SZRPA v Minister for Immigration & Anor
[2012] FMCA 91
•16 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRPA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 91 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegations that the Reviewer denied the applicant procedural fairness and failed to consider a potential but unarticulated claim. |
| Constitution, s.75 Migration Amendment (Complementary Protection) Act 2011 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Alami v Minister for Immigration & Citizenship [2011] FMCA 623 Kioa v West (1985) 159 CLR 550 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 a Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 |
| Applicant: | SZRPA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JOHN GODFREY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1930 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 February 2012 |
| Date of Last Submission: | 6 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Michael Jones |
| Counsel for the First Respondent: | Mr H.P.T. Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1930 of 2011
| SZRPA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JOHN GODFREY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iraq who arrived at Christmas Island by boat on 17 July 2010. On 29 October 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). He is currently in immigration detention and, it may be presumed, has been so since he landed at Christmas Island.
On 28 April 2011 an officer in the department administered by the first respondent Minister (“Minister”) assessed the applicant as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 20 July 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He has sought a declaration that the Reviewer’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation.
The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
This proceeding was underpinned by an assumption that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
In Plaintiff M61 the High Court considered the lawfulness of keeping offshore entry persons in detention under s.196 of the Act pending decisions on their requests to be assessed to be refugees. It held that such continued detention was lawful because the Minister had made a decision to consider exercising his powers under ss.46A and 195A, meaning that Plaintiff M61 was not being detained at the pleasure of the Crown. Nevertheless, that detention was prolonged by the Minister’s decision to consider the exercise of his powers under ss.46A and 195A and the independent merits review was part of that process of consideration. Because the prolongation of the detention took place for the purpose of informing the Minister, by means of the review, of matters that were relevant to the decision whether to exercise one of those powers in favour of the claimant, the review thereby affected an interest or privilege of Plaintiff M61, namely a right to liberty. As a consequence, the High Court held that the independent merits reviewer had to afford Plaintiff M61 natural justice by conducting a review which was procedurally fair and which also correctly addressed the relevant legal question or questions.
However, the legal foundations of this proceeding are different from those of Plaintiff M61. In Plaintiff M61 the High Court’s jurisdiction arose out of s.75(iii), s.75(v) and “even, perhaps, s.75(i)” of the Constitution: at 345 [51]. Also, the High Court was concerned with why the claimant’s detention was lawful, together with the consequences for an independent merits review of the fact that it was part of the decision making process which not only validated continuing detention but also, importantly, prolonged it. By contrast this Court’s relevant jurisdiction is not conferred by the Constitution but by the Act which provides that the Court has jurisdiction to determine a migration dispute only if it involves a “migration decision”, as defined by s.5 of the Act, in respect of which the High Court has original jurisdiction pursuant to s.75(v) of the Constitution: s.476(1).
Additionally, s.474 of the Act provides that certain “migration decisions” are “privative clause decisions” and may not be reviewed by a court. Because in Plaintiff M61 the High Court was not considering a particular “migration decision” it was not necessary that it consider the privative clause provision in the Act: Plaintiff M61 at 337 [17]. However, because a migration law proceeding in this Court must identify a “migration decision” which attracts the Court’s jurisdiction, such a proceeding necessarily also involves an inquiry into whether the decision under review is a privative clause decision and, if it is, whether it is affected by jurisdictional error. It is only if jurisdictional error is identified that a privative clause decision may be set aside: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
As noted earlier, the applicant seeks an injunction against the Minister, an officer of the Commonwealth, and thus the proceeding is one over which the High Court has original jurisdiction pursuant to s.75(v) of the Constitution. Secondly, as the applicant was in detention at the time of the Reviewer’s inquiry and report, there is no doubt that the latter’s review was of the same statutory character as the ones considered in Plaintiff M61. Consequently, by virtue of s.474(3)(g) of the Act, it is considered to be a privative clause decision: Alami v Minister for Immigration & Citizenship [2011] FMCA 623 at [48]-[65]. As a privative clause decision it is also a “migration decision”. In this connection, s.5 of the Act relevantly provides:
migration decision means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non‑privative clause decision.
The Court therefore has jurisdiction to consider the applicant’s application, although for him to succeed it is necessary that he demonstrate that the review is affected by jurisdictional error.
For the reasons which follow, I conclude that he has not demonstrated jurisdictional error on the part of the Reviewer. As a result, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection are set out on pages 3-7 of those reasons. Relevant factual allegations are summarised below.
