NAEA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is another case which involves the position of a family member of a claimant for a protection visa where that claimant dies before the grant of the visa. The applicant is a citizen of Sri Lanka who arrived in Australia on 8 March 1999. Her husband made an application for a protection visa under the Migration Act 1958 (Cth) ("the Act") on 8 December 1999 and she made an application for such a visa as a member of his family. On 25 February 2000 the delegate of the respondent Minister refused to grant such visas ("the decision"), and on 7 March 2000 an application for review of the decision was lodged with the Refugee Review Tribunal ("the Tribunal"). On 29 October 2001, the husband died. On 16 July 2002, the Tribunal conducted a hearing into the application for review. By a decision delivered on 16 October 2002, the Tribunal found that it had no jurisdiction to determine the application for review, following the death of the husband, who was the primary claimant for a protection visa. On 12 November 2002, the applicant filed an application for an order of review in this Court, under section 39B of the Judiciary Act 1903 (Cth). The applicant claims that the Tribunal erroneously declined to exercise jurisdiction. 2 At the time of the application for the visa the Act provided: "31 Classes of visas (1) There are to be prescribed classes of visas. (2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A and 38. (3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, or 37A but not by section 33, 34, 35 or 38). (4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both. (5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class. … 36 Protection Visas (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. … 45 Application for visa (1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class (2) Without limiting subsection (1), the regulations may prescribe the way for making: (a) an application in specified circumstances; or (b) an application for a visa of a specified class; or (c) an application in specified circumstances for a visa of a specified class (3) Without limiting subsection (1), the regulations may provide that, when an application for a visa of a specified class is made, the applicant: (a) must be outside Australia; or (b) must be in immigration clearance; or (c) must have been refused immigration clearance and not have subsequently been immigration cleared; or (d) must be in the migration zone and, on last entering Australia: (i) have been immigration cleared; or (ii) have bypassed immigration clearance and not have subsequently been immigration cleared. … 46 Valid visa application (1) Subject to subsection (2), an application for a visa is valid if, and only if: (a) it is for a visa of a class specified in the application; and (b) it is made in the way required by subsection 45(2), including any way required by subsection 45(3); and (ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and (c) any fees payable in respect of it under the regulations have been paid; and (d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 161 (criminal justice), 195 (detainees) or 501E (visa refused or cancelled on character grounds); and (e) where the applicant is in the migration zone and the application is not for a protection visa or a bridging visa: (i) the applicant has not, since last entering Australia, held a visa subject to a condition described in paragraph 41(2)(a); or (ii) if the applicant has, since last entering Australia, held a visa subject to such a condition - the Minister has waived the condition under subsection 41(2A). (2) An application for a visa is also valid if: (a) it is an application for a visa of a class prescribed for the purposes of this subsection; and (b) under the regulations, the application is taken to have been validly made. … 65 Decision to grant or refuse to grant visa (1) After considering a valid application for a visa, the Minister: (a) is 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. (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)." 3 At the time of the application, the relevant provisions of the Migration Regulations ("the Regulations") were as follows: "2.03 Criteria applicable to classes of visas (1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are: (a) the primary criteria set out in a relevant Part of Schedule 2; or (b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. … 2.07 Application for visa - general (1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1: (a) the approved form (if any) to be completed by an applicant; (b) the visa application charge (if any) payable in relation to an application; (c) other matters relating to the application. (3) [sic] An applicant must complete an approved form in accordance with any directions on it. … Schedule 2 Subclass 866 Protection 866.1 Interpretation 866.111 In this Part: Refugees Convention means the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. 866.112 For the purposes of this Part, a person (A) is a member of the same family unit as another person (B) if: (a) A is a member of B's family unit; or (b) B is a member of A's family unit; or (c) A and B are members of the family unit of a third person. 866.2 Primary Criteria Note All applicants must satisfy the primary criteria. 866.21Criteria 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 Refuges Convention; and (ii) is an applicant for a Protection (Class XA) visa. 866.212 The applicant is immigration cleared. 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 (Class XA) visa. … Schedule 1 Pt 4 1401 Protection (Class XA) (1) Form: 866. (2) Visa application charge: (a) First instalment (payable at the time application is made): (i) In the case of each applicant who is in immigration detention and has not been immigration cleared: Nil (ii) … (b) Second instalment (payable before grant if visa): Nil. (3) Other: (a) Application must be made in Australia. (b) Applicant must be in Australia. (c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Protection (Class XA) visa may be made at the same time and place as, and combined with, the application by that person. (4) Subclasses 785 (Temporary Protection) 866 (Protection)." 4 At the time, Form [866]B required details of each person covered by the application and required the signature of all persons covered (in this case the husband and the applicant). Form [866]B indicated that the person listed as applicant number 1 would be the person the Minister's Department would contact about the application. Here, the husband was listed as applicant number 1; the applicant was listed as applicant number 2. In addition, Form [866]B directed an applicant to complete either Form [866]C (if "you have your own claims to be a refugee") or Form [866]D (if you do not "have your own claims to be a refugee"). The husband completed Form C (titled "Application for an applicant who wishes to submit their own claims to be a refugee"). The applicant in this proceeding completed Form D (titled "Application for a member of the family unit"). Evidence supporting the application, including a statement from the husband, was forwarded separately. The husband and the applicant were legally represented. 5 The husband's application for refugee status was based, in general terms, on the claim that he had a well-founded fear of persecution in Sri Lanka because he had been a prominent Tamil radio broadcaster for many years in India. He was a citizen of Sri Lanka and had lived since 1980 in India. 6 The Minister's delegate, in the decision, found that the husband did not have a well-founded fear of persecution and was not a person to whom Australia had protection obligations under the Refugees Convention. The delegate further found that by reason of the failure of the husband to qualify, his wife (the present applicant) failed to satisfy the criteria, and refused her application, for a protection visa. 7 On 7 March 2000, an application, signed by both the applicant and her husband, was made to the Tribunal for a review of the decision. The husband of the applicant died on 29 October 2001. Nothing had been heard from the Tribunal to that point. By letter of 17 June 2002 addressed to the husband of the applicant, the Tribunal advised of a hearing fixed for 16 July 2002. The applicant was noted in that letter as an applicant. The correspondence was also forwarded to the solicitor for the applicant. What appears on the face of it to be gross delay on the part of the Tribunal was not explained. It may have had draconian consequences for the applicant. 8 By letter of 27 June 2002 the solicitor for the applicant advised of the death of the husband, and proceeded as follows: "It is submitted that my client is at risk, due to her husband's high profile as a prominent Tamil broadcaster. The couple have not resided in Sri Lanka for over 20 years and they did not return to live in Sri Lanka, due to the ongoing civil war. Also he believed that he would face difficulties from the Sri Lankan authorities because of his prominence as a broadcaster in Tamil on the BBC. It is submitted that the evidence that his prominence was widespread is from the obituaries and supporting documentation and publications such as the Tamil Times. It is submitted that Mrs [NAEA] now faces the difficulty of having to set up a house by herself in Colombo where she has not lived for over 20 years and where she has no immediate family. Their only daughter is a citizen of Australia, and she lives in Australia with her husband. Mrs [NAEA] has a small pension as a former teacher however, I am instructed this is inadequate to meet her daily needs as well [sic] paying for accommodation. Furthermore, her husband's profile is such that she would not be able to maintain any low key anonymity and would be a person to whom attention would be drawn because of her husband's high profile. In such circumstances it is not possible for her to relocate to any other part of Sri Lanka nor is it possible for her to reside in Colombo. In the alternative, it is submitted that this case raises significant humanitarian issues, due to the death of [the husband]. Those issues are that Mrs [NAEA] is now left a widow with her only daughter in Australia and has not resided in Sri Lanka for over 20 years. Her residence in India was dependant on her husband's work there with the BBC which has now ceased. Shortly before his death her husband applied for refugee status in Australia. Under these circumstances it is submitted that there are significant humanitarian grounds raised whereby the only family that can support her are in Australia and have indicated a willingness to support her and have done so over the last two years." 9 The Tribunal hearing proceeded on 16 July 2002, on the basis that the Tribunal would hear the applicant's evidence as to the fears she had of persecution upon return to Sri Lanka and that the Tribunal would determine the jurisdiction issue after receiving submissions from the applicant's adviser. Those submissions were made in writing by the solicitor for the applicant, and dealt with: (a) the jurisdictional issue; and (b) provided recent country information on Sri Lanka; and concluded as follows: "It is submitted that the situation in Sri Lanka is not stable, and the risk of the war continuing, as occurred in 1990 and 1994, is a real risk. Therefore, it is my submission that Mrs [NAEA] is still at risk of future persecution and the previous country information submitted to the delegate remains relevant. Her husband was well known in the community and this is evidenced by the obituaries supplied with earlier submissions. His long years as a broadcaster in India mean that his name was well known in Sri Lanka. The Indian authorities were monitoring him as well due to visits from many Tamils in India. Whilst the applicant is not within the high-risk profile of a young Tamil from the north, the prominence of her husband means that her profile is well established. In the alternative, it is submitted that this case raises significant humanitarian concerns. Mrs [NAEA] has only one child, a daughter who is an Australian citizen and with whom she is now residing. She has no family in Sri Lanka to care for her and has not lived in Sri Lanka for many years. Given her age and the loss of her husband, it is submitted that it is a case that merits humanitarian consideration." 10 By decision made on 20 September 2002 and handed down on 16 October 2002 the Tribunal decided that it had "no jurisdiction to hear the application for review". In its reasons for decision, it stated that: "The Tribunal does not accept, on a proper analysis of sections 412(2) and (3), 425(1) and 430A(2) that the Applicant wife has any statutory entitlement to a review of the delegate's decision. The Tribunal is of the view that the Applicant husband's death extinguished the entitlement by the deceased to a review of the delegate's decision and the Tribunal has no power to review it. …" The Tribunal said that it applied the reasoning of Kenny J in V120/00A v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 116 FCR 576 at 589-590 ([53]-[55]). 11 By the time of the Tribunal decision, there had been some amendments to the legislative scheme. In particular, s 36 had been amended and subs (2) was as follows: "(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa." 12 Clause 866.21 in Sch 2 to the Regulations was as follows: "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 (the claimant) who: (i) has made specific claims under the Refugees Convention; and (ii) is an applicant for a Protection (Class XA) visa." Clause 866.22 - "Criteria to be satisfied at time of decision" - included 866.222 which was as follows: "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 claimant referred to in that paragraph; and (b) that claimant has been granted a Protection (Class XA) visa." Those provisions are still in force. 13 Counsel for the applicant has sought to distinguish the reasoning of Kenny J, which the Tribunal followed, in various ways. It is not necessary to explore all of these arguments, as, in my opinion, one of the strands of her Honour's reasoning is fatal to this application. At all material times, including the time of the original application, the time of the Tribunal decision and the present time, a necessary criterion to be established for the grant of a visa of the type applied for was that the claimant (in this case, the husband) has been granted a protection visa. That criterion has been incapable of fulfilment since the death of the husband on 29 October 2001 (see Kenny J at 590 [60]). 14 Counsel for the applicant sought to avoid this result by reference to the decisions of Full Courts in Dranichnikov v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 397 and Soondur v Minister for Immigration & Multicultural Affairs [2002] FCAFC 324. Dranichnikov considered a situation different to that which exists here, namely, that of a family member who lodges a fresh application for a protection visa on his or her own account after the death of the primary applicant. In any event, even if correct, the reasoning in Dranichnikov would not assist the present applicant, as it would have the result that she had made no application for a visa. Soondur is a special case, the reasoning in which may need to be reconsidered. Be that as it may, it dealt with the case of a child, not an adult, and considered the position which arises if a fresh later application is made on behalf of the child. In the present case, it is quite plain that the applicant deliberately applied for a protection visa on the basis that she was a family member of her husband claimant and not in her own right. There is a fundamental difference between the two bases for a protection visa. In my opinion, the Act and the Regulations require separate and specific applications for each. It would not be open for the Tribunal to grant a protection visa to a person who had applied as a family member on the basis that that person was a refugee. I agree with the reasoning of Kenny J in V120/00A at [59]. 15 I also refer to the following statement from the majority judgment in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 at 8-9: "30. These submissions by the prosecutors should not be accepted. The existence in favour of an applicant for a protection visa of protection obligations under the Refugees Convention was neither the sole nor a necessary criterion for the grant of a temporary protection visa. The Regulations distinguished between those to whom such obligations arose and who thus were refugees within the definition in the Refugees Convention and those who were members of the same family unit as a person who had made specific claims to refugee status and who had been granted a protection visa. 31. None of the prosecutors relied upon the position of their husband and father as the main applicant to found a claim that they fell within the second category. The reasons why they did not do so are apparent, at the least, from their then state of knowledge respecting his whereabouts. The Tribunal was required to review the decision of the delegate who, in turn, had been required (by s 47) to consider the application and the criteria which that application had to meet, not the criteria for an application, never made, which might have been put on another basis. 32. Section 65(1) obliged the Minister, and thus the Tribunal, to determine their satisfaction as to whether the criteria for the visas sought had been satisfied. Paragraphs 785.21 and 785.22 posited criteria expressed in disjunctive terms, as indicated earlier in these reasons. There is no obligation imposed by s 65(1) to reach a state of satisfaction (or otherwise) respecting criteria which the prosecutors did not advance. There was no misapplication of the relevant criteria by the Tribunal and no jurisdictional error." Although the application there was for a temporary protection visa, the effect of the Regulations was the same as those applicable here. 16 As pointed out during the hearing, s 48A of the Act has an unfortunate effect in the case of a family member of a deceased applicant who would have had an independent claim as a refugee which was not made. The purpose of s 48B is to deal with situations of that kind, amongst others. On the face of it, this case would appear to be the very kind of case for which s 48B was designed. That, however, is a matter for the Minister. 17 The application is dismissed. I propose to hear argument as to costs bearing in mind the delay by the Tribunal in dealing with the review. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.