FEDERAL COURT OF AUSTRALIA

SZRPA v Minister for Immigration and Citizenship [2012] FCA 962

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

1    By Notice of Appeal filed on 8 March 2012, the appellant appeals from a judgment of the Federal Magistrates Court delivered on 16 February 2012 (SZRPA v Minister for Immigration and Citizenship [2012] FMCA 91). The Federal Magistrate dismissed an application for judicial review of a recommendation made by the second respondent, in his capacity as an Independent Merits Reviewer (the reviewer). On 20 July 2011, the reviewer had concluded that the appellant was not someone to whom Australia had protection obligations under the Refugees’ Convention (the Convention) and had agreed with a negative refugee status assessment (RSA) made by an officer of the first respondent (the Minister).

2    The appellant is a citizen of Iraq who arrived in Australia by boat at Christmas Island on 17 July 2010. On 29 October 2010, he made a request for a RSA. An officer of the Minister made the negative RSA on 28 April 2011. On 12 May 2011, the appellant requested an independent merits review (IMR) of the RSA.

Background

3    The appellant claimed that he had fled Iraq because his father had become involved in a blood feud with members of another tribe. In 2009, the appellant’s father was involved in a dispute with two men over a debt which they owed to him. This dispute resulted in his father being beaten by the men who owed him the debt. In the course of the fracas, the appellant’s father, who was armed with a pistol, shot the two men dead.

4    The killing of these two men led to the blood feud to which I have referred at [3] above. Apparently, the two men who were killed by the appellant’s father were assistants to the Sheikh of the other tribe.

5    Subsequently, revenge attacks were perpetrated on the appellant’s father and on other members of his family.

The Reviewer’s Findings and Reasons

6    The reviewer considered independent country information concerning the situation in Iraq, militia groups and the appellant’s home area of Muthanna. The reviewer also considered country information relevant to the circumstances of returnees to Iraq. The reviewer accepted that the appellant was a member of the Al Hilaly tribe in Iraq and that the appellant’s father had killed two men, which incident ultimately had led to the family becoming involved in the blood feud described by the appellant. The reviewer also accepted that the appellant’s brother had been shot in the leg in a revenge attack for the deaths of the two men. The reviewer was satisfied that the appellant and his family were at risk of severe harm in the foreseeable future. However, the reviewer concluded that this fear was not for a Convention reason as the potential harm was motivated by revenge. The reviewer took the view that the Mahdi army and the Al Hassani tribe were no longer as powerful as they had once been in Iraq and that those organisations did not pose the threat to the appellant which he believed they did.

The Proceeding in the Federal Magistrates Court

7    On 30 August 2011, the appellant applied to the Federal Magistrates Court for judicial review of the reviewer’s recommendation. An Amended Application for Review was filed on 24 January 2012. In that Amended Application, the appellant sought a declaration that the recommendation by the reviewer had not been made in accordance with law and an injunction restraining the Minister, by himself, his department, its officers, delegates and agents from relying upon the reviewer’s recommendation. The grounds specified by the appellant in support of his application in the Federal Magistrates Court were as follows:

1.     The recommendation of the Independent Merits Reviewer was affected by legal error in that the Reviewer failed to provide the Applicant procedural fairness by not putting to the Applicant country information that was determinative to the decision and adverse to the Applicant’s claims for the Applicant’s response or comment.

Particulars

The Relevant Documents at page 141 paragraph 27 record that country information was discussed with the applicant but there is no indication that the Reviewer ensured that the applicant understood why the country information was relevant and that the applicant was invited to comment on the information in the knowledge of its significance.

2.     The recommendation of the Independent Merits Reviewer was affected by legal error in that the Reviewer failed to consider whether a recommendation should be made to the Minister that he exercise his power under s 195A to grant the Applicant a visa based on an interpretation of the definition of a refugee in the Refugees Convention that would not be affected by s 91S of the Act, or other broader humanitarian considerations.

Particulars

The Reviewer correctly understood that s 91S was relevant to any recommendation he might make to the Minister concerning the exercise of his power under s 46A(2) to allow the Applicant to apply for a protection visa under the Migration Act and Regulations. However, the Minister had also commenced consideration of the exercise of his power under s 195A to grant the Applicant a visa without any application. Section 91S is not relevant to that power. Having made factual findings that the Applicant would be in danger of serious harm because of his family connections, the Reviewer was bound to consider whether protection obligations flowing from an interpretation of the Refugees Convention not limited by s 91S, or alternatively other international instruments, would justify a recommendation that the Minister exercise that power. The Reviewer did not consider those matters.

8    The Federal Magistrate held that, although the reviewer was required to provide adverse information to the appellant for comment, that obligation did not go so far as to require the reviewer to explain to the appellant why such information was relevant or adverse. The Federal Magistrate held that the information in question was not relevant or significant and was not adverse to the appellant in any event.

9    As far as the second ground relied upon by the appellant was concerned, the Federal Magistrate considered that, if the appellant had wished to advance a claim to protection pursuant to treaties other than the Convention, he should have said so and articulated his claim accordingly. The appellant had not made any such claim before the reviewer.

10    The Federal Magistrate concluded his Reasons (at [43]) as follows:

43.    In the absence of unusually compelling reasons to conclude otherwise, where a claimant is professionally represented, as was the case here, it must be assumed that the claims which the claimant wished to make before an independent merits reviewer were the ones expressly articulated by him and his advisers and that none were left to be inferred. An unrepresented claimant may not know how to articulate a claim and thus some latitude is allowed if a claim is plainly available on the material but has not been expressly advanced. Represented claimants are in a different position and if they have not pursued an issue, then that is their election. In the circumstances, the Reviewer did not err by not considering a claim which had not been made.

The Appeal in this Court

11    On 8 March 2012, the appellant filed his Notice of Appeal in this Court. The following grounds are relied upon in that Notice of Appeal:

1.     His Honour erred in finding that there had not been a denial of procedural fairness in the way in which the Independent Merits Reviewer considered the case before him.

2.     His Honour further erred in not finding that the Independent Merits Reviewer had fallen into jurisdictional error by failing to consider whether or not to recommend that the Minister exercise his power under s 195A of the Migration Act 1958.

12    The appellant seeks the following relief:

1.    (An order that the) appeal be allowed.

2.    (An order that the) judgment and orders of the Federal Magistrates Court be set aside.

3.    A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law.

4.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer.

5.    (An order that the) First Respondent pay the Appellant’s costs of the appeal and of the proceedings below.

The Appellant’s Arguments

13    Prior to the hearing of the appeal, the appellant’s solicitor notified the respondent parties and the Court that ground 1 specified in the Notice of Appeal was no longer pressed.

14    As submitted by the appellant, the remaining ground of appeal (ground 2) is that the Federal Magistrate erred in not finding that the reviewer had committed jurisdictional error by failing to consider whether or not to recommend that the Minister exercise his power under s 195A of the Migration Act 1958 (Cth) (the Act).

15    The appellant’s advocate submitted that the reviewer had accepted most of the claims made by the appellant and thus had accepted the essence of his story as to why he had left Iraq.

16    The reviewer came to the conclusion that the motivation for any harm that might be inflicted upon the appellant was not for a reason contemplated by the definition of a refugee in the Convention. He then found that the appellant could not rely upon his membership of a particular social group (his family) as a Convention reason because of the operation of s 91S of the Act.

17    For the reasons explained by the High Court in Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 (M61), the legal environment in which the reviewer was required to make a recommendation to the Minister in respect of the appellant was that, in every case where an offshore entry person claims to be a person to whom Australia owes protection obligations, the Minister has decided to consider exercising power either under s 46A of the Act or under s 195A of the Act.

18    Section 46A gives to the Minister the power to permit the person to lodge an application for a protection visa, and only a protection visa. By way of contrast, s 195A gives to the Minister the power to grant a visa of any class to a person without that person having to apply for any visa.

19    In deciding whether to grant a person a visa under s 195A of the Act, the Minister is not bound by Pt 2, Div 3, subdiv AA or subdiv AF nor is he bound by the Migration Regulations 1994 (Cth) (the Regulations). Part 2, Div 3, subdiv AC includes s 65, which requires the Minister not to grant a visa unless satisfied that the visa applicant meets the criteria for that type of visa, as set out in the Act and Regulations. Since the Minister is not bound by those provisions, the power to grant a visa under s 195A is at large. The Minister is permitted to use that power to grant to a person a visa of any class irrespective of the criteria for that class that may be set out in the Act or Regulations.

20    The Minister, acting under s 195A, could grant to a visa applicant a protection visa, or any other visa, without needing to be satisfied that the visa applicant met the criteria for that visa in the Act or Regulations.

21    In the present case, the reviewer considered only whether he should recommend to the Minister that the Minister exercise the power available to him under s 46A to permit the appellant to apply for a protection visa. Having concluded that the appellant would not meet the criteria for such a visa by reason of not having a Convention based claim, the reviewer went no further. He gave no consideration as to whether he should recommend to the Minister that the Minister exercise the power given to him under s 195A to grant to the appellant a visa of any class.

22    The Federal Magistrate erred in treating the potential for a visa to be granted under s 195A of the Act as a “claim” which needed to be specifically advanced by or on behalf of the appellant.

23    The reasoning in M61 requires that the reviewer make recommendations to the Minister as to whether or not he should exercise the powers given to him under s 46A and s 195A. It is not incumbent upon the appellant during the IMR process to make any election as to which power he would have liked the Minister to exercise. The reviewer concluded that the appellant was at risk of serious harm should he be returned to Iraq. The Minister had embarked upon the task of considering whether to exercise either power and the reviewer therefore should have turned his mind as to whether the claims of the appellant warranted a recommendation that the Minister exercise the power in s 195A. The reviewer did not turn his mind to that question and thus committed jurisdictional error.

The First Respondent’s Submissions

24    Counsel for the Minister submitted that, during the IMR process, the appellant had advanced only one claim: Namely, that he was entitled to protection by reference to an application of the Convention as adopted in Australian legislation and case law. Had the reviewer been satisfied that the appellant had made good that claim, the reviewer could have recommended to the Minister that he exercise his power under s 195A to grant a visa to the appellant without the need for the appellant to make an application for a visa. However, the reviewer did not ultimately conclude that the appellant’s claims based upon the Convention had been made good.

25    At [40] of his Reasons, the Federal Magistrate said that, if the appellant had wanted the reviewer to consider that he was entitled to protection by reference to treaties other than the Convention or by the application of tests other than the Convention tests as adopted into Australian law, then he should have said so. In the absence of an articulated claim or submission, it was not incumbent upon the reviewer to consider all possible alternative claims.

26    The Federal Magistrate was correct when he concluded that the reviewer did not err by not considering a claim which had not been made. The Federal Magistrate correctly applied the relevant principles which he extracted at [41]–[42] of his Reasons.

27    In M61, at [89] (p 356), the High Court said:

… Whether another, different, question about the application of the Refugees Convention (as amended) according to some understanding of the Convention different from that adopted in Australian legislation and case law could be relevant to the issues presented by the possible application of s 195A need not be considered.

The Relevant Legislative Provisions

28    Section 36 of the Act governs the grant of protection visas. It provides that such a visa may be granted to a visa applicant if (amongst other things) the Minister is satisfied that the visa applicant is a person to whom Australia has protection obligations under the Convention as amended by the Refugees Protocol (s 36(2)(a)) or is a person who, if removed from Australia, is at a real risk of suffering significant harm (s 36(2)(aa)).

29    Sections 46A, 65, 91R and 195A of the Act are in the following terms:

46A    Visa applications by offshore entry persons

(1)    An application for a visa is not a valid application if it is made by an offshore entry person who:

(a)    is in Australia; and

(b)    is an unlawful non-citizen.

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

(3)    The power under subsection (2) may only be exercised by the Minister personally.

(4)    If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:

(a)    sets out the determination; and

(b)    sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

(5)    A statement under subsection (4) must not include:

(a)    the name of the offshore entry person; or

(b)    any information that may identify the offshore entry person; or

(c)    if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

(6)    A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:

(a)    if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b)    if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

(7)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.

65    Decision to grant or refuse to grant visa

(1)    After considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

Note:    See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.

(2)    To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).

91R    Persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(3)    For the purposes of the application of this Act and the regulations to a particular person:

(a)    in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

195A    Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

(3)    In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5)    The power under subsection (2) may only be exercised by the Minister personally.

Tabling of information relating to the granting of visas

(6)    If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):

(a)    states that the Minister has granted a visa under this section; and

(b)    sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.

(7)    A statement under subsection (6) in relation to a decision to grant a visa is not to include:

(a)    the name of the person to whom the visa is granted; or

(b)    any information that may identify the person to whom the visa is granted; or

(c)    if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa—the name of that other person or any information that may identify that other person.

(8)    A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:

(a)    if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b)    if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

Consideration

30    At [31] of his Reasons, the Federal Magistrate recorded the argument based upon s 195A of the Act as it was put to him. He said:

31.    The second allegation was to the effect that when advising in relation to the s.195A discretion the Reviewer should have considered whether that discretion could be exercised other than by reference to s.36 of the Act as affected by s.91S. This allegation was particularised as follows:

The Reviewer correctly understood that s 91S was relevant to any recommendation he might make to the Minister concerning the exercise of his power under s 46A(2) to allow the Applicant to apply for a protection visa under the Migration Act and Regulations. However, the Minister had also commenced consideration of the exercise of his power under s 195A to grant the Applicant a visa without any application. Section 91S is not relevant to that power. Having made factual findings that the Applicant would be in danger of serious harm because of his family connections, the Reviewer was bound to consider whether protection obligations flowing from an interpretation of the Refugees Convention not limited by s 91S, or alternatively other international instruments, would justify a recommendation that the Minister exercise that power. The Reviewer did not consider those matters.

31    It is quite clear that, in the Federal Magistrates Court, the appellant submitted that, in the circumstances of the present case, the reviewer was bound to consider whether protection obligations flowing from an interpretation of the Convention which was different from the interpretation dictated by Australian legislation and case law or flowing from other international instruments, would justify the reviewer’s making a recommendation that the Minister exercise his non-compellable discretion under s 195A.

32    The Federal Magistrate held that the reviewer was not bound to consider these matters because the appellant had not asked him to and because the need to consider such matters was not otherwise obvious. The Federal Magistrate cited passages from S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] (p 479) (per Gleeson CJ) and NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (per Allsop J, when a judge of this Court) in support of the approach which he took. See also NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]–[62] (pp 19–20).

33    There was no error in the reasoning of the Federal Magistrate which led him to reject the submission made to him which I have extracted at [30] above.

34    Before me, the appellant’s invocation of s 195A underwent a subtle change.

35    The appellant accepted that the reviewer’s reasons for finding that the appellant did not meet the criteria for the grant of a protection visa under s 36 of the Act were unassailable and that, for the same reasons, s 46A would be of no assistance to him.

36    However, the appellant submitted that the discretion to grant a visa reposed in the Minister by s 195A was at large, subject only to the requirements of subss (1), (2), (3) and (5) of s 195A. The appellant went on to submit that, given that the Minister has directed that, in every case, the IMR process proceed upon the basis that consideration be given by the reviewer to the exercise of the Minister’s powers under both s 46A and s 195A, it was incumbent upon the reviewer in every case to address in his or her recommendations the question of whether the s 195A power should be exercised. A failure to do so constitutes jurisdictional error, so it was submitted.

37    Even if the appellant’s submissions be correct, the grounds which might justify the exercise of either the s 46A power or the s 195A power must nonetheless be articulated. In the present case, the only ground (or claim) advanced by the appellant as justifying the exercise of any discretion by the Minister was his claim to protection under the Convention. He never alerted the reviewer to the possibility that some other basis for the grant of a visa was relied upon. In particular, he never raised any of the bases summarised at [31] of the Reasons of the Federal Magistrate.

38    Whilst it is always open to the Minister at any stage prior to the appellant’s removal from Australia to consider exercising the discretion reposed in him under s 195A of the Act, it was not jurisdictional error on the part of the reviewer not to consider s 195A as a proper subject for his recommendations to the Minister in circumstances where the only ground for protection put to the reviewer was based upon the Convention. Nor did the Federal Magistrate err by not acceding to the submissions put to him in respect of s 195A.

39    For these reasons, the appeal must be dismissed with costs.

40    There will be orders accordingly.

Associate:

Dated:    4 September 2012