FEDERAL COURT OF AUSTRALIA

XA v Minister for Home Affairs [2019] FCAFC 166

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the respondent’s costs of the appeal as agreed or assessed.

3.    The parties have until 4:00pm on 7 October 2019 to advise the Court of any orders for redaction sought with respect to personal information.

4.    The judgment not be published beyond the parties until further order.

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

ORDERS

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

KERR J:

1    Ms XA used to work for a human rights organisation in her home country, the Democratic Republic of the Congo (DRC). Before fleeing her home country she had witnessed the murder of both her parents, her husband and two of her friends. She had been imprisoned because of her work. While imprisoned she was brutally raped. She left the DRC covertly with the assistance of the Red Cross. She took her children and those of her murdered friends she had adopted. She currently lives with those children in a refugee camp.

2    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA): XXXXXXXXXXXXXXXXXXXXXXXXXXXXX. In that proceeding, the Appellants had sought judicial review of a decision of a delegate of the Respondent (Minister) to refuse the Ms XA (the First Appellant) and her associated family members (the Secondary Appellants) Refugee and Humanitarian (Class XB) visas (visas). Their applications were refused.

3    Australia accepts a limited number of refugees from overseas. I take it to be uncontroversial that Australia receives more requests for offshore protection visas than the numbers it can or will resettle. Awful choices as between a large number of generally qualified candidates must be made. The law governing Refugee and Humanitarian (Class XB) visas provides the mechanism for those choices to be made. It provides, relevantly, that the Minister (or a delegate) must be “satisfied” that “there are compelling reasons for giving special consideration to the granting of the applicant a permanent visa”. That state of satisfaction must be informed by the factors mentioned in pars (a) to (d) of subclause 202.222(2), to which the Minister must have regard in making the single evaluation required in order to grant a subclass 202 visa. The first of those factors is the degree of discrimination to which an applicant was subject in their home country.

4    The law does not require a decision maker to provide reasons. However, the Minister has issued policy guidelines which provide that delegates should nonetheless “ensure that they document their assessment in the decision record” and that “[d]ecision record[s] should clearly and logically summarise the officer’s assessment of relevant factors based on the information available, and be consistent with legislation and policy, in such a way as to stand up to scrutiny by the public or an Australian court”.

5    The present case was conducted in the court below on the basis that there was no legal duty on the delegate of the Minister (the Delegate) who decided these applications to give reasons or to follow those policy guidelines when assessing the Appellants’ claims. The Delegate nonetheless gave, or purported to give, some reasons to explain her decision. Notwithstanding the constraints that necessarily attend judicial review in such circumstances, what the Delegate actually said about the degree of persecution to which Ms XA had been subject in her home country when disposing of the applications before her, on its face, reveals and evidences jurisdictional error. I have concluded that the rationale advanced in defence of those reasons provides too weak and uncertain a basis to read into what the Delegate actually said additional words not used by her. I am satisfied that it would be inconsistent with the duty of the court to confine the exercise of public power to achieving the objects for which such power is conferred on public officials not to set the decision under appeal aside. These are my reasons for that conclusion.

6    It is uncontentious that an applicant for a visa of the kind the Appellants sought must be offshore at the time of lodging their application. Ms XA’s application, dated 6 December 2017, is based on her currently residing in a refugee camp in Malawi. Her application includes details of her claims to have suffered persecution and gross violations of her human rights which, she asserts, had caused her to flee her home country. Those details were set out in a 10 page statement. Her application was also accompanied by a statement by her Australian proposer, “Families of Hope Australia”. That organisation stated its intention, upon the grant of the visas, to cover the costs of the Appellants’ flights to Australia, and to provide immediate settlement support for them including accommodation and transportation, familiarisation with other support services and interpreting services. Her proposer indicated that it would do its utmost to ensure the Appellants would be well integrated into the Australian community.

7    It is not in dispute that the Appellants’ visa applications were validly made.

8    Before turning to the reasons or purported reasons the Delegate gave in refusing the Appellants’ visa and those of the primary judge in declining judicial review of that decision, it is appropriate first to set out the claims made by Ms XA. It may be noted that the Decision Record sometimes refers to the Appellant in the singular. However, no point should be taken in that regard. The Secondary Appellants’ application was dependent on the First Appellant’s application being successful.

9    In her 10 page statement, Ms XA states that she is a citizen of the DRC but is currently living at the Dzaleka Refugee Camp in Malawi with the Secondary Appellants (her two younger brothers and four adopted children).

10    She states that in 2004, when she was XXXXXX, civil war had broken out in the Kivu region of the DRC. During that conflict both her parents had been shot in front of her and her young brothers. As a consequence, her brothers had been left as orphans in her care. She had been able to obtain a degree (a Bachelor of Commerce), and in 2011 she found employment with the XXXXXXXX, a human rights organisation. She provided civic education to uneducated women in remote areas and monitored human rights issues. She states that XXXXXXXXX was often targeted by the DRC authorities for publicising human rights abuses.

11    She had reported violations of human rights by way of broadcasts on local community radio stations. She states that those broadcasts were transmitted to a potential audience of four million people.

12    Ms XA’s statement then details what had happened to her in the DRC in consequence of those circumstances. Paraphrasing her description of these events may not convey their full enormity. It is therefore appropriate to set them out in full:

10.    While I was working for XXXXXXXXX, on 6 June 2011, I married XXXXXXXXX XXXXXXX [XXXXXXXX]. XXXXXXXXXX was a business man (self-employed) and we met on the road one day in Bukavu not far from the XXXXXXXXX office on XXXXXX XXXXXX XXXXXX. We were headed in the same direction so caught a taxi together and everything went from there. From our marriage until November 2013, XXXXXXXXX, myself and my two younger brothers lived at XXXXX XXXX, XXXXXX, along with our house girl XXXXXXXX who had continued on with my family even after my parents had died.

11.    Then, on 5 November 2013, my close friends XXXXXXXXXX XXXXXXX and XXXXXXXX XXXXXXXX were murdered in their home which was on XXXXXXXXXX XXXXXXXX (not sure of number), Kadutu District in Bukavu City which was about five kilometres from my house. I was friends with them because XXXXXXXX was a colleague of mine. They were killed by Congolese Police Officers who were witnessed at the house by neighbours who then told me what they had seen. I believe XXXXXXX was killed with her husband because of her job as a Human Rights Activist. When I was informed of the killings (on the radio in the morning) I went to XXXXXXXX XXXXXXX to see what happened.

12.    XXXXXXXX and XXXXXXX were father and mother to four young children, XD, XE, XF and XG. The children had witnessed the murder of their parents and when I arrived at the scene, the four children were being looked after by a neighbour. The four children were familiar to us (my two younger brothers and I) as XXXXXXX and XXXXXXXX had been such close friends that our relationship had been more like family members than work colleagues. When this neighbour saw me they asked that I take the children to care for and I readily agreed. Sending the children to their extended family to be looked after was not an option as XXXXXXXX and XXXXXXX marriage was not approved of as XXXXXXXX was physically disabled, so they were estranged from their families.

13.    On XXXXXXX I officially adopted XD, XE, XF and XG at Bukavu Town Hall and they have been living with me as my dependent children since November 2013 until today. It was just me, not my husband XXXXXXXXX who adopted the children. He didn’t want to adopt any children before having his own children. Because of this he declined but allowed me to adopt them without himself appearing at the court for the adoption. I have provided a copy of the Adoption Court Order with this application. At the time I adopted the four children I would often be away for work to remote areas. While I was away our housegirl, Mrs XXXXXXXX, would help look after the young children.

14.     In late 2014 two police officers came to the XXXXXXXXXX office in Bukavu to arrest and take to jail my colleague Mr XXXXXXX. While they were taking him, they warned me that if I didn’t shut my mouth (referring to my radio broadcasts) I would get ‘exemplary punishment’. Mr XXXXXXX was imprisoned and tortured then released after few days. Thankfully Mr XXXXXXX is still alive and working as administrative staff at XXXXXXXXX in Bukavu.

15.     Then in September 2015 I was away from home in Uvira, South Kivu when our home was attacked. During this attack XXXXXXXX was killed. Four people entered our home with guns and found my husband, the four young children and my brothers there. Even though they were not in full uniform, we believe these four people were police officers because the boots they wore were police issue boots, as were their belts - my daughter XD observed this. No one was harmed except my husband who was shot dead by the intruders. I heard the news of my husband's death on the local radio as I could not be reached by phone in the remote area where the network connection was bad. I believe this attack was an assassination attempt on me. I believe this because when the attackers come to my place they were asking my husband where I was and they starting screaming at him that I should be punished as I was so talkative on the radio. Again it was XD who reported their words to me.

16.     Although I knew following the arrest and murder of other local Human Rights Activists and following my husband's assassination that I was in real danger because of my job as a Human Rights Activist, I still continued with my work for XXXXXXXX and continued to make radio broadcasts. I had taken on this work knowing that there were risks and even this direct threat did not deter me from my chosen vocation.

17.     Despite the attack on my home and the death of my husband, I did not relocate from my house in Bukavu. This was for two main reasons, firstly because it is not so straightforward to just go and find a house for rent in the DRC. Secondly, being a devout, practicing Christian I had simply surrendered my life into God’s hands to protect me, come what may.

18.     A few weeks after my husband was assassinated I received two threatening text messages stating something like ‘It was not enough if you haven’t shut your mouth’. This referred I believe to the death of my husband not having been enough to stop me broadcasting.

19.     After XXXXXXXX death I continued to do remote area work for XXXXXXXX. I remember a few days after the New Years Eve celebrations at the end of 2015 I went to XXXXXX to meet with women and children, comforting and teaching them about their rights in their own families and even in the whole country. Always when I was out, my family were looked after by our house girl XXXXXXXX.

20.     However in 2016 things proceeded to become even worse for me. When I was arrested and then raped, I finally decided to move not only from my house but also to leave the country.

21.     In the DRC it is common practice for the police to threaten and intimidate activists by sending ‘Convocations’. These request your attendance at the police station where they detain and/or intimidate you in the hope that you will desist with your activist activities.

22.     On XXXXXXX a convocation in my name was brought to the XXXXXXXX office at XXXXXXXX, Ibanda District in Bukavu City. It requested that I attend the local Police Station on 6 May 2016.

23.     On 5 May 2016 I received a text message asking whether I had received the convocation. The message was sent from the same number that the threatening messages after the passing of my husband were sent from. I discussed the matter with my colleagues and Manager at XXXXXXXX who advised me to attend the Police Station as requested.

24.     I went at the correct time and took my voting card which serves as an ID card in the DRC. The police did not question me, they just took down my details on paper and after leaving me waiting for long time in their office they locked me up in what is called the ‘dungeon’ without asking any questions nor telling me the precise reason of my arrest. They did say to me things along the lines of ‘you will die if you continue your dirty job’. The dungeon is a narrow cell. There were already two ladies and one man in the cell when I arrived. After being held in there for three days I was released and I could not walk properly from sleeping on the concreted floor without any mattress, cushion or sheet.

25.     I went home and did not try to flee or hide at this stage. I did however advise the Office of Civilian Society of South Kivu Province as well as the National Congolese Red Cross of my arrest and detention. It was important that these organisations be made aware of my arrest; as well as conducting visits to prisons, they could advocate for prisoners to be released. I continued to attend work at XXXXXXXXX.

26.     Then on XXXXXX a Second Convocation in my name was dropped at the XXXXXXXXX office, requesting that I attend the local Police Station on 16 June 2016. This time I was held for four days in the dungeon before I was released and I was on my own the whole time, aside from when my brothers came to visit me (without the younger children). While visiting they took the photo dated 17 June 2016 that is included with my application. The police allowed them to do this in exchange for a bribe. Again I was not told the reason for my arrest nor the reason for my release. Upon release I was quite distressed as well as physically weak from sleeping on the concrete floor without any mattress. I had become sick as well from breathing in the dust and dirt in the cell.

27.     After my release from the dungeon this second time, my family and I were living in fear, but we comforted one another with the knowledge that the Civil Society Office and the National Red Cross knew what had been happening to me. I continued to attend work at XXXXXXXX and make broadcasts even though I was quite afraid to do them.

28.     I had a mission for XXXXXXXX scheduled for 22 June 2016 until 25 June 2016 but did not go on the mission as I was still recovering from ill health as a result of my second period of time in the dungeon. By now I had started collecting important documents in a small bag at home, in case I was forced to flee the DRC at any point. I kept this Mission Order, No. 087, with those other documents. I kept copies of the Convocations I had received in the bag as well as a valuable piece of jewellery and about $1500 USD.

29.     Between XXXXXXX and XXXXXXX I kept going to work for XXXXXXXXX. On Parents Day in the DRC, 1 August 2016, XXXXXXXXX held a big event for women in Bukavu - a conference where I spoke on the future for women in the DRC.

30.     Then on XXXXXXX a Third and Final Convocation was delivered to the XXXXXXXX office. I was there but in my office room upstairs so could not hear if anything was said when the police delivered it. This convocation requested that I attend the local Police Station on 27 August 2016. I arrived on time at the Police Station with my Voter ID and passport as requested. This time my voting card was defaced by having holes punched through it and my passport was confiscated. I believe that the police did this so that I would have no identity documents with which to leave the DRC. They didn't ask me any questions or explain anything to me. They simply made me wait in an office for some time and then they put me in the dungeon, on my own again.

31.     At around midnight on the first night I was in the dungeon on this occasion, five Police Officers who were assigned to the dungeon night shift entered my narrow cell. I did not know any of these officers but can vividly recall the faces of two of them to this day. The men assaulted and then violently raped me. They left me unconscious and bleeding. Even though this happened on the first night I was held, it took days before I was finally released from the dungeon into the care of the Red Cross Society.

32.     When I regained consciousness (I have no idea how long this took) I felt weak and was bleeding but none of the Police Officers took any notice of this. On the day following the attack I explained my situation to a visitor. I did not know who this visitor was, he had come to visit his friend who had been arrested, but he kindly went and bought some Vitamin K pills for me, to help try to stop the bleeding. This did not stop the bleeding though.

33.     Because XXXXXXXX maintained good relationships with the Red Cross, they were aware each time that I was being held in the dungeon and would regularly check on me there that is how they discovered the state I was in.

34.     Two members of the Red Cross Society, a man named Mr XXXXXX and a woman named Mrs XXXXXX came into dungeon where they comforted me and provided me with First Aid. This was on the 28 and 29 August 2016. As well as tending to me, they advocated for my release for urgent hospitalisation.

35.     It was during this time, lying in the dungeon, suffering from injuries that I had sustained during the gang rape, that I finally realised just how unsafe things were for me and just how in danger my life was in the DRC. I had no other choice than escaping from the cell and fleeing the country. The Red Cross helped me to organise this.

36.     On more than one occasion I overheard discussions between the Red Cross Officers and the Police Officers, who were screaming at them. Finally on 30 August 2016 I was released from the dungeon from where I was taken directly to hospital by the Red Cross Officers, in their Land Cruiser. The reason for my release was not explained to me by the police and there was no formal handover agreement between the police and the Red Cross.

37.     The hospital I was taken to is called XXXXXXXXX, which is a hospital in Bukavu. I was treated there from 30 August 2016 until 10 September 2016. During this time I had some visitors; my two brothers, my neighbours, the Red Cross Officers, friends and my work mates. They visited me in the night time to comfort me. I kept my plans of leaving the DRC a secret from all except the Red Cross Officers who were helping to arrange my leaving. The four children did not see me during my time in hospital, they were at home being cared for by XXXXXXX.

38.     While I was in hospital a friend of mine, Mrs XXXXXXXXX brought me a Wanted Notice dated XXXXXXX that she had pulled down from where it had been posted in public. She brought this to me on XXXXXXX. I had already decided to flee the country after the gang rape, but seeing this notice made me realise how immediate the danger to my life was and how urgently I had to leave. I left hospital the next day even though I had not fully recovered and was still receiving treatment for my injuries. I went in to hiding at my mother's friend XXXXXX house on XXXXXXX where I lived when I started Secondary School back in XXXX.

39.     Meanwhile the Red Cross Officers organised for my family to meet with me in hiding, and for them to bring my handbag with the documents I had been collecting in case we had to flee. They also went back to the hospital and requested a Medical Certificate covering my time at the hospital and Mr XXXXXX wrote a letter explaining my circumstances, ready for me to take with me when I fled.

13    The balance of Ms XA’s statement details how she had eventually found her way, with the assistance of the International Committee of the Red Cross, via Burundi, to the refugee camp in Malawi where she presently lives. She says she remains the sole support of the Secondary Appellants, all of whom rely on her as if she were their mother. She also details a number of threats she has received notwithstanding her departure from the DRC because of her previous activism. Her statement concludes with her explanation of why she remains fearful that she would be killed if she were to return to any part of that country.

14    With that background in mind, I turn to the findings and reasons of the Delegate as were the subject of Ms XA’s application for review before the primary judge. Given their brevity, it is convenient to set out those reasons and findings in full:

Findings and Reasons

I have considered the application for a Refugee and Humanitarian (Class XB) visa, supporting documentation and other evidence against the legislative requirements contained in the Migration Act 1958 and the Migration Regulations 1994.

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.

For all class XB visa subclasses, it is a requirement that there be compelling reasons for giving special consideration to granting the applicant a visa.

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 country

   b)     the extent of the applicant’s connection with Australia

c)     whether or not there is any suitable country other than Australia that can provide for the applicants settlement and protection and

d)     the capacity of the Australian community to provide for the settlement of persons such as the applicant in Australia.

a. Degree of persecution or discrimination

The applicants have demonstrated that they are subject to some degree of persecution or substantial discrimination in their home country.

b. Connection with Australia

The applicants have demonstrated a connection to Australia through their proposer - the applicant’s colleague - as indicated in the application for a Humanitarian visa.

c. Other suitable country

There is no evidence that there is another country available for the applicants' settlement and protection from persecution or discrimination.

d. Capacity of Australian community

Australia has limited capacity for humanitarian resettlement and cannot resettle all people who apply for a Refugee and Humanitarian visa.

I accept that the applicants are subject to some degree of persecution or discrimination in their home country and have some connection with Australia. Although there is no evidence that there is another country available for the applicants' settlement and protection, Australia does not have the capacity to provide for permanent settlement of all applicants at this time.

Weighing these factors together, I am not satisfied that there are compelling reasons for giving special consideration to granting the applicant a Class XB visa. I find that the primary applicant does not satisfy subclauses 200.222(1), 201.222(1), 202.222(2), 203.222(1) and 204.224(1). As the primary applicant did not satisfy these subclauses, I have also assessed the secondary applicants against them. I find that none of the secondary applicants satisfies subclauses 200.222(1), 201.222(1), 202.222(2), 203.222(1) and 204.224(1).

Assessment against secondary criteria

For all Class XB subclasses, it is a requirement (in clauses 200.311, 201.311, 202.311, 203.311 and 204.311) that secondary applicants made a combined application with a person who meets the primary criteria and be either a member of the family unit or a member of the immediate family of the person, depending on the specific requirement the person meets. As none of the applicants satisfies primary criteria, I find that none of the applicants satisfies clauses 200.311, 201.311, 202.311, 203.311 and 204.311.

Decision

On the basis of all of the information available to me, including the documents and information the applicants provided, I find that the criteria for the grant of a Refugee and Humanitarian (Class XB) visa are not met by the applicants.

I find that the applicants do not satisfy the primary criteria in clauses 200.222, 201.222, 202.222, 203.222, 204.224 of Schedule 2 to the Migration Regulations 1994, nor do they satisfy the secondary criteria in clauses 200.311, 201.311, 202.311, 203.311 and 204.311. As such I have not assessed the remaining criteria and the application has been refused.

15    That decision was made on 13 December 2017.

16    The Appellants sought judicial review in the FCCA. They relied on two amended grounds of review as follows:

1.    The delegate of the Respondent failed to exercise their statutory duty to give realistic and genuine consideration to all the evidence and claims provided as part of the application for a Refugee and Humanitarian (Class XB) visa as required by section 54 of the Migration Act 1958 and the common law.

Particulars

a.     The visa application was received by the Sydney office of the Respondent on Wednesday 6 December 2017, comprising approximately 148 pages of application forms, supporting evidence and legal submissions.

b.     A decision was taken to refuse the visa application on Wednesday 13 December 2017, being 5 working days later.

c.     No interview was conducted with the visa applicants or Australian proposer as part of the consideration of the visa application.

d.     A copy of the Respondent’s file provided pursuant to Freedom of Information request on 10 January 2018 shows no internal records, file notes or consideration of any nature in relation to this application, including any consideration of government policy concerning Cl 202.222(2) of part 202 of Schedule 2 to the Migration Regulations 1994.

2.     Further or in the alternative to ground one above, the Respondent’s delegate (“the delegate”) fell into jurisdictional error by misconstruing or failing to apply the statutory criteria.

Particulars

a.     The delegate found that the Applicant suffered “some degree of persecution or substantial discrimination” in her home country.

b.     Clause 202.111 required the delegate to determine whether the Applicant is subject to substantial discrimination amounting [to] a gross violation of human rights in the applicant’s home country.

c.     Clause 202.222(2) required the delegate to determine the degree of discrimination suffered by the Applicant and whether this gave rise to compelling reasons for giving special consideration to granting the applicant a permanent visa.

d.     Contrary to the Respondent’s policy guidelines, the delegate’s decision record does not contain any reference to the matters raised by the Applicant in relation to meeting the criteria referred to in paragraphs 2(b)-(c) above.

e.     It is not apparent from the decision record what matters raised by the delegate were accepted for the purpose of determining whether compelling reasons existed for giving special consideration to granting the applicant a permanent visa.

17    The primary judge commenced consideration of the issues raised by those grounds by observing that it was not for the court to substitute its views for those of the Delegate (at [8]). Her Honour then set out the considerations which led her to reject the grounds of judicial review advanced. Her Honour’s reasons were as follows:

9.     The Applicant referred in submissions to the Department’s policy guidelines as set out in ‘Procedures Advice Manual 3 Refugee and Humanitarian-Offshore humanitarian Program-Visa application and related procedures’ and, in particular, at page 27 therein wherein the document states, relevantly:-

“…Decision records should clearly and logically summarise the officer’s assessment of relevant factors based on the information available, and be consistent with legislation and policy, in such a way as to stand up to scrutiny by the public or an Australian court.”

10.     The delegate was not required to give a statement of reasons for her decision. This is well stated in Plaintiff M64/2015 v the Minister for Immigration and Border Protection (2015) 258 CLR 173 at paragraph 25. Contrary to the Applicant’s submissions, and in agreement with those of the First Respondent, the Court accepts the delegate was not under a general legal obligation to “apply policy”. There was no binding direction that the delegate comply with government policy not the subject of direction under s.499 of the Act. It was, rather, permissible for a delegate to do so.

11.     The delegate, whilst not providing a comprehensive statement of her reasons for decision, did provide a Decision Record in which there are no adverse findings in respect of the First Applicant’s credibility. Indeed, the delegate accepted that the Applicants satisfied the “time of application” criterion in cl.202.211(1)(a) of Schedule 2 to the Regulations. That criterion was as follows:-

“(1) If the application does not include a proposal by an approved proposing organisation, the applicant:

(a) is subject to substantial discrimination, amounting to gross violation of human rights, in the applicant’s home country and is living in a country other than the applicant’s home country…”

12.     That satisfaction as to the time of the application criterion did not mean however, that the delegate was obliged to grant the Class XB visas. The delegate’s failure to be satisfied that there were “compelling reasons for giving special consideration” to granting the Applicants Class XB visas was clearly informed by the delegate’s concern as to “the capacity of the Australian community to provide for the permanent resettlement of persons such as the applicant in Australia”.

13.     It is accepted by the Minister that the delegate was required by s.54 of the Migration Act 1958 (Cth) (‘the Act’) to have regard to all of the information in the application and that breach of s.54 of the Act would, at least, generally speaking, involve jurisdictional error. However, as submitted by the First Respondent, the Applicant’s suggestion that “the common law” provides some additional source of such a duty is wrong. Subdivision AB (including s.54) of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

14.     Further, the delegate was not required to interview the Applicants as suggested by the Applicants’ submissions. The power in ss.56(1) and 58(1)(d) of the Act is discretionary. I agree with the First Respondent that it cannot be inferred from the delegate’s decision not to interview the Applicants, that the delegate did not consider the information in the visa application.

15.     The Applicants argue that a period of five working days from the Department’s receipt of the application of the Applicants to the delegate’s decision, was an insufficient period of time for the delegate, as decision maker, to give genuine and realistic consideration to the matter before her. It is not possible to draw any inference that there was insufficient time for the delegate to read the Applicant’s material, consider it, and make an informed decision. The documents forming part of the application were not voluminous. The statement setting out the primary Applicant’s claims was 10 pages long.

16.     Under the heading ‘Finding and Reasons’ in the Decision Record of the delegate, the delegate commenced by saying:-

“I have considered the application for a Refugee and Humanitarian (Class XB) visa, supporting documentation and other evidence against the legislative requirements contained in the Migration Act 1958 and the Migration Regulations 1994.”

       The delegate concluded the Decision Record as follows:-

“On the basis of all of the information available to me, including the documents and information the applicants provided, I find that the criteria for the grant of a Refugee and Humanitarian (Class XB) visa are not met by the applicants.

I find that the applicants do not satisfy the primary criteria in clauses 200.222, 201.222, 202.222, 203.222, 204.224 of Schedule 2 to the Migration Regulations 1994, nor do they satisfy the secondary criteria in clauses 200.311, 201.311, 202.311, 203.311 and 204.311. As such, I have not assessed the remaining criteria and the application has been refused.”

17.     There is no evidentiary basis before the Court that supports an inference that the delegate failed to consider any particular information in the visa application. The Applicants “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.”

18.     For the above reasons, the submissions of the First Respondent are apt and accepted by the Court. The delegate’s failure to give a comprehensive statement of reasons for her decision does not invite an inference that the delegate failed to consider any particular matter. The delegate did not misunderstand or misapply the visa criteria, and no material error that would justify a conclusion of jurisdictional error attending the decision of the delegate can be found.

(Footnotes omitted.)

18    Her Honour accordingly dismissed the application on 8 March 2019.

19    By a notice of appeal dated 27 March 2019, the Appellants contend that the primary judge was in error in dismissing their application. The two grounds of appeal they advance and rely on are as follows:

1.    The Federal Circuit Court Judge erred in failing to consider or find that the Respondent’s delegate had fallen into jurisdictional error by misconstruing or failing to apply the statutory criteria in clauses 202.211(1)(a) and 202.222(2)(a) - of part 202 of Schedule 2 to the Migration Regulations 1994.

Particulars

(a)     The delegate found that the first named Appellant suffered “some degree of persecution or substantial discrimination” in her home country.

(b)     Clause 202.211(1)(a) required the delegate to determine whether the first named Appellant is subject to substantial discrimination amounting a gross violation of human rights in the applicant’s home country.

(c)     Clause 202.222(2)(a) required the delegate to determine the degree of discrimination suffered by the first named Appellant and whether this gave rise to compelling reasons for giving special consideration to granting the first named Appellant a permanent subclass 202 Refugee and Humanitarian (Class XB) visa.

2.    The Federal Circuit Court Judge erred in finding that the delegate did not fail to give genuine and realistic consideration to the matters raised in the Appellants’ visa application.

Particulars

Contrary to the Respondent’s policy guidelines and section 54 of the Migration Act 1958(Cth), the delegate’s decision record does not contain any reference to the matters raised by the first named Appellant in relation to meeting the criteria specified in clauses 202.211(1)(a) or 202.222(2)(a)-(d) and it is not apparent from the decision record or from the file maintained by the Respondent in relation to the visa application what matters raised by the first named Appellant were accepted by the delegate for the purpose of determining whether compelling reasons existed for giving special consideration to granting the Appellants a permanent visa.

THE APPELLANTS’ SUBMISSIONS

20    Counsel for the Appellants, Ms Germov, submits that the Delegate failed to discharge her statutory task because she did not correctly apply the criteria set out in cl 1402 of Sch 1 and Pt 202 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).

21    In that regard, she submits the Delegate had been required to determine with precision the degree of discrimination suffered by the First Appellant. That arises not only from the explicit text of cl 202.222(2)(a), but also in consequence of the Minister’s guidelines as found in the Department’s “Procedures Advice Manual – Offshore Humanitarian Program – Visa application and related procedures” (Policy Guidelines) which contains the following statement:

In assessing this factor, the officer is required to assess the degree of persecution or discrimination faced by the applicant in their home country. The degree of persecution or discrimination involves a spectrum of persecution or discrimination, within which the applicant’s individual circumstances will fall, as determined by the degree, that is, level or amount of persecution or discrimination. Officers should not embark on a comparative analysis between the applicant and others in their home country, and the degree of persecution or discrimination is to be assessed in the context of the individual case.

22    Ms Germov submits that the Delegate appears to have accepted the Appellants’ claims. Ms Germov notes that the Decision Record does not reveal any adverse findings concerning the credibility of those claims.

23    Ms Germov submits that the Delegate’s use of the word “some” as a descriptor of the degree of persecution and/or discrimination the First Appellant had suffered manifestly failed to satisfy the specificity required by cl 202.222(2) of Sch 1 to the Regulations. She submits that, assuming the First Appellant’s claims were accepted by the Delegate, the use of the word “some” demonstrates at best a fundamental misunderstanding of the Delegate’s statutory task, and at worst a dismissive approach that was inconsistent with the Delegate having given genuine and realistic consideration to Ms XA’s claims.

24    Ms Germov submits that the four factors set out in cl 202.222(2) and the Minister’s Policy Guidelines make it clear that the “compelling reasons” criterion is the mechanism that allows officers to determine visa applications against the background reality that every year many more persons apply for a Class XP visa than Australia has the capacity to accept. In that regard she cites the Minister’s Policy Guidelines, which state:

From a pool of many applicants, officer[s] must ensure that the limited resettlement places available each year are offered to those applicants for who there are compelling reasons for resettlement. This is, by necessity, a subjective process …

25    Acknowledging that this task necessarily involves a degree of subjectivity, Ms Germov submits that, nonetheless, it must be undertaken according to law. Ms Germov submits there is nothing in the Delegate’s decision or in the documents that were provided to the First Appellant by the Minister pursuant to a Freedom of Information request to indicate that the Delegate had made any notes or observations concerning Ms XA’s claims.

26    Neither had the Delegate made any reference to the applicable government settlement priorities as might be understood to have led to the Delegate’s conclusion that Ms XA’s claims were not compelling enough to warrant special consideration for the grant of the visa she had sought.

27    Ms Germov drew the Court’s attention to the primary judge having herself observed during the hearing that “there are no departmental file notes or anything”.

28    Ms Germov submitted that the Delegate’s peremptory determination of the application, coupled with her failure to demonstrate any active intellectual engagement with the claims and evidence having regard to the applicable criterion in cl 202.222(2), strongly suggested a “cut-and-paste” use of a decision template. It was inconsistent with the Delegate having given the Appellants’ application genuine and realistic consideration. In that regard, Ms Germov drew the Court’s attention to a statement of the Full Court in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; FCAFC 89; 67 ALD 757 at [16] that decisions concerning such refugee and humanitarian visas required “more rigorous examination”.

29    In respect of the reasoning of the primary judge, Ms Germov submits that her Honour erred in concluding that the Delegate was not under a legal obligation to apply the Minister’s Policy Guidelines concerning the content of her decision, notwithstanding that there had been no direction made under s 499 of the Migration Act 1958 (Cth) (Act).

30    Ms Germov submits that the absence of a direction under s 499 of the Act requiring a decision-maker to apply a particular policy as a matter of law did not mean that the Delegate was at liberty to adopt a laissez-faire attitude concerning the Minister’s lawful policy. She submits that delegates exercise the Minister’s powers and are obliged to follow a lawful policy provided it is not applied inflexibly without regard to the merits of the case, citing Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 (Re Drake) at 640-641 per Brennan J.

31    Ms Germov refers to the Policy Guidelines as including the following statements:

    that “[o]fficers must familiarise themselves” with the policy statements set out in those guidelines (emphasis added by counsel);

    that while “delegates are not legally obliged to give reasons why a criteria is not satisfied, they should nonetheless ensure that they document their assessment in the decision record”; and

    that “[d]ecision records should clearly and logically summarise the officer’s assessment of relevant factors based on the information available, and be consistent with legislation and policy, in such a way as to stand up to scrutiny by the public or an Australian court”.

32    Ms Germov submits that, subject to Re Drake, the Policy Guidelines had to be followed. It was not a matter of personal choice for the Delegate to do so. In support of that proposition, Ms Germov cites the reasoning of Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452 (Jabbour) at [89].

33    Ms Germov submits that the primary judge also erred in law by failing to give any consideration to the other ground of review raised by the Appellants concerning the misapplication of cl 202.222(2). She submits that that ground had been pursued before the primary judge in the context of submissions made before her Honour concerning the Delegate’s failure to give genuine and realistic consideration to the application.

34    Ms Germov acknowledges that in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 a Full Court of this Court recently cautioned against using the language of “genuine and realistic consideration” where possible, because it risks embarking on impermissible merits review. However the same Full Court had also held (at [45]):

What is required is the reality of consideration by the decision-maker. On judicial review the court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put… Because the court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard.

(Citations omitted).

35    Ms Germov submits that her Honour failed to recognise that the lack of any substantive attention by the Delegate to the degree of persecution Ms XA had suffered was inconsistent with the Delegate having given the Appellants’ application any real consideration. She submits that her Honour’s failure to deal with the Delegate’s misunderstanding of the statute constituted a jurisdictional error. The primary judge’s failure to recognise that to have been jurisdictional error was an appellable error. It required this Court to set aside the decision of the FCCA.

THE MINISTER’S SUBMISSIONS

36    The Minister submits that both a “time of application” criterion contained in cl 202.211(1)(a) of Sch 2 to the Regulations and a “time of decision” criterion contained in cl 202.222(2) were required to be satisfied in order for the Appellants to be granted the visas they applied for. The Minister notes that the “time of decision” criterion was considered by the High Court of Australia in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 (Plaintiff M64). The Minister cites the following paragraphs of the majority judgment (per French CJ, Bell, Keane and Gordon JJ):

30    … Clause 202.222(2) does not state several criteria by reference to which the decision is to be made: it raises only one criterion for the grant of the relevant visa. The criterion is that the Minister (or a delegate) is “satisfied” that “there are compelling reasons for giving special consideration to granting the applicant a permanent visa”. As was the case in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, the nature of the decision entrusted to the Delegate was not a “determination” but, rather, “satisfaction”. That state of satisfaction must be informed by the factors mentioned in paras (a)-(d), to which the Minister must have regard in making the single evaluation required in order to grant a Subclass 202 visa …

31    In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.

32    The rationale of the criterion of “compelling reasons for giving special consideration” is that there are, indeed, more applicants in the general category of persons described in paras (a), (b) and (c) than can, in the Government’s judgment, be settled permanently within the Australian community.

…

38    … To give “special consideration” is to distinguish the application for the grant of a visa from the general run of candidates who, individually, might have merit under cl 202.222(2)(a)-(c). The Australian community’s “capacity” to provide for the permanent resettlement of such persons who apply for Subclass 202 visas is a factor in the assessment of whether there are “compelling reasons for giving special consideration” to granting permanent visas to the Visa Applicants. This is because cl 202.222(2)(d), in referring to “persons such as the applicant”, is naturally apt to include all persons who may qualify for the same visa.

39    An evaluation of “the capacity of the Australian community to provide for the permanent resettlement of persons such as the applicant in Australia” involves an evaluation that is so open-textured that it may be doubted whether a challenge to its correctness is viable at all unless a misunderstanding of this factor on the part of the decision-maker can be demonstrated by what the decision-maker has actually said on that subject …

…

56    It may be said that the difficulty of demonstrating that the decision of the Delegate lacked an “evident and intelligible justification” is a virtually insuperable hurdle for the plaintiff, but to say that is to acknowledge the broad and subjective evaluation required in the application of cl 202.222(2) and the difficulty of distinguishing between all the applications which have merit in terms of paras (a), (b) and (c).

37    The Minister submits that a decision-maker, in determining whether he or she is satisfied that compelling reasons exist to justify special consideration in granting a permanent visa, necessarily engages in an “inescapably” subjective assessment. In that regard, the Minister cites McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10], where his Honour Whitlam J observed that reasons “may appear compelling to one person and not to another”.

38    The Minister submits that by reason of s 66(2)(c) and s 66(3) of the Act the Delegate was under no obligation to give reasons for her decision. The Minister cites the plurality’s reasons in Plaintiff M64 at [25] and [36], which are as follows:

25    It is well settled that in the context of administrative decision-making, 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. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so 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. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.

…

36    The plaintiff’s scrutiny of the Delegate’s letter as if it were a comprehensive statement of his reasons concerned to make findings as to the various matters referred to in cl 202.222(2)(a) to (d) does not expose error by the Delegate. As noted above, by reason of s 66(2)(c) and (3) of the Act, the Delegate was not required to give a statement of reasons in relation to his decision to refuse the Visa Application. It is apparent from the Delegate’s letter that the Delegate considered the Visa Application taking account of each of the four matters specified in pars (s) to (d) of cl 202.222(2). The plaintiff 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.

(Footnotes omitted, emphasis in original.)

39    The Minister submits that the Appellants’ reliance on Hindi v Minister for Immigration and Ethnic Affairs [1988] FCA 549; 20 FCR 1 (Hindi) per Sheppard J at 12-15 is difficult to reconcile with the reasoning of the High Court in Plaintiff M64, and its earlier decision in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [31]-[33] and [66]-[73]. The Minister submits Hindi should not be followed.

40    The Minister submits that the Policy Guidelines are not law, and cannot “establish a jurisdictional limit or obligation”. The Minister submits:

14    Contrary to the appellants’ submission (AS [31]) a delegate is not under an obligation to “follow a lawful policy”, beach of which involves jurisdictional error, or compliance with which may be assumed so as to infer jurisdictional error. Nor does the decision in Re Drake v Minister for Immigration (No 2) (1979) 2 ALD 634, cited by the appellants, support this. There is a difference between saying that:

14.1    a delegate is legally permitted to apply policy in making discretionary decisions (generally true, where that is not inconsistent with the requirements of the Act); and

14.2    a delegate is legally required to apply policy as to the terms in which decisions, already made, are to be notified or explained to persons (not true).

(Citations omitted, emphasis in original.)

41    In support of that submission the Minister refers to the observations of French and Drummond JJ in Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 225; 50 FCR 189 (Gray) at 208, where their Honours accepted that Ministerial policy is not to be construed and applied as if it were statute as it merely prescribes guidelines expressed in general language.

42    The Minister submits that the decision of Robertson J in Jabbour does not assist the Appellants. That case concerned a decision not to refer to the Minister a possible exercise of power pursuant to s 351 of the Act to substitute, for a decision of the Tribunal, a more favourable decision. His Honour applied Gray and observed that departure from Ministerial guidelines may result in a decision being set aside on judicial review if the guidelines are misconstrued, rendering the resultant decision perverse by the decision-maker’s own criteria (at [89]). In the present matter, the Appellants have demonstrated no such misconstruction of the Policy Guidelines or perversity in the Delegate’s decision.

43    Further, the Minister submits that the Policy Guidelines correctly observe that delegates are not obliged to give reasons, but should summarise their assessment of the relevant factors. This is not a requirement; it is expressed “in terms that are neither precise nor prescriptive”. That can be contrasted with the specific requirement for a Tribunal to give reasons for its decision, set out findings of fact, and refer to evidence or other material under s 430(1) of the Act.

44    Having made those general submissions, the Minister makes the following submissions directed to each of the grounds of appeal.

Ground 1

45    With respect to Ground 1, the Minister submits that it was clear that the Delegate accepted that the First Appellant was subject to substantial discrimination in DRC, given that she accepted that the First Appellant satisfied the “time of application” criterion contained in cl 202.211(1)(a). The Delegate’s reference in the paragraph setting out the factors to which she was to have regard and weigh in reaching her evaluative conclusion, in which she stated that the First Appellant had experienced “some” discrimination, must be read fairly in this context. The Minister submits that the Appellants’ contention that the Delegate failed to identify the degree of discrimination with any precision, beyond her having accepted that it was “substantial” for the purpose of cl 202.211(1)(a), must therefore fail. Consequently, this ground must fail.

46    The Minister submits that the Delegate’s reference to “persecution” does not invite an inference that the Delegate either misunderstood or misapplied the visa criteria. The Refugee and Humanitarian (Class XB) visa type is divided into five subclasses, four of which are refugee visas and turn on persecution (being those governed by cll 200.222(1), 201.222(1), 203.222(1) and 204.224(1) of Sch 2 to the Regulations). The fifth subclass, which is the Global Special Humanitarian visa subclass (governed by cl 202.222), turns on discrimination. Despite the Appellants having indicated that they only sought to satisfy the criteria for a subclass 202 visa (Global Special Humanitarian), in completing their application they had applied for all Refugee and Humanitarian (Class XB) visas. Accordingly, the Minister submits, it was appropriate for the Delegate to have expressed her conclusion that the Appellants failed to satisfy the criteria for any of the other visa subclasses.

47    Finally, the Minister submits that, even if it had been unnecessary for the Delegate to make explicit findings about whether the Appellants were subject to persecution as well as discrimination in the DRC, “it is difficult to see how that could possibly be a material error that would justify a conclusion of jurisdictional error” (citing by comparison Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252).

Ground 2

48    With respect to Ground 2, the Minister accepts the Delegate was required to have regard to all information in the application pursuant to s 54 of the Act, and that a failure to do so would result in a jurisdictional error. However, he submits that the Appellants’ suggestion that the common law provides an additional source of such a duty should be rejected, noting that Subdiv AB of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.

49    The Minister submits that the expression “realistic and genuine consideration” should be approached with caution, citing a Full Court of this Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 (Carrascalao) (Griffiths, White and Bromwich JJ) at [34]:

The danger of using that or similar expressions has been emphasised in many cases in other contexts. For example, when the expression has been used in conjunction with the grounds of judicial review relating to the failure to take into account a mandatory relevant consideration, Courts have acknowledged that its use carries the risk of creating “a kind of general warrant, involving language of indefinite and subjective application, in which the procedural and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised” …

(Citations omitted).

50    The Minister submits that an applicant bears the burden of demonstrating that a delegate failed to have regard to information in the visa application (citing Plaintiff M64 at [24]), and that the Court will not lightly make a finding that the Minister has not engaged in an active intellectual process (citing Carrascalao at [48]). In that regard, the Minister submits as follows:

    The Delegate expressly stated that she had considered the application, supporting documentation and other evidence, and there is no evidence that would justify the Court finding that statement to be false.

    The brevity of the Decision Record does not support an inference that the Delegate failed to give genuine and realistic consideration of the matters raised in the visa application, because there was no requirement for a comprehensive statement of reasons (relying on Plaintiff M64 at [25] and [36]).

    The Delegate evidently accepted that the First Appellant was subject to “substantial discrimination, amounting to gross violation of human rights” in DRC, because the Delegate accepted that the First Appellant satisfied the “time of application” criterion in cl 202.211(1)(a) of Sch 2 to the Regulations. Nevertheless, it does not follow that the Delegate was obliged to grant the visa in circumstances where she was not satisfied that there were “compelling reasons for giving special consideration” to doing so in light of her concern regarding the capacity of the Australian community to provide for permanent resettlement of persons such as the First Appellant.

    There is nothing in the chronology of events to suggest that the Delegate would have been unable to read and consider the application material prior to making the decision: the statement containing the First Appellant’s claims was 10 pages, and the decision was made seven days after the application was received. The Minister distinguishes these circumstances from those that arose in Carrascalao.

    The failure of the Delegate to interview any of the Appellants does not support Ground 2. The Delegate was not required to interview the Appellants; the power to do so contained in s 56(1) and s 58(1)(d) of the Act is discretionary.

51    Mr Wood supplemented the Minister’s written submissions with respect to Ground 2 in oral argument. He advanced a three step analysis of the Delegate’s reasons.

52    The first step is to ask the Court to accept that “bang in the middle” of the first page of the Decision Record the Delegate recorded that “[a]s the applicants have been assessed as meeting the time of application criterion…” and that that in turn led to the Delegate identifying the criterion which remained to be satisfied for the grant of a visa.

53    Mr Wood submits that this reference to the time of application criterion in the middle of the first page of the Decision Record should be understood as revealing that the Delegate was making a decision about both the “time of application” and the “time of decision” criteria simultaneously. He submits that any other reading is implausible and/or not a fair one:

As for the possibility that there was some sort of split decision-making process, it seems to me it couldn’t lawfully occur, but nor is any suggestion that it—well to the extent that the past tense is used we say this is a classic case of Wu Shan Liang and, in any event, that sentence is capable of being read, in other words as the applicants have been assessed by me.

54    In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (Wu Shan Liang) it was held (at [31]):

… [T]he reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

(Footnotes omitted).

55    Neither party submitted that any material change of circumstance had occurred in the short period between the date of Ms XA’s application and the date of the Delegate’s decision. Mr Wood accordingly submits that the sentence in the middle of the first page, read in context, should be understood as establishing that the Delegate, having already evaluated Ms XA’s application for the purposes of the “time of application” criterion, had also accepted that for the purposes of the “time of decision” criterion Ms XA had suffered substantial discrimination amounting to a gross violation of human rights in her home country.

56    The second step of Mr Wood’s analysis was to ask the Court to consider the statement made by the Delegate under the heading “Degree of persecution or discrimination”, in which the Delegate found that the Appellants had “demonstrated that they are subject to some degree of persecution or substantial discrimination”, in light of the first step in the analysis described above.

57    Mr Wood submits that the precise language and grammar of that statement is to be understood having regard to the circumstance that Refugee and Humanitarian (Class XB) category contains five distinct visa subclasses (subclasses 200, 201, 202, 203 and 204). Of those subclasses, four refer to and require “persecution” (without an adjectival qualifier). One (class 202) refers to and requires an applicant to be subject to “substantial discrimination” in order to satisfy the “time of application” criterion.

58    So understood, Mr Wood submits the Delegate’s statement under that heading should be read as applying that distinction. Fairly read, it communicates that the Delegate had concluded the Appellants demonstrated that they were subject to: (a) some degree of persecution (referrable to visa subclasses 200, 201, 2013 and 204); or (b) substantial discrimination (referrable to visa subclass 202) in their home country. The word “some”, so understood, does not qualify “substantial”.

59    In context, the sentence required a hard disjunctive conveying that, read fairly, the Delegate was stating that the Appellants had established that they were subject to “substantial” discrimination in their home country.

60    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.

CONSIDERATION

Ground 1

61    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”.

62    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).

63    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.

64    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”.

65    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.)

66    The resolution of the Appellants’ submission as would take that proposition to the further extent submitted for by Ms Germov should await decision in a case that requires it to be addressed.

67    In Plaintiff M64 the plurality identified the legal operation of cl 202.222(2) as follows (at [30]):

Clause 202.222 (2) does not state several criteria by reference to which the decision is to be made: it raises only one criterion for the grant of the relevant visa. That criterion is that the Minister (or a delegate) is “satisfied” that “there are compelling reasons for giving special consideration to the granting of the applicant a permanent visa” … That state of satisfaction must be informed by the factors mentioned in pars (a) to (d), to which the Minister must have regard in making the single evaluation required in order to grant a subclass 202 visa…And, in truth, the terms of the Delegate’s letter do not suggest that the Delegate approached his task as a matter of making findings about separate criteria rather than taking the factors into account in reaching his decision.

68    Having regard to plurality’s reasoning in Plaintiff M64, it is implicit that if “in truth” the Delegate in these proceedings had approached her task with an erroneous understanding that cl 202.222(2) stated several criteria by reference to which her decision was to be made, the Delegate would have misapprehended and misapplied the regulation conferring her decision-making power from which the outcome reached, turning on her state of satisfaction, derived its force. Such a misunderstanding would constitute jurisdictional error.

69    The Appellants’ submission that the reasons of the Delegate, read fairly, suggest such an error was made by the Delegate is far from implausible. It is hard to read those reasons without forming an impression that the Delegate may have treated subcl 202.222(2)(d) as a separate and ultimately controlling criterion rather than merely one of the factors to be taken into account in reaching the required state of satisfaction informed by the four factors ((a) to (d)) contained in cl 202.222(2).

70    However, the Court would then be confronted with the Delegate’s express assertion that “weighing these factors together”, she was “not satisfied there are compelling reasons for giving special consideration to granting … a Class XB visa”.

71    It may be accepted that it is open on judicial review for a court to conclude that a statement by a decision-maker is to be discounted if the court is satisfied that, having regard to the context in which it appears, the words expressed do not reflect the true reasons of the decision-maker. However, in my opinion the Delegate’s statement that she had weighed those factors together cannot be dismissed in that manner. In the context in which it appears, it is sufficient to demonstrate that the Delegate was at least aware that her legal duty was to undertake a single evaluative task, informed by the factors in (a) to (d) of cl 202.222(2).

72    In the face of an express statement by the Delegate asserting that she had reasoned in that manner, I do not consider that it is open to this Court to conclude that the Delegate committed the legal error asserted by Ground 1.

73    Whether, as a matter of substance, the Delegate fulfilled the legal duty to which her reasons acknowledged she was subject, is immaterial to the disposition of Ground 1.

Ground 2

74    That question, however, is the gravamen of Ground 2.

75    The primary judge observed, at [11] of her Honour’s reasons, that the Delegate made no adverse findings in respect of the First Appellant’s credibility and accepted that the Appellants satisfied the “time of application” criterion in cl 202.211(1)(a) of Sch 2 to the Regulations.

76    While differing in respect of the conclusions capable of being drawn from that circumstance, both Ms Germov’s and Mr Wood’s submissions accept each of those premises. I proceed on the basis that they are common ground.

77    The “time of application” criterion contained in cl 202.211 was as follows:

(1)    If the application does not include a proposal by an approved proposing organisation, the applicant:

(a)     is subject to substantial discrimination, amounting to gross violation of human rights, in the applicant’s home country and is living in a country other than the applicant’s home country; …

78    It is uncontentious that “Families of Hope Australia”, although eligible to be a sponsor, was not an approved proposing organisation pursuant to cl 202.111 of Sch 2 to the Regulations. Accordingly, the “time of application” criterion provided for in cl 202.211(1)(a) had to be satisfied as at 6 December 2017; the date on which the Appellants’ application was lodged.

79    The Delegate’s Decision Record is undated. However, the outcome of their applications was communicated to the Appellants under cover of a letter dated 13 December 2017. Both parties accept that it is open to infer that the Delegate made her decision on 13 December 2017. That was seven days after their applications had been lodged.

80    Neither party contends that there is anything in, or extrinsic to, the Delegate’s reasons to suggest that the Delegate had had regard to a material change of circumstance occurring in the short period between the date of Ms XA’s application and the date of the Delegate’s decision.

81    It is common ground that a freedom of information request made by the Appellants for a copy of the Minister’s file produced no internal records or file notes concerning the Delegate’s consideration of cl 202.222. Neither party submits that an inference that a change of circumstance might explain the Delegate’s reasoning is open to be drawn.

82    Ms XA’s claims are as set out at [9]-[13] above.

83    Clause 202.222, as at 13 December 2017, was in the following terms:

(1)    If:

(a)    the applicant met the requirements of subclause 202.211(2) at the time of application; and

(b)    the applicant’s proposer is, or has been, the holder of a Subclass 202 visa;

   the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa having regard to the extent of the applicant’s connection with Australia.

(2)    If subclause (1) does not apply, and the application does not include a proposal by an approved proposing organisation, 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 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.

(3)    …

It is not suggested that the First Appellant satisfies subcl (1).

84    Mr Wood accepts, and I take it to be uncontentious, that cl 202.222(2)(a) therefore required the Delegate to have “regard to the degree of discrimination” to which Ms XA had been subject to in her home country, together with the three other factors listed in that subclause, to inform the single evaluative decision the Delegate was required to make.

85    In her Decision Record (set out above in full at [14]), under the heading “Degree of persecution or discrimination” the Delegate recorded:

The applicants have demonstrated that they are subject to some degree of persecution or substantial discrimination in their home country.

Then, having also addressed herself sequentially to the three other factors to which she was required to have regard in informing her ultimate decision, the Delegate’s reasoning was as follows:

I accept that the applicants are subject to some degree of persecution or discrimination in their home country and have some connection to Australia. Although there is no evidence that there is another country available for the applicant’s settlement and protection Australia does not have the capacity to provide for permanent settlement of all applicants at this time.

Weighing those factors together, I am not satisfied that there are compelling reasons for giving special consideration to granting the applicant a Class XB visa. …

86    I have noted earlier that Robertson J’s reasoning in Jabbour is not authority for the proposition that the Delegate would fall into judicially reviewable legal error by not complying with the Policy Guidelines. However, nothing in Jabbour suggests that the absence of a statutory duty to provide reasons supports the conclusion that a lesser standard of analysis applies to reasons in fact given. Nor do I apprehend that the Minister suggests otherwise: with one qualification. The significant qualification Mr Wood makes to that proposition is that, having regard to the reasoning of the plurality (French CJ, Bell, Keane and Gordon JJ) in Plaintiff M64 at [25], where a decision maker is not required to give reasons for a decision it may be difficult to draw an inference that the decision was attended by an error of law because of what was not said by the decision-maker. I accept that submission.

87    However, as the reasoning that both precedes and follows their Honour’s observation at [25] of Plaintiff M64 suggests, I do not take that observation to be intended to exclude the possibility of an inference being drawn from a lacuna in a decision-maker’s reasons if those reasons, read fairly without an eye keenly attuned to the detection of error, make it clear that an error of law has been made. It is well settled law that any powers and discretions that a statute confers upon a public official are only to be exercised in a manner consistent with achieving the objects of that conferral.

88    Given that the Delegate’s reasons take the form of a decision record, and nothing to the contrary having been advanced on the Minister’s part, I infer that that it was the Delegate’s intention to document her decision, as the Minister’s policy provides, “in such a way as to stand up to scrutiny by the public or an Australian court”. But that, in the end, is immaterial.

89    I take it to be uncontentious that if the reasons given for a particular decision reveal that a public official has proceeded on a misunderstanding of, or has exceeded, his or her power, and his or her exercise or purported exercise of power is thereby affected, then the action purportedly taken pursuant to that power will be invalid: see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179.

90    That principle that an evaluative or discretionary power reposed in an officer of the Commonwealth remains subject to judicial review is long established and legally uncontroversial. As Dixon J said in Shrimpton v Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630:

… [C]omplete freedom from legal control, is a quality which cannot ... be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force.

91    In Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, Kirby and Callinan JJ more recently observed to the same effect:

69    … To talk of “absolute” judicial discretions, at least where such discretions are conferred by an Australian statute, involves a contradiction in terms. Absolute discretions are a form of tyranny.

70    All repositories of public power in Australia, certainly those exercising such power under laws made by an Australian legislature, are confined in the performance of their functions to achieving the objects for which they have been afforded such power. No Parliament of Australia could confer absolute power on anyone. Laws made by the Federal and State Parliaments are always capable of measurement against the Constitution. Officers of the Commonwealth are always answerable to this Court, in accordance with the constitutional standard. Judges within the integrated judicature of the Commonwealth are answerable to appeal and to judicial review. This does not mean that a discretionary power given to a judge, should be narrowly confined or hemmed about with restrictions and limitations, whether called principles or “guidelines” or anything else. But it does mean that there are legal controls which it is the duty of courts to uphold when their jurisdiction is invoked for that purpose.

(Citations omitted.)

92    It is not in dispute that the Delegate accepted Ms XA’s credit.

93    Having regard to her accepted claims, the Delegate’s reference to Ms XA as having suffered “some degree of persecution of discrimination” is significant. If “some degree” is to be understood as referring to a modest or unevaluated degree of persecution, I would accept Ms Germov’s submission that this sentence would demonstrate either a fundamental misunderstanding of the Delegate’s statutory task or a dismissive approach on her part which is entirely inconsistent with the Delegate having given proper, genuine and realistic consideration to those claims.

94    I do not understand Mr Wood to have disputed that proposition.

95    The expression “proper, genuine and realistic consideration to the merits of the case” has its origins in the observations of Gummow J (when sitting as a judge of this Court) in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; 14 ALD 291. I accept Mr Wood’s submission that Carrascalao is authority for the proposition that this expression should be approached with caution, lest the Court stray impermissibly into merits review. That accepted, Mr Wood accepts that cl 202.222(2) required the Delegate to have regard to “the degree” of discrimination to which Ms XA had been subject to in informing the state of satisfaction (or absence thereof) which the Delegate was ultimately required to form. Mr Wood does not submit that if the Court were to find that that duty was unfulfilled the Court would have strayed impermissibly into merits review.

96    Rather, Mr Wood submits that the Appellant bears the burden of demonstrating that the Delegate committed the error alleged. There must be proof, capable of satisfying the Court on the balance of probabilities, that the Delegate’s statutory duty was not lawfully performed. I accept that submission. However, it is uncontentious that proof of an alleged error need not be established by extrinsic material. In some circumstances such an error can be established only from what the decision maker actually said on a subject: see Plaintiff M64 per French CJ, Bell, Keane and Gordon JJ at [39].

97    The critical issue therefore is whether the Delegate’s reasons, read fairly, evidence to the requisite degree that she committed the error Ms Germov alleges, or whether, as Mr Wood submits, they do not.

98    Read fairly, Mr Wood submits, the Decision Record shows that the Delegate did not find that Ms XA had suffered “some degree” of persecution or discrimination as would refer to only a modest or unevaluated degree of such harm. Rather, read fairly and as a whole, the Delegate’s reasons reveal that the Delegate accepted that Ms XA had suffered “substantial discrimination”. Mr Wood submits that such a conclusion, while terse, was sufficient to discharge the Delegate’s statutory duty to have regard to the degree of discrimination to which Ms XA had been subject.

99    I have set out above at [51]-[60] the three step reasoning that Mr Wood submits entitles this Court to reject the proposition that the Appellants have discharged their burden of proof. However, there are difficulties regarding the plausibility of each of those three steps.

Step One

100    The first step asks the Court to read into a sentence “bang in the middle” of the Delegate’s Decision Record, beneath the heading “Findings and Reasons”, an implied finding that Ms XA had been subject to substantial discrimination, amounting to a gross violation of her human rights in her home country. Mr Wood asserts that this implied finding, once made, subsequently informed the delegate in making that part of her decision which turned on cl 202.222(2)(a).

101    The sentence relied upon as the foundation for step one appears as follows:

As the applicants have been assessed as meeting time of application criteria [for each of the five visa subclasses] I must assess the application against the requirement ... [stated identically in each] that there be compelling reasons for giving special consideration to granting the applicant a visa, having regard to the following factors …

102    The initial difficulty with that submission is contextual. The first three sentences of the Delegate’s Findings and Reasons simply define the task the Delegate was stating she was undertaking. The first sentence is no more than a generic statement that the Delegate had read the supporting materials provided on behalf of the Appellants against the legislative requirements of the Act and Regulations. The second sentence refers to there being five visa subclasses within the Class XB visa type, and states that the Delegate understood that she must assess the First Appellant against all of those subclasses. The third sentence then identifies the criterion her decision is required to address: that for all Class XB visa subclasses it is a requirement that there be compelling reasons for giving special consideration to granting an applicant a visa.

103    The sentence the Minister relies upon thus ordinarily would be read as the Delegate acknowledging that she was not required to give attention to the “time of application” criterion because the Appellants had already been assessed as meeting it. It is expressed in the past tense.

104    Mr Wood denies that that is a justified reading of the Delegate’s reasons, having regard to three submissions advanced in the course of oral argument. First, Mr Wood submits that the use of such a split decision making process would have been “seemingly unlawful”. Secondly, Mr Wood submits that the use of the past tense is a simple Wu Shan Liang mistake which a court not reading the Delegate’s reasons with an eye to error should overlook. Thirdly, Mr Wood submits that the sentence is capable, as a matter of ordinary grammar, of being read as “the applicants have been assessed by me”.

105    The third of Mr Wood’s propositions can be accepted on the basis of a concession the Applicant’s counsel made: see below at [107].

106    However, the same does not apply with respect to Mr Wood’s first proposition. Counsel for the Minister identifies no reason why the Delegate could not have lawfully assessed the Applicants’ application for a Class XB visa with respect only to the “time of application” criterion, some days before considering the “time of decision” criterion. It is entirely possible that this might occur in a high volume decision making area. Those applications that were assessed as having met the “time of application” criterion might be batched with others that also met that criterion, for later consideration as to the “time of decision” criterion. Mr Wood’s proposition that such a course would be “seemingly unlawful” was not supported by reference to any authority. I discern nothing that would prevent it.

107    Mr Wood’s second proposition has no foundation in any proven or conceded fact. Ms Germov did advise the Court that in her experience as a former employee of the Department, the same Delegate of the Minister would always make both decisions. While that concession was in the form of evidence from the bar table, it was the premise upon which this appeal was conducted on both sides. However, Ms Germov did not submit, nor did she assent to Mr Wood’s proposition, that the two decisions were required to be made on the same occasion. Mr Wood’s submission must be considered in that context.

108    There is nothing before the Court that would permit it to reason from Mr Wood’s starting premise that both decisions were in fact made at the same time, such that the terms of the Delegate’s accepted satisfaction with respect to the “time of application” criterion must have been to the front of her mind when she turned to consider the “time of decision” criterion. Absent a foundation for that factual premise, what is advanced on the Respondent’s behalf as a reasonable inference that the Court is entitled to draw can be seen to be no more than unsupported speculation and the Minister’s objection to the ordinary reading of the text of the Delegate’s decision necessarily falls away.

109    Critically, there is no reason for reading the Delegate’s use of the past tense in relation to the “time of application” criterion as other than a plain statement of fact that explains why the Delegate was satisfied that she could proceed to consider the “time of decision” criterion. There is no Wu Shan Liang point.

110    It must be accepted that in Plaintiff M64 the High Court drew attention to the difficulty, sometimes impossibility, of drawing inferences from what a decision-maker did not say where there is no legal duty to provide reasons. However, it would turn the supervisory jurisdiction of the courts as to the lawful boundaries of decision making into a mere shell if it were possible to reason that because a decision-maker’s decision could have been supported by undisclosed and far from obvious reasoning and unestablished facts, that what the decision-maker did say using the past tense should be accepted as a Wu Shan Liang mistake that a court not reading the Delegate’s reasons with an eye to error must overlook.

Step Two

111    Unless Mr Wood’s submission regarding step one is accepted, there is no premise on which to read the language that follows in the next part of the Delegate’s Findings and Reasons under the heading “Degree of persecution or discrimination” that “[t]he applicants have demonstrated that they are subject to some degree of persecution or substantial discrimination” other than in the manner for which Ms Germov contends. As a matter of ordinary English expression, the word “some” applies both to the “degree of persecution” and “substantial discrimination”.

112    It would be strained to read that sentence as employing a hard disjunctive. It is not a plain reading to ask the Court to ignore the connector “or”.

113    However, assuming that such a reading is at least hypothetically open, the content of the Delegate’s reasons so read would involve an extreme degree of implausibility with respect to the posited outcome. It would require reading the sentence as if the Delegate intended to make a clear distinction between her finding that the Appellants had demonstrated: (a) some degree of persecution; or (meaning “and”) (b) substantial discrimination in their home country.

114    Given that the same factual record must necessarily underpin each of those two hypothesised findings, such different findings as to the degree of persecution and discrimination are, at best, challenging to reconcile. It will be recalled that at step one, Mr Wood submits that having regard to the Delegate’s findings as to the “time of application” criterion, the Delegate had concluded that Ms XA had suffered substantial discrimination amounting to gross violation of her human rights. On that premise, to suggest that the Delegate might have reasoned that Ms XA had suffered only “some” degree of persecution in contrast to the substantial discrimination that she had endured gives rise to a most implausible reading.

Step Three

115    Step three requires the Court to import into the language employed by the Delegate when setting out the considerations she expressly stated she would weigh together, the word “substantial” before the word “discrimination”. Such a “reading in” is necessary because Mr Wood accepts that read in isolation, the text involves only a finding of “some discrimination”. Only if the inferences from steps one and two provide a plausible basis for step three is it open to argue that a fair reading of the Delegate’s decision as a whole requires the conclusion that the Delegate was not thereby using “some discrimination”, to refer to either a slight amount or an unquantified degree of discrimination.

116    The language used by the Delegate beneath the heading “Findings and Reasons” is as follows:

I accept that the applicants are subject to some degree of persecution or discrimination in their home country and have some connection to Australia. Although there is no evidence that there is another country available for the applicant’s settlement and protection Australia does not have the capacity to provide for permanent settlement of all applicants at this time.

Weighing those factors together, I am not satisfied that there are compelling reasons for giving special consideration to granting the applicant a Class XB visa…

Clearly, the Delegate in the first paragraph is stating the findings she intends to rely upon with respect to the four factors she has previously discussed in order to inform her final evaluative conclusion.

117    The word “some” in that context is used by the Delegate to qualify not only the degree of persecution or discrimination to which she accepts the Appellants are subject in their home country, but also their degree of connection to Australia. Mr Wood does not suggest that there is any contextual reason to suggest that the Appellants’ degree of connection to Australia was greater than minimal. It would be futile to suggest that a decision is to be construed as a statute. Nonetheless ordinarily, even in speech, the same word when used in the same context will convey the same meaning.

118    In my view, the reasoning Mr Wood advances in support of steps one and two provides an excessively weak and uncertain basis on which to read the language at step three in the manner for which he contends.

119    To the contrary, I am satisfied that, on a fair and plain reading, what the Delegate stated at that critical juncture is good evidence that the error Ms Germov submits was made, was in fact made.

120    At the level of principle Mr Wood accepts that if the Appellants can persuade the Court that they have discharged their burden of proof so as to show that the Delegate did not have lawful regard to any one or more of the four factors specified in cl 202.222, or misconstrued them, that would be jurisdictional error. On the balance of probabilities, I am satisfied that the Court should draw that conclusion.

121    Contrary to the Minister’s submissions, I am satisfied that a plain and fair reading of the Delegate’s reasons demonstrates that the Delegate failed to engage with the statutory task she had a duty to fulfil. The findings the Delegate made, as are referred to at [116] above, in the absence of any finding of want of credit, demonstrate that the Delegate either misconstrued the statutory provision or wholly failed to give realistic consideration to “the degree” of persecution and discrimination to which Ms XA had been subject in the DRC.

122    The statement that the Delegate accepted that the Appellants had suffered “some degree of persecution or discrimination in their home country” would apply to almost every applicant for such a visa. That conclusion involved the Delegate making no assessment of “the degree” of a critical factor that her statutory task required her to undertake.

123    Her duty was to reach (or decline to reach) a state of satisfaction informed by the four factors to which she was required to have regard pursuant to cl 202.222(2) of the Regulations. Inevitably, that required a subjective (or discretionary) conclusion. However, as Mr Wood accepts, her evaluative conclusion was required to be informed by a valid consideration of the four factors feeding into it.

124    Ms XA had described a horrific account of persecution, including the killing of her husband and her rape in police custody in the DRC. By no measure of reason could the degree of that persecution be assessed by the Delegate as “some” in the sense of it being slight. If the Delegate instead used this word in its other ordinary sense, namely to mean an undetermined amount, the use of such a descriptor ran counter to her duty to have regard to the degree of discrimination that the First Appellant had suffered. Either would be a jurisdictional error. In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, French CJ reasoned as follows (at [24]):

24    Every discretion has to be exercised, as Kitto J put it in R v Anderson; Ex parte Ipec-Air Pty Ltd, according to “the rules of reason”. His Honour, paraphrasing Sharp v Wakefield, said:

“a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself”.

(Citations omitted.)

125    I respectfully adopt the phraseology of Kitto J (adjusted to reflect less gendered times) cited by his Honour as to the test which applies. The Delegate did not inform herself of one of the four factors upon which her evaluative and necessarily subjective task depended. She therefore could not lawfully conclude her statutory duty within the limits within which a person, competent to discharge the duties of her office, was required to confine herself.

126    The Delegate’s statement that she arrived at her conclusion “weighing these factors together” is of no legal consequence if one of those factors was not lawfully addressed. It is not to indulge in over-zealous judicial review for a court to draw on the language actually used by a decision maker as it appears on a plain reading, in preference to a post-hoc analysis of the text that seeks to explain what the language might mean if the decision maker is assumed, a priori, to have carried out his or her statutory duty. There is nothing in the Delegate’s reasons to suggest that she made a lawful finding as to the degree of the persecution and discrimination which Ms XA had suffered in the DRC.

127    In Plaintiff M64 the plurality reasoned at [36] that a plaintiff was not entitled to invite the inference that an erroneous view had been taken of some material aspect of the matter simply because that aspect has not been expressly addressed and made the subject of findings. This case is the converse of that. The Minister cannot invite an inference that a correct view has been taken of some material aspect of a material aspect of the matter where the reasoning advanced in support of that inference is too weak and uncertain for a court to place confidence in it.

128    I am satisfied that the Appellants have discharged their burden of proving, on the balance of probabilities, having regard to what the Delegate actually said, that the Delegate fell into jurisdictional error.

129    In Plaintiff M64 the plurality referred at [54] to the critical evaluative task conferred on a Delegate. It noted:

The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open textured criterion of ‘compelling reasons for giving special consideration’ is readily apparent.

130    That observation was made in the context of the Court rejecting a submission that the Minister’s policy guidelines had been inflexibly applied. In the present matter the primary judge, and the Minister’s submissions, proceeded on the basis that there was no legal duty on the Delegate to comply with that policy. That can be accepted, but there is no sound jurisprudential basis from which to infer the conclusion that an unreasoned outcome can be justified.

131    Unlike the circumstances in Plaintiff M64, the Delegate did not set out the scale of demand for unmet offshore protection visas or the capacity constraints Australia might have in responding to the large number of generally qualified candidates who might apply for a visa of this class. Notwithstanding this, it may be accepted that demand is likely to be significantly greater than the number of places available. Yet in the absence of the Delegate acknowledging and applying the Minister’s policy framework, in circumstances in which the court below, correctly, accepted that this in itself was not a legal error, there was nonetheless no jurisprudential reason for that court not to identify reviewable error having regard to the Delegate’s facially erroneous reasoning. The policy is undoubtedly correct to state that a Delegate’s decision must be consistent with legislation, in such a way as to stand up to scrutiny by an Australian court.

132    As Plaintiff M64 establishes, the bar is far from high. The reasoning of both the plurality and Gageler J writing separately takes account of the high volume of applications. There is no warrant for this Court to condone a circumstance where those quite modest requirements have not been met.

133    My reasoning should not be understood as rejecting that it is possible the Delegate proceeded as Mr Woods submits she did. However I am satisfied that a facially obvious reading of those reasons is to be preferred, on the balance of probabilities, to one which depends on the chain of reasoning Mr Wood advanced.

134    If it needs be stated, my reasoning involves no finding that the Delegate was other than honest: Kitto J is to be understood as stating a test against which a conclusion might be measured. The application of that test does not require the Court to doubt (and I do not) the Delegate’s honesty.

135    Having established to the requisite standard that the Delegate did not undertake the statutory task of determining “the degree” of discrimination to which Ms XA was subject, it is impossible to reason that the Delegate could thereafter validly conclude the task which the plurality of the High Court had described as her duty in Plaintiff M64.

136    As the reasoning of a Full Court of this Court in Singh v Minister for Home Affairs [2019] FCAFC 3 illustrates, the ultimate concern of judicial review is with the identification of jurisdictional error: a public official not performing the function entrusted to his or her, or not performing it in an authorised way. I am satisfied that such error has been established.

137    I would uphold Ground 2.

Leave to rely on a ground raised in oral argument not contended for in the Court below

138    During the course of oral argument, faced with the Court’s observations that the reasoning of Roberson J in Jabbour might not sustain her submission that the Delegate was obliged to comply with the Minister’s policy, Ms Germov sought to rearticulate her submission on the premise that the Delegate had at least purported to comply but had not complied with the terms of that policy.

139    Ms Germov was given several opportunities in the course of argument before the Court to reformulate this submission with some precision. She failed to achieve that objective. Mr Wood, consistently with the obligations of counsel representing a model litigant, did not object to Ms Germov being permitted to advance a proposed additional ground of appeal so premised following the hearing. This was so notwithstanding it had not been contended for in the court below, and that notice had not been given prior to the hearing.

140    In the event, Ms Germov advanced a proposed additional third ground of appeal formulated as follows:

Ground 3

Pursuant to the orders of the Court made on 21 August 2019, the Appellants seek leave to put forward an additional ground of challenge to the decision of the Respondent's delegate as follows:

3.    Further or in the alternative to grounds 1 and 2 of the Notice of Appeal, the Respondent's delegate misapplied the Respondent's policy.

Particulars

The delegate purported to apply the Respondent's policy in finding that the Appellant suffered substantial discrimination at the time of application as required by clause 202.211(1)(a) but failed to specify the degree of discrimination the Appellant suffered at the time of decision as required by clause 202.222(2)(a) and the Respondent's policy:

(a)     The delegate's omnibus approach in finding that the Appellant satisfied the time of application criteria in subclause 200.211(1), 201.211(1), 202.211(1), 203.211(1) and 204.211(1) indicates that the delegate did not actually turn her mind to the specific eligibility criteria for these subclasses which would be demonstrated in the decision record by reference to discrimination in subclause 202.211(1) rather than persecution.

(b)     The delegate stated that the Appellants suffered "some" persecution or discrimination when there was no evidence of any change in the Appellant's circumstances from time of application to the time of decision which raises a strong inference that the application was decided on the day the decision record is dated in that

(i)     The full copy of the Respondent’s Departmental file appended to the affidavit of 22 August 2019, provided pursuant to the Appellant’s Freedom of Information request, contains no indication that the delegate took any action concerning the application between the receipt of application and the decision;

(ii)     Particular (d) to ground 1 in the application for review in the Court below placed the Respondent on notice of this position and the Respondent elected not to lead evidence demonstrating any work or consideration of the application by the delegate prior to the date of the decision and hence the Court should infer that no activity or consideration occurred in relation to the visa application before the date of the decision.

(c)     The absence of any evidence of any activity or consideration of the application before the date of decision, the brevity of the decision record, and the absence of any evidence for the conclusion reached at the time of decision (whether in the decision record itself or any internal Departmental file records) leads to the inference that the delegate departed from the policy for no discernible reason or misconstrued what was required for her to discharge her statutory task.

(d)     Policy required the decision record to clearly and logically summarise the officer’s assessment of relevant factors based on the information available, and be consistent with legislation and policy, in such a way as to stand up to scrutiny by the public or an Australian Court [AB-197] whereas the decision record contains no summary of the claims or evidence presented.

(e)     Policy required the delegate to consider whether claims of discrimination amounted to substantial discrimination amounting to a gross violation of human rights by exploring a number of factors set out at AB 234 at paragraphs 1-7. There is nothing on the Respondent’s Departmental file or in the decision record to indicate that the delegate referred to any of these factors in the assessment of the Appellant’s claims.

(f)     Policy required delegates to determine the degree of discrimination by reference to the level or amount of discrimination: AB 236 under the subheading “The degree of persecution or discrimination”, whereas the delegate stated that the Appellant suffered “some’ discrimination at the time of decision which is not the quantification required by the policy and the language of the criterion.

(g)     The statement in the delegate’s decision record that Australia has “limited capacity for humanitarian resettlement” (AB 166, paragraph one), does not refer to the considerations set out at AB 237 under the subheading “Australian community’s capacity”; at AB 238 at paragraphs 1-3; and AB 239 under the heading “Regional and global priorities” which raises the inference that the delegate merely paraphrased the criterion in subclause 202.222(2)(d) without the actual assessment required.

(h)     Section 54 of the Migration Act 1958 (Cth) obliged the delegate to have regard to all of the information in the application (as summarised in the attached table) which required the Delegate to actively engage with the evidence and information in accordance with the Respondent’s policy but neither the decision record nor the Respondent’s Departmental file give any indication the delegate undertook the qualitative and quantitative assessment required by law and policy which in turn meant that the delegate was not in a position to lawfully discharge her statutory task of assessing whether there were compelling reasons for giving special consideration to the grant of the visa.

141    I would decline to grant leave to permit the Appellants to rely on that additional proposed ground. It is only in exceptional circumstances that such leave should be granted: Coulton v Holcombe [1986] HCA 33; 162 CLR 1.

142    It may be accepted that the form of the Decision Record might be thought to support an inference that the Delegate had purported to apply the Policy Guidelines. However, the Appellants’ proposed new ground advances that proposition only as a particular.

143    The balance of the ground as particularised puts forward a range of additional propositions which go well beyond those foreshadowed by Ms Germov during the hearing. If the Court were to grant leave it might be required to determine a matter of considerable consequence in circumstances in which it would have been open, at least theoretically, to the Minister to have advanced evidence in the court below as to the soundness or otherwise of one or more factual premises. Those complex contentions not having been put in issue in the court below, notice not given until after the close of oral submissions and the terms of the notice given extending beyond that foreshadowed, it would be inappropriate for this Court to grant leave.

CONCLUSION

144    I would uphold Ground 2 of the Appellants’ appeal.

145    But for my being in the minority, I would have ordered that the decision of the primary judge be set aside and in lieu thereof orders made remitting Ms XA’s application and those dependant on it to the Minister for consideration according to law. I would have ordered that the Appellants have their costs of the appeal (excluding those incurred by reason of the proposed new Ground 3) and in the court below.

146    Given that the failed claims made by the First Appellant include reference to threats to her notwithstanding her having fled her home country, I would allow the parties 14 days to advise the Court if there is any sensitive personal information in the passages setting out Ms XA’s claims for which orders for redaction are sought before publication of these reasons beyond the parties.

Associate:

Dated:    23 September 2019

REASONS FOR JUDGMENT

LEE J:

147    I have had the benefit of reading in draft the reasons of Kerr J and those of Thawley J.

148    Ms XA’s statement as extracted by Kerr J engenders real feelings of sympathy for her circumstances. Putting these to one side, it appears to me the observations made by French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 185-186 [25] have real resonance in the circumstances of this case:

It is well settled that in the context of administrative decision-making, 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. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so 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 … Further, the Delegate's letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.

