Potier v Minister for Immigration and Multicultural Affairs

EXTEMPORE REASONS FOR JUDGMENT WILCOX J: 1 This is an application by Malcolm Huntley Potier for review of a decision of the Refugee Review Tribunal. 2 The Tribunal made a decision on 12 May 2000, which was handed down on 30 May, affirming a decision of a delegate of the Minister not to grant Mr Potier a protection visa. The Tribunal decided it did not have jurisdiction with respect to his daughter, Sarah Flora Oswald Potier. 3 The circumstances of this case are unusual. It appears Mr Potier is a citizen of the United Kingdom. He lived for some time in a de facto relationship with Myra Oswald. They never married. Their daughter, Sarah, was the product of that relationship. Sarah was born in April 1997, so she is now about three and a half years of age. 4 I was told by Mr Potier, who appeared in person, that, under United Kingdom law, he is not afforded any legal rights as the father of Sarah, the reason being that he and the child's mother were never legally married. This apparently had ramifications for him. He decided to bring the child to Australia. Mr Potier entered Australia with Sarah about one year ago. He made an application for a protection visa. This was refused. Mr Potier included Sarah in his application. After refusal of his application he made an application for review of the decision. A question arose at the Tribunal hearing as to whether Sarah was properly joined as an applicant. 5 Sometime before the Tribunal hearing, Ms Oswald became aware that Sarah was in Australia. Ms Oswald came to Australia and made an application to the Family Court of Australia for a custody order pursuant to the Hague Convention on the Abduction of Children. This application was heard by Chisholm J and was successful. Mr Potier unsuccessfully appealed to the Full Court of the Family Court. He told me today he has applied for special leave to appeal to the High Court of Australia against the decision of the Full Court of the Family Court. 6 Mr Potier says he is concerned that, if Sarah is left with her mother, she will come into contact with a man who, Mr Potier fears, will interfere with the child. Ironically, in the context of a protection visa claim, this man lives in Australia. The fear expressed by Mr Potier is that the child's mother will live in Australia with this man, and this will cause Sarah to come into contact with the man. I gather that Sarah is presently with her mother but I do not know where she is. Mr Potier is uncertain whether she has been taken back to the United Kingdom or whether she remains in Australia. 7 When the matter was before the Refugee Review Tribunal, the member took Mr Potier to the definition of refugee which is contained in article 1A(2) of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the status of refugees. He pointed out to Mr Potier that article 1A(2) specifies particular reasons, one of which must be pointed to as a ground for the claimant for refugee status having a well founded fear of persecution, if returned to his or her country of nationality. Mr Potier informed the member he made no such claims. He put nothing before the Tribunal that would suggest he has a well founded fear of being persecuted for any of the five reasons set out in article 1A(2). 8 Not surprisingly in those circumstances, the Tribunal decided that Mr Potier's claim for a protection visa must fail. The Tribunal gave some attention to the question whether Sarah was properly joined as an applicant. The Tribunal took the view that she was not properly joined, because Mr Potier was not her lawful guardian and did not have lawful custody of her. However, the Tribunal commented that it did not matter whether or not Sarah was properly joined as an applicant. There was no suggestion that she herself suffered any fear of persecution if returned to the United Kingdom; if she was properly joined as an applicant, Sarah's claim to a protection visa would depend upon Mr Potier himself making out a claim of a well founded fear of persecution on one of the specified grounds; as Mr Potier's claim must fail, it would follow that Sarah's claim also must fail. 9 This case was before me on two occasions before today. On one of those occasions, there was discussion about the scope of the application for review. Mr Potier issued subpoenas against various bureaucratic bodies. Some documents were produced. I explained to Mr Potier the limits of the Court's jurisdiction having regard to the terms of s476 of the Migration Act 1958. Mr Potier indicated he understood these limits. 10 When the matter came on today, Mr Potier spoke about issuing additional subpoenas and/or obtaining more comprehensive production of documents in response to earlier subpoenas. However, I raised with him the point that, if he expressly disclaimed any claim falling within article 1A of the Convention, his application for a protection visa must necessarily fail. I drew Mr Potier's attention to the terms of s 36(2) of the Migration Act 1958. Section 36 relevantly reads as follows: "(1) There is a class of visa 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 Refugee Protocol." 11 There is no doubt that Mr Potier is a non-citizen in Australia. The question that would arise under subs (2) is whether he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugee Protocol. For guidance on this matter, one must look to article 1A of the Convention. I suggested to Mr Potier that, on his own statement, he fell outside the terms of the Convention and therefore he was not a person to whom Australia had protection obligations. 12 Mr Potier's response was to emphasise the use of the indefinite article "a", at the commencement of subs (2). He said this sub‑section merely stated one criterion for a protection visa. He suggested there must be other criteria, that would be available in any humane system of law. He pointed out that, when he made his application, he was in immigration detention and there were a limited number of visa types that could be sought by a person in immigration detention. He asserted only two types of application could be made. I have not myself checked the accuracy of that statement, but he may be right. 13 Mr Potier's argument is that there would have had to be some provision for an appropriate visa if Chisholm J had decided the custody application in his favour. 14 All of this may be true, but it seems to me that the correctness of Mr Potier's submission has to be decided by reference to the terms of the Migration Act and the Migration Regulations. When one considers those provisions, there is no doubt that the criterion stated in s 36(2) must be met before a person is entitled to obtain a protection visa. The criterion in s 36(2) is not, as Mr Potier suggests, simply one of a band of criteria available to the applicant and to the decision maker. 15 Section 65 of the Migration Act deals with decisions on visas. Subsection (1) relevantly reads as follows: "(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40. … 500A … 501 … 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. 16 It will be noted the section is cast in mandatory terms. If the Minister - and this extends to a delegate of the Minister, or the Refugee Review Tribunal on review of a delegate's decision - is satisfied of the criteria set out in para (a), then the Minister or the other person "is to grant the visa". 17 The satisfaction must include, by subpara (ii), the other criteria for the visa prescribed by this Act or the regulations. In the present context, that obviously includes the criterion set out in s 36(2), which is the only criterion for a protection visa stated in the Act. 18 Paragraph (b) is equally important. It also is couched in mandatory terms. If the Minister, or the delegate or the Tribunal, is not satisfied of each of the matters in para (a), then that person "is to refuse to grant the visa". 19 It is clear that, if the decision maker is not satisfied of the criteria for the visa prescribed by the Act or the Regulations, the decision maker must refuse to grant the visa. That approach was taken by the Tribunal in this case. 20 It is also relevant to refer to the Migration Regulations. Clause 866 of the Regulations deals with protection visas. The claim contains a definition of the term, "Refugees Convention", revealing that the intention is to refer to the 1951 Convention in relation to the Status of Refugees as amended by the 1967 Protocol on Refugees. In sub clause 866.2, primary criteria are set out. They include criteria to be satisfied at the time of the application and criteria to be satisfied at the time of decision. The first of the latter criteria is stated in sub clause 866.221: "The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention." 21 Other criteria include health checks and public interest criteria. This, no doubt, explains why the indefinite article "a" is used in s 36(2). It was not the intention of the Parliament to say that there could be only one criterion for a protection visa. There are multiple criteria, but that does not derogate from the proposition that the criterion in s 36(2) is an obligatory criterion to be established by an applicant for a protection visa. 22 The argument put by Mr Potier has the charm of ingenuity, and he has put it well. However, it is misconceived. Mr Potier does not have a claim capable of triggering the application of the statutory provisions dealing with protection visas. Whether or not there is a lacuna in the legislation covering the situation that might have applied if the Family Court decision had gone the other way, it is clear this is not a case where it would have been open to the Tribunal to grant a protection visa. On Mr Potier's own case, this would not have been possible. 23 I see no error of law in the Tribunal decision and I see no ground that would attract the jurisdiction of the Court under s 476 of the Migration Act. Even if there was a technical ground of review, it would be futile to remit the matter to the Tribunal. On the applicant's own case, he cannot bring himself within the definition of "refugee" in the Convention. The application for review must be dismissed. 24 [There was discussion about costs.] 25 Mr Markus, on behalf of the Minister, seeks costs. He also draws attention to the fact that costs were incurred by various organisations in answering subpoenas issued by Mr Potier. These include the Refugees Review Tribunal, Department of Immigration and Multicultural Affairs and the New South Wales Department of Community Services and Legal Services. 26 When the matter of subpoenas was before me on 25 October, I reserved the costs of complying with the subpoenas. However, I see no reason why there ought not be an order for costs in favour of those parties. They have been put to expense in complying with subpoenas, the issue of which was misconceived, in support of a proceeding which was, itself, misconceived. 27 The orders I make are as follows: (1) The application for review be dismissed. (2) The applicant, Malcolm Huntley Potier, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs, in connection with the review. (3) Malcolm Huntley Potier pay the reasonable costs incurred in answering subpoenas issued by him and addressed to the Refugee Review Tribunal, the Department of Immigration and Multicultural Affairs and the New South Wales Department of Community Services and Legal Services. I certify that the preceding twenty‑seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.