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Federal Court of Australia - Full Court Decisions |
Last Updated: 9 March 2007
FEDERAL COURT OF AUSTRALIA
Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25
MIGRATION – refusal of offshore
application for Refugee and Humanitarian (Class XB) subclass 200
(Refugee) visa – delegate’s letter of refusal stated appellant did
not
satisfy "compelling reasons" criterion – whether reasons for refusal
in fact included appellant’s failure to satisfy
the "split family"
criterion – whether appellant in fact failed to satisfy "split family"
criterion – whether any jurisdictional
error
Held:
1. Not established that delegate’s reasons for refusal in fact included appellant’s failure to satisfy "split family" criterion.
2. In any event, open to delegate to find "split family" criterion not satisfied.
3. Any error not jurisdictional.
Migration Act 1958 (Cth) s 66(2)
and (3)
Rashid v Minister for
Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1666
affirmed
Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26; (1940) 78 CLR
353 at 369 applied
The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74;
(1980) 151 CLR 170 at 253 applied
Craig v South Australia [1995] HCA 58; (1995) 184
CLR 163 at 176 applied
Public Service Board of New South Wales v
Osmond [1986] HCA 7; (1986) 159 CLR 656 applied
Ayan v Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FCAFC 7; (2003) 196 ALR 332 at [56]
applied
Re Minister for Immigration and Multicultural and
Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [117]
applied
Suresh v Canada (Minister of Citizenship and Immigration)
[2002] 1 SCR 3 at [126] applied
Chow v Minister for Immigration and
Multicultural and Indigenous Affairs [2002] FCA 1459 at [10]
cited
RASHID v MINISTER FOR
IMMIGRATION & CITIZENSHIP and SENIOR MIGRATION OFFICER, POSITION NUMBER
7369
SAD 273 OF 2006
HEEREY, STONE & EDMONDS
JJ
9 MARCH 2007
SYDNEY (HEARD IN ADELAIDE)
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AND:
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
The appeal is dismissed with
costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SAFIN KARIM RASHID
Appellant |
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AND:
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MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent SENIOR MIGRATION OFFICER, POSITION NUMBER 7369 Second Respondent |
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JUDGES:
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HEEREY, STONE & EDMONDS JJ
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DATE:
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9 MARCH 2007
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PLACE:
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SYDNEY (HEARD IN ADELAIDE)
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REASONS FOR JUDGMENT
1 The appellant is an Iraqi national presently living in Iran. His father (the proposer or sponsor of the appellant’s application) and other members of his family now live in Australia. They were granted off-shore humanitarian visas in 2002. On 24 August 2004 the appellant, hoping to join his family in Australia, applied for a Refugee and Humanitarian (Class XB) subclass 200 (Refugee) visa.
2 The appellant received a letter dated 16 January 2006 from a delegate of the Minister at the Migration Section of the Australian Embassy in Tehran telling him that his visa application had been refused.
3 It is common ground that an applicant for a Class XB visa has no right to a merits review of a decision to refuse the visa. It is also accepted that in refusing certain visas, including Class XB visas, the Minister is not required to give written reasons why any criterion was not satisfied or why any provision of the Act or Regulations prevented the grant of the visa: Migration Act 1958 (Cth) s 66(2)(c) and (3). However s 66(2)(a), which applies to all visa applications, provides that if the application was refused because the applicant did not satisfy a criterion for the visa, the notification of the decision must specify that criterion.
4 Under the Migration Regulations 1994 (Cth) the criteria for the visa in question include
• the "split family" criterion (sch 2 cl 200.211(2), to be satisfied at
time of
application and time of decision):
"(2) The applicant meets the requirements of this subclause if:
(a) the applicant’s entry to Australia has been proposed in accordance with approved form 681 by an Australian citizen or an Australian permanent resident (in this subclause called the proposer) who is, or has been, the holder of a Subclass 200 visa; and
(aa) the application is made within 5 years of the grant of that visa; and
(b) on the date of grant of that visa, the applicant was a member of the immediate family of the proposer; and
(c) the applicant continues to be a member of the immediate family of the proposer; and
(d) before the grant of that visa, that relationship was declared to Immigration."
To be a member of the "immediate family" of the proposer (his father), the appellant would have to be a "dependant child" of his father: reg 1.12AA(1)(b). To be a "dependant child" he would have to be either under 18 or dependant on his father: reg 1.03. "Dependant" means wholly or substantially reliant on the other person for financial, psychological or physical support: reg 1.05A(2).
• the "compelling reasons" criterion (sch 2 cl 200.222, to be satisfied at time of decision):
"The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
(a) the degree of persecution 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 persecution; and
(d) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia."
5 The letter of 16 January 2006 on its face comes from a person holding the office of "Senior Migration Officer Position Number 7396" but the identity of that person is not disclosed. The letter states that the writer, as a delegate of the Minister, is not satisfied that
"a criterion in each of the subclasses was met. In summary, I am not satisfied that there are compelling reasons for giving special consideration to granting you ... a visa, having regard to particular factors in the criteria. The attached page shows the criteria not met by you ... for each of the subclasses."
6 The attached page sets out, inter alia, the "compelling reasons" criterion quoted above (it also sets out "compelling reasons" for other subclasses of the class 200 visa). There is no mention in the letter, or the attached page, of the split family criterion. The letter goes on to say that there is no merits review available and there is no requirement to provide written reasons why the criteria were not satisfied.
7 The appellant applied to the Federal Magistrates Court under s 476 of the Act claiming that the delegate who made the decision had exceeded his jurisdiction in doing so. In summary his claim was that he had been refused a visa because he did not satisfy the split family criterion. It was said that notes in the Departmental file suggested that this was the case. In fact, so the argument ran, the appellant did satisfy the split family criterion. Applying the Department’s Procedures Advice Manual, he should, as a consequence, have satisfied the compelling reasons criterion.
8 The Federal Magistrate (Lindsay FM) rejected the application: Rashid v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1666. His Honour accepted that there was an inconsistency between the notes and the decision, in that the notes "suggest one reason for the rejection of the application and the notification of the decision specifies another". In the circumstances, however, there was nothing to indicate that the view expressed in the officers’ notes had any bearing on the decision. In the absence of any allegation of bad faith or improper purpose his Honour concluded that the notes were irrelevant. That being so his Honour concluded that the application before him must fail.
9 In this appeal from the Federal Magistrate’s decision, counsel for the appellant puts forward similar arguments to those made below. He says that the Federal Magistrate erred in not accepting those arguments.
10 The appellant’s submissions on appeal can be summarised as follows. The Federal Magistrate should have found that:
1. The reasons for the decision included failure to satisfy the split family criterion.
2. The delegate erred in finding the split family criterion was not satisfied.
3. That error was jurisdictional.
11 Counsel for the appellant accepts that the appellant must make out all three grounds.
Ground 1: Did the reasons include failure to satisfy the split family criterion?
12 The first of the file documents relied on by the appellant is a "Migration Record Case Dump". This appears to be an electronic record in which successive entries are made by Departmental officers. One entry by a Kaveh Abolfotouh dated 12 December 2005 states that the appellant was not "a split family member of the proposer at the time he [the proposer] applied and was granted a S/C visa in Beirut", the appellant’s year of birth was "under question", being different on the proposer’s original application and also the appellant’s claims in his own right were not "substantial and credible".
13 Next on the Record Case Dump is a note dated 19 December 2005 by a Wayne Tranulis which states:
"In the sponsors original PV application and Resettlement Registration Form (File Number F2002/019842 – Folio 20), the sponsor states that PA was not dependant member included in the submission. PA is declared ONLY as a Other Close Relative.
This s/c 202 Split Family provision is available only to those members of the immediate family where the family relationship was declared to DIMA before the proposer was granted their permanent visa (if an offshore applicant)
or
where the proposer applied for a Protection visa (onshore).
Immediate family members who were not declared to DIMIA by the relevant time are ineligible under this provision.
I am not satisfied that PA is an Immediate Family Member and as such is not able to meet Reg 202.211(2) of the Migration Regulations."
It is accepted that the reference should be to reg 200.211(2), but nothing turns on this.
14 Mr Tranulis continues:
"In addition to this there is no evidence that the applicant has conducted certain acts or conveyed opinions that have been attributed to the applicant by the authorities.
I am not satisfied that the applicant has provided instances of verifiable persecution or substantial discrimination of family, friends or members of the applicants racial, religious, national, social or political groups.
I am not satisfied that there are compelling reasons for giving special consideration to granting to the applicant a permanent visa having regard to the degree of persecution to which the applicant is subject in the applicants home country; and
I am not satisfied that there are compelling reasons for giving special consideration to granting to the applicant a permanent visa having regard to the extent of the applicants connection with Australia; and
I am not satisfied that there are compelling reasons for giving special consideration to granting to the applicant a permanent visa having regard to the capacity of the Australian community to provide for the permanent settlement of persons such has the applicant in Australia.
As a result of the above observations, I do not consider the applicant would be, or is subject to either persecution or substantial discrimination, amounting to gross violations of human rights in the applicants home country.
The application is therefore refused on the basis of being unable to satisfy 200.222, 201.222, 203.222, 204.224 or 202.222."
15 The second and third documents are emails dated 18 January and 12 February 2006 from Mr Abolfotouh to the appellant’s solicitor in Adelaide stating that in addition to not having "strong refugee/humanitarian claims of his own" (presumably a reference to the compelling reasons criteria) the appellant did not, for various reasons stated, satisfy the split family criterion.
16 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).
17 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.
18 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [117] Kirby J cited Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 at [126] where the Supreme Court of Canada said:
"... the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of [the departmental official]."
Kirby
J was in dissent in the result but that statement is not inconsistent with the
majority judgments.
19 In the present case the onus is on the appellant to show that non-satisfaction of the split family criterion was one of the reasons the delegate decided to refuse the application. The appellant has not established that Mr Tranulis (or Mr Abolfotouh) was the delegate who made the decision and sent the letter of 16 January 2006. The letter refers to "a criterion". It provides an unequivocal identification of one criterion, and one criterion only, that the appellant failed to satisfy. There is no mention of the split family criterion. It has not been established that the delegate, whoever he or she was, in fact had in mind non-satisfaction of any criterion other than the one stated in the letter.
20 But even assuming in the appellant’s favour that Mr Tranulis was the delegate in question, the most that can be said is that as at 19 December 2005 he had in mind two possible reasons for refusal, namely non-satisfaction of both split family and compelling reasons criteria. If it was Mr Tranulis who sent the critical letter, the most likely conclusion is that by that time he had decided that non-satisfaction of the compelling reasons criterion was the reason, and the only reason, for the refusal.
21 The subsequent emails simply record the views of what would appear to be more junior officials.
22 Having failed to make out this first ground, it must follow that the appellant fails. We shall deal briefly with the remaining grounds.
Ground 2: Did the delegate wrongly find the split family criterion was not satisfied?
23 On 24 May 2001 the United Nations High Commissioner for Refugees (UNHCR) recognised the appellants’ father, an Iraqi citizen resident in Lebanon, as a refugee within the meaning of the Refugee Convention. This decision was recorded in a document entitled "Resettlement Registration Form" dated 15 August 2001.
24 In the document under the heading "Family members/dependants included in this submission" there is no reference to the appellant. However, he is referred to under the heading "All other close relatives". His birth date is given as 2 April 1986. The appellant is stated to be a son of the second of the father’s three marriages and to be living with his maternal uncles in Iraq.
25 The appellant’s father’s application to the Australian Department of Immigration for an Offshore Humanitarian visa was lodged in Beirut on 5 June 2002. In the form the father gave details of his wife and three children, but not including the appellant. Nor was there any reference to the appellant in the answer to the question as to details of non-dependent children.
26 The father’s visa was granted on 29 November 2002. He was issued with a document for travel to Australia covering himself, his wife and three children (not including the appellant) and they arrived in Australia in February 2003.
27 As already noted, the appellant’s application was lodged on 24 August 2004. In the application his birth date is given as 1 October 1987. In an accompanying statutory declaration dated 1 July 2004 the appellant’s father says the birth date in the UNHCR document is incorrect. He says the appellant lived with him until April 1998 when the family fled Sulaimanya in Iraq. The appellant was left in that town with his uncle. The father says that he "maintained him and sent him money by way of selling properties and businesses which I had in that area ... I continued to sell properties and other assets which I had to simply to maintain Safin and to make sure that he could come to us, eventually, when it was possible to do so".
28 Counsel for the appellant says that prior to the grant of the father’s visa the appellant’s relationship as a dependant child, and thus a member of the father’s immediate family, was declared to the Immigration Department. He says this declaration was provided by the UNHCR document, the Resettlement Registration Form. Thus at the date of the grant of the father’s visa the appellant was at the most 16 years 7 months (even if in fact he may have been younger).
29 However, counsel for the Minister points out that the appellant would also have to satisfy para (c) of the split family criterion and show that at the time of the decision (16 January 2006) he continued to be a member of the immediate family of his father. The appellant was then over 18 and would thus have to be "dependant" on his father. Whether he was "wholly or substantially reliant" on his father was a question of fact. Relevant to the issue would be the fact that, as observed in the Migration Case Dump, in the father’s Australian visa application and the Resettlement Registration Form the appellant was not stated to be dependant.
Ground 3: Was there jurisdictional error?
30 The material does not establish that there was error at all, let alone jurisdictional error. Consistently with the material, the delegate may equally have concluded that the split family criterion was not satisfied because the membership of the proposer’s immediate family at time of decision requirement was not satisfied (see [29] above).
31 Counsel for the appellant sought to characterise the decision-making process in Craig v South Australia terms. He said the decision-maker ignored relevant material (the appellant’s age) and asked the wrong question in relation to that issue. The decision-maker asked whether at the date of grant the appellant was a dependant of his father, as distinct from the question whether he was a dependant or under 18.
32 In truth there were simple issues as to whether or not the appellant was under 18, and if not, then whether he was dependant on his father. Both questions had to be considered at date of application and date of decision. There is no basis for concluding that the decision-maker did not understand the questions. They raised questions of fact. Whether the decision-maker was right or wrong, and we think he was right, no jurisdictional error is disclosed.
33 In any event, there is no challenge to the finding of non-satisfaction of the compelling reasons criteria.
34 As at the date of the decision, par 6, Item 200.222, Schedule 2 to the Procedures Advice Manual 3 published by the Department state:
It is departmental policy that ‘immediate family’ applicants [i.e. applicants who satisfy 200.211(2) criteria] may, without further enquiry, be regarded as satisfying the criterion, given the nature of their family connection with the proposer in Australia.
35 Item 61 of the General Guide D of the Manual state:
As a rule, split family applicants will be taken to satisfy the compelling reasons criterion on the strength of their close family connection with the proposer in Australia. The fact that an applicant’s entry to Australia has been proposed by an immediate family member who has recently been granted a visa under the Humanitarian Program should be given very significant weight when assessing this criterion.
36 Counsel for the appellant accepted that it was for this reason that the relevant policy extracts were put before the learned Federal Magistrate. Failure to apply the Procedures Manual does not constitute error of law: Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1459 at [10]. It was never contended that a failure to follow policy constituted jurisdictional error. The relevance of the extracts from the manual was only to establish that the delegate’s error in respect of the split family criterion affected the exercise of power in that it was possible that, if the error had not been made, the outcome may not have been the same.
37 The appeal must be dismissed with costs. There will be an order that the
title of the respondent Minister in the heading be altered
to Minister for
Immigration & Citizenship.
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Solicitors for the Appellant:
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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