Velmir, Zeljana v Minister for Immigration and Multicultural Affairs

[1998] FCA 882

FEDERAL COURT OF AUSTRALIA

MIGRATION – whether case notes of decision making process form part of reasoning of the decision maker – meaning of “particular fact” in s 476(4)(b) – whether s 56 imposes duty on Minister to seek further information – whether failure to comply with s 66(2)(a) is a ground of review under s 476(1)(a).

Migration Act 1958 (Cth), ss 31(1), 31(3), 31(5), 56, 66(2)(a), 476(1)(a), 476(1)(e), 476(1)(g), 476(2), 476(4)(b)

Adams v Minister for Immigration and Multicultural Affairs (1998) 48 ALD 280, cited
Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193, cited
Queen v Secretary of State for the Home Department; Ex parte Fayed [1997] 1 All ER 228, distinguished
Tam Anh Bui v Minister for Immigration and Multicultural Affairs (Mansfield J, 9 April 1998, unreported), followed
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490, cited

ZELJANA VELMIR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 188 of 1998

EMMETT J
SYDNEY
9 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 188 of 1998

BETWEEN:	ZELJANA VELMIR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	9 JULY 1998
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 188 of 1998

BETWEEN:	ZELJANA VELMIR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	9 JULY 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   Zeljana Velmir (“the Applicant”) applied for a permanent visa under the Migration Act 1958 (Cth) (“the Act”) on refugee or humanitarian grounds. The application was for a visa in subclass 202 entitled Global Special Humanitarian Visa. On 27 January 1998 the application was refused by an officer of the Migration Office in the Australian Embassy in Vienna. The Applicant has now brought proceedings in this Court for a review of the decision to refuse to grant the visa.

It is common ground that the decision is a “judicially reviewable decision” within the meaning of section 475(1) of the Act. The only grounds for review of such a decision are those specified in section 476(1) of the Act. Three of those grounds are relied upon as follows:

(a)that procedures that were required by the Act to be observed in connection with the making of the decision were not observed;

(e)the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law; or

(g)there was no evidence or other material to justify the making of the decision.

I shall deal with each of the grounds separately.

ERROR OF LAW

In order to comprehend this ground it is necessary to have regard to parts of the legislative scheme relating to the grant of visas. 

Section 31(1) provides that classes of visas are to be prescribed. Regulation 2.01 provides as follows:

For the purposes of section 31 the prescribed classes of visas are such classes (other than those created by the Act) as are set out in the respective items in Schedule 1.

Section 31(3) provides that the regulation may prescribe criteria for visas of specified class. There is no definition of criteria. Under section 31(5) a visa is a visa of the particular class if the Act or the regulation specify that it is a visa of that class.

Regulation 2.03 then provides that the prescribed criteria for the grant to a person of a visa of a particular class are either:

(a)    the primary criteria set out in a relevant part of Schedule 2; or

(b)   if a relevant part of Schedule 2 sets out secondary criteria, those secondary criteria.

Item 1127 in Schedule 1 relates to Refugee and Humanitarian (Migrant) visas Class BA.  In that item the following subclasses are listed:

• 200 Refugee

• 201 In-Country Special Humanitarian

• 202 Global Special Humanitarian

• 203 Emergency Rescue

• 204 Women at Risk.

Schedule 2 to the Regulations is divided into parts each identified by the word "Subclass" followed by a three digit number and the title of the subclass.  Under regulation 2.02(2) a part of Schedule 2 is relevant to a particular class of visa if the part of Schedule 2 is listed under the subitem "Subclasses" in the item in Schedule 1 that refers to that class of visa.  In respect of subclass 202, clause 202.222 provides for a criterion to be satisfied at the time of decision 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’s 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.

Clause 202.224 also provides the following further criterion which must be satisfied at time of decision:

The Minister is satisfied that permanent settlement in Australia:
(a)      is the appropriate course for the Applicant; and

(b)       would not be contrary to the interests of Australia.

On 30 January 1998, a facsimile communication was sent to the Applicant’s solicitors, Barlow & Company, saying that the application under Refugee and Humanitarian (Migrant) Class BA had not been successful.  There was enclosed a document entitled “Decision Record” dated 27 January 1998.  The Decision Record sets out certain criteria which must be met and states that the criteria which had not been met by the Applicant were indicated by “a cross [X]”.  Under the heading “Other Essential Criteria” the following appears:

The following criteria apply to all of the subclasses in class BA.  If you have met all the specific criteria for one of the subclasses the criteria below will be considered by the decision maker.  You must meet all of the following criteria plus other additional essential criteria such as health and character requirements to be eligible for Class BA visa. 

The Decision Record indicates that the Applicant did not satisfy two criteria.  Those criteria correspond to the criteria in clauses 202.222 and clause 202.224.  No reasons are given in the Decision Record as to why the Applicant was considered not to satisfy either of those criteria. 

In support of the ground of review based on section 476(1)(e), the Applicant relied upon evidence as to the use of a document entitled Procedure Advice Manual published by the Department (“the PAM”). The extent of the circulation of the PAM and its significance in practice were not the subject of evidence. However, it appears to be common ground that it was a document circulated to Departmental officers for their assistance in decision making. It is also common ground that the PAM contains an erroneous statement of law and that, if the decision maker, in making the decision, did in fact take into account the part of the PAM in question, the decision involved an error of law. It was contended on behalf of the Applicant that there was a second error of law which, if it was taken into account, would also involve the decision maker in an error of law.

The PAM contains the following comment in relation to clause 202.222(2) under the heading “The Degree of Discrimination to which the Applicant is subject in the Applicant's Home Country”:

Officers will have established the degree of discrimination in assessing 202.211 provisions.  For guidelines on what constitutes “discrimination” see “Assessing Applications in PAM 3: Generic Guidelines B2 - Offshore Humanitarian Visas”.

The reference to “202.211 provisions” is a reference to the following comments in relation to clause 202.211(1)(a) under the heading “Subject to Substantial Discrimination Amounting to Gross Violation of Human Rights”:

Policy intends this to be taken to mean that the Applicant has personally experienced, or has a well-founded fear of experiencing, substantial discrimination amounting to gross violation of human rights for reason or race, religion, nationality, membership of a particular social group or political opinion. (Emphasis added)

The language which I have emphasised is borrowed from the Convention Relating to the Status of Refugees (“the Convention”). However, there is no basis in the terms of the regulation made under the Act for importing that language into the criterion in question.

Next, paragraph 5.9 of PAM 3 contains the following comment:

5.9: Where a visa has a criterion “subject to substantial discrimination” under policy the Applicant must be able to demonstrate with objective detail that they have personally experienced discrimination, or have a well-founded fear of discrimination, based on the grounds of race, religion, nationality, membership of a particular social group or political opinion.  These are to be regarded as the usual grounds on which discrimination is based unless otherwise provided for in visa specific criteria. (Emphasis added.)

Those comments are said to be erroneous for two reasons.  The first is the adoption once again of the language found in the Convention.  The second is the requirement that an applicant be able to demonstrate “with objective detail” that discrimination has been experienced. 

There is no direct evidence before me as to whether the decision-maker in fact had regard to those provisions of the PAM in making the decision in question.  The Applicant contended, however, that, having regard to the nature of the PAM and the fact that it is common ground that it was in general circulation for the assistance of decision-makers, an inference should be drawn that reliance was placed on it by the decision-maker in this case.

However, the evidence before me suggests the contrary.  First, there is in fact no mention of the PAM in the Decision Record and it is not referred to in the last page of the Decision Record on which the decision-maker states the sources of information considered in determining the application.  Secondly, there is evidence that the standard form of decision record used by Departmental officers has been changed at least twice.  The first change removed any reference to the Convention ground for discrimination.  The second change removed the reference to any requirement that an applicant demonstrate experience of discrimination “with objective detail”.  The form of decision record itself contains none of the wording which is contained in the PAM. 

Next, the decision-maker was aware of a Departmental minute dated 15 November 1996 relating to the revision of the form of Decision Record.  Finally, there was evidence of a minute from the legal opinion section within the Department of 29 August 1997 indicating awareness of the error in attributing to the criterion in the regulations any need for incorporating the Convention grounds as a basis for discrimination.  All of those matters suggest that, on balance, I would not be disposed to draw the inference that reliance was placed by the decision-maker on the PAM.

It is undesirable for the Court to determine a factual question in proceedings such as these on the basis of inferences to be drawn when direct evidence as to the fact in question could be available.  There is evidence to indicate that, while it was intended to obtain evidence from the decision-maker, the decision-maker was ill and in the time available it was not possible to obtain direct evidence.  The reason why no effort was made earlier has not been investigated.  Nevertheless, the parties, as I understand it, were content for me to proceed with the hearing of the matter in the absence of that evidence since an adjournment would have been necessary in order to obtain it.

In any event, I do not regard the factual question as decisive. Even if the Applicant established that the decision involved an error of law as contended, it does not follow that the decision would be set aside. As I have indicated above, there were two criteria which were not satisfied according to the Decision Record. The Applicant did not advance any basis upon which the decision, insofar as it was based on the criterion referred to in clause 202.224, was based on an error of law. Accordingly, even without deciding the factual matter, I would reject the ground in section 476(1)(e) as a basis for setting the decision aside.

NO EVIDENCE

The second ground relied upon is section 476(1)(g). Section 476(4) explains section 476(1)(g). However, reliance was placed only on section 476(4)(b) which relevantly provides as follows:

The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

……………………………………………………………………………………………

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. 

The Applicant contends that the ground in section 476(1)(g) as explained by section 476(4) is made out in the light of the following circumstances. It is common ground that the Applicant is not entitled to be given reasons for the decision in question. However, there was evidence concerning the decision-making process in the form of a document described as “Case Notes”. The Case Notes were apparently made in part by the decision-maker and in part by an officer who made a recommendation to the decision-maker. I am satisfied, having regard to the circumstances in which they were produced, that the Case Notes comprise notes made by an officer making a recommendation and reasoning of the decision-maker, at least in part, for reaching the conclusion that the application for a visa be refused.

The Case Notes are as follows:

Previously refused by Bonn Office under subclass 202.
Single female, Croation Serb born in Germany.
From 3/75 to 9/87 lived in Medari (Croatia), 9/87 – 10/89 in Zaluzeni (Sanja Luka) and since 10/89 has lived in Germany.
Note: applicant’s father has lived in Germany for 25 years.
Remaining family members in Germany.
Claims: was interrogated, verbally abused and discriminated when coming back to Croatia and Bosnia; (see attached statement).
According to answers on questions 74 and 76 the applicant was neither discriminated/suffered persecution nor interrogated/mistreated/detained.
Conflicting statement provided.  Applicant noted that she is stateless, however she further stated that she returned to Croatia on several occasions searching for work.  The applicant must be in possession of a Croatian ppt [sic] in order to travel to Croatia.  It is unlikely that she travelled on a Yugoslav ppt [sic] during this period (1990-1995).
Link to Australia: cousin since 1/92.
Claim not compelling. Recommend for refusal.

AGREE
Not within resettlement priorities – not a mixed marriage, not referred by UNHCR.
Ethnic Serb born in Germany.  Before the war lived in Sanja Luka area (now Serb held: 9/87 to 10/89 before moving to Germany.
Both parents born in Sanja Luka.  Claims unable to return to Bosnia as house destroyed - displaced but nonetheless able to return. 
Claims are not compelling.
Parents and siblings all in Germany.
No immediate family in Australia (uncle and cousins only).
Not compelling.
Resettlement is not appropriate.
Case to be refused. (Emphasis added.)

The application for a visa was forwarded under cover of a letter of 5 May 1997 from Barlow & Company, the solicitors for the Applicant.  There were forwarded under cover of that letter a completed form 842, together with the signed statement by the Applicant.  Form 842 is headed "Application for Permanent Visa on Refugee or Humanitarian Grounds".  The statement contained the following:

13.  I finally received a letter from the police stating that I had to leave Germany by 30/03/97.  I had nowhere to go.  We heard that our house in Bosnia had been burned down and I was terrified at the thought of going there.  In Serbian and Bosnian terms we are deserters and would be prosecuted or sent to the front line or prison.

It was contended that, in the light of that statement, there was no basis upon which the decision-maker could have concluded that the Applicant could return to Bosnia.

Insofar as the Case Notes do indicate a finding that the Applicant was able to return to Bosnia, there was evidence to support that finding in what the Applicant herself put forward. The fact that one's house has been destroyed does not necessarily mean that one cannot return to the country in which the house was situated.  Further, in her statement she speaks of her return to Croatia in 1990 and 1995.

The Applicant contended that what should be understood by the finding was that the decision-maker was drawing a conclusion that it was reasonable for the Applicant to return to Bosnia.  I do not read the Case Notes in that way.  It seems to me that they are simply rejecting a claim made by the Applicant.  The Applicant's contention was that she could not return to Bosnia.  The decision-maker was simply saying that, on the basis of the material before her, she was not satisfied that that claim was established.  In other words, it is not a finding of fact upon which the decision was based; it was simply a rejection of a claim made by the Applicant.

In any event, I consider that there is considerable substance in a further contention, advanced on behalf of the Minister, to the effect that a finding such as that referred to is not a “particular fact” within the meaning of section 476(4)(b). The conclusion as to whether or not it was reasonable for the Applicant to return to Bosnia is a conclusion based on a series of particular facts. For example, it is not a particular fact that an Applicant for a visa is not of good character because of his association with some organisation. That is more accurately characterised as an opinion that can only be formed on the basis of a number of particular facts (see the decision of Drummond J in Adams v Minister for Immigration and Multicultural Affairs, (1998) 48 ALD 280).

Further, it is not a particular fact within the meaning of section 476(4)(b) that there is no real chance that an Applicant would face persecution if he were to return to his homeland. That, again, is a conclusion from a series of particular facts (see Xiang Sheng Li v Refugee Review Tribunal, (1996) 45 ALD 193 per Sackville J at 204). In the circumstances, I am not satisfied that the ground in section 476(1)(g) is made out.

PROCEDURES NOT OBSERVED

Finally, there are two alternative bases advanced upon which it is said that procedures required to be observed were not observed as contemplated by section 476(1)(a). I shall deal with each separately.

(a)       Procedural Fairness

Section 56 of the Act provides as follows:

In considering the application for a visa the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa. (Emphasis added.)

The Applicant contended that, in the circumstances of this case, the Minister was under a duty to get further information.  That duty was said to arise from a further part of the Case Notes to which I have referred above, namely, that part which makes reference to the answers to questions 74 and 76 in the form 842.

Questions 74 and 76, each of which was answered "No", are in the following terms:

74.  Do you or any member of your close or dependent family claim to have suffered persecution, discrimination or denial of basic human rights?

76.  Were you ever arrested, detained, imprisoned, interrogated or mistreated (physically or mentally) in your home country?

The statement which accompanied the application, however, contained fairly detailed assertions of the extent to which the Applicant and her family have suffered discrimination and denial of basic human rights.  It is not clear why questions 74 and 76 were answered in the way in which they were and they are certainly inconsistent with the statement.  It was said, on behalf of the Applicant, that, in those circumstances, the Minister was under a duty to invite the Applicant to explain any apparent inconsistency.

However, I do not consider that section 56 is capable of the construction contended for by the Applicant. Section 56 does not require any procedure to be followed. There is no requirement to seek further information, simply the conferring on the Minister of a discretion to ask for it or get it if he or she wants to. In contrast is the second limb of section 56 which does impose upon the Minister the obligation to have regard to any further information which he or she obtains.

Counsel for the Applicant referred me to the decision of the English Court of Appeal in Queen v Secretary of State for the Home Department; Ex parte: Fayed [1997] 1 All ER 228. In that case the Court of Appeal concluded that, in circumstances where there was a statutory bar on the right to reasons, there may nevertheless arise an entitlement to procedural fairness in relation to the making of the decision. However, in the legislative scheme there under consideration, there was no equivalent to section 485 of the Act which circumscribes severely the extent to which this Court can review a judicially reviewable decision. The only grounds available to the Court are those set out in section 476(1).

In particular, under section 476(2) it is specifically provided that the following are not grounds upon which an application may be made for review, namely, that:

A breach of the rules of natural justice occurred in connection with the making of the decision or that the decision involved an exercise of a power that is so unreasonable that no reasonable person could so exercise the power.

In those circumstances it seems to me that the principle, if any, established in Fayed's Case has no application to these proceedings.

That conclusion is very much consistent with the decision of Mansfield J in Tam Anh Bui v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, unreported, 9 April 1998).  There his Honour said:

In my view neither section 56 alone nor section 56 in its context in the Act obliges the respondent to disclose to the Applicant the medical report of 14 December 1996 or any medical health centre medical report. Its wording does not suggest such an obligation. It provides the respondent with power to obtain information. The contrast with the obligation imposed by section 57, which does not apply to the subject application, is acute. More widely, the obligation imposed by sections 353 and 420 on the Immigration Review Tribunal and the Refugee Review Tribunal respectively and the more specific procedural obligations imposed upon most Tribunal under the Act are also by way of contrast. Those considerations leave no room to imply from section 56 an obligation of the nature asserted.

As in the case before his Honour, section 57 has no application in the present case. I consider that section 56 is unequivocal in conferring no more than an entitlement on the Minister without imposing any obligation. It follows that this ground also fails.

(b)       Method of Notification

The final matter relied upon concerns section 66 of the Act. Section 66(2)(a) relevantly provides as follows:

Notification of a decision to refuse an application for a visa must, if the grant of the visa was refused because the Applicant did not satisfy a criterion of the visa, specify that criterion.

The Decision Record refers, as I have said, to clauses 202.222 and 202.224 in Schedule 2 to the Regulations.  The complaint is that there are subclauses within those clauses and that each should be taken to be a separate criterion, whereas the Decision Record does not specify in relation to each subclause whether or not it was satisfied.

In relation to the criterion in clause 202.222, that argument appears to me to have no basis the criterion is simply that the Minister is satisfied that there are compelling reasons for giving special consideration to granting to the Applicant a permanent visa.  The criterion goes on to specify four matters to which the Minister must have regard but it is clear enough that only one criterion is specified in that clause.

The matter is not quite so clear in relation to clause 202.224.  However, when one considers the scheme of the Regulations, I consider that it is apparent that each clause is intended to specify a separate criterion.  That is to say, the criterion in clause 202.224 is that the Minister must be satisfied as to two matters: first, that permanent settlement in Australia is the appropriate course for an applicant; and, secondly, that that course would not be contrary to the interests of Australia.  Joining those two matters together indicates that both have to be considered by the Minister together.

I consider, therefore, that there has been no failure to comply with section 66(2)(a) of the Act. In any event, I am not satisfied that, even if there were a failure to comply, that would be a ground for review on the basis of section 476(1)(a). That is to say, I do not consider that section 66 specifies a procedure required by the Act to be observed in connection with the making of the decision such as would justify setting the decision aside.

The language of section 476(1)(a), of course, is that a relevant procedure must be required to be observed in connection with the making of the decision. Section 66, on the other hand, requires that something be done after the decision has been made. Section 66(4) provides expressly that failure to give notification of a decision does not affect the validity of the decision.

It may be, of course, that a distinction must be recognised between an “unlawful” decision which is nevertheless valid (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490). However, even if there were a failure to comply with section 66(2)(a), that would not, it seems to me, render the decision unlawful. It may be that an applicant would be entitled to compel performance of any duty arising under section 66. Nevertheless, it seems to me that that is a different matter entirely from the situation which might arise in relation to a decision by the Refugee Review Tribunal, which is required to give reasons. That is to say, there is a stark contrast between the provisions of the Act which expressly excuse the Minister or his delegate from giving reasons in relation to a decision such as that under consideration on the one hand, and the obligation on the part of a Tribunal to give reasons for reaching a decision.

In the circumstances, therefore, even if I were of the view that there had been a failure to comply with section 66, I do not consider that that would be a ground for setting aside the decision. In the circumstances, for the reasons which I have given, it seems to me that I should dismiss the application.

Counsel for the Applicant has suggested that this is not an appropriate for the award of costs against the Applicant.  There are two bases advanced.  The first is that the Minister has, in effect, invited these proceedings by persisting in a policy which is incorrect.  However, as I have found, the policy was not applied in this case.  It would possibly have been open to explore that matter further by correspondence or otherwise.  However, as I understand the matter, the question of reliance on the PAM is something which arose fairly late in the proceedings.  In any event the Applicant has pursued the matter and I do not regard that as a reason for depriving the successful party of costs.

The second matter contended for is that there are matters of novelty raised in these proceedings. However, that is almost invariably the case in proceedings arising under the Migration Act and it does not seems to me to be a reason for depriving the successful party of costs.

Accordingly, the order I make is that the application be dismissed with costs.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:             9 July 1998

Counsel for the Applicant:	T. Reilly
Solicitor for the Applicant:	Barlow & Company
Counsel for the Respondent:	G.T. Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 & 9 July 1998
Date of Judgment:	9 July 1998