Entry interview
The applicant made the following claims during his entry interview on 18 September 2010:
a)he was born in Al Muthanna Province in Iraq and lived there until 2009 when he moved to Kerbala;
b)he left Iraq because his father became involved in a blood feud with another tribe. In 2009 his father was involved in a dispute with two men over a debt that they owed him. The two men attacked his father and hit him on the head. His father, who was armed with a pistol, shot the two men dead;
c)his father knew that the whole family was in danger from those close to the dead men and so moved the whole family to the applicant’s uncle’s farm in Kerbala;
d)one of his brothers stayed behind in Al Muthanna but was shot in the leg a short time later and also moved to Kerbala. The applicant was already in Kerbala when the dispute occurred;
e)his uncle requested the local authorities in Al Muthanna to act as mediators between his father and those close to the dead men. His father had been willing to make compensation for the killings but the mediation failed and his uncle was told that the applicant’s father and his immediate family would be targets for revenge; and
f)his uncle recommended that they leave the province or Iraq. Their houses in Al Muthanna were burned down which was the final impetus for them to leave. It was difficult to organise passports as it would be necessary to return to their province and thus his uncle organised a false passport for him.
RSA application
In a statutory declaration declared on 29 October 2010 in support of his application for an RSA, the applicant made the following additional claims:
a)the men his father killed were assistants to the sheikh of those men’s tribe. The Governor of Al Muthanna and figures in the local government were also from that tribe. The whole tribe was part of the Al Badr Movement;
b)the two men stabbed his father in the head and chest. At the market on the same day his brother was shot in the leg by members of the dead men’s tribe. The applicant’s family moved to Kerbala on the night of the incident;
c)the police began looking for his father. They searched their house and set up a surveillance vehicle to monitor the house. His father was afraid to go to the police because of the connections the rival tribe had to the local government. He also feared that if he was arrested and detained the other tribe would be able to get to him and kill him;
d)about a week after the incident, the other tribe burnt down his family’s three houses because they could not find them. His family realised that the other tribe would not stop until they were revenged and so his family decided to leave Iraq. His passport was ready first and his family told him to leave; and
e)he feared being harmed by the Al Hassani tribe, the Al Badr movement and the Iraqi government. He also feared that he would be detained or killed by the Iraqi government because he left Iraq illegally on a false passport.
Proceedings before the Reviewer
In submissions dated 24 June 2011 the applicant’s advisers said that members of the Al Hassani tribe had political links with the local government. It was submitted that as the applicant’s father was from a different tribe he was deemed to have a political opinion different to that of the Al Hassani tribe and, consequently, the applicant by his familial association to his father would be deemed to have an imputed political opinion too. The submission also included country information on the situation in Iraq. It was submitted that the applicant would not be afforded protection by the authorities.
The applicant was interviewed by the Reviewer on 2 July 2011 at which point he made the following additional claims:
a)he had had no contact with his family since he left Iraq;
b)he was from the Al Hilaly tribe. The Al Hassani tribe was the biggest tribe in Al Muthanna;
c)on the day his father killed the two men, the applicant was visiting his uncle in Kerbala;
d)his uncle and the rest of the Al Hilaly tribe disassociated themselves from his father and so they were not targeted by the Al Hassani tribe;
e)the police had surrounded their house to prevent retaliation by the families of the dead men. No-one from the Al Hassani tribe had lodged a complaint with the police;
f)his family had not encountered any problems during the time he was in Kerbala because no-one had located them; and
g)the law against using false passports did not apply to those with connections. If he returned, the penalty for leaving Iraq illegally on a false passport would not be death.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:
a)the Reviewer accepted the applicant’s account of a feud between his family and a family from another tribe which began when his father killed two men and that the applicant and his family were at risk of severe harm as a result. He accepted that if the applicant returned to Iraq in the reasonably foreseeable future and if his family returned to their home town or otherwise came to the attention of those seeking revenge, the applicant and his family would be at risk of severe harm. However, the Reviewer did not find the applicant’s assertion that there was a political dimension to the feud to be credible;
b)in considering whether the fact that some members of the Al Hassani tribe were involved in politics meant that there was a political element to the threats of harm against the applicant’s family, the Reviewer accepted that the Al Hassani tribe was the largest in Al Muthanna. He accepted country information indicating that the previous Governor of Al Muthanna, who was from the Al Hassani tribe, was assassinated in 2007 and that the new Governor of Al Muthanna was not from the Al Hassani tribe. The Reviewer further referred to country information indicating that since 2008 when the Iraqi army, with coalition forces’ support, moved against the Mahdi Army and the Al Badr Movement, both groups had lost power and fragmented. He was not satisfied that the fact that elements within the Al Hassani tribe were involved in Iraqi politics and possibly with militia groups such as Al Badr which operated “frequently” in the past meant that the applicant’s family was being targeted for a political reason. The Reviewer did not accept that the Iraqi government was involved in the matter except by way of the police attempting to ensure that the dispute between the two families did not escalate. The Reviewer noted that the applicant had not made any claim that his family had been in any way active in any political or militia group;
c)the Reviewer did not find that the Al Hassani tribe as a whole, the Al Badr organisation or the Iraqi government were targeting the applicant and his family in revenge for the killing of two men by the applicant’s father. The Reviewer was satisfied that the motivation for revenge was the death of two family members by surviving members of their immediate families and for no other reason. He found that the essential and significant reason for any resulting violence was not a Convention reason;
d)the Reviewer found that the applicant did not have a well-founded fear of persecution for a Convention reason arising from the threat of revenge against his family were he to return to Iraq then or in the reasonably foreseeable future. Having made that finding, in accordance with s.91S of the Act the Reviewer disregarded any fear of persecution that the applicant or his family had experienced as it had not occurred for a Convention reason; and
e)the Reviewer found that if the applicant were to be prosecuted for using a false passport, he would be charged with violating a law which applied to all Iraqi citizens. The Reviewer was not satisfied that the applicant would be prosecuted for any other reason and found that the applicant did not have a well-founded fear of persecution for a Convention reason because he left Iraq illegally.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1.The recommendation of the Independent Merits Reviewer was affected by legal error in that the Reviewer failed to provide the Applicant procedural fairness by not putting to the Applicant country information that was determinative to the decision and adverse to the Applicant’s claims for the Applicant’s response or comment.
2.The recommendation of the Independent Merits Reviewer was affected by legal error in that the Reviewer failed to consider whether a recommendation should be made to the Minister that he exercise his power under s 195A to grant the Applicant a visa based on an interpretation of the definition of a refugee in the Refugees Convention that would not be affected by s 91S of the Act, or other broader humanitarian considerations.
Failure to provide information or to identify issue
Applicant’s submissions
The allegation that the Reviewer had failed to put country information to the applicant was particularised as follows:
The Relevant Documents at page 141 paragraph 27 record that country information was discussed with the applicant but there is no indication that the Reviewer ensured that the applicant understood why the country information was relevant and that the applicant was invited to comment on the information in the knowledge of its significance.
At para.27 of his reasons the Reviewer said:
... I put to the claimant the published information that the Governor he was referring to had been killed in 2007. I said that the Governor had been murdered because he was seen to be too close to the Americans. I added that the Governor was aligned with the Supreme Islamic Iraqi Council (SIIC) and that he was opposed by the Badr Party. The claimant disputed this saying that while he did not follow such things, and did not remember hearing of these things, his father did and his father had told him of the Al-Hassani links to the Al Badr Organisation. ...
The applicant submitted that although he was asked questions drawing on country information, and the Reviewer relied on the country information when coming to a conclusion that there was no political element to the applicant’s claim to fear persecution in the circumstances, at no time did the Reviewer ensure that he understood the relevance of that information. He submitted that his knowledge of some political matters was limited and of others nil.
The applicant also submitted that the Reviewer relied on the fact, as referred to in para.51 of his reasons, that the strength of the Al Hassani tribe and the Al Badr organisation had declined as a result of the actions of Iraqi and coalition forces. He submitted that the Reviewer did not show why this information was relevant.
The applicant submitted that the obligation to provide him with information contained an implied duty to ensure that he also understood why the information was relevant. In this regard, he referred to the comments of Mason J in Kioa v West (1985) 159 CLR 550 at 587 that the law attaches importance to the need to bring to a person’s attention a critical issue or fact on which the administrative decision is likely to turn so that he or she may have an opportunity of dealing with it.
He also submitted at the hearing of this application that the Reviewer had not explained to him the significance of s.91S and whether, as a member of his family, he could come within the definition of a person entitled to protection. He submitted that the Reviewer had not explained to him that his claim based on a particular social group depended on demonstrating that the fear arising out of the foreshadowed revenge for the murders committed by his father had a Convention nexus.
Consideration
It may be accepted that when procedural fairness requires that information be provided to a party as part of an administrative decision-making process, it should be provided in a way that is comprehensible to that party so that he or she may give further evidence or make submissions in respect of it. However, that does not mean that natural justice requires a decision-maker to ensure that the party understands why such information is relevant as s.424A of the Act, which appears to be the source of this allegation, requires in the context of Refugee Review Tribunal reviews.
A party liable to be directly affected by an administrative decision to which the rules of procedural fairness apply is to be given the opportunity of putting information and submissions to the decision-maker in support of an outcome that supports his or her interests.
In order that that right can have substance, the party affected is to be given the opportunity of ascertaining the relevant issues, which will require the decision-maker to identify to that party any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The party affected is also entitled to be informed of the nature and content of adverse material that is credible, relevant and significant and which the decision-maker has obtained from sources other than that party, as well as of any adverse conclusion that the decision-maker has reached which would not obviously be open on the known material, and to address that new material and those unexpected conclusions by further information and submission: Kioa v West at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96-97 [140]; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 162 [32]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9].
A party provided with information by a decision-maker is assumed to appreciate whether the information is adverse to his or her case.
So much is implicit in the requirement that the decision-maker give notice of adverse conclusions only if they would not obviously be open on the known material. The implied ability to identify conclusions which are obviously open to be drawn from the known material is based on an assumption that the party can identify whether information is supportive of or adverse to his or her position. Procedural fairness does not require a decision-maker to question that assumption or to independently ensure that a party provided with information understands why it is relevant.
But in any event, if the information in question had truly been relevant, that relevance should have been plain enough to the applicant whose claim was expressed by his advisers in their written submissions to the Reviewer to be a fear of persecution based on him being imputed with a political opinion either because he was not from the Al Hassani tribe or because he was the son of a man who is not from the Al Hassani tribe.
However, the information was neither relevant nor significant. The applicant’s advisers said that he and his father were deemed to have a political opinion different from the Al Hassani tribe but this was no more than an assertion. Nothing was advanced by the applicant in this connection beyond this assertion and nothing was contained in the country information referred to by the Reviewer which suggested that the applicant or his father had any particular political opinion. The Reviewer’s consideration of the political links of the Al Hassani tribe was an acknowledgment of its power, not a reference to a political difference with the applicant or his father. Because the information in question was irrelevant to the ultimate decision concerning whether the applicant had a well-founded fear of persecution for a Convention reason, namely his imputed political opinion, procedural fairness did not require that it be put to him, much less that it be explained.
But even if I am wrong in this assessment, I am satisfied that the information in question was not adverse to the applicant’s claim. This is because information which was simply concerned with the political connections and power of the Al Hassani tribe, and not with their political positions and views, had no relevance to a claim which was based on political differences. It was not adverse to that claim.
As to the submissions concerning s.91S, it was the applicant who claimed to fear members of the Al Hassani tribe because he was the son of a man who had murdered two members of that tribe. The substance of this aspect of his claim was based on his membership of a particular social group – his immediate family. That reality was not altered by the fact that this integer of his claim was not expressly so labelled by the applicant or his advisers. The applicant himself having raised this issue, the Reviewer had no independent obligation to do so. As this was an issue of which the applicant was already aware, procedural fairness did not require the Reviewer to alert him to it.
Failure to consider all issues
Applicant’s submissions
The second allegation was to the effect that when advising in relation to the s.195A discretion the Reviewer should have considered whether that discretion could be exercised other than by reference to s.36 of the Act as affected by s.91S. This allegation was particularised as follows:
The Reviewer correctly understood that s 91S was relevant to any recommendation he might make to the Minister concerning the exercise of his power under s 46A(2) to allow the Applicant to apply for a protection visa under the Migration Act and Regulations. However, the Minister had also commenced consideration of the exercise of his power under s 195A to grant the Applicant a visa without any application. Section 91S is not relevant to that power. Having made factual findings that the Applicant would be in danger of serious harm because of his family connections, the Reviewer was bound to consider whether protection obligations flowing from an interpretation of the Refugees Convention not limited by s 91S, or alternatively other international instruments, would justify a recommendation that the Minister exercise that power. The Reviewer did not consider those matters.
Section 65 of the Act relevantly provides:
65 Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) …
(iv) …;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa. …
Section 36 of the Act relevantly provides:
36 Protection visas
(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
…
Section 91S provides:
91S Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
The applicant submitted that the considerations applicable to the discretion provided by s.195A of the Act were different from those applicable to the discretion provided by s.46A in that, although s.46A gives the Minister power to permit an applicant to lodge an application for a protection visa, s.195A gives the Minister the power to grant that person a visa of any class without them having to apply for a visa and without them having to meet the criteria of such visa as is granted.
In relation to the latter point, s.195A(3) has the effect that when deciding whether to grant a visa under s.195A, the Minister is not bound by s.65 with, it was submitted, the consequence that the power to grant a visa under s.195A is at large. It was submitted that if a visa could be granted under s.195A without reference to any visa criteria, the limitation on s.36 created by s.91S had no relevance to the exercise of the relevant discretion.
The applicant submitted that under s.195A the Minister needed only to take into account the public interest and that this was the matter which the Reviewer should have considered in the context of that section.
As an example of something which the Reviewer could have considered but did not, the applicant pointed to the fact that Australia has protection obligations arising out of treaties other than the Convention, in particular the International Covenant on Civil and Political Rights of which aspects are shortly to be adopted into Australian domestic law by the Migration Amendment (Complementary Protection) Act 2011.
The applicant submitted that the Reviewer erred because he failed to give any consideration to recommending that the Minister exercise his discretion under s.195A regardless of whether the criteria for the grant of a protection visa had been satisfied. He submitted that the Reviewer should have considered Australia’s other treaty obligations when considering whether to recommend to the Minister that he exercise his unfettered power under s.195A and should have considered making a recommendation to the Minister to exercise his powers under s.195A regardless of the terms of the Convention and ss.36 and 91S.
Consideration
It should be observed that when considering whether the independent merits reviewers’ reasons in Plaintiff M61 revealed that the relevant tests had not been correctly applied, the High Court focussed on s.46A. Having found that the reviewers’ reasons revealed error of that sort in relation to s.46A, it was not necessary for the court to consider whether they also revealed similar error in relation to s.195A:
Whether another, different, question about the application of the Refugees Convention (as amended) according to some understanding of the Convention different from that adopted in Australian legislation and case law could be relevant to the issues presented by the possible application of s 195A need not be considered. (at 356 [89])
Consequently, Plaintiff M61 provides no express guidance on the issue presented by the applicant’s second allegation.
But even if it did, the applicant did not suggest that he had submitted to the Reviewer that his claims were other than for protection in accordance with Australia’s protection obligations under the Convention, impliedly as adopted into Australian domestic law by the Act. In this connection, it is useful to quote what the High Court said in Plaintiff M61 about the claims the subject of those proceedings:
One of the powers whose exercise was being considered was the power to lift the bar under s 46A and permit the plaintiff to make a valid application for a protection visa. Exercise of that power on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia. …
Although expressed generally – as whether Australia owed the plaintiff protection obligations – the fundamental question to which the assessment and review processes were directed had to be understood as whether the criterion stated in s 36(2), as a criterion for grant of a protection visa, was met. Necessarily, that question had to be understood by reference to other relevant provisions of the Migration Act, and the decided cases that bear upon those provisions. … (at 356 [88], [89])
The circumstances of this claim are relevantly no different. Consequently, if the applicant had wanted the Reviewer to consider that he was entitled to protection by reference to treaties other than the Convention or by the application of tests other than the Convention tests as adopted into Australian law, then he should have said so. However, a consideration of the applicant’s claims and what his advisers said in their written submissions to the Reviewer dated 24 June 2011 does not disclose that he did.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at 20 [62], the Full Court of the Federal Court referred to what Gleeson CJ had said in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 479 [1] in the context of the Refugee Review Tribunal:
Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
Further, in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 Allsop J said at [15]:
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
In the absence of unusually compelling reasons to conclude otherwise, where a claimant is professionally represented, as was the case here, it must be assumed that the claims which the claimant wished to make before an independent merits reviewer were the ones expressly articulated by him and his advisers and that none were left to be inferred. An unrepresented claimant may not know how to articulate a claim and thus some latitude is allowed if a claim is plainly available on the material but has not been expressly advanced. Represented claimants are in a different position and if they have not pursued an issue, then that is their election. In the circumstances, the Reviewer did not err by not considering a claim which had not been made.
Conclusion
Jurisdictional error on the part of the Reviewer has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 16 February 2012
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