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[2002] FCA 1463
Federal Court of Australia
2002-12-05
French J
Original judgment source is linked above.
REASONS FOR JUDGMENT Introduction 1 Olga Dranichnikov is a Russian national who came to this country with her husband and daughter in 1997. Her husband applied for a Protection Visa shortly after their arrival. She joined in the application as a member of his family unit. She claims that the Minister for Immigration and Multicultural Affairs and his officers have discriminated against her on grounds of gender or marital status in dealing with her as an applicant for a protection visa on her husband's application and in respect of a later application she made in her own right. She complained to the Human Rights and Equal Opportunity Commission. That complaint was terminated and she commenced proceedings in the Federal Court under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Those proceedings were transferred to the Federal Magistrates Court where her application was dismissed. She now appeals to this Court from the decision of the Federal Magistrate. Factual History and History of Associated Litigation 2 Olga Dranichnikov was born on 8 January 1963 in the Union of Soviet Socialist Republic. She is of Russian ethnic origin and acquired Russian citizenship in June 1991 following the break-up of the Soviet Union. On 18 August 1984, at Vladivostok she married Serguei Dranichnikov, also then a citizen of the USSR. On 30 January 1988, she gave birth to their daughter, Maria. On 18 December 1996, Mr and Mrs Dranichnikov and their daughter were granted sub-class 676 tourist (short stay) visas to enter Australia. They arrived in Australia on 8 January 1997 using those visas. 3 On 2 April 1997, Mr Dranichnikov lodged an application for protection visas for himself, his wife and their daughter. In Pt B of his application entitled "Persons included in this application and family composition", Mr Dranichnikov was identified as Applicant No 1, Mrs Dranichnikov as Applicant No 2 and their daughter as Applicant No 3. On the last page of Pt B there is provision for the signature of each numbered applicant. That appears under the question in respect of each applicant: "Do you have your own claims to be a refugee?" In the event that the answer is "yes" the relevant applicant is directed thus: "You must complete a Form C." Mrs Dranichnikov answered the question in the affirmative, as did her daughter. However, neither of them completed Pt C. They each completed a Pt D Form which is required where the answer to the question "Do you have your own claims to be a refugee?" is "No". The Pt C form which was completed by Mr Dranichnikov contained questions about why he had left Russia, who he thought might harm or mistreat him if he were returned and why he thought he might be harmed or mistreated if returned. The form also contained a question, "What do you fear may happen to you if you go back to that country?". These questions were addressed in his written submission. There were no such questions in Pt D. Upon lodging the application, Mr Dranichnikov and his wife and daughter were each granted a sub-class 010 Bridging A visa which included permission to work. 4 On 20 May 1997, the application was refused by a delegate of the Minister for Immigration and Multicultural Affairs. In refusing the application, the delegate treated Mrs Dranichnikov and her daughter as "Members of the family unit included in this decision record who are not making specific claims under the Refugees Convention…". The delegate did not interview either mother or daughter. 5 The basis of Mr Dranichnikov's claim was set out in a typed statement attached to the application. The statement was said to be in answer to questions 36-40 included in Pt C of the application form. Mr Dranichnikov said that in October 1993 he had been appointed as general manager of a company called Starling Co Ltd. He regarded himself as somebody who belonged to "the social group of entrepreneurs". In this context he was extremely concerned about the number of murders and attempted murders of entrepreneurs occurring in Russia at the end of 1993 and the beginning of 1994. He said he had openly criticised the work of law authorities at meetings and organised protest gatherings. He could not stay uninvolved when people were being killed and no-one was being punished for it. He claimed that there was an attempt to kill him on 15 February 1994. He had come home to pick up his wife and daughter. He went to the fourth floor of their building. When he tried to open the door to his apartment with a key, a man whom he had seen in the hallway suddenly came from behind him and stabbed him in the back. An ambulance and police were called. He underwent emergency surgery and was told by doctors that the knife had just missed his vital organs. Police arrived an hour and ten minutes after they had been called, although their station was not far from where the family lived. According to his wife, they were indifferent to what had happened and were not interested in catching the criminal. They questioned her and left without even taking the knife which had been dropped by his attacker. 6 Mr Dranichnikov said he was in shock from all of this and could not understand who would want to kill him. He said he was always an honest man who worked hard, owed no money to anyone and borrowed from no one. The firm which he managed was not in competition with any others. It was only a small firm employing eight people with a small turnover of service delivery. He was of the view that his only possible "crime" was that he had spoken openly and directly in criticism of security authorities. 7 When he approached police following his recovery asking about the progress of the investigation, he was invited to sign a paper requesting that the investigation be closed. It was suggested to him that it would be better for him to do so. He felt threatened and felt that he had no choice but to sign the document. Later he approached higher police authority where he was told to forget about the incident, to be calm and to be happy to be alive. Mr Dranichnikov claimed that since then he and his family lived in constant fear that the attack might be repeated or that his wife or daughter might be attacked. He said they were all under constant stress and fear. 8 At this time Mrs Dranichnikov decided to go back to university to study law. He said her objective was to get a law degree, become a lawyer, join the law authorities and to "fight for the justice from inside". According to Mr Dranichnikov, both his wife and he had a strong sense of justice and very often spoke against lawlessness. On their trip to Australia, which was during his annual holidays, it became clear to him that the attempt on his life had been made for this reason. He said in his statement: "In Russia, at the moment, murder is one way of dealing with people who are unwanted, and this was publicly announced." Mr Dranichnikov expressed his fear that if he were to return to Russia, the law authorities would "invent things against me". His child might be kidnapped, he could be murdered or crippled or subjected to a bomb attack. He felt he would have no protection from the authorities and that what had happened to him before would happen again. The authorities would be part of it all. They would be bribed as they considered murder the best way to deal with people they did not want. 9 In dealing with the application, the delegate characterised Mr Dranichnikov's claim as: "… based on the principle that he belongs to a particular social group of 'Entrepreneurs' - as a businessman in Russia, he is at risk from the criminal organisations that operate in Russia and who have links with the authorities. He states that his profile is raised because he organised anti-crime meetings and spoke out in public against the authorities inability to defeat crime." (sic) The delegate considered Mr Dranichnikov to be claiming to be a Convention refugee as a member of a "particular social group". He did not however accept that he was being targeted by criminal elements in Russian society because of his membership of a particular social group. The delegate said in his Decision Record: "I consider that he is being targeted because his activities are a threat to their activities. I do not accept that there is evidence to suggest that there is general persecution of businessmen in Russia." The delegate found Mr Dranichnikov not to be a person to whom Australia had protection obligations under the Refugees Convention. He also said: "5.1 I am satisfied that none of the applicants listed at Part A as covered by this decision meets the prescribed criteria in clause 866.221 or clause 866.222 of the Migration Regulations for the grant of a protection visa. 5.2 I therefore refuse the grant of a protection visa to the applicants listed as included in this decision." 10 On or about 18 June 1997, Mr Dranichnikov applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision. On 11 August 1998, the Tribunal affirmed the decision refusing the grant of protection visas. Consideration was given to the substitution of a more favourable decision by the Minister under s 417 of the Migration Act 1958 (Cth) but that consideration was resolved adversely to the family. 11 On 8 September 1998, Mr Dranichnikov again applied to the Tribunal for a review of the delegate's decision of 20 May. On 21 January 1999, the Tribunal sent a letter advising him that it did not have jurisdiction to review the decision. A few days later, on 29 January, the family was advised that they no longer qualified for a Subclass 010 Bridging A visa. They were informed that their Bridging A visas had expired on 16 September 1998 following the expiration of the period in which application could be made to the Federal Court for judicial review of the decision of the Tribunal given on 11 August 1998. Subclass 050 Bridging E visas were granted which did not include permission to work. 12 On 1 February 1999, Mr Dranichnikov wrote to the Department requesting permission to work. A fortnight later he applied to the Federal Court for review of the decision of the Tribunal of 11 August 1998 and its decision declining jurisdiction conveyed by its letter of 21 January 1999. 13 Mr Dranichnikov pursued his request that he be given permission to work in March 1999 but that pursuit was fruitless. He was advised finally by an officer of the Department on 26 March 1999 that he was not entitled to a Bridging A visa. He applied to the Federal Court for review of the refusal to grant him a Bridging A visa. Kiefel J overruled an objection as to the competency of the application for review of the Tribunal's substantive decision of 11 August 1998. However, she dismissed the application itself. There was no error of law on the part of the Tribunal. It had held, correctly, that if the application depended upon fear of criminal conduct not motivated by a Convention reason then there was no nexus made between Mr Dranichnikov's claims and the Convention. Kiefel J also dismissed the application to review the Tribunal's decision declining jurisdiction to consider his new application. In respect of the application for review of the decision not to reinstate the Bridging Visa A, she held that under Part 8 of the Migration Act, as it then stood, the Court had no jurisdiction to entertain the application - Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 63. But in the course of her reasons for judgment in relation to the Bridging A visa application, discussed below, Kiefel J suggested that the Bridging A visa might have been reactivated. As a result of this observation and the reasons for it, which related to her Honour's finding about the date of notification of the Tribunal decision to Mr Dranichnikov, the Bridging A visas were reinstated for the family on 24 February 2000. 14 On 23 February 2000, Mr Dranichnikov lodged appeals to the Full Court of the Federal Court against the judgments of Kiefel J (Q13/2000 and Q14/2000). 15 On 11 August 2000, Mrs Dranichnikov attended at the offices of the Department of Immigration and Multicultural Affairs to lodge her own application for a protection visa which application comprised Parts B and C completed by her. However, on 24 August, the Department decided that, by operation of s 48A of the Migration Act, she was not able to make a new application in her own right. Three days later the Full Court reserved its decision on the appeals against the decisions of Kiefel J. A further judicial review application was lodged on 5 September 2000 for review of the decision of the Department to refuse to accept Mrs Dranichnikov's protection visa application. That application was heard on 8 December 2000. Notices of motion brought in that proceeding were dismissed and the decision in the substantive matter was reserved on 11 December. 16 On 14 December 2000, the Full Federal Court dismissed the appeal against the decisions of Kiefel J - Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801. On 28 December, Mr Dranichnikov applied to the High Court for special leave to appeal from the decisions of the Full Federal Court. 17 On 29 January 2001, Dowsett J dismissed Mrs Dranichnikov's application for review of the decision to refuse to accept her protection visa application - Dranichnikov v Minister for Immigration & Multicultural Affairs (2001) 65 ALD 444. On 15 February 2001, Mrs Dranichnikov appealed to the Full Federal Court from the decision of Dowsett J. She filed a notice of motion seeking interlocutory orders on 20 February 2001. That was dismissed by the Full Court on 21 February 2001. On 16 May 2001, the Full Court heard Mrs Dranichnikov's appeal against the decision of Dowsett J in relation to her right to apply on her own account for a protection visa. That appeal was ultimately allowed on 22 June 2001, the Court finding that s 48A of the Migration Act did not prevent Mrs Dranichnikov from making an application for a sub-class 866 protection visa with her own claims to be a refugee - Dranichnikov v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 397. The Court, Lee, Finn and Merkel JJ, said at [26] of the judgment: "For the foregoing reasons the appellant is entitled to succeed on her appeal on the ground that the decision to refuse to accept her application for a protection visa is not authorised by the Act or the Regulations. It is not contended by the Minister that the Court does not have power to make, or should not make, appropriate orders under s 481 of the Act if the appellant succeeds in her application for review. Accordingly, the appeal will be allowed, the orders of the trial judge set aside, and, in lieu thereof, an order made under s 481(1)(d) of the Act that the Minister refrain from refusing to accept an application by the appellant for a protection visa on the ground that she is prevented from making such an application under s 48A of the Act." Orders were made accordingly. Complaint to the Human Rights and Equal Opportunity Commission - 27 September 2000 18 Relevantly for the present proceedings, on 27 September 2000, Mrs Dranichnikov lodged a complaint with the Human Rights and Equal Opportunity Commission. In that complaint, which was stated to be against the Department of Immigration and Multicultural Affairs, she alleged that she had been the subject of unlawful discrimination contrary to the provisions of the Sex Discrimination Act 1984 (Cth). Various written submissions were made to the Commission by herself and by the Department. In the event, the complaint was terminated by the President of the Commission who so advised Mrs Dranichnikov in a letter dated 31 March 2001. 19 The substance of the complaint, as identified by the President of the Commission, alleged discrimination under the terms of the Sex Discrimination Act, the Racial Discrimination Act 1975 (Cth) and a breach of human rights under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The allegations made by Mrs Dranichnikov, as identified by the President, were as follows: 1. Mr Dranichnikov's protection visa application was determined without Mrs Dranichnikov being given an opportunity as a female asylum seeker to lodge her specific claims under the Refugees Convention. 2. Mrs Dranichnikov and her husband were unlawfully deprived of permission to work for a period of thirteen months which came about after the officer who made the decision not to issue a visa with work rights made racist comments during the interview. 3. Mrs Dranichnikov had now been denied the opportunity separately to submit her refugee claims. It is not necessary for present purposes to canvass the substance of the reasons for the Commission's decision to terminate the complaint. Application to Federal Court and Federal Magistrates Court - 24 April 2001 20 On 24 April 2001, Mrs Dranichnikov filed an application in this Court under s 46PO of the Human Rights and Equal Opportunities Act alleging that she had been the victim of discrimination pursuant to ss 5, 22 and 26 of the Sex Discrimination Act. The matter was remitted to the Federal Magistrates Court on 18 May 2001 by Cooper J. It came on for hearing before Baumann FM on 25 September 2001. On 18 February 2002, the application was dismissed and by a separate decision given on 16 April 2002 Mrs Dranichnikov was ordered to pay the respondent's costs and disbursements of and incidental to the hearing held on 25 September 2001 which was fixed at an amount of $5,625.22. It is to be noted that the respondent was identified as the Department of Immigration and Multicultural Affairs. That was an incorrect designation as the Department is not a distinct legal entity. The appropriate respondent would have been the Minister. And although the order made by the learned federal magistrate on 18 February 2002 was that the application be dismissed, his orders on the costs judgment on 16 April 2002, included an order that: "The application for review filed 19 March 2002 is dismissed." It does not appear why that order was made or why that date was specified. It appears to be otiose.
Reasons for Decision in the Federal Magistrates Court 21 The learned magistrate began his reasons by setting out the factual history and a chronology of the legal proceedings undertaken by Mr and Mrs Dranichnikov. He also set out the relevant provisions of the Migration Act and the Sex Discrimination Act. He identified the following principal allegations by Mrs Dranichnikov as identified in her amended application filed 24 July 2001. These were as follows: (a) That the Department had not allowed her to make her own claims to be a refugee since April 1997 and had therefore treated her less favourably than her husband. (b) That the Department had discriminated against her on the basis of her sex and marital status by: (1) obstructing her determination as a refugee in her own right since 1997; (2) determining the application she made on 11 August 2000 as invalid; (3) ignoring the information in the application lodged on 2 April 1997 that she wished to make her own claim as a refugee; (4) failing to conduct a compulsory interview with her in contravention of DIMA Gender Guidelines; (5) intentionally sending a letter "requesting additional information" to the wrong address; (6) providing misleading information in response to an application under the Freedom of Information Act 1982 ("the FOI Act"). (c) That the Department treated her less favourably than a person who was not making an application for a protection visa as a member of a family unit. (d) That the Department was involved in direct conflict of interest with her migration agent. (e) That the Department provided misleading information to the Commission in its response to the Commission dated 19 February 2001 (annexure E to the affidavit of Mrs Dranichnikov filed on 24 April 2001). (f) That the Department sent certain information to Mrs Dranichnikov not relevant to her request under the FOI Act; and (g) That the Department's behaviour towards Mrs Dranichnikov was rude, offensive and discriminatory. The learned magistrate observed that the allegations referred to in pars (d), (e) and (f) did not arise out of the original application to the Commission and did not raise matters relevant to the Sex Discrimination Act. 22 After referring to the evidence before him, the learned magistrate dealt with the principal allegations which he had identified in Mrs Dranichnikov's case, albeit his findings on some of the allegations were subsumed in his findings on others and separately identified. The relevant findings and conclusions with respect to each of the allegations may be summarised as follows: Allegation (a) Failure to allow Mrs Dranichnikov to make her own claim as a refugee. Findings and Conclusions: The refusal by the Department to accept or process Mrs Dranichnikov's application for a protection visa arose from: (a) The way in which she chose to make her initial application as a family member. (b) The mistake of law by the Department which believed it was not open to Mrs Dranichnikov to make a separate application on her own behalf. Allegation (b)(1) Discrimination on the basis of sex and marital status by obstructing Mrs Dranichnikov's determination as a refugee in her own right since 1997. Findings and Conclusions: This was covered by the previous findings in respect of allegation (a). Allegation (b)(2) Determining the application Mrs Dranichnikov made on 11 August 2000 as invalid. Findings and Conclusions: This was covered by the previous findings and conclusions with respect to allegation (a). Allegation (b)(3) Ignoring the information in the application lodged on 2 April 1997 that she wished to make her own claim as a refugee. Findings and Conclusions: This was covered by the previous findings and conclusions with respect to allegation (a). Allegation (b)(4) Failing to conduct a compulsory interview with Mrs Dranichnikov in contravention of DIMA Gender Guidelines. Findings and Conclusions: On this issue the learned magistrate held that Mrs Dranichnikov could not escape "the foundation finding that her failure to complete Part C meant she was treated as an applicant for a visa as a member of her husband's family unit". The relevant case manager decided not to interview Mrs Dranichnikov on the basis that, having interviewed Mr Dranichnikov, there was no need to seek additional information in order to make an informed decision on his claims. Mrs Dranichnikov's entitlement to a protection visa was dependent upon her husband's and there was found to be "… no basis for any suggestion of discriminatory conduct by DIMA". The reason Mrs Dranichnikov was not interviewed was because: (1) Her husband was the applicant. (2) The decision-maker decided, as he was entitled by the statute to do, that no interview was necessary. Allegation (b)(5) Intentionally sending a letter "requesting additional information" to the wrong address. Findings and Conclusions: The learned magistrate found no evidence to satisfy him that: (1) Mr Dranichnikov notified DIMA of any new address as alleged. (2) That DIMA destroyed any notification. Allegation (b)(6) Providing misleading information in response to an application under the Freedom of Information Act 1982. Findings and Conclusions: This was not dealt with, which is not surprising, as it raised no issue of discrimination. Allegation (c) That DIMA treated Mrs Dranichnikov less favourably than a person who was not making an application for a protection visa as a member of a family unit. Findings and Conclusions: This was not expressly addressed by the learned magistrate but was subsumed in the findings referred to above. That is to say, there was no discriminatory conduct. Allegation (d) That DIMA was involved in a direct conflict of interest with the migration agent who acted for Mrs Dranichnikov. Findings and Conclusions: There was no express finding in relation to this assertion no doubt because of the learned magistrate's stated opinion that it did not arise out of the original application to the Commission and did not raise matter relevant to the Sex Discrimination Act. Allegation (e) That DIMA provided misleading information to the Commission in its response dated 19 February 2001. Findings and Conclusions: This was covered by the learned magistrate's conclusion that it did not arise out of the original application and did not raise matters relevant to the Sex Discrimination Act. Allegation (f) That DIMA sent certain information to Mrs Dranichnikov not relevant to her request under the FOI Act. Findings and Conclusions: This was covered by the learned magistrate's opinion that it did not arise out of the original application to the Commission and did not raise matter relevant to the Sex Discrimination Act. Allegation (g) That DIMA's behaviour towards Mrs Dranichnikov was rude, offensive and discriminatory. Findings and Conclusions: The learned magistrate dealt with this allegation under the heading "Victimisation". He found that there was no evidence before him to support such allegations. 23 In addition the learned magistrate dealt with a contention that Mrs Dranichnikov had unlawfully been deprived of permission to work. In the circumstances, he was satisfied that DIMA officers applied the law as they thought it to be, albeit their belief was incorrect as pointed out by Kiefel J (although obiter) in her judgment given on 7 February 2000. The conduct of the DIMA officers was not discriminatory on the basis of gender or marital status. Grounds of Appeal 24 The grounds of appeal set out in the amended notice of appeal were drawn without the benefit of legal advice. They reflected the following propositions: (1) The learned magistrate erred in failing to hold that the incorrect refusal by the Department to accept an application by Mrs Dranichnikov in her own right was unlawful discrimination according to the Sex Discrimination Act (appeal ground 3). (2) The learned magistrate erred in failing to find that Mrs Dranichnikov should not have been treated as a dependant of her husband. Membership of the family unit of an applicant for a protection visa was one but not the only way in which a person could satisfy the criteria for a protection visa (appeal grounds 4 and 7). (3) The learned magistrate erred in relying upon irrelevant precedents (appeal ground 5). (4) The learned magistrate erred in failing to have regard to evidence that DIMA discriminated against Mrs Dranichnikov on the basis of her gender and marital status. The relevant evidence was the admission by DIMA managers, Fraser and Gault, that they were unaware of DIMA Gender Guidelines for Decision Makers issued in 1996 by the Minister (appeal ground 6). (5) The learned magistrate ignored oral and written arguments by Mrs Dranichnikov that DIMA officers discriminated against her contrary to their Code of Conduct (appeal ground 8). (6) The learned magistrate erred in finding that the decision-maker in relation to her husband's application was entitled to decide not to conduct an interview with her (appeal ground 9). (7) The learned magistrate erred by failing to find that Mrs Dranichnikov was unlawfully deprived of a Bridging A visa automatically because of the denial of that visa to her husband (appeal ground 10). (8) The learned magistrate erred in finding that there was no basis for Mrs Dranichnikov's claims of victimisation by the Department (appeal ground 11). (9) The learned magistrate ignored credible facts, documents and evidence of Mrs Dranichnikov's pain, suffering, humiliation and loss of income caused by unlawful discrimination on the part of DIMA (appeal ground 12). (10) The learned magistrate was biased against Mrs Dranichnikov (appeal ground 13). Statutory Framework - The Migration Act and Regulations - Protection Visas 25 The provisions of the Migration Act and Regulations relevant for present purposes are those applicable at the time that Mr and Mrs Dranichnikov made their respective applications for protection visas. 26 The Minister is authorised by the Act to grant visas to non-citizens to travel to and enter Australia and to remain in Australia (s 29). The classes of visa are set out in ss 32 to 38 inclusive of the Act or as prescribed under the Migration Regulations (s 31). Protection visas are provided for in s 36: "(1) There is a class of visas to be known as protection visas. (2) 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." 27 The Migration Regulations may prescribe criteria for the grant of a visa of a specified class including a protection visa (s 31(3)). There was also a class of temporary visas known as "bridging visas" (s 37). Visas may be subject to conditions specified in the Migration Regulations (s 41(1)). These may include a condition imposing restrictions about the work that may be done in Australia by the holder and may include restrictions on doing any work at all (s 41(2)(b)(i)). 28 Subject to the Act and the Regulations, a non-citizen who wants a visa must apply for a visa of a particular class (s 45). The Regulations may prescribe the way of making an application for a visa of a specified class (s 45(2)(b)). Section 48A provided, at the relevant time: "48A(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa while in the migration zone." There is a power in the Minister by written notice to waive the application of s 48A where the Minister thinks that it is in the public interest to do so (s 48B). 29 In the judgment of the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 397, it was said at [16]: "Construing the Act alone it is clear that the class of protection visas referred to in s 48A is the class of visas provided for in s 36. A criterion for that class of protection visas is that Australia owes protection obligations to the applicant as a refugee under the Refugees Convention. Thus, prima facie, a person who applies for a visa on the basis of being a member of a family unit of a refugee, and not as a refugee, is not applying for the class of protection visas referred to in s 36. The original application of the appellant was made on that basis and, therefore, does not appear to be an application for the class of protection visas referred to in s 36. If that is the correct view of the original application, s 48A would not operate to prevent the appellant from making an application for a visa in that class." 30 Their Honours then referred to the relevant provisions of the Migration Regulations 1994 which were applicable at the time of the original application. Regulation 1.06 provided that a class of visas referred to in Schedule 1 of the Regulations could be referred to "by the code allotted to the class in the heading of the item in Schedule 1 that relates to that class of visas". Regulation 1.07 stated that a "reference to a visa of a particular subclass … is a reference to a visa granted on satisfaction of the criteria set out in the Part of Schedule 2 that bears the number of the subclass" and that a "reference to an applicant for a visa of a particular subclass is a reference to an applicant who applies for a visa of a class that may, under Schedule 1, be granted on satisfaction of the criteria set out in the Part of Schedule 2 that bears the number of the subclass". 31 The connection between a class of visa and a subclass varies under the Regulations. Regulation 2.01 provides that for the purposes of s 31 the prescribed classes of visas are those created by the Act and such classes as are set out in the respective items in Schedule 1. Regulation 2.02 provides that Schedule 2 is to be divided into Parts each identified by the word "subclass" and that a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the sub-items "subclasses" in the item in Schedule 1 that refers to that class of visa. Regulation 2.03 provides that for the purposes of s 31(3) the prescribed criteria for the grant to a person of a visa of a particular class are the primary criteria set out in a relevant Part of Schedule 2 or, if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. 32 As the Full Court observed, it can be seen from this that on the one hand the word "subclass" identifies criteria to be satisfied in respect of a class of visa and on the other hand further defines or prescribes a class of visa by providing multiple descriptions of visas within a class and providing alternative criteria to be satisfied in respect of a class of visas so redefined. 33 Item 1126 of Schedule 1 provided for a Protection (Class AZ) visa. The "subclass" in that Item is referred to as "866 (Protection)". By Regulation 2.03, "subclass 866" in Schedule 2 set out the primary and secondary criteria for a Protection (Class AZ) visa. Subclass 866 (Protection) was the only subclass listed under Item 1126 of Schedule 1 and therefore, no alternative criteria were provided in Schedule 2 for the grant of a Protection (Class AZ) visa. 34 The primary criteria included the criteria in clauses 866.21 and 866.22 which provided: "866.21 Criteria to be satisfied at time of application 866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention: and (a) makes specific claims under the Refugees Convention; or (b) claims to be a member of the same family unit as a person who; (i) has made specific claims under the Refugees Convention; and (ii) is an applicant for a Protection (Class AZ) visa. 866.22 Criteria to be satisfied at time of decision 866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. 866.222 In the case of an applicant referred to in paragraph 866.211(b): (a) the Minister is satisfied that the applicant is a member of the same family unit as a person who has made specific claims under the Refugees Convention (a claimant); and (b) that claimant has been granted a Protection visa." 35 The Full Court then referred to the approved forms to be used by an applicant in relation to a protection visa. Their Honours said at [23]: "…it can be seen that Pt A of the approved form used in April 1997 for the original application contained explanatory notes on how to apply for the visa the subject of the application. The notes clearly distinguish between a protection visa applied for by a refugee claimant and a visa applied for by a family member. In the latter case there is no suggestion there is any requirement for a family unit claimant to make a claim that he or she is a refugee. Rather, the notes state that family member claimants "can be granted a Protection Visa" if they are members "of a family unit of a person who has been determined to be a refugee". As was pointed out to counsel for the Minister, the approved form did not state that a family member claimant was required to claim refugee status and family membership (as required by cl 866.211(b) of Subclass 866). Indeed, the explanatory notes in Pt A and the structure of Pts B, C and D of the approved form appear to assume that each claim is a true alternative to the other." 36 Further at [24]: "The primary criteria were different in respect of refugee claimants and family member claimants and the Regulations, including the approved form, appear to have contemplated differentiation between a visa granted to a claimant under the Refugees Convention and a visa granted to a member of the family of such a claimant. Whether the Regulations were sufficient to give effect to that purpose is unnecessary to decide. The construction of s 48A, set out above, is consistent with the relevant legislative history." 37 Section 48A has been amended (with effect from 1 October 2001) to prevent repeat applications by a person who has claimed a protection visa as a spouse or dependant of the person who made specific claims under the Convention. This has been effected by widening the definition of "application for a protection visa" in s 48A(2) to include: "(ab) An application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia: (i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and (ii) who holds a protection visa; …" 38 Section 47(3) of the Act provides that the Minister is not to consider an application that is not a valid application. By s 46(1)(d) a visa is valid if and only if, inter alia, it is not prevented by s 48A. Prior to the decision of the Full Federal Court in Dranichnikov v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 397 the relevant departmental officers held the view that s 48A(1) applied to subclass 866 protection visas irrespective of the basis on which they were applied for. The learned magistrate found that to be the view of the relevant officers at [21] of his reasons and no error has been demonstrated in respect of that finding. 39 The processing of protection visa applications is dealt with, inter alia, in s 54 of the Act which provides: "54(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. (2) For the purposes of subsection (1), information is in an application if the information is: (a) set out in the application; or (b) in a document attached to the application when it is made; or (c) given under section 55. (3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions." Until an application has been determined the applicant for a visa may provide any additional relevant information and the Minister must have regard to that information in making the decision (s 55(1)). The Minister is also authorised to "get any information that he or she considers relevant" in considering an application for a visa. If the Minister gets such information, the Minister must have regard to it in making the decision whether to grant or refuse the visa (s 56(1)). Statutory Framework - The Migration Act and Regulations - Bridging Visas 40 Bridging visas are provided for in s 37 of the Act which states: "There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF." Section 73 authorises the Minister to grant an eligible non-citizen who satisfies the criteria for a bridging visa prescribed under subs 31(3) a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia during a specified period or until a specified event happens (s 73). An eligible non-citizen is defined in s 72. The definition was applicable, at the relevant time, to Mrs Dranichnikov and is not material for present purposes. In s 82(3) it is provided that a bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa) for the non-citizen comes into effect. 41 Section 68 concerns the time from which and during which visas are in effect. It specifically provides, in relation to bridging visa, in subs 68(4): "A bridging visa (the reactivated bridging visa), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if: (a) the non-citizen does not hold a substantive visa that is in effect; and (b) either: (i) the non-citizen does not hold any other bridging visa; or (ii) the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant." 42 The Regulations provided, at the relevant time, that a Subclass 010 Bridging A visa could be granted where the applicant had applied for a substantive visa and the application had not been finally determined (subcl 010.211(2)). Where such a visa was granted and the substantive visa application was refused and the holder had applied, or was entitled to apply, for merits review of that refusal, the Bridging A visa remained in effect until twenty eight days after the decision of the review authority (subcl 010.511(b)(iii)). A further Subclass 010 Bridging A visa could be granted where the person, who had previously been granted a bridging A visa, had applied for a substantive visa and that application had been refused provided the application was within statutory time limits for judicial review of that refusal (subcl 010.211(3)). At the relevant time s 478 provided that an application for review of a judicially-reviewable decision must be made within twenty eight days of notification of the decision. If the application for judicial review were not made within the prescribed period a Subclass 010 Bridging A visa granted to accompany the substantive visa application would expire and a new Bridging A visa would not be able to be granted (subcl 010.211(3)). 43 A Subclass 050 Bridging E visa could be granted where a person was an unlawful non-citizen and had either made a valid application for a substantive visa and applied for judicial review of a decision to refuse to grant such visa (where the judicial review proceedings had not been completed) or was the subject of a decision for which the Minister had the power to substitute a more favourable decision under s 417 of the Act. In her Honour's decision on 7 February 2000 in the application for review brought by Mr Dranichnikov, Kiefel J found that he was not out of time to bring his application as there had been no notification of the Tribunal's decision until a date later than that contended for by the Minister. That was the basis upon which her Honour entertained Mr Dranichnikov's application for judicial review of the Tribunal decision, which was adverse to him. That application was dismissed. Her Honour did, however, go on to observe that while his application for review of the departmental decision with respect to the Bridging A visa must be dismissed for want of jurisdiction, he would have been eligible for the grant of such a visa. Statutory Framework - The Sex Discrimination Act 44 The relevant provisions of the Sex Discrimination Act are in the following terms: "SEX DISCRIMINATION 5(1) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if, by reason of: (a) the sex of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex. (2) For the purposes of this Act, a person (the "discriminator") discriminates against another person (the "aggrieved person") on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person. (3) This section has effect subject to sections 7B and 7D. DISCRIMINATION ON THE GROUND OF MARITAL STATUS 6(1) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the marital status of the aggrieved person if, by reason of: (a) the marital status of the aggrieved person; or (b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status. (2) For the purposes of this Act, a person (the "discriminator") discriminates against another person (the "aggrieved person") on the ground of the marital status of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same marital status as the aggrieved person. (3) This section has effect subject to sections 7B and 7D." Reference should also be made to s 26: "26(1) It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person's sex, marital status, pregnancy or potential pregnancy, in the performance of that function, the exercise of that power or the fulfilment of that responsibility. (2) This section binds the Crown in right of a State." Statutory Framework - The Human Rights and Equal Opportunity Commission Act 1986 45 Section 49B of the Human Rights and Equal Opportunity Commission Act defines the jurisdiction of the Federal Court and the Federal Magistrates Court in relation to matters arising under the Act thus: "49B The Federal Court and the Federal Magistrates Court have concurrent jurisdiction with respect to civil matters arising under Part IIB or IIC." 46 By s 46PO, which appears in Div 2 of Part IIB, it is provided: "(1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. (2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re-employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter." Subsections (5) to (8) inclusive of s 46PO are not relevant for present purposes. 47 Section 24 of the Federal Court of Australia Act 1976 (Cth) provides, in the relevant parts: "24(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine- . . . (d) appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth other than: (i) the Family Law Act 1975; or (ii) the Child Support (Assessment) Act 1989; or (iii) the Child Support (Registration and Collection) Act 1988; or (iv) regulations under an Act referred to in subparagraph (i), (ii) or (iii)." Additional Evidence 48 In addition to the record of evidence (both oral and documentary) before the learned magistrate, Mrs Dranichnikov sought, at the hearing of the appeal, to rely upon three affidavits sworn by her on 7 March 2002, 9 April 2002 and 5 August 2002. 49 The matters canvassed in the affidavit of 7 March 2002 related to: (1) The alleged discriminatory treatment of her by DIMA. (2) Alleged misleading conduct by DIMA. (3) The refusal of a Bridging A visa from 27 January 1999 to 24 February 2000. (4) Her complaint to the Human Rights and Equal Opportunity Commission. (5) The introduction by the Minister for Immigration and Multicultural Affairs of amendments to s 48A of the Migration Act, his Second Reading Speech and submissions by DIMA to the Senate, Legal and Constitutional Committee in relation to the amendments. (6) The behaviour of the learned magistrate towards Mrs Dranichnikov at the hearing. (7) The learned magistrate's decision as to costs. (8) Argumentative material about DIMA and the Minister. To the extent that the affidavit canvasses matters already on the record, it is unnecessary. The amendment to s 48A of the Migration Act and the Minister's conduct in relation to it does not support any viable ground of appeal. The complaint about the learned magistrate's conduct depends upon the record of the proceedings in the Federal Magistrates Court. There was no basis upon which I could properly receive the affidavit in evidence and I decline to do so. 50 The affidavit of 9 April 2002, includes an allegation that an officer of DIMA who, according to Mrs Dranichnikov, unlawfully discriminated against her, "actively promotes support for gays and lesbians couples in obtaining permanent residency visa" (sic). There is nothing in the affidavit which would warrant its admission on the appeal and I decline to receive it as evidence. 51 The affidavit of 5 August 2002 refers to Mrs Dranichnikov's use of prescribed anti-depressant medicine and her admission to Mater Hospital. There is further reference to the amendments to s 48A. Again, there is no basis upon which the affidavit could be received in evidence, and I decline to do so. Contentions and Conclusions 52 It is of importance to keep clearly in mind that this is not a case in which judicial review is sought of the decision of the Minister and his delegate or officers. It is not a case in which wide-ranging allegations of misconduct or unlawful conduct by officers of the Department are to be entertained. It is first and last a case about alleged unlawful discrimination on the grounds of gender or marital status contrary to the Sex Discrimination Act. It is on that basis that it is to be judged. 53 The primary issue in this appeal is whether or not the Minister, through his officers, discriminated against Mrs Dranichnikov by reason of her sex or marital status in dealing with her as a member of her husband's family unit in relation to the application for a protection visa. 54 In my opinion there was no evidence before the learned magistrate from which he could have concluded that, in relation to the handling of the first application there was any unlawful discrimination. The simple fact is that Mrs Dranichnikov completed Pt D of the application which made no provision for any claim by family members by which a distinct entitlement to a protection visa could be asserted pursuant to s 36. Part D assumes that any entitlement is dependant upon that of the primary applicant. It is true that Mrs Dranichnikov answered in the affirmative the question "Do you have your own claim to be a refugee?" which appeared in Pt B of the application. But whatever effect may be attributed to that answer is undercut by her omission to make any such claim by completing Pt C as directed. Whether the officer processing the application should have been put upon inquiry by her affirmative answer to the question in Pt B and whether there was an administrative failure in that respect, does not go to the question whether there was unlawful discrimination. Whether the relevant officer failed in his or her duty to "have regard to all of the information in the application" required by s 54(1) does not go to the question whether there was unlawful discrimination. There was nothing in the Department's handling of the application, flawed or not, to suggest that it was treating Mrs Dranichnikov any less favourably than her husband on the grounds of her sex or marital status. 55 There was in place in the Department a document entitled "Guidelines on Gender Issues for Decision Makers" published in July 1996. Reference was made to cl 3.10 of that document which states: "It is important to identify the person included in an application who has the strongest claims. An application written by, or an interview with, a male head of household may place little or no emphasis on a female family unit member's experience of persecution or discrimination, even though her experiences may carry the most weight. A woman who is included in the application as a member of a family unit should be given the opportunity of a separate interview so that she is able, with appropriate assurances of confidentiality, to outline her experiences." A failure to apply this policy, if it occurred, would not of itself establish unlawful discrimination. As the learned magistrate pointed out the decision not to interview Mrs Dranichnikov was based upon the case manager's view that there was "no need to seek additional information in order to make an informed decision on the applicant's [Mr Dranichnikov's] claim". This discloses a focus upon the only claims advanced in the first application, they being Mr Dranichnikov's, with no separate claims raised by Mrs Dranichnikov even though in Pt C of the form she could have raised them. The failure to separately interview Mrs Dranichnikov was no doubt based upon the assumption that the claims relied upon were those advanced by Mr Dranichnikov. The nature of the submission attached to the application would not readily alert the person reading it to the possibility that Mrs Dranichnikov might, out of some reticence or sense of subordination to her husband, have failed to advance claims of her own. She was presented in Mr Dranichnikov's submission as a woman who was studying law at university "and was trying to get a position with the law authorities and fight for justice from inside". Both were said to have a "strong sense of justice". Both, it was said, "very often spoke against … lawlessness…". 56 There was no basis for suggesting that Mrs Dranichnikov was misled by any officer of DIMA in completing the form. It was put to her in cross-examination that no officer of the Department prevented her from filling in Pt C of the form. She did not give a direct answer, saying that she thought she would have an opportunity to present her claim. Even if she had been misled, that would not of itself constitute unlawful discrimination under the Sex Discrimination Act. 57 There was reference in argument to a letter from the Department addressed to Mr Dranichnikov, offering him the opportunity of providing additional information, which was sent to the wrong address. The letter in question was dated 14 April 1997. It was returned to the Department on or about 20 May 1997. It advised Mr Dranichnikov of the processing of his application and told him that if he had any additional information relevant to his application he could give it to the Department at any time until a decision was made on the application. Wherever the fault lay for the failure to properly address the letter, it could not constitute discrimination against Mrs Dranichnikov under the Sex Discrimination Act. It is to be noted, as the learned magistrate observed, that Pt A of Mr Dranichnikov's application also contained the advice that any new information related to his application should be sent to the Department as soon as possible. 58 The refusal by the Department to accept Mrs Dranichnikov's separate application for a protection visa was plainly based upon a misapprehension of the law. There is no evidence to suggest that it reflected an approach that was discriminatory on the basis of gender or marital status. There is nothing in the decision of the Full Court which is supportive of any proposition that the refusal of the application involved unlawful discrimination. In this respect Mrs Dranichnikov's criticism of the learned magistrate for allegedly ignoring that decision is misconceived. The irony is that the Department has been prepared, ever since the Full Court decision, to process Mrs Dranichnikov's application for a protection visa, but she has declined to pay the application fee and reactivate it. 59 The refusal of a Bridging A visa was similarly based on an erroneous assumption. That was that Mr Dranichnikov was out of time in his application for review of the Tribunal decision considered by Kiefel J. Her Honour found to the contrary based upon a finding that notification of the Tribunal's decision was later than the Department thought it had been. Again, there is nothing in relation to the Bridging Visa issue that discloses unlawful discrimination against Mrs Dranichnikov. 60 Nor was there, in my opinion, anything to support claims of victimisation against her by the Department which were in any way related to her gender or marital status. 61 The allegations of bias against the learned magistrate are not sustained. His Honour did appear, at one point in the transcript, to misunderstand Mrs Dranichnikov's English and whether she was referring to "marital" or "mental" status and at another point whether she was saying "I mean" or "I win". He asked her a number of questions at one point. She regarded this as cross-examination by him. It may be that he approached the limits of judicial intervention but not so as to indicate bias or the appearance of bias. Other allegations against the learned magistrate do not go to bias, nor do they otherwise disclose any ground of appeal against his decision. Conclusion 62 In my opinion, Mrs Dranichnikov has failed to show any reason why this appeal should be allowed. It will be dismissed with costs. I certify that the preceding sixty two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.
Solicitor for the Respondent: Australian Government Solicitor
Dranichnikov
Minister for Immigration, Multicultural & Indigenous Affairs