XA v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

XA v Minister for Home Affairs [2019] FCAFC 166

Appeal from: XXXX v XXXX XXXX XXXX XXX
File number: VID 303 of 2019
Judges: KERR, LEE AND THAWLEY JJ
Date of judgment: 23 September 2019
Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia affirming a decision of a delegate of the Minister for Home Affairs refusing the appellants’ refugee and humanitarian (Class XB) visas – where no obligation to give reasons – whether failure to give genuine and realistic consideration to relevant materials – whether misconstruction or misapplication of the Migration Regulations 1994 (Cth) – application of principles in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 - appropriate scope of judicial review – appeal dismissed
Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Freedom of Information Act 1982 (Cth)

Migration Act 1958 (Cth) Subdiv AB, ss 45, 51A, 54, 56, 58, 66, 476, 499

Migration Regulations 1994 (Cth) Sch 1 cl 1402, Sch 2 cll 200.211, 200.222, 201.211, 201.222, 202.211, 202.222, 203.211, 203.222, 204.211, 204.224

Cases cited:

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112

Coulton v Holcombe [1986] HCA 33; 162 CLR 1

XXXXX X v XXXXX XXXXX XXXXX XXXXX XXXXX XX

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

Hindi v Minister for Immigration and Ethnic Affairs [1988] FCA 549; 20 FCR 1

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780

Jabbour v Secretary, Department of Home Affairs [2019] FCA 452

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; 14 ALD 291

McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 225; 50 FCR 189

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634

Shrimpton v Commonwealth [1945] HCA 4; 69 CLR 613

Singh v Minister for Home Affairs [2019] FCAFC 3

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; 67 ALD 757

Date of hearing: 21 August 2019
Date of…
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Details
Case
[2019] FCAFC 166
Decision Date

CaseChat Overview and Summary

XA v Minister for Home Affairs involved the appellants appealing against a decision of the Federal Circuit Court of Australia which affirmed the decision of a delegate of the Minister for Home Affairs. The appellants sought a refugee and humanitarian (Class XB) visa but their application was refused. The main issues the court had to decide were whether there was a failure to give genuine and realistic consideration to relevant materials and whether there was a misconstruction or misapplication of the Migration Regulations 1994 (Cth). The court had to consider the principles laid out in Plaintiff M64/2015 v Minister for Immigration and Border Protection, particularly in relation to the appropriate scope of judicial review and the principles governing the interpretation of decision records.

The court held that, given there was no obligation to provide reasons, it was difficult to infer an error of law from what had not been said by the delegate. The court found that the delegate had genuinely and realistically considered the relevant materials and had not misconstrued or misapplied the Migration Regulations. The omission of the word “substantial” in the delegate's decision was deemed accidental and immaterial. The court also held that it was not entitled to construe the relevant regulations by reference to the policy guidance of the Minister. The appeal was dismissed.

In light of the decision, the court made orders to protect the safety of the appellants. The names of the appellants were replaced with pseudonyms in the published reasons of the court, and certain documents were redacted or restricted from inspection.

Orders

Orders of the court

1. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), in order to protect the safety of the Appellants:

(a) In the reasons of the Court to be published beyond the parties, the names of the Appellants be replaced with the following pseudonyms:

(i) First Appellant: XA

(ii) Second Appellant: XB

(iii) Third Appellant: XC

(iv) Fourth Appellant: XD

(v) Fifth Appellant: XE

(vi) Sixth Appellant: XF

(vii) Seventh Appellant: XG

(b) The published reasons of the Court be redacted in the terms which the parties have consented to, and with the redaction of the name of the judgment being appealed from.

(c) Save by leave of the Court, the appeal book filed on 30 July 2019, and the affidavit of Morag Milton filed on 22 August 2019, not be available for inspection.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In light of the fact that there was no obligation to provide reasons, the following general principles apply to the interpretation of the decision record which the delegate prepared:(1)The court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision: Plaintiff M64 at [25]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282. (2)An error of law might be demonstrated by inference from what the delegate said by way of explanation given for the decision made; however, whether it is appropriate to draw the inference must be assessed having regard to the fact that there was no statutory requirement to provide reasons: Plaintiff M64 at [25].(3)By reason of the fact that there was no obligation to provide reasons, “it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate”: Plaintiff M64 at [25] (emphasis in original); the fact that the decision does not mention a matter does not, of itself, indicate that the matter was ignored: Plaintiff M64 at [25]. (4)Related to the last point, an applicant cannot invite the inference that an erroneous view has been taken of some material aspect of the matter simply because that aspect has not been expressly addressed and made the subject of findings: Plaintiff M64 at [36].THE DELEGATE’S DECISION As noted above, the appellants’ application was for a “Refugee and Humanitarian (Class XB) visa”. The application form did not specify that it was for a particular subclass. The content of the letter attaching the application form and accompanying material was cast in terms such that it could not be assumed that the application was confined to an application for a subclass 202 visa, even if it was reasonable to infer that the application was predominantly focussed on that subclass. Section 45 of the Act required an applicant to apply for a visa of a particular class. The appellants applied for a Refugee and Humanitarian (Class XB) visa. It follows that the delegate had to consider each of the subclasses. This is what the delegate in fact did. Her decision record included the following statement:Class XB contains five visa subclasses (subclasses 200, 201, 202, 203 and 204). To be granted a visa in this class, the applicant must meet all of the primary criteria in one of the subclasses. I am required to assess the applicant against all of the subclasses in class XB. The delegate stated:As the applicants have been assessed as meeting time of application criteria at 200.211(1), 201.211(1), 202.211(1), 203.211(1) and 204.211(1) I must assess the application against the requirement in subclauses 200.222(1), 201.222(1), 202.222(2), 203.222(1)(b) and 204.224(1)(b) that there be compelling reasons for giving special consideration to granting the applicant a visa, having regard to the following factors:a)the degree of persecution or discrimination to which the applicant is subject in their home countryb) the extent of the applicant’s connection with Australiac) whether or not there is any suitable country other than Australia that can provide for the applicants settlement and protection andd) the capacity of the Australian community to provide for the settlement of persons such as the applicant in Australia.

Ratio Decidendi

Legal Principle Established

The third step is to ask the Court to read the Delegate’s explicit acceptance that the Appellants were “subject to some degree of persecution or discrimination” in the surrounding paragraph quoted at [14] as informed by the earlier first two steps. The omission of the word “substantial” in that paragraph should be understood as simply accidental and immaterial.CONSIDERATIONGround 1 The Policy Guidelines relied upon by Ms Germov state that the visa subclasses within Class XB are “intended to assist persons who are subject in their home countries to persecution or substantial discrimination amounting to gross violation of their human rights”. This Court is not entitled to construe the relevant regulations governing the granting of a Refugee and Humanitarian (Class XB) visa by reference to the policy guidance of the Minister. However, the intention of the Regulations referred to in the Policy Guidelines as being “to assist persons who are subject in their home countries to persecution or substantial discrimination amounting to gross violation of their human rights” is self-evident given the terms of the criteria set out in cl 202.222(2). However, equally self-evidently, that intention is qualified with respect to persons without an approved proposing organisation. In such cases, that intention is subject to the Minister’s evaluative assessment of the criterion taken as a whole, informed by factors including the degree of persecution or substantial discrimination the person has been subject to, their links to Australia and the capacity of the Australian community to provide for their permanent settlement. Given my findings in respect of Ground 2 (discussed below) it is unnecessary to decide whether the primary judge was in error when her Honour concluded (at [10]) that the Delegate was “not under a general legal obligation to ‘apply policy’… [i]t was, rather, permissible for a delegate to do so”. In any event, Robertson J’s reasoning in Jabbour cited by Ms Germov in support of the Appellants’ proposition that the Delegate would fall into judicially reviewable legal error by not complying with the Policy Guidelines does not go quite as far as the Appellants contend. At [89], his Honour reasoned as follows:It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else: see Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208 per French and Drummond JJ. This may be an example of “an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria”: Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453; appeal on other grounds dismissed in Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162. (Emphasis added.)