(citations omitted, emphasis in original)

149    Neither party suggested the decisions made were otherwise than by the same delegate. Although during oral submissions counsel for the appellants agreed with the proposition put to her that the decision “could” have been made by the same delegate at an earlier time, no positive case was advanced by the appellants that this was the case. The Minister is correct to contend that what the delegate found in relation to the “time of application” criteria, must be borne in mind in understanding what the delegate did say by way of explanation of the decision as to the “time of decision criteria”. Hence the statement that the appellants “have demonstrated that they are subject to some degree of persecution or substantial discrimination” cannot be considered absent the context of the delegate having also found, as Thawley J explains, “substantial discrimination amounting to a gross violation of human rights” and that the appellants had been “subject to persecution”.

150    Ground 2 invites over-zealous judicial review seeking to identify inadequacy from the statement by the delegate, being a statement given in circumstances where reasons were not required. I agree generally with Thawley J’s reasons as to why this and the other two grounds are not made out.

Associate:

Dated:    23 September 2019

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

151    The appellants appeal from a decision of the Federal Circuit Court of Australia. The application to that court was for judicial review of a decision of a delegate of the (then) Minister for Immigration and Border Protection. That court had jurisdiction under s 476 of the Migration Act 1958 (Cth).

152    Judicial review is confined to the legality of the delegate’s decision. As the High Court emphasised in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [23], judicial review is not an appellate procedure enabling either a general review of the decision or a substitution of the decision which the court thinks should have been made.

153    The delegate’s decision related to an application sent under cover of a letter from the appellants’ lawyers dated 4 December 2017. The first appellant applied for a Refugee and Humanitarian (Class XB) visa. The first appellant was the primary applicant and the other appellants were the secondary applicants, being the brothers and adopted children of the first appellant.

154    The covering letter stated:

The applicants and the proposer are now seeking to apply for the applicants to be granted a Class XB Refugee and Humanitarian visa on the basis that the primary applicant is subject to substantial discrimination, amounting to gross violation of human rights, in her home country and is living in a country other than her home country, and that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, as set out in the Migration Regulations 1994.

155    The letter contained a list of attachments, which included the relevant application forms and a “Statement of Claim” which outlined the first appellant’s “experiences of persecution in her home country for reasons of membership of a particular social group (DRC [Democratic Republic of the Congo] Human Rights Workers) and her associated imputed political opinion as anti-DRC Government”.

156    It is relevant to emphasise at this point that the material submitted in or with the application made claims both of “discrimination” and “persecution”.

157    One of the attachments was a letter dated 26 September 2017 from Families of Hope Australia, which referred to an application for a subclass 202 Global Special Humanitarian visa. This pre-dated the formal application and its covering letter of 4 December 2017. The formal application was not expressly limited to be an application for a subclass 202 visa.

158    The visa application form relevantly stated:

•    Your application will be assessed against the following 4 factors:

•    the degree of persecution or discrimination to which you are subject in your home country

•    the extent of your connection with Australia

•    whether or not there is any suitable country available, other than Australia, that can provide for your settlement and protection from discrimination

•    the capacity of the Australian community or (in the case of a Community Proposal Pilot application) any proposers of your application, to provide for the permanent settlement of persons such as you in Australia.

All applicants should include as much information as possible about these factors.

•    Not all applicants are interviewed.

159    The approved application form did not distinguish between the various subclasses of the Refugee and Humanitarian (Class XB) visa. In this context, it is relevant to note that s 45 of the Act provides:

Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.

THE ADMINISTRATIVE AND LEGISLATIVE CONTEXT

160    It is necessary to understand a little about the different subclasses of the Refugee and Humanitarian (Class XB) visa.

Administrative context

161    The Refugee and Humanitarian (Class XB) visa is used in implementing Australia’s offshore Humanitarian Programme, being that part of Australia’s Immigration Programme which provides for the immigration of refugees and people in refugee-like situations.

162    The offshore component of Australia’s Humanitarian Programme has two categories: “Refugee” and “Special Humanitarian Programme” (SHP):

(1)    The Refugee category comprises four visa subclasses: Refugee (Subclass 200), In-country Special Humanitarian (Subclass 201), Emergency Rescue (Subclass 203) and Woman at Risk (Subclass 204).

(2)    The SHP category comprises one visa subclass: Global Special Humanitarian (Subclass 202).

163    As is explained in further detail next, the four Refugee category subclasses include criteria that require consideration of “persecution”, not “discrimination”. On the other hand, the SHP category subclass requires consideration of “discrimination”, not “persecution”.

164    It was not in dispute that the number of applicants for a subclass 202 visa far exceeds the number of places available. In Plaintiff M64, the relevant delegate’s letter indicated that, as at 1 July 2014, there were over 45,000 applicants awaiting a decision in the SHP with only 5,000 places available in the 2014-15 programme year.

The legislative context

165    For the first appellant to have obtained a visa relying on the SHP category (subclass 202), she had to satisfy two criteria of particular relevance to this appeal:

(1)    A ‘time of application criterion’ in cl 202.211(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The applicant must continue to satisfy the requirements of 202.211 at the time decision: cl 202.221(1);

(2)    a ‘time of decision criterion’ in clause 202.222(2).

166    The ‘time of application criterion’ in clause 202.211(1)(a) required that the first appellant was subject to “substantial discrimination, amounting to gross violation of human rights, in the applicant’s home country and is living in a country other than the applicant’s home country”.

167    The ‘time of decision criterion’ in cl 202.222(2) was as follows:

(2)    If subclause (1) does not apply [which it did not], and the application does not include a proposal by an approved proposing organisation [which the application did not because Families of Hope Australia was not “an approved proposing organisation”], 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 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.

168    The statutory task under cl 202.222(2) required that the delegate reach one state of satisfaction: whether “there are compelling reasons for giving special consideration to granting the applicant a permanent visa”. In reaching that state of satisfaction, the delegate was required to have regard to the four factors mentioned in paragraphs (a) to (d) (set out above) – see: Plaintiff M64 at [30] (French CJ, Bell, Keane and Gordon JJ); [63] and [65] (Gageler J).

169    The delegate’s state of satisfaction had to be reached by reference to reasons that were “compelling”. In Plaintiff M64, the plurality said at [31] that those reasons must force or drive the decision-maker irresistibly to be satisfied that “special consideration” should be given to granting the particular application. The plurality stated:

Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.

170    Justice Gageler stated at [64] (citations omitted):

A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” – “an inclination of the mind towards assenting to, rather than rejecting, a proposition”. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.

171    For the first appellant to have obtained a visa relying on one of the four Refugee categories (subclasses 200, 201, 203 or 204), she also had to satisfy two criteria, applicable to each subclass:

(1)    a ‘time of application criterion’ (which must continue to apply at the time of the decision): that the applicant is “subject to persecution in the applicant’s home country and is living in a country other than the applicant’s home country”; and

(2)    a ‘time of decision criterion’: whether the “Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to” four matters which included “the degree of persecution to which the applicant is subject in the applicant’s home country”.

172    It is relevant to note in respect of the ‘time of application criterion’ in relation to each of the four Refugee categories that an applicant does not need to establish that the persecution is “substantial”, whereas – for the SHP category – the discrimination must be “substantial” and amount to a “gross violation of human rights”.

No merits review

173    There is no provision for review by the Administrative Appeals Tribunal of a decision to refuse a Refugee and Humanitarian (Class XB) visa.

No requirement for reasons for decision

174    Many Commonwealth administrative decisions are the subject of a statutory obligation to provide reasons. The desirability of reasons has been spoken of in numerous cases which have recognised the role the requirement plays in promoting better decision-making and enhancing an understanding of why a decision was made, particularly, but not exclusively, on the part of those affected by the decision. Where there is a statutory obligation to provide reasons, this is often supplemented by specific provisions setting out the nature of the reasons required. In addition, s 25D of the Acts Interpretation Act 1901 (Cth) (AIA) sets out rules about the contents of a statement of reasons where a relevant statutory obligation exists.

175    It is well-settled that, outside of a statutory obligation, there is no common law obligation which requires an administrative decision-maker to provide reasons for decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.

176    In the present case there was no statutory obligation to provide reasons. The delegate did have an obligation to notify the visa applicant of the decision in the prescribed way: s 66(1) of the Act. If the visa was refused because the applicant did not satisfy a criterion for the visa, the delegate had to specify the relevant criterion in the notice: s 66(2)(a). However, consistently with the absence of an obligation to provide reasons generally, the delegate did not have to give written reasons as to why the relevant criterion was not satisfied: s 66(2)(c) and s 66(3). The decision-maker was not required to set out findings on material questions of fact or refer to the evidence or other material on which those findings were based or disclose her reasoning process – compare: s 25D of the AIA.

177    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

178    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.

179    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.

180    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 country

   b)     the extent of the applicant’s connection with Australia

c)     whether or not there is any suitable country other than Australia that can provide for the applicants settlement and protection and

d)     the capacity of the Australian community to provide for the settlement of persons such as the applicant in Australia.

181    The first matter to note about this passage is the process engaged in by the delegate. Neither party put or seriously embraced the proposition that there was a split decision-making process whereby the ‘time of application criterion’ and ‘time of decision criterion’ were separately addressed. The delegate initially reached a conclusion about whether the ‘time of application criterion’ had been met in relation to each subclass:

(1)    In relation to the SHP category (subclass 202), she concluded that the criterion was satisfied. She must have concluded, therefore, that the first appellant had been, at the time of the application, subject to “substantial discrimination, amounting to gross violation of human rights, in the applicant’s home country and was living in a country other than the applicant’s home country”. In light of the first appellant’s “Statement of Claim”, this conclusion is hardly surprising. Indeed, it is difficult to imagine that a person could read the first appellant’s statement and conclude otherwise.

(2)    In relation to the four Refugee category subclasses, the delegate also concluded these were satisfied. She must have concluded that the first appellant was “subject to persecution” at the time of application. As noted at [171] and [172] above, this criterion does not hinge upon any question of whether the persecution was “substantial” or require assessment of the degree of persecution.

182    Having reached the conclusion that the ‘time of application criterion’ was satisfied in relation to each subclass, the delegate then moved to the second criterion, namely whether she was satisfied that, at the time of decision, there were compelling reasons for giving special consideration to granting a visa, having regard to the four matters identified in paragraphs (a) to (d) of the applicable clauses, including cl 202.222(2).

183    The second matter to note is the delegate’s reference at paragraph (a) (extracted at [180] above) to “the degree of persecution or discrimination”. This must be understood in context. The delegate was dealing with each of the possible subclasses of the Refugee and Humanitarian (Class XB) visa. The terminology employed by the delegate in her decision record accorded with the statement extracted earlier which was contained in the approved application form: see [158] above. It also responded to the first appellant’s lawyer’s letter which referred to both “discrimination” and “persecution” – see [154] above. The reference to “the degree of persecution or discrimination” is a shorthand reference to matters relevant under both the four Refugee subclasses (200, 201, 203, 204) (“persecution”) and the SHP subclass (202) (“discrimination”), all of which the delegate had to assess in determining the visa application which had been made.

184    The delegate’s decision record in relation to the ‘time of decision criterion’ included:

a. Degree of persecution or discrimination

The applicants have demonstrated that they are subject to some degree of persecution or substantial discrimination in their home country.

b. Connection with Australia

The applicants have demonstrated a connection to Australia through their proposer - the applicant’s colleague - as indicated in the application for a Humanitarian visa.

c. Other suitable country

There is no evidence that there is another country available for the applicants’ settlement and protection from persecution or discrimination.

d. Capacity of Australian community

Australia has limited capacity for humanitarian resettlement and cannot resettle all people who apply for a Refugee and Humanitarian visa.

I accept that the applicants are subject to some degree of persecution or discrimination in their home country and have some connection with Australia. Although there is no evidence that there is another country available for the applicants’ settlement and protection, Australia does not have the capacity to provide for permanent settlement of all applicants at this time.

Weighing these factors together, I am not satisfied that there are compelling reasons for giving special consideration to granting the applicant a Class XB visa. I find that the primary applicant does not satisfy subclauses 200.222(1), 201.222(1), 202.222(2), 203.222(1) and 204.224(1). As the primary applicant did not satisfy these subclauses, I have also assessed the secondary applicants against them. I find that none of the secondary applicants satisfies subclauses 200.222(1), 201.222(1), 202.222(2), 203.222(1) and 204.224(1).

185    The argument in the appeal centred predominantly on paragraph (a), where the delegate stated that the appellants “have demonstrated that they are subject to some degree of persecution or substantial discrimination”.

186    This paragraph must be read with the delegate’s earlier statement that “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)”. It must also be assessed against the statutory scheme which required attention, at the time of decision, to whether an applicant continued to satisfy the ‘time of application criterion’ in relation to the relevant subclasses, namely that there was “persecution” (Refugee categories) or “substantial discrimination” (SHP category). The proper construction of the decision record consistently with the principles identified at [177] above, in particular that the Court ought not be astute to discern error in a statement which was not intended to be a formal statement of reasons, is that the delegate concluded:

(1)    so far as concerned persecution relevant to the Refugee category subclasses – there was “some degree of persecution”; and

(2)    so far as concerned discrimination relevant to the SHP category subclass (cl 202.222(2)(a)) – there was “substantial discrimination”, meaning “substantial discrimination amounting to a gross violation of human rights”.

187    It is possible that the decision record could also be read, so far as concerned cl 202.222(2)(a), as the decision-maker concluding that there was some substantial discrimination, meaning some “substantial discrimination amounting to a gross violation of human rights”.

THE APPEAL

188    The judicial review applicant bears the onus of establishing jurisdictional error. The plurality in Plaintiff M64 at [24] put the matter this way in the context of the particular species of jurisdictional error asserted in that case (citations omitted):

[T]he burden is upon the plaintiff to demonstrate that the Delegate’s decision was affected by jurisdictional error. The plaintiff must show that the approach adopted by the Delegate “manifest[ed] a legally erroneous view as to what it was about which [he] needed to be satisfied”, so that the Delegate lacked legal authority to make the decision that was made.

189    In this case, the appellants argued the jurisdictional error arose by the delegate:

(1)    misconstruing or misapplying clauses 202.211(1)(a) and 202.222(2)(a) in failing to determine whether the first appellant was “subject to substantial discrimination amounting to a gross violation of human rights” or the degree of such discrimination;

(2)    failing to give genuine and realistic consideration to the matters raised in the visa application.

190    During the course of the hearing, the appellants sought to raise a third ground of appeal which was not fully articulated until after the hearing.

191    It is convenient to deal with Ground 2 first.

Ground 2

192    The relevant principles are not in dispute. As the Full Court observed in Singh v Minister for Home Affairs [2019] FCAFC 3 at [30] and [31]:

[31]    If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.

  [32]    A statute might require a decision-maker to consider a matter by:

   (1)    expressly stating that the decision-maker must consider the matter; or

(2)    necessary implication because the consideration is a mandatory one having regard to the subject matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

193    Section 54 of the Act provides that the Minister “must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application”. Section 54 forms a part of Subdiv AB of Div 3 of Pt 2 of the Act. Subdivision AB is entitled “Code of procedure for dealing fairly, efficiently and quickly with visa applications” and is stated to be “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”: s 51A(1).

194    The requirement in s 54 to “have regard to all of the information in the application” is relevantly equivalent to a requirement to “consider” that information. Thus, in Carrascalao, the Full Court stated at [46]:

… An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a “more precisely defined duty”, as Black CJ observed in Tickner v Chapman. In our view, however, the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).

195    As the Full Court emphasised in Singh at [34] and [35], the principle is directed to the question whether the jurisdiction reposed in the decision-maker was in fact exercised and exercised in a way which was authorised by the statute.

196    The Full Court in Carrascalao at [32] also cautioned against allowing this ground for judicial review to slide into merits review. So too did the Full Court in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [42] (Rares and Robertson JJ) and in Singh at [35].

197    Each of the cases so far mentioned in this context concerned decisions in respect of which there was a statutory obligation to provide reasons. This is a matter of significance when considering the application of the principles expressed in those cases to the question whether an administrative decision-maker who is not subject to any obligation to provide reasons, and has not purported to provide such reasons, has engaged in an active intellectual process. For example, it was observed in Singh at [36]:

The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

198    The statement in the second sentence cannot be applied unmodified where there is no statutory obligation to provide reasons. To do so would be both contrary to logic and inconsistent with Plaintiff M64.

199    The delegate stated in the letter which notified the appellants of the decision and provided the decision record:

After careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out under Australian migration law.

200    The first passage of the decision record stated:

I have considered the application for a Refugee and Humanitarian (Class XB) visa, supporting documentation and other evidence against the legislative requirements contained in the Migration Act 1958 and the Migration Regulations 1994.

201    Such statements can be taken into account in determining what the delegate in fact did: Carrascalao at [131]; Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 at [70]. However, such statements do not immunise a decision-maker from challenge and the reliability of such statements is to be assessed according to all of the circumstances; sweeping or formulaic statements that matters have been considered will not shield from scrutiny whether in fact they have been considered: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [38].

202    In a case where a decision-maker, obliged to provide reasons, made such a statement and the reasons omitted any reference to critical evidence relevant to a central finding of fact, it might be inferred that the decision-maker failed to consider the material, despite making the statement. Critically, however, this proposition cannot operate with equivalent force in a context where there is no obligation to provide reasons.

203    The appellants have not discharged the burden of establishing that genuine consideration was not given to the material provided in and with the visa application. It is to be inferred from the delegate’s conclusion that the ‘time of application criterion’ was satisfied that she read the first appellant’s statement. This inference is consistent with the delegate’s statements, extracted at [199] and [200] above, that she had considered the material provided with the application. The conclusion that cl 201.211(1)(a) was met necessarily required a conclusion that the appellants had been “subject to substantial discrimination, amounting to a gross violation of human rights”. It is to be inferred that the delegate accepted the truthfulness of the first appellant’s statement.

204    Apart from the “Statement of Claim”, the appellants did not identify other material which it was contended was not the subject of active intellectual engagement.

205    The appellants have not discharged the onus of establishing that the delegate did not engage actively with the question of the “degree of discrimination” – see: cl 202.222(2)(a). It is necessary to keep steadily in mind that the delegate was not required to set out material findings of fact or reasons for her conclusions in this regard.

206    As noted at [186] above, the delegate considered that there was “substantial discrimination”. In context, this should be understood as a reference to “substantial discrimination, amounting to a gross violation of human rights” as contemplated by cl 202.211(1)(a).

207    If the word “some” was used by the delegate to describe the degree of “substantial discrimination”, then the use of the word “some” is unfortunate. It is liable to several interpretations. It could be interpreted, for example, as a reflection on the quality of the discrimination or as to the number of relevant events or as to the period of time over which discrimination occurred. It cannot do justice as a summary of the events described in the first appellant’s statement. However, the delegate was not obliged, and did not intend, to set out all the material findings of fact. The decision record did little more than document the decision-maker’s conclusion with respect to factor (a).

208    In summary, by reason of having first concluded that the ‘time of application criterion’ had been satisfied, the delegate should be understood as accepting that there was substantial discrimination amounting to a gross violation of human rights. That of itself involves at least some assessment of degree, because the discrimination must be of a certain quality, namely “substantial” and “amounting to a gross violation of human rights”. There is nothing in the decision record to indicate that the delegate did not consider the “Statement of Claim” or the events described in it. The decision record stated that all of the material was considered. Assessed against the fact that there was no obligation to provide reasons, the appellants have not discharged the onus of establishing that the delegate did not consider the matters raised in their visa applications.

209    Although ground 2 was cast in terms of failing to engage with the material in the application, the appellants have also not discharged the onus of establishing that the delegate did not actively engage with the question of the “degree of discrimination” faced by the first appellant. To the extent that the word “some” is to be read as qualifying the phrase “substantial discrimination”, it is not to the point whether this Court or some other decision-maker would not have used the word “some”, or believes the word, as a matter of merit, does not sufficiently describe (or is even an inappropriate description of) the substantial discrimination in fact faced by the first appellant, or its degree.

Conclusion with respect to Ground 2

210    It follows that the appellants have failed to discharge the onus of establishing that the delegate did not give realistic and genuine consideration to the material in the application or, to the extent it was raised by Ground 2, to the statutory task of assessing the “degree of discrimination”.

Ground 1

211    In its terms Ground 1 was directed to both the criterion in cl 202.211(1)(a) and the criterion in 202.222(2)(a).

The time of application criterion

212    The appellants have not discharged the onus of establishing that the delegate misapplied or misconstrued cl 202.211(1)(a) by failing to determine whether the first appellant was “subject to substantial discrimination amounting to a gross violation of human rights”.

213    As explained earlier, the delegate concluded that the ‘time of application criterion’ had been satisfied and hence accepted that the first appellant “is subject to substantial discrimination, amounting to gross violation of human rights, in the applicant’s home country”. The delegate was not under an obligation to provide reasons why she concluded that cl 202.211(1)(a) was met. Indeed, she was not even under a duty to notify that conclusion. Her only duty, in terms of notification, was to identify any criterion not satisfied: s 66(2)(a) of the Act. There was nothing about the terms of the decision record which suggested a misconstruction of cl 202.211(1)(a).

The time of decision criterion

214    The appellants have not discharged the onus of establishing that the delegate misapplied or misconstrued cl 202.222(2)(a) by failing to determine the degree of discrimination suffered.

215    The delegate was obliged to have regard to the “the degree of discrimination to which the applicant is subject in the applicant’s home country” in reaching the state of satisfaction required under cl 202.222(2)(a). The delegate expressly stated in the decision record that she was required to have regard to that matter. The reference to “persecution” in that statement does not evidence an erroneous construction of what was required. Rather, as explained earlier, this word was used in reference to the statutory scheme, the visa application form, and the content of the visa application.

216    The better understanding of the decision record, read in accordance with the principles earlier identified, is that the delegate concluded that there was substantial discrimination amounting to a gross violation of human rights or, possibly, that there was “some” substantial discrimination of that nature.

217    The appellants have not established that the decision-maker failed to determine or take into account the degree of discrimination in reaching the state of satisfaction she was required to reach under cl 202.222(2)(a).

Ground 3

218    The appellants sought leave to raise a third ground of appeal which, as ultimately formulated, has been set out in the reasons of Kerr J. The ground is that the delegate failed to specify the degree of discrimination. It was said that cl 202.222(2)(a) and the Minister’s policy required the decision-maker to specify the degree of discrimination.

219    As to the first part of this ground, cl 202.222(2)(a) did not require the delegate to specify the relevant degree of discrimination. As to the second part of this ground, the policy stated that decision-makers should “document their assessment in a decision record”. It also stated:

Decision records should clearly and logically summarise the officer’s assessment of relevant factors based on the information available, and be consistent with legislation and policy, in such a way as to stand up to scrutiny by the public or an Australian court.

220    A policy is not a statement of legal obligation. Nor is Ministerial policy to be construed as if it were a statute; they are not statutory instruments. Policies prescribe guidelines. Policies should not be inflexibly followed.

221    In terms of the policy extracted above, the decision record did document the delegate’s assessment of the relevant factors. Assessed against the fact that there was no obligation to provide reasons, the decision record also documented the decision-maker’s assessment in a way which withstands scrutiny in accordance with the principles explained earlier. The decision record would have been plainly inadequate if there had been an obligation to provide reasons, but that is not to the point.

222    The appellants also referred to the primary judge’s conclusion that the delegate was not under a legal obligation to apply the Minister’s policy guidelines concerning the content of decision records because there was no direction under section 499 of the Act. Her Honour held it was permissible for a delegate to apply the guidelines but not compulsory. The appellants contended that the absence of a direction under section 499 of the Act “does not mean that a delegate is at liberty to adopt a laissez faire attitude concerning the [Minister’s] lawful policy”. The appellants contended that delegates are obliged to follow a lawful policy provided it is not applied inflexibly without regard to the merits of the case, referring to Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641 (Brennan J).

223    The short answer to this submission is, as explained earlier, that the statute did not require the decision-maker to provide reasons. She was required to, and did, provide notification of the fact of the decision and the criterion which was not met which resulted in the visa being refused. Even on the assumption that there was non-compliance with the policy so far as concerns documenting the assessment in the decision record, a failure to meet the standard specified in the policy cannot, of itself, constitute jurisdictional error.

Other contentions

224    For completeness, it is desirable to say something further about specific submissions advanced by the appellants, to the extent that they have not already been engaged with above.

225    The appellants contended that there was nothing in the delegate’s decision or in the documents provided by the respondent pursuant to a Freedom of Information Act 1982 (Cth) (FOI Act) request that indicated the delegate:

(1)    made any notes or observation concerning the first appellant’s claims; or

(2)    had any reference to applicable government policies that led to the delegate’s conclusion that the applicant’s claims were not sufficiently compelling to warrant special consideration for the grant of the visa.

226    As to the first matter, the delegate was not obliged to make notes or observations about the first appellant’s claims. She was obliged to determine the visa application according to law.

227    As to the second matter, it was not made clear where or why one would expect to see some reference to applicable government policies in a file or decision record. It is not uncommon for policies to be known without needing to refer to them and it is common for reference to be had to policies without recording the fact that such reference occurred, particularly where there is no statutory obligation to provide reasons for a decision.

228    The appellants contended “that the peremptory determination of the application, the inclusion of irrelevant criteria and the failure to have an active intellectual engagement with the claims and evidence against the applicable criteria strongly suggest a ‘cut and paste’ use of a decision template inconsistent with giving genuine and realistic consideration”.

229    The basis for the assertion that the application was determined “peremptorily” was the submission that the application was determined too quickly. This is speculative. The application was decided a week after receipt, but this does not establish that there was insufficient time to give the material proper consideration. The contention that “irrelevant criteria” were included is not made out. As noted above, the reference to “persecution” is explained by the statutory context and the first appellant’s application, which referred to the fact of “persecution”. The submission that a template was used without genuine consideration of the material is not made out.

230    The appellants’ submission – that “the fact that the delegate was not obliged to give reasons does not absolve the delegate from demonstrating that they have actively engaged with the claims and evidence submitted” – directs attention away from the fact that it is the appellants who had the onus of establishing jurisdictional error.

CONCLUSION

231    When the decision record is assessed, as it must be, with the understanding that the decision-maker was not under an obligation to disclose her findings on material questions of fact or her reasoning process, and otherwise in accordance with the principles earlier identified, the appellants have not demonstrated that there was a lack of intellectual engagement.

232    The appeal should be dismissed with costs.

Associate:

Dated:    23 September 2019

SCHEDULE OF PARTIES