FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural & Indigenous Affairs v Huynh [2004] FCAFC 47 MIGRATION – appeal from Federal Magistrate – s 501(2) Migration Act 1958 (Cth) - cancellation of BB 155 Resident Return visa – respondent entered Australia on Class 200 Refugees visa – whether Minister obliged to consider respondent's refugee status – whether evidence established respondent has refugee status in Australia Migration Act 1958 (Cth) s 501 Migration Amendment Act (No 2) 1992 (No 84 of 1992) Judiciary Act 1903 s 39B Migration Regulations 1989 Sch 2, reg 108 Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 referred to The Macquarie Dictionary, 3rd ed, 1998 Germov & Motta, Refugee Law in Australia MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v CHIA NGHIA HUYNH W 181 of 2003 SPENDER, BRANSON and STONE JJ 8 MARCH 2004 SYDNEY (HEARD IN PERTH) IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 181 of 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY DRIVER FM BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS APPELLANT AND: CHIA NGHIA HUYNH RESPONDENT JUDGES: SPENDER, BRANSON and STONE JJ DATE OF ORDER: 8 MARCH 2004 WHERE MADE: SYDNEY (HEARD IN PERTH) THE COURT ORDERS THAT: 1. The orders of the Federal Magistrate be set aside. 2. The application under s 39B of the Judiciary Act 1903 (Cth) for constitutional and injunctive relief from the decision of the appellant be dismissed. 3. The respondent pay the appellant's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 181 of 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY DRIVER FM BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS APPELLANT AND: CHIA NGHIA HUYNH RESPONDENT JUDGES: SPENDER, BRANSON and STONE JJ DATE: 8 MARCH 2004 PLACE: SYDNEY (HEARD IN PERTH) REASONS FOR JUDGMENT THE COURT introduction 1 This is an appeal from a judgment of a Federal Magistrate. By orders dated 25 July 2003 the learned magistrate declared invalid a decision of the appellant ("the Minister") made under s 501(2) of the Migration Act 1958 (Cth) ('the Act') to cancel the respondent's visa and granted consequential relief. His Honour held that the Minister's failure to give consideration to the respondent's 'status as a refugee' invalidated the Minister's decision. 2 The question of whether the Minister was obliged, before exercising the power given to him by s 501(2) of the Act, to give consideration to the respondent's 'status as a refugee' was not raised by the application which came before his Honour for determination. The issue was raised by the Federal Magistrate himself who then sought submissions from the parties on the question. His Honour did not in his reasons for judgment give express consideration to the grounds of review contained in the application for review of the decision of the Minister other than to note that the final ground of review, which contended that s 474 of the Act was invalid, had been superseded by the decision of the High Court in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. 3 The respondent did not file a notice of contention pursuant to O 52 r 22(3) of the Federal Court Rules. Neither party suggested that, should this appeal succeed, the matter should be remitted to the Federal Magistrate. It seems plain that the parties accept, as seems clearly to be the case, that the grounds of review that were actually set out in the application were all without merit. 4 The outcome of this appeal thus depends on whether the Federal Magistrate erred in concluding that the Minister's decision was invalidated by his failure to give consideration to the respondent's 'status as a refugee'. For the reasons set out below we have concluded that his Honour did so err. background facts 5 The respondent arrived in Australia on 24 September 1992 from Kuala Lumpur. He was at that time a minor. He came to this country under the care of his aunt, Thi Nam Huynh ('Ms Huynh'). Both the respondent and Ms Huynh were at that time citizens of Vietnam. The respondent's parents were then, and remain to this day, citizens and residents of Vietnam. The respondent's siblings are also citizens and residents of Vietnam. 6 Ms Huynh and the respondent travelled to Australia in 1992 in reliance on a 'Document to travel to Australia' ('the Travel Document') which identified Ms Huynh as the 'Holder' and the respondent as a person whom the Travel Document 'includes'. Stamped on the Travel Document is an Australian Entry Visa, apparently issued in Kuala Lumpur on 4 August 1992, in respect of both Ms Huynh and the respondent. The entry visa is a Class 200 visa. It bears the endorsement 'Subject to migration law this document will operate as a permanent entry permit on entry to Australia'. 7 The Act as in force at 4 August 1992 defined 'visa' to mean 'an entry visa or a travel-only visa'. Schedule 2 of the Migration Regulations 1989 in force as at 4 August 1992 ('the Regulations') discloses that a Class 200 visa was called a 'Refugee' visa. However, it is clear that an applicant for a Class 200 visa did not need to establish that he or she was a refugee within the meaning of the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 ('the Refugees Convention'). 8 An applicant for a Class 200 visa was required to satisfy, amongst other criteria, the criteria prescribed by r 101 of the Regulations. Regulation 101 provided: '(a) the applicant is a person subject to persecution; (b) the applicant is living: (i) outside the country of which the person is a citizen; or (ii) if the person is not usually a resident of that country – outside the person's usual country of residence; and (c) the Minister is satisfied that: (i) permanent settlement in Australia is the appropriate course for the applicant; and (ii) such settlement would not be contrary to the interests of Australia.' 9 No criterion prescribed in respect of Class 200 visas referred to a fear of persecution by reason of 'race, religion, nationality, membership of a particular social group or political opinion' (see Article 1A of the Refugees Convention). A Class 200 visa was one of a number of humanitarian visas for which the Act then provided. Others were Class 201 – In - Country Special Humanitarian Program visas, Class 202 - Global Special Humanitarian Program visas, Class 203 - Emergency Rescue visas, Class 204 – Women at Risk visas and Class 205 – Camp Clearance visas. 10 Regulation 108 of the Regulations, read together with the definition of 'member of a family unit' contained in reg 7, had the effect that the respondent may have been entitled to a Class 200 visa as a member of Ms Huynh's family unit; that is, without himself satisfying the criteria specified in reg 101 of the Regulations. To be so entitled he would have had to have been usually resident in Ms Huynh's household, dependent on her and without another family member able to care for him 'in the relevant country' (presumably, in the circumstances, Malaysia). 11 The Migration Amendment Act (No 2) 1992 (No 84 of 1992), which came into operation on 30 June 1992, provided for the first time for a procedure under the Act for the determination of refugee status. Prior to 30 June 1992 the question of whether an individual was a person to whom Australia owed protection obligations under the Refugees Convention was answered administratively. Although the entry visa upon which the respondent first entered Australia was issued after 30 June 1992, for the reasons given below, it seems unlikely that he entered Australia on the basis of a determination that his status in Australia was that of a refugee. 12 Refugee status, following the coming into force of the Migration Amendment Act (No 2) 1992, was governed by Part 2 Division 1AA of the Act. Section 22AA of the Act as in force at that time provided that '[i]f the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee'. However, s 22AC of the Act as in force at that time provided: 'This Division does not: (a) entitle a person who is outside Australia to apply for a determination that he or she is a refugee; or (b) authorise a determination that a person who is outside Australia is a refugee.' Further, s 22AD provided that the Minister was not required to consider an application for refugee status if the applicant was the holder of a permanent entry permit. 13 No evidence was placed before the Federal Magistrate which suggested that a determination had been made under s 22AA of the Act that either Ms Huynh or the respondent was a refugee. Having regard to the provisions of Part 2 Division 1AA of the Act it seems unlikely that such determinations would have been made. Moreover, nothing before the Federal Magistrate suggested that the respondent has ever claimed to be a refugee within the meaning of the Refugees Convention. 14 The questionnaire completed by the respondent for the purpose of being considered by the Minister in exercising the power given to the Minister by s 501 of the Act indicated that the respondent's parents and younger siblings live in Vietnam and that the respondent had visited them there. The respondent wrote nothing in the space provided by the questionnaire for answers to the questions 'Do you envisage any difficulties return [sic] to your country of origin? If so what?' Material before the Federal Magistrate confirmed that the respondent had travelled to Vietnam in 1997 Decision of the Minister 15 The visa which the Minister decided to cancel was a BB 155 Resident Return visa. This visa was apparently issued to the respondent upon his return to Australia from Vietnam in 1997. It authorised him to remain in Australia indefinitely. 16 It is conceded on behalf of the Minister that he did not give to the respondent a written notice that sets out the reasons for his decision to cancel the respondent's visa as required by s 501G(1)(e) of the Act. The Minister did, however, record his decision to cancel the respondent's visa at the end of a document headed 'Issues for Consideration of Possible Cancellation of Mr Huynh [sic] visa under s 501(2) of the Migration Act 1958' ('the Issues Document'). The Issues Document is in a similar form to the document considered by the Full Court in Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281; (2002) 125 FCR 433. Whilst not constituting reasons for the Minister's decision, the Issues Document forms a record of at least part of the material that was before the Minister when he made his decision. Under the heading 'Other Considerations' the Issues Document records, amongst other things, that: 'Mr Huynh arrived in Australia on 24 September 1992 under the Indo Chinese Refugee Programme'. Under the heading 'Other International Obligations' the Issues Document records: 'Mr Huynh has not made any claims which require assessment in relation to international obligations.' 17 It is also conceded on behalf of the Minister that it was open to the Federal Magistrate to find that the Minister did not take 'the respondent's refugee status into account'. The significance of this concession is not clear. The Minister has placed his signature on the Issues Document under the assertion 'I have considered all relevant matters …'. The matters set out in the Issues Document as matters relevant to the decision to be made by the Minister include that the respondent had come to Australia under the Indo China Refugee Programme. The Minister is to be assumed to have taken into account the matters recorded in the Issues Document. The concession is presumably intended to constitute an acknowledgement that, if it is found that the Minister was required to turn his mind to whether Australia owes protection obligations under the Refugees Convention to the respondent, he did not do so. Reasons of the Magistrate 18 The Federal Magistrate founded his conclusion that the failure by the Minister to consider the respondent's 'status as a refugee' invalidated the Minister's decision on two bases: first, that it amounted to failing to take into account a relevant consideration and, secondly, that it 'summarily disappointed a legitimate expectation that [the respondent] was entitled to hold'. 19 The reasons for decision of the Federal Magistrate reveal that his Honour proceeded on the assumption that it was uncontentious that the present respondent had been accepted by Australian authorities to be a refugee within the meaning of the Refugees Convention. For example, the reasons for decision include the following passage: 'Once a person is accepted as a refugee the person should not have to make fresh claims to refugee status unless the person is called upon to show cause why refugee status should not be withdrawn, or unless a fresh claim is called for after refugee status has previously been lost. The protection afforded by the Refugee Convention is not a guarantee of permanent protection. Circumstances may change. However, a decision maker making a decision inconsistent with refugee status that has previously been accepted must at least consider whether that refugee status still applies.' 20 His Honour also observed: 'I place no significance on the changes to Australia's domestic law that have occurred since 1992. It does not matter that Australia's refugee programme was different then from what it is now. Australia's obligations under the Refugee Convention and Protocol have not changed. … The important question is whether [the respondent] got a visa because he was accepted as a refugee. He did. The Minister had not decided whether [the respondent] has ceased to be a refugee.' consideration 21 The approach adopted by the Federal Magistrate to the evidence and other material before him is illustrative of the extent to which the literal meaning of the word 'refugee' has been obscured by the attention given to the Refugees Convention in recent years. The literal meaning of 'refugee' is simply a person taking shelter from pursuit, danger or trouble - especially in a foreign country (see The Macquarie Dictionary, 3rd ed, 1998). Many individuals who fit within the ordinary meaning of the term 'refugee' will fall outside the protection provided by the Refugees Convention. The Refugees Convention, which restricts the protection obligations of signatory states to persons who satisfy the criterion, amongst others, that they have a well‑founded fear of persecution on one or more of the bases identified in Article 1A of the Refugees Convention, reflects the outcome of the Conference of Plenipotentiaries which met in Geneva in July 1951. This Conference was convened to amend and finalise the Convention draft. The outcome of the Conference of Plenipotentiaries has been criticised as having a 'Eurocentric' geographic and chronological focus (Germov & Motta, Refugee Law in Australia at p 15). It is now widely accepted that there are categories of refugees within the literal meaning of that term that do not fall within Article 1A of the Refugees Convention. 22 As the above discussion reveals, it does not logically follow from the fact that the respondent once held a Class 200 visa that he is a person to whom Australia owes, or once owed, protection obligations under the Refugees Convention. The criteria specified in respect of Class 200 visas, read together with the provisions of Part 2 Division 1AA of the Act as in force in the period following 30 June 1992, make it clear that applicants for Class 200 visas were not assessed against the definition contained in Article 1A of the Refugees Convention. Additionally, as is mentioned above, certain dependent members of the family unit of a person entitled to a Class 200 visa, whether or not they themselves were subject to any persecution, could receive Class 200 visas. The inference that the respondent became entitled to a Class 200 visa as a dependent member of Ms Huynh's family unit is, on the material that was before the Federal Magistrate, strong. 23 For the above reasons, the assumption made by the Federal Magistrate and upon which he based his decision, namely that the respondent had been found to be a person to whom Australia owes protection obligations under the Refugees Convention, is not supported by the evidence and other material that was before his Honour. 24 Was the Minister in making a decision under s 501(2) of the Act nonetheless required to take into account the fact that the respondent might be a person who could establish that Australia owes him protection obligations under the Refugees Convention? Alternatively, did the respondent have a legitimate expectation that the Minister would take into account that he might be a person to who Australia owes protection obligations under the Refugees Convention? 25 As is mentioned above, there seems to be no reason to conclude that the respondent has even been found to be a person to whom Australia owes protection obligations under the Refugees Convention. The Issues Document reveals that the Minister proceeded on the basis that, if the respondent's visa were cancelled, he would be relocated to Vietnam, a country to which he had voluntarily travelled in 1997 to visit his parents and siblings. The respondent was given an opportunity to comment on topics touching on the Minister's decision under s 501(2) which he felt were relevant to his circumstances. The questionnaire which was provided to him to assist him in formulating his comments drew his attention to the topic of possible difficulties should he return to his country of origin, that is Vietnam. He made no comment on that topic although he made quite extensive comments on other topics. The respondent, by being asked about possible difficulties should he return to his country of origin, was given an opportunity to express any fear that he might have of persecution in Vietnam. He expressed no such fear. 26 In the circumstances referred to above, the Minister was not, in our view, required to give consideration to the possibility that the respondent might have a well‑founded fear of persecution in Vietnam for a Convention reason. That possibility was not positively raised by any material shown to have been before the Minister and was inconsistent with the material placed before the Minister by the respondent. 27 The above conclusion is sufficient to dispose of the present appeal. We note, however, that the legislative context in which s 501 of the Act is found also suggests a negative answer to the questions set out in [24] above. Section 501E(1) of the Act prevents a person whose visa has been cancelled under s 501 from applying for another visa whilst in Australia. However, s 501E(2) expressly provides that s 501E(1) does not prevent an application for a protection visa. Section 501F of the Act provides, in effect, that a decision made under s 501 to cancel a particular visa held by a person is deemed to be a decision to cancel any other visa held by that person other than, relevantly, a protection visa. The section also has the effect that a decision made under s 501 to cancel a visa held by a person is deemed to be a decision to refuse any outstanding application that the person may have for another visa other than a protection visa. 28 The above provisions seem to demonstrate a clear legislative intention, where the visa the cancellation of which is under consideration is not a protection visa, to divorce issues relating to protection from the factors required to be considered for the purpose of making a decision under s 501. We are not presently concerned with a decision made under s 501 to cancel or refuse to grant a protection visa. We say nothing touching on that topic. However, where the Minister's decision under s 501 is not a decision to cancel or refuse to grant a protection visa, the better view seems to be that the Minister is not obliged to give consideration to the possibility that the visa holder might be a person to whom Australia owes protection obligations or to notify the visa holder that that topic will not be considered. As we did not hear full argument on this issue, and as the appeal may be disposed of on the ground identified in [26], it is unnecessary for us to express a concluded view on this issue. We note, however, that the Minister acknowledges that there is no impediment in the way of the respondent applying for a protection visa should he consider that he satisfies the prescribed criteria. conclusion 29 The orders of the Federal Magistrate will be set aside and in lieu thereof it will be ordered that the application under s 39B of the Judiciary Act 1903 (Cth) for constitutional and injunctive relief from the decision of the appellant be dismissed. Having regard to the facts that, first, the issue upon which the Federal Magistrate based his decision was identified by him and not by the respondent and second, the Federal Magistrate made no order as to costs, we consider that the appropriate order as to costs is simply that the respondent should pay the appellant's costs of the appeal. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 8 March 2004 Counsel for the Appellant: J D Allanson Solicitor for the Appellant: Blake Dawson Waldron Counsel for the Respondent: H Christie Solicitor for the Respondent: Christie & Strbac Date of Hearing: 10 February 2004 Date of Judgment: 8 March 2004