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[1996] FCA 1011
Federal Court of Australia
1996-11-21
North J
Original judgment source is linked above.
Mr Daher made a written application to the Minister and was invited to attend an interview in relation to his application. He did not take up that invitation. In his application, Mr Daher said that he had been a member of the Phalange Party and was involved in military operations against the Syrians in 1982. He said his name was well known to Syrian intelligence and, with the return of the Syrian army to power in Lebanon, he considered that he could not return to Lebanon. On 18 August 1994, the delegate of the Minister rejected the application on the ground that the possibility that Mr Daher would suffer persecution after such a long period was so remote as not to constitute a real chance of the eventuality. On 26 August 1994, Mr Daher applied to the RRT for a review of the delegate's decision. The effect of s.39 of the Migration Reform Act 1992 was that Mr Daher's application to the Minister was to be treated by the RRT as an application for a protection visa. One of the criteria for the grant of a protection visa is contained in s.36(2) of the Act which reads: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The application was heard on 17 July 1995. On this occasion, Mr Daher did attend the hearing and gave evidence. From the account of the facts set out in the reasons of the RRT, it is apparent that the facts before the RRT were much more extensive than those before the delegate. Probably as a result, and contrary to the finding of the delegate, the RRT found that Mr Daher did have a well-founded fear of persecution within the definition of the Convention and Protocol. However, the RRT held that Australia did not have protection obligations under the Convention and Protocol as required by s.36(2) of the Act because Mr Daher fell within Article 1F of the Convention, which provides: "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee". The RRT found that there were serious reasons for considering that Mr Daher had committed crimes against humanity or serious non-political crimes because he, as a member of the Lebanese Forces (the military wing of the Phalange Party), led one of the commando groups which stormed the Sabra and Chatila Palestinian refugee camps in Beirut. He carried out orders to kill women and children over the period of two days and one night. The RRT therefore refused the application for a protection visa. On 24 November 1995, Mr Daher applied to the AAT for a review of the decision of the RRT. At the same time, he applied for an extension of time within which to bring the application for review. The application for review was made under s.500(1)(c) of the Act. As these reasons refer to other subsections of s.500(1), I set out s.500(1) in full, as follows:
"500. (1) Applications may be made to the Administrative Appeals Tribunal for review of: (a) decisions of the Minister under section 200 because of circumstances specified in section 201; or (b) decisions of the Minister under section 501; or (c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); other than decisions to which a certificate under section 502 applies." On 2 February 1996, the AAT decided that it lacked jurisdiction to hear the application for review and, consequently, refused the application for extension of time. On 29 February 1996, Mr Daher challenged the decision of the AAT in the two proceedings in this Court. In both cases, the question to be determined by the Court is whether the reference in s.500(1)(c) to "a decision to refuse to grant a protection visa" includes decisions of the RRT. Mr Hanks, who appeared as counsel for Mr Daher, argued that the AAT had jurisdiction to review the RRT decision because the decision of the RRT was a decision to refuse to grant a protection visa relying on Article 1F of the Convention and, hence, fell expressly within s.500(1)(c) of the Act. However, the form and effect of the decision of the RRT was an affirmation of the decision of the delegate. The delegate refused to grant the protection visa, and the RRT exercised the power conferred by s.415(2)(a) of the Act to affirm the decision of the delegate. Thus, it made a decision which operated upon the initial decision of the delegate. It did not, by itself, make a decision refusing to grant a protection visa. The phrase "a decision to refuse to grant a protection visa" suggests that the initial decision to refuse the protection visa is the decision referred to in that subsection. It identifies the refusal of the protection visa as the direct effect of the decision. The decision by itself operates as the refusal of the protection visa. The characterisation of the decision as a refusal "to grant" further indicates that the phrase refers to the initial decision. The phraseology is not apt to describe the decision resulting from a review which affirms the initial refusal. The decision on review is better described as a decision to affirm a refusal of a protection visa, or a decision which has the consequence of a refusal of a protection visa. Its effect is more removed than a decision of the delegate. The legislative context of the phrase confirms that it refers to the initial decision to refuse a protection visa. The context is a legislative structure which contemplates two possible layers in decision-making, an initial decision and a review of that decision. In such a context, the phrase used in s.500(1)(c) relates to the first step rather than the second step in the decision-making process. Mr Hanks submitted that, if s.500(1)(c) was limited to reviews of decisions of initial decision-makers, it would have referred to decisions "of the Minister", because the power to refuse to grant a protection visa is to be exercised by the Minister in the first instance: s.65(1)(b). He contrasted the terms of s.500(1)(c) with ss.500(1)(a) and (b), which expressly refer to decisions "of the Minister". He contended that the absence of the qualification "of the Minister" in s.500(1)(c) demonstrates that Parliament intended s.500(1)(c) to apply to decisions without qualification, including decisions of the RRT. As I have already said, the phrase "decision to refuse to grant a protection visa" limits the review to the initial decision of the Minister. On this reading, it was unnecessary to include the words "of the Minister" to qualify the description of the decision in question. The meaning of the phrase had the same effect without express limitation. Further, the difference in form of expression of ss.500(1)(a) and (b), and s.500(1)(c), is understandable by reference to the statutory basis for the decisions referred to in each case. Sections 500(1)(a) and (b) relate to decisions under s.200 and s.501 respectively. Each start with the expression "the Minister may ....", and proceed to describe the decision which may be made. The similarity between s.500(1)(a) and s.500(1)(b) reflects the similarity in the form of expression of the legislative grant of power to make the decision. The power to refuse to grant or cancel a protection visa is not given in similar, simply expressed legislative terms. It derives from s.29 (the general power of the Minister to grant visas), s.31(2) (the establishment of certain classes of visa), s.31(3) (the power to make regulations prescribing criteria for visas), s.36(1) (the establishment of a class of visas known as protection visas), s.36(2) (the prescription of a criterion for the grant of protection visas) and possibly regulation 2.03 of the Migration Regulations (which prescribe the criteria for, inter alia, protection visas as those set out in schedule 2), and schedule 2 clause 866.221 (which sets out the criterion that Australia must have protection obligations in respect of the applicant under the Convention and Protocol). This elaborate legislative path to the power of the Minister to refuse to grant a protection visa stands in stark contrast to the simple legislative grant of power to make the decisions referred to in ss.500(1)(a) and (b). Thus, the difference between the form of ss.500(1)(a) and (b), and s.500(1)(c), reflects the different legislative origins of the decisions referred to in those sections. The Act establishes the RRT to review certain decisions concerning protection visas. The scheme of the Act, apart from the question raised in this case concerning the operation of s.500(1)(c), allows for a review of a decision of the RRT by the Federal Court: s.475(1)(b). It does not provide any role for the AAT in respect of decisions of the RRT. It does allow the RRT, prior to a decision being made, to refer matters before it which raise an important principle or issue of general application to the President of the AAT to determine whether the AAT should accept the referral: s.443. If the AAT accepts the referral, it hears the matter in place of the RRT. It does not hear the matter in addition to the RRT. In this context, it is unlikely that s.500(1)(c) was intended to give the AAT a role in the review of RRT decisions without any direct reference to the RRT. This consideration confirms the meaning of s.500(1)(c) which I have expressed. Counsel also referred to s.500(3) in elucidating the question of whether s.500(1)(c) allowed a review of the decision of the RRT by the AAT. Section 500(3) reads: "A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or(c) unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground."
Mr Hanks contended that s.500(3) is concerned only to specify the qualifications for an applicant to bring the application in the AAT. The qualification is expressed by reference to an entitlement to seek a review of the decision under Part 5 or 7 of the Act if the decision had been made on another ground. In the case of a decision to refuse a protection visa on Article 1F grounds, the effect of s.500(3) is that an applicant for a review by the AAT must meet the qualifications which would otherwise apply in respect of a review by the RRT. These qualifications are contained in ss.412(2) and (3) as follows: "(2) An application for review may only be made by the non-citizen who is the subject of the primary decision. (3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made." Mr Cavanough, who appeared as counsel for the Minister, accepted that the primary function of s.500(3) was to define the requirements for standing to bring an application. But he contended that the purpose of s.500(3) was not confined to specifying the requirements for standing, but extended to confine the nature of the decisions which could be the subject of applications to the AAT. I agree with counsel that s.500(3) is concerned with standing. But the choice of the manner in which the requirements are stated is significant. The fact that the requirements are defined by reference to the requirement for an application for review by the RRT reflects a particular form of description which is consistent with s.500(1)(c) being confined to decisions of the Minister.
Section 500(4) also supports this conclusion. It reads: "Decisions referred to in subsection (1) are not reviewable under Part 5 or 7." A decision of the Minister to refuse a protection visa would, in the absence of s.500(4), be reviewable by the RRT under Part 7 of the Act: s.411(1)(c). As a consequence, the decision would not be reviewable under Part 5 of the Act, which deals with internal reviews, but excludes the internal review of decisions which may be reviewed by the RRT: s.338(2)(e). Section 500(4) excludes from review under Part 7 the decisions of the Minister which would otherwise be reviewable under Part 7. The decisions reviewable under Part 7 are necessarily not decisions of the RRT because Part 7 provides for a review by the RRT. Thus, the decision referred to in s.500(1)(c) could not have been intended to be a reference to a decision of the RRT itself. Section 500(4) strongly suggests that the decision referred to in s.500(1)(c) is the original decision to refuse a protection visa. It provides that the AAT is the sole review body in the case of an original decision to refuse a protection visa on the grounds referred to in Article 1F of the Convention. The structure of the Act envisages that ordinarily, when a protection visa is refused on the ground that Article 1F of the Convention applies, the refusal will initially be made by the Minister: s.65(1)(b). Then, by operation of s.500(1)(c), the decision may be reviewed by the AAT. In this review, the AAT "may exercise all of the powers and discretions that are conferred .... on the person who made the decision ....": Administrative Appeals Tribunal Act 1975, s.43(1). Thus, the AAT provides a full merits review. Thereafter, the decision of the AAT can be reviewed under s.475(1)(c) of the Act by the Federal Court. This review is a judicial review on restricted grounds. The present case is unusual because the Article 1F ground of refusal was not the ground of the initial decision. Hence, there is no right to a review by the AAT and the application was correctly made to the RRT. Consequently, when the RRT refused the application on the Article 1F ground, for the reasons outlined earlier, there was no right to a full merits review before the AAT, but only to a judicial review by this Court under s.475(1)(b) of the Act. It was submitted by Mr Hanks that this result deprives Mr Daher of a full merits review of the decision based on Article 1F, whereas the scheme of the Act contemplates that such a review will be available. He argued that this result was particularly unsatisfactory because of the gravity of the issues determined against Mr Daher by such decision and that it supported the applicant's construction of s.500(1)(c). I accept that Mr Daher has had less opportunity to challenge the merits of the decision based on Article 1F than an applicant who was refused a protection visa on this ground initially. This is not, however, a reason to give s.500(1)(c) a meaning which is not otherwise justified. If that disadvantage flows to Mr Daher, it flows as a result of the form of the section and, perhaps, from the failure of Mr Daher to attend the initial interview with the delegate. The legislature would need to alter the Act if it desired to ensure that applicants in Mr Daher's situation had the right to a merits review. But Mr Daher is not necessarily deprived of the opportunity of such review. The claim that the Act has an unfair operation in the unusual circumstances of this case is overstated. While s.48A of the Act prevents Mr Daher from making a second application for a protection visa, s.48B allows the Minister to determine that s.48A does not apply. It is therefore open to Mr Daher to approach the Minister for permission to make a second protection visa application. In the unusual circumstances of this case, the Minister might well regard it as appropriate to allow a second protection visa application to be made, thus giving Mr Daher another opportunity to address the application of Article 1F of the Convention to his case for refugee status. For these reasons, the conclusion reached by the AAT was correct, although the respondent did not rely on all the reasons given by the AAT for its conclusion. Thus, the appeal and the application for review are dismissed. I have not heard the parties in relation to the appropriate order for costs. Consequently, I now order that the applicant pay the respondent's costs by 28 November 1996 unless either of the parties apply prior to that day to put argument why a different costs order should be made. I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of his Honour Justice North. Associate: Dated: 21 November 1996 APPEARANCES Counsel appearing for the applicant: P. Hanks Solicitors for the applicant: Erskine Rodan & Associates Counsel appearing for the respondent: A. Cavanough Solicitors for the respondent: Australian Government Solicitor Date of hearing: 7 October 1996 Date of judgment: 21 November 1996
DAHER
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS