FEDERAL COURT OF AUSTRALIA Kaddari v Minister for Immigration & Multicultural Affairs [2000] FCA 659 Migration Act 1958 (Cth) ss 500(1) (c), (4), 504 Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the New York Protocol done at New York on 31 January 1967 Art 33(2) Schedule 4 to the Migration Regulations (1994) Director General Security v Sultan (1998) 90 FCR 334 followed Daher v Minister for Immigration & Ethnic Affairs (1997) 77 FCR 107 considered Shanahan v Scott (1957) 96 CLR 245 considered Collector of Customs v Lawlor (1979) 2 ALD 1 applied MOHAMED KADDARI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 64 OF 2000 TAMBERLIN J SYDNEY 18 MAY 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 64 OF 2000 BETWEEN: MOHAMED KADDARI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: TAMBERLIN J DATE OF ORDER: 18 MAY 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The applicant to pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 64 OF 2000 BETWEEN: MOHAMED KADDARI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: TAMBERLIN J DATE: 18 MAY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("AAT") constituted by a Deputy President delivered on 23 December 1999. 2 The AAT found that it had no jurisdiction to review the respondent's decision to refuse the applicant a protection visa and dismissed the application to the AAT. 3 The short question is whether the AAT erred in its construction of the jurisdiction conferred on it by the Migration Act 1958 (Cth) ("the Act"). 4 Mr Kaddari is an Algerian national who arrived in Australia on 12 May 1997. On 4 June he lodged an application for a protection visa and on 6 August 1997 a delegate of the respondent ("the Minister") refused that application. Mr Kaddari lodged an Application for Review with the Refugee Review Tribunal ("the RRT") on 7 August 1997. On 4 December 1997 the RRT decided to remit the matter to the Minister with a direction that Mr Kaddari "be taken to have satisfied the criterion for a protection visa specified in Article 1A of the Refugee Convention". The reference to "the Convention" is a short-hand reference to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the New York Protocol done at New York on 31 January 1967. On 7 October 1999 a delegate of the Minister refused Mr Kaddari's application for a protection visa on the ground that he did not satisfy one of the criteria for a protection visa; namely the public interest criterion 4002. On 13 October 1999 Mr Kaddari applied to the AAT for review. This was dismissed on the ground that its jurisdiction under s 500(1)(c) of the Act only extends to reviewing a refusal of a protