Rashid v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The appellant is an Iraqi national presently living in Iran. His father (the proposer or sponsor of the appellant's application) and other members of his family now live in Australia. They were granted off-shore humanitarian visas in 2002. On 24 August 2004 the appellant, hoping to join his family in Australia, applied for a Refugee and Humanitarian (Class XB) subclass 200 (Refugee) visa. 2 The appellant received a letter dated 16 January 2006 from a delegate of the Minister at the Migration Section of the Australian Embassy in Tehran telling him that his visa application had been refused. 3 It is common ground that an applicant for a Class XB visa has no right to a merits review of a decision to refuse the visa. It is also accepted that in refusing certain visas, including Class XB visas, the Minister is not required to give written reasons why any criterion was not satisfied or why any provision of the Act or Regulations prevented the grant of the visa: Migration Act 1958 (Cth) s 66(2)(c) and (3). However s 66(2)(a), which applies to all visa applications, provides that if the application was refused because the applicant did not satisfy a criterion for the visa, the notification of the decision must specify that criterion. 4 Under the Migration Regulations 1994 (Cth) the criteria for the visa in question include · the "split family" criterion (sch 2 cl 200.211(2), to be satisfied at time of application and time of decision): "(2) The applicant meets the requirements of this subclause if: (a) the applicant's entry to Australia has been proposed in accordance with approved form 681 by an Australian citizen or an Australian permanent resident (in this subclause called the proposer) who is, or has been, the holder of a Subclass 200 visa; and (aa) the application is made within 5 years of the grant of that visa; and (b) on the date of grant of that visa, the applicant was a member of the immediate family of the proposer; and (c) the applicant continues to be a member of the immediate family of the proposer; and (d) before the grant of that visa, that relationship was declared to Immigration." To be a member of the "immediate family" of the proposer (his father), the appellant would have to be a "dependant child" of his father: reg 1.12AA(1)(b). To be a "dependant child" he would have to be either under 18 or dependant on his father: reg 1.03. "Dependant" means wholly or substantially reliant on the other person for financial, psychological or physical support: reg 1.05A(2). · the "compelling reasons" criterion (sch 2 cl 200.222, to be satisfied at time of decision): "The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to: (a) the degree of persecution to which the applicant is subject in the applicant's home country; and (b) the extent of the applicant's connection with Australia; and (c) whether or not there is any suitable country available, other than Australia, that can provide for the applicant's settlement and protection from persecution; and (d) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia." 5 The letter of 16 January 2006 on its face comes from a person holding the office of "Senior Migration Officer Position Number 7396" but the identity of that person is not disclosed. The letter states that the writer, as a delegate of the Minister, is not satisfied that "a criterion in each of the subclasses was met. In summary, I am not satisfied that there are compelling reasons for giving special consideration to granting you … a visa, having regard to particular factors in the criteria. The attached page shows the criteria not met by you … for each of the subclasses." 6 The attached page sets out, inter alia, the "compelling reasons" criterion quoted above (it also sets out "compelling reasons" for other subclasses of the class 200 visa). There is no mention in the letter, or the attached page, of the split family criterion. The letter goes on to say that there is no merits review available and there is no requirement to provide written reasons why the criteria were not satisfied. 7 The appellant applied to the Federal Magistrates Court under s 476 of the Act claiming that the delegate who made the decision had exceeded his jurisdiction in doing so. In summary his claim was that he had been refused a visa because he did not satisfy the split family criterion. It was said that notes in the Departmental file suggested that this was the case. In fact, so the argument ran, the appellant did satisfy the split family criterion. Applying the Department's Procedures Advice Manual, he should, as a consequence, have satisfied the compelling reasons criterion. 8 The Federal Magistrate (Lindsay FM) rejected the application: Rashid v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1666. His Honour accepted that there was an inconsistency between the notes and the decision, in that the notes "suggest one reason for the rejection of the application and the notification of the decision specifies another". In the circumstances, however, there was nothing to indicate that the view expressed in the officers' notes had any bearing on the decision. In the absence of any allegation of bad faith or improper purpose his Honour concluded that the notes were irrelevant. That being so his Honour concluded that the application before him must fail. 9 In this appeal from the Federal Magistrate's decision, counsel for the appellant puts forward similar arguments to those made below. He says that the Federal Magistrate erred in not accepting those arguments. 10 The appellant's submissions on appeal can be summarised as follows. The Federal Magistrate should have found that: