Ordonez v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 On 12 April 1999, the applicant's application for a protection visa was refused by a delegate of the Minister. The time limited for review of that decision expired on 17 May 1999, but the application was not lodged with the Refugee Review Tribunal until 21 May 1999. The Tribunal informed the applicant that it did not have jurisdiction to review and no issue is taken with that decision. 2 On 29 July 1999, the applicant sought the exercise of the Minister's power under s 48B of the Migration Act 1958 (Cth) for a determination that s 48A does not apply to him as a non-citizen. Section 48A prevents an application for a protection visa being made, whilst a non-citizen is in the migration zone, where a previous application by the applicant has been refused. Section 48B then provides in relevant parts: "(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. (2) The power under subsection (1) may only be exercised by the Minister personally. (3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that: (a) sets out the determination; and (b) sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest. … (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances." 3 On 24 August 1999, an officer of the Department of Immigration and Multicultural Affairs informed the applicant: "Your request for the exercise of the Minister's power under section 48B of the Migration Act was assessed against the Minister's Guidelines for Purported Further Applications for a Protection Visa subject to S48B and Requests for Ministerial Intervention under S48B. However, your case did not meet these Guidelines, and will not be referred to the Minister for consideration under section 48B." The submission by the applicant is said to have been examined by a case manager on 16 August 1999 against the Minister's guidelines to officers ("Guidelines For Purported Further Applications for a Protection Visa Subject to S 48B and Requests For Ministerial Intervention under S 48B"). The form to be completed at the end of that process provides for the following conclusion: "I have found that: đ The purported further application/request is considered to meet the guidelines and a submission to the Minister will be prepared as soon as possible OR đ The purported further application/request is considered NOT to meet the guidelines and is referred to the Ministerial Intervention Unit for preparation of the "no" letter to the applicant." The second alternative was ticked. No further reasons were given in that statement. 4 The purpose of the guidelines is stated to be: "The purpose of these Guidelines is to provide directions for case officers when considering whether to forward to the Minister cases where he/she may wish to consider using the non-compellable and non-delegable power to allow a further application for a protection visa to be made." And their scope as: "7. These Guidelines will be used in considering every: s purported further application by a person for a protection visa; and/or request for Ministerial intervention under s48B. … 9. Purported further applications containing additional information, including changes in country circumstances, are to be referred in accordance with the agreed format to the Minister's office for consideration where the information appears to be credible, is Convention related and enhances the applicant's chances of making a successful claim and either: s was not known to theapplicant during the consideration of the previous application; or s is not known to the applicant but is now know to the Department and is relevant to the claims; or s was available to the applicant but was not provided earlier for plausible and compelling reasons. (This includes the situation of a person who previously applied as a member of a family unit of another person, and did not provide any specific claims to refugee status in their own right). 10. The Guidelines identify two categories of what constitutes additional information: s claims of Refugee Sur Place; or s other new claims provided by the applicant (which may or may not have been known to the applicant during consideration of the previous protection visa application)." 5 Relevantly, the following information is provided with respect to "changed conditions in the country of origin": "11. Clients may claim that changes in the country of origin have occurred since consideration of the previous application which enhance the applicant's chances of making a successful claim under the Refugees Convention. Research required in such an assessment will start with the Country Information Service (CIS) holdings. This initial investigation should not be a lengthy process. Where necessary, case managers can request additional information from CIS, indicating that the request for information relates to a purported further application for a protection visa to ensure it receives the relevant priority. As is current practice, CIS will liaise with the relevant area in the Department of Foreign Affairs and Trade (DFAT) where necessary. 12. Where there has been a change of circumstances in the country of origin, and case managers consider that these changes may enhance the applicant's chances of making a successful claim under the Refugees Convention, a submission on the purported further application should be provided to the Minister's office for consideration in accordance with the agreed format." 6 Paragraphs 19 to 22 of the guidelines provide, with respect to the "Responsibility of Case Managers: "19. The case manager should consider all relevant information currently available to them, including updated country information, in considering a purported further application for a protection visa. 20. CASE MANAGERS SHOULD NOT ENGAGE IN A COMPLETE ASSESSMENT AND DECISION AT THIS STAGE, AS AN APPLICATION HAS NOT BEEN VALIDLY MADE. However, they should ensure that their consideration is consistent with Australia's international obligations to prevent refoulement. 21. If the purported further application or request is considered NOT to meet these Guidelines, then it should not be referred to the Minister. The case manager must send a "no" letter to the applicant (see standard letter Attachment 11(4)). 22. Where the purported further application appears to come within these Guidelines, the case manager should refer the case to the Minister's office for consideration under s48B of the Act, in accordance with the agreed format. However, the case manager must be mindful that the Minister does not have a duty to consider the exercise of that power." 7 The applicant submits that the decision not to refer the request to the Minister was a judicially reviewable decision within the meaning of s 475(1) of the Migration Act, being a decision made under the Act or Regulations in relation to visas (s 475(1)(c)). It is, therefore, a decision in respect of which the applicant may make an application for review to the Court under s 476. As to the grounds for review of the decision, the applicant submits that the decision not to refer the request was an improper exercise of discretionary power by the case manager within the meaning of s 476(1)(d) and (3)(c) of the Act. They provide: "(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to: … (c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case." 8 Section 475(2)(e) provides that a decision which is not judicially reviewable is that of the Minister not to exercise or not to consider the exercise of his or her power under s 48B. It was accepted in argument by Counsel for the Minister that in this case the decision might properly be described as one as to whether the case met the guidelines, and in that event it was one capable of review. 9 The applicant arrived in Australia with his wife and stepson in January 1999 and applied for a protection visa a few months later. The original application had Ms Valencia as the primary applicant. The statements accompanying the application referred to two sources of future violence towards them: the paramilitary forces and the stepson's biological father, who had already kidnapped the stepson on one occasion and had made death threats against Mr Ordenez and Ms Valencia. He was a member of a guerrilla group. More relevantly, it was claimed that the paramilitary perceived them as traitors because of the positions they had taken and the assistance they had given victims of war, displaced persons and others, and the stand they had taken against government corruption. The family had been the subject of threats by the paramilitary and he had been struck and injured by them. 10 The reason given by the delegate for refusal of the application was the lack of detail and vagueness about their involvement in human rights or political activities and the conclusion reached by the delegate, that their involvement was likely to be seen as "low level", from which one infers they were not likely to be targeted. 11 In his later application to the Minister dated 29 July 1999, following the advice from the Refugee Review Tribunal that it had no jurisdiction to review the first application, the applicant relied on recent events in Colombia and in particular the escalation of violence by the paramilitary towards those who defended human rights in Colombia. This application was made only on his own behalf. He enclosed a report of Amnesty International dated June 1999 in support. He also relied on an article of July 1999 which suggested that further killing of human rights activists, and fighting in and around his home, were expected to increase. 12 It was accepted in this case that the case manager was not exercising any of the powers of the Minister in making the decision in question. There was no suggestion that there was a delegation for that purpose. The Minister had however provided guidelines which were to be utilised by departmental officers in connexion with second applications. 13 In Bedlington v Chong (1998) 87 FCR 75, 80 a Full Court of this Court held that the Secretary within the Minister's Department, who had the function that the case manager had in this case, was not under a duty to refer a second application to the Minister. The Minister was entitled to lay down guidelines "indicating the circumstances in which he was prepared to consider the exercise of the power conferred by s 48B(1)". He was under no duty to consider any such application, by reason of s 48B(6). The Minister was to be taken, by the guidelines, as saying: "Notwithstanding that I have no duty to consider the exercise of the power conferred by section 48B(1), I am prepared to consider exercising that power in the circumstances set out in the Guidelines." The Full Court made it clear that so long as the Secretary acted in accordance with the guidelines, no duty to refer the matter to the Minister arose. It did not decide whether Ms Chong would have been entitled to any relief had the Secretary not acted in accordance with them, as that question was not raised before it. It does not arise in this case either. The applicant's case is that the application of the guidelines to his case was itself wrongful conduct. Although the Court in Bedlington v Chong did not discuss the argument which is presented here, it makes plain that the guidelines are a valid exercise of the Minister's power and the Secretary was to apply them. The applicant's argument is inconsistent with such a view. 14 The principal submission for the applicant was that the case manager failed to have regard to the circumstances and merits of his case. Instead the guidelines, as a rule or policy, were rigidly applied and this constitutes a wrongful exercise of a discretionary power within s 476(3)(c). 15 It was submitted for the Minister that the task undertaken by the case manager could not be described as the exercise of a discretion and what was involved was something akin to a mechanical function. 16 The case manager here was directed by the guidelines to consider the reason for the provision of additional material and whether it enhanced the applicant's chances of a successful claim. Whilst the conclusion reached on both, favourable or unfavourable, was to be expressed by ticking a box, what was involved was more than an assessment whether, objectively, certain criteria were met. The first enquiry involved a consideration of the new material and reasons advanced and permitted an acceptance or rejection of them; whether an applicant's case could be said to be improved by the new information required a view to be formed, a subjective assessment as to whether the case had moved closer towards fulfilling the Convention definition. It did not involve a conclusion upon that latter question; it was determining whether the case was of sufficient strength to warrant reference to the Minister. 17 In any event, it does not seem to me necessary to determine the matter by reference to whether the case manager's determination comes within the terms of s 476(3)(c). The case for the applicant involved an attack upon the guidelines themselves, it being contended that they had the effect that no consideration could be given to the special circumstances of the applicant's case and its merits. There are two aspects to this. If one had regard to the effect of the guidelines upon the officers to whom it was addressed, it could not be said that they were obliged to disregard the facts put forward in the application or the new material. To the contrary they were required to assess them, although the decision which the applicant sought was not within their power. What the applicant really complains of is that the application of the guidelines prevented consideration of his claim to refugee status by the Minister. Bedlington v Chong, however, holds that the statute imposed no duty upon the Minister to consider any further application. The Minister was therefore entitled to set out the circumstances in which he would be prepared to consider them. The result is that not all further applications will be considered by the Minister. 18 The applicant's final submission, that it is in the public interest that the Minister consider second applications, is also answered by reference to the lack of obligation the statute imposes upon the Minister. 19 The application must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice .