria in relation to the other subclasses, one of the factors to be taken into account was the degree of discrimination (or persecution) to which the applicant “is subject” in the applicant’s home country, not past discrimination or persecution (for example as the applicant complained of prior to 2004 in Afghanistan). The applicant’s claims, as set out in the migration agent’s submission and the visa application form, were expressed in what could be characterised as a somewhat generalised and undetailed form, with little detail as to existing harm or the immediate discrimination or persecution the applicant claimed she was subject to or would be subject to if she returned to Afghanistan.
In the visa application form in response to the question: “Who do you think might harm or mistreat you if you go back to that country?” the simple response of “The people who killed my husband -The Taliban, t-The local people who are jealous and who believe my family overseas are rich, -My deceased husband’s family who want the land” was provided without elaboration. The migration agent’s letter focused on the impact on the children and the applicant’s situation in Pakistan. Only very general claims were made about Afghanistan. The country information provided in support of the application dealt generally with the plight of Afghan women and discrimination and persecution suffered by Hazara people in Quetta, Pakistan. Neither that material nor the letters in support of the application gave specific details of the claims in the visa application relevant to the compelling reasons criterion. The delegate did not reject outright the applicant’s claimed fears. Rather, having regard to the four factors included in each of the compelling reasons criteria, notwithstanding the matters that were established in relation to three of these factors, the delegate did not accept that the applicant had demonstrated a sufficient degree of persecution or discrimination to satisfy her that there were compelling reasons for giving special consideration to granting a visa.
This is not a case in which there was no evidence upon which the delegate’s conclusion could be based or where reasonable minds could not differ as to whether there were compelling reasons for giving special consideration to granting the applicant a Class XB visa. Even if a different decision-maker may have reached a different decision on the material provided this is not a case in which only one conclusion was open on the evidence (see SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58 at [15], [85] and [113] in relation to SZMDS).
Ground three is not made out.
Procedural fairness
Ground four in the application was not pressed.
Ground five in the application is that the delegate failed to accord the applicant procedural fairness. The particulars to this ground assert that the delegate failed to accord the applicant procedural fairness by:
Failing to put to the Applicant, for comment, adverse information relied on by the delegate to find that the Australian community did not have the capacity to provide for the permanent settlement of persons such as the Applicant.
It was submitted that if the notification letter was taken to be the reasons for decision of the delegate, then having regard to the delegate’s statement that, “I must consider the information you have provided having regard to the four (4) factors mentioned above, including the capacity of the Australian community to provide for the permanent settlement of persons such as yourself”, if the delegate had information that was adverse in relation to the capacity of the Australian community to provide for permanent settlement of persons such as the applicant, the delegate was under an obligation to disclose any information relating to that question. The applicant submitted that there must have been some adverse information in the context of the decision and of this letter indicating that the delegate was not satisfied that the Class XB visa should be granted to the applicant, especially given the support offered by the proposer which was said to be positive in relation to the applicant settling permanently in Australia.
However, as submitted for the respondent, this ground fails for a number of reasons. First, it fails at a factual level because the delegate did not make a finding that the Australian community did not have the capacity to provide for the permanent settlement of persons such as the applicant. Rather, in the notification letter the delegate explained the context in which the compelling reasons criterion was applied and accepted that the applicant’s proposer was willing to provide her with assistance and settlement services and that there was no evidence that she had options for resettlement to another country.
The delegate set out the gist of the Departmental policy in PAM3 “GenGuide D – Humanitarian visas” before finding that due to the generalised nature of the information provided, she did not accept that the applicant had demonstrated a degree of discrimination or persecution such as to constitute a compelling reason to give special consideration to granting her a permanent visa.
The contextual observations of the delegate about the capacity of the Australian community to provide for permanent resettlement of persons such as the applicant were not adverse to the applicant insofar as the delegate accepted that the proposer was willing to provide her assistance with settlement services. They did not have to be put to the applicant for comment.
I note that if the Case Notes were to be seen as indicative of the delegate’s reasons, similarly in that context the material considered in relation to the “settlement” factor in paragraph (d) of the each of the compelling reasons criteria was positive and only referred to the availability of proposer support.
The delegate did state that the assessment of the four factors was made in context. However, even if the reference to the government’s annual decision on the size of the humanitarian program, the reality of a very large number of applicants subject to persecution or substantial discrimination and the fact that Australia does not have the capacity to resettle all the people who apply for humanitarian visas could be seen as something more than an explanation of context, it was simply a summary of policy in PAM3 in relation to humanitarian visas.
As the respondent submitted, the requirements of procedural fairness vary according to the circumstances of each case (see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 and Kioa and Others v Westand Another (1985) 159 CLR 550; [1985] HCA 81). It is not the case that all material received from another source has to be put to an applicant for comment as an incident of procedural fairness. Relevantly, it has been held that material in the nature of an extract from policy may not have to be put to an applicant for comment. In Kioa v West Mason J (at 588) suggested that “material consisting of policy, comment and undisputed statements of fact” is not material that calls for an opportunity to respond (and see Aronson & Dyer, Judicial Review of Administrative Action, 4th edition, pp.568 – 569). Material that was just a summary of policy of the nature in issue in this case is quite distinct from material such as general or specific country information adverse to the applicant’s claims. In this case, such general policy information did not have to be put to the applicant for comment as an incident of procedural fairness.
It has not been established that there was any adverse information relating to the capacity of the Australian community to provide for permanent settlement of persons such as the applicant that the delegate knew of and considered may bear upon whether to accept the applicant’s claims in that respect such that it had to be put to the applicant for comment. This makes it unnecessary to consider the respondent’s contention that in the absence of evidence to the contrary, it can be inferred that the applicant’s migration agent had access to PAM3, was on notice that it was relevant to the applicant’s application and hence that the applicant had an opportunity to respond to any material contained therein.
Ground five is not made out.
Whether absence of probative evidence
Ground six in the application is that the delegate made the decision in the absence of probative evidence. This ground was relied on as an alternative to ground five. The particulars are that:
[T]he delegate did not rely on probative evidence in relation to its finding that the Australian community did not have the capacity to provide for the permanent settlement of persons such as the applicant.
The applicant submitted that there was no information in the documentation in the Court Book relied on by the delegate in addressing subcl.202.222(d) or any reference to information in the electronic Departmental file, Case Notes or the notifying letter that allowed the delegate to make that determination. Hence it was submitted that it could reasonably be concluded that the delegate’s decision was made in the absence of probative evidence relating to the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia. This was said to constitute jurisdictional error in the sense considered in SZMDS (at [103] and [129] – [131]).
However, as indicated, the delegate made no such finding. Rather, she had regard to this factor together with the other three factors. In that context there was evidence of the proposer’s willingness to provide the applicant with settlement services.
To the extent that the applicant’s contention is that the court should draw an inference that there was no probative evidence supporting the delegate’s decision from the absence of a reference in the notification letter and the Case Notes to particular material upon which the delegate relied in considering factor (d) of the compelling reasons criterion, as set out above the delegate was under no obligation to give reasons. Furthermore, even in situations where decision-makers are under an obligation to give reasons, there is no obligation to refer in a statement of reasons to every item of evidence before the decision-maker (WAEE at [46] and NAHI at [14]).
Insofar as ground six is intended to be a “no evidence” ground, it cannot be inferred that there was no consideration of the capacity issue. Reference was made in the Case Notes to the applicant’s proposer’s willingness to provide settlement assistance. This was apparently accepted, favourably to the applicant. Moreover, as pointed out by counsel for the respondent, a “no evidence” ground can only succeed if the impugned finding is a jurisdictional fact (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [39]; VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1388 at [13]; SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 at [47] and VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851 at [19]). Even if the extract from the notification letter were to be seen as a finding of fact, it would be a fact to be adjudicated upon in the course of the inquiry and not an essential preliminary to the inquiry.
Insofar as the applicant took issue with the delegate’s conclusion that she was not satisfied that there were compelling reasons for giving special consideration to granting the applicant a Class XB visa, such finding was based on the delegate’s findings that the applicant’s claims to fear persecution and/or discrimination were general and lacking in detail.
As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.
I certify that the preceding one-hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 12 December 2012
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