Potier v Refugee Review Tribunal

REASONS FOR JUDGMENT 1 On 1 May 2000 the applicant, Malcolm Huntley Potier, born in the United Kingdom on 28 August 1951 and a citizen of that country, filed an application said to be under section 476 of the Migration Act for a review of what he describes as a judicially reviewable decision of the Deputy Registrar of the Refugee Review Tribunal Sydney's Registry on 19 April 2000. The decision was to withdraw or declare as invalid or inapplicable an application for refugee status made by Mr Potier on behalf of and in the name of his daughter Sarah Flora Oswald Potier who was born on 18 April 1997 in the United Kingdom of which she is also a citizen. 2 The brief circumstances of this quite extraordinary application commenced with Mr Potier's arrival in Australia, together with his daughter, on 10 December 1999 on a United Kingdom passport in the name of Alexander Mills. He applied for refugee status for himself and Sarah on 17 February 2000. Not unsurprisingly, a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) decided on 9 March 2000 that they were not persons to whom Australia has protection obligations under the Geneva Convention on Refugees and that therefore their application for refugee asylum in Australia had to fail. 3 Subsequent to that decision of the delegate, Mr Potier made an application to the Refugee Review Tribunal (the Tribunal) on behalf of himself and Sarah for a review of the delegate's refusal. The hearing before the Tribunal was fixed for 20 April 2000. Just prior to that date, Mr Potier, then and now held at the Villawood Detention Centre, told the Tribunal that he would like to attend the hearing with Sarah and requested the Tribunal to arrange for her to be brought to the hearing. That situation became necessary because in the meantime Sarah had been transferred to the custody of her mother, Myra Linda Oswald, who was herself at the time in the care and under the protection of the New South Wales Department of Community Services. Ms Oswald had come to Australia from the UK to retrieve her daughter who, she alleged, had been abducted from there by Mr Potier. It is not necessary for the purposes of this judgment to explain how the changed custodial situation arose, except to say that the circumstances included certain proceedings conducted in the Family Court of Australia. 4 Mr Potier and Ms Oswald are the undisputed parents of Sarah, but they are not and have never been married. Although Ms Oswald has been named as second respondent in these proceedings, it appears that she was not served and does not even know that the proceedings are taking place. She is certainly not here to participate in them. 5 Following upon the request made by Mr Potier for his daughter to be brought to the hearing, the Tribunal notified Mr Potier by letter of 19 April 2000, the day before the scheduled hearing, that it had formed the view that Sarah was "not validly included either in your Protection Visa application or your application to the Tribunal". It gave a number of reasons for this determination. The Tribunal said that Mr Potier did not have legal authority to make the application on behalf of Sarah because he had himself told them in his application that he did not at that time possess any legal rights with regard to her, a position underlined by a decision of the Family Court of Australia made on 21 March 2000. I shall return to that decision in a moment. The Tribunal also said it had received information from the New South Wales Department of Community Services about certain matters which affected Sarah's status and Mr Potier's entitlement to represent her. The Tribunal stated that Ms Oswald, who had what it described as "parental responsibility" for Sarah, had indicated that she did not know that this application had been made on Sarah's behalf and that she did not wish to have her included. Ms Oswald sought Sarah's removal from the application for refugee status. 6 The Tribunal thus determined that the application for the protection visa and the application for review of the adverse decision were not valid applications in so far as they were made on behalf of Sarah and that Sarah was therefore not an applicant for the visa nor an applicant to the Tribunal. 7 In his decision of 21 March in the Family Court of Australia, Justice Chisholm ordered that Sarah be returned forthwith to the United Kingdom in the company of her mother and made a number of consequential orders to permit that event to occur and to deal with other necessary details. His Honour also made orders which permitted contact between Mr Potier and Sarah for certain periods on certain occasions while both were in Australia. 8 The substance of the applicant's argument for review of the removal of Sarah as an applicant, both for the protection visa and before the Tribunal, is that the order was made contrary to law. The specific provisions of section 476 upon which reliance was placed were not expressly mentioned but from the affidavit which Mr Potier filed in support of his application, and from his argument, it emerged that what he was saying is that the Tribunal erred in law when it removed his daughter as an applicant before it. Another way of expressing his claim was that by denying him the opportunity of putting argument in support of Sarah's status as an appropriate applicant, the Tribunal significantly failed to apply the appropriate procedures for hearings before it. 9 There is no basis for considering the situation of the application for the protection visa and no reason to do so. Neither the Minister nor his department is a respondent to the application and it must be at best doubtful that the Tribunal was entitled to rule on that application as it did. However, the problem is of no practical moment because it is only necessary to address Sarah's situation before the Tribunal in order to resolve this application. Even here there is some doubt whether the Tribunal's decision on this matter is a judicially reviewable decision within section 476 but the matter does not have to be decided because, as the legal representative of the Tribunal has correctly pointed out, the application could no doubt have been brought under section 39B of the Judiciary Act in which case, at any rate prima facie, the jurisdiction of this Court would be clear. I therefore propose to deal with the matter on the assumption that either under section 476 or section 39B or both the applicant is able to have the nature and status of the decision in question considered. 10 It is important to note that the application not only seeks orders that would have the Tribunal reinstate Sarah as an applicant for review, but also seeks a number of what it described as urgent, in effect, interlocutory relief which would ordinarily seem to have nothing whatever to do with the jurisdiction of the Court in matters of this kind. For example, orders are sought that Ms Oswald be restrained from removing Sarah from Australia and the jurisdiction of this Court; that Sarah should remain with her mother at an address in Sydney; that Sarah should not come into contact with a man named Glen Wakeham of Townsville; that Ms Oswald submit to, and make an appearance in, the Federal Court within 24 hours of being notified of these orders; and that she surrender her and Sarah's passports to the Federal Police, so as to give effect to these restraining and mandatory orders. 11 If at all, the only way in which this Court could even contemplate any such orders would be if they were to be an aid to the exercise of its jurisdiction to deal with the subject matters in question. So far as I can see, they represent no such aid and are quite unnecessary and beyond what this Court would ordinarily contemplate by way of discretionary rulings. As I pointed out during argument, amongst other things, they run directly contrary to the decision of Justice Chisholm in the Family Court in March, an appeal from which to a Full Court of that Court is fixed for hearing, as I am informed, on Friday 5 May - that is, in two days time. It is not conceivable that this Court would purport to prejudge or second guess the Full Court in relation to matters peculiarly within its purview. 12 There is also no need to make any restraining orders and give consequential relief today, firstly, because it is possible to deal with the case in this Court immediately, and secondly, because in view of the imminent hearing in the Family Court, there is no likelihood that Ms Oswald or Sarah will be removing themselves from the jurisdiction. 13 Which brings me back then to the substance of the application which, in my opinion, cannot and should not be dealt with in the technical way advocated by the applicant. In my view, whatever possible defects there may have been in the Tribunal's handling of this matter, there is no point in restoring Sarah to the proceedings in the Tribunal if her application could not succeed there. The application certainly has some amazing and bizarre features. Indeed it marks a turning point in this Court's experience in that, so far as I have been able to ascertain, no one has ever previously sought protection in Australia from the risk of persecution at the hands of the United Kingdom authorities. Ms Oswald obviously wishes to return home with Sarah, as is the effect of the orders of the Family Court. Although an applicant for refugee asylum here, the applicant resides and apparently works in the United Kingdom. There was certainly no evidence in this case of any dangers facing the applicant or Sarah in the United Kingdom, or that the rule of law in the sense of fair and impartial justice will not be available to them and their circumstances as stringently there as it would be here. Although I did ask Mr Potier what were the risks of persecution he faced, I failed to extract even one. It is, to say the least, more than faintly preposterous that he should thus be claiming that it is necessary for him to have the protection of the government and people of Australia against a risk of persecution in the UK. It seems unlikely that he genuinely wishes to remain in Australia and more likely that his application for refugee status is a tactic to try to reverse Ms Oswald's custody of the child, or to subvert or influence the result of the Family Court proceedings. 14 Nonetheless, the Refugee Review Tribunal has heard an application from Mr Potier in this regard. As I have not heard the argument put to the Tribunal in favour of the alleged persecution, it is not appropriate for me to comment on it. It may commend itself to the Tribunal which will be completely at liberty to make its own decision in that regard, on the basis of the evidence and argument which it has received. 15 The application in this Court has some other complications. The applicant says that decisions made in England in respect of Sarah have no validity because she is in fact subject to the laws of Scotland. It is not for an Australian Court to resolve any such conflict, and I have not separately considered the circumstances under which Scotland might be held to be putting any of its citizens at risk of persecution. Even assuming that some such evidence may be available, the case in relation to persecution in Scotland was, so far as I am aware, not put to the Refugee Review Tribunal at its hearing on 20 April. One of the reasons why it would not have been put is that Sarah's case was, in substance, struck out and not dealt with. If her application was brought consequent upon a finding that the applicant himself was entitled to refugee protection in Australia, then it might be necessary to give consideration to the particular hardships for average citizens in Scotland at the hands of the new independent Scottish authority. The fact that I have never thought of Scotland in this way and know of no such possibility does not make this case the occasion for a consideration of the matter. 16 The argument put on behalf of the Tribunal in these proceedings is that the application in respect of Sarah is premature. It was said that if Mr Potier is successful before the Tribunal, undoubtedly consideration will have to be given to Sarah's position. On the other hand, if the applicant himself is not successful in his application for refugee status, there is simply no way that Sarah could ever obtain refugee protection. 17 The Tribunal did not dismiss Sarah's application on that basis. Nor was it deferred for that reason. Nevertheless the argument must be correct. The entitlement of the applicant to bring the application on behalf of his daughter may be a matter of significant controversy and if it were relevant at an appropriate time, he would be entitled to present somewhere material which suggested that he was able to bring an application in the name of the child and on her behalf, and to present evidence to support the application. But at the present time, contrary to his claim that his status as a possible refugee is derivative from the status of his daughter, the fact is to the contrary. The daughter's status as a refugee would, if at all, be heavily influenced by her father's position as a refugee and not the other way around. 18 The applicant also said, in the course of his arguments, that he and Sarah should be granted dual citizenship of Australia and the UK, and that he would like to make an application to the Minister under section 417 of the Migration Act for such dual citizenship. There is no power given to the Minister under section 417 to grant even single citizenship, let alone dual citizenship, to anybody. Even the potential for the Minister to provide a more favourable decision under section 417 in respect of the protection visa cannot be exercised until the decision of the Tribunal on that question has been given. The evidence in the Family Court raised the possibility that Ms Oswald might, although apparently desiring to go back to the United Kingdom at present, want to live in Australia over the longer term, in view of her relationship with the man, Glen Wakeham, to whom I made earlier reference. It is inconceivable that if the mother and father of a three year old child were legally residing in Australia, the child would be deported to fend for herself and I could not imagine that the Australian Government would contemplate any such action. At least, the daughter would in such circumstances be in a good position to make application for an appropriate visa. 19 Mr Wakeham is apparently an Australian citizen who lives in Townsville. It is said of him that he has a very unhappy and unworthy history as a person who has been violent towards his own children by his existing or former marriage, and some evidence has been placed before this Court of certain incidents of this kind. Of course Mr Wakeham is not a party to these proceedings and I have not heard from him although my attention has been drawn to some findings made by Justice Chisholm in the Family Court both about the relationship between Ms Oswald and Mr Wakeham and about his conduct. As the copy given to me is marked "Transcript-in-Confidence", I am not sure to what extent I am at liberty to read his Honour's findings in open Court. It will suffice to say that his Honour made some uncomplimentary remarks about some of Mr Wakeham's past behaviour. 20 That and the other evidence that has been presented to this Court about Mr Wakeham has led the applicant to allege that he represents a significant danger to his daughter. It is very understandable that he entertains fears in this regard and that he feels a need to protect her as best he can. Clearly Mr Potier is substantially motivated in his application to this Court by the real fear that if Ms Oswald firms up and makes secure her relationship with Mr Wakeham - and there does not seem to be any dispute that she has some relationship with him - Mr Wakeham would represent a serious physical danger to his daughter. Mr Potier is most anxious to protect her from that possibility. 21 In this regard Mr Potier claims that when Sarah and Ms Oswald leave for and arrive in the United Kingdom, they will more than likely be joined there by Mr Wakeham where both Sarah and Mr Wakeham will be out of the reach of the Australian courts. I suggested to him in argument that the courts of the UK would be just as well able as the Australian courts to protect Sarah from any violence at the hands of Mr Wakeham. But he says that Mr Wakeham's history of violence in Australia will not be able to be brought to the attention of the English courts. What he has in mind is that the people who would be able to give first hand evidence of this violence may not easily be transportable to England. This is no doubt true but there are no doubt provisions in the United Kingdom, as there are here, to take evidence by telephone and by video link so as to enable evidence to be taken without the witness being personally present. Moreover, a British court would be no less mindful of the problems of abuse caused by the transference of people from one jurisdiction to another in relation to the protection of children. No doubt UK Government authorities, including the courts, give no less attention to the United Nations Convention on the Rights of the Child and can exercise no less protection under domestic law than the equivalent Australian bodies. Of course, as in Australia, there are a number of authorities in the UK, besides courts, such as the police, the English equivalent of the Department of Community Services, and a number of community support organisations, that exist to support women and children subjected to domestic violence. 22 The position therefore simply is that even if there is substance to the applicant's fear of violence to Sarah at the hands of Mr Wakeham, there are no grounds for believing that Sarah is in need of the protection of the Australian authorities because the British Courts and authorities are unwilling or unable to take action to protect her in this assumed circumstance. In the result therefore, to require that the Tribunal restore Sarah to her position as an applicant for review would take the case nowhere as her case could not succeed unless the applicant himself succeeds. When and if that occurs will be the time to consider Sarah's position in the light of the rulings of the Full Court of the Family Court and for that matter, of the British authorities who have passed on this question. It is not for the Tribunal, in general terms, to investigate such complex international and family law matters. When faced with dilemmas of this kind, the Tribunal is right to proceed only in relation to matters which are before it in a manifestly legitimate way. 23 The Tribunal has not made any type of binding determination that the applicant could never make an application on behalf of his daughter for a protection visa. What it has done is to find that as the custodial matter is being litigated elsewhere, this particular application for Sarah's visa is so clothed with controversy as to make it inappropriate for attention and determination until such time as it had determined the application of the primary applicant, Mr Potier. 24 For those reasons I dismiss the application with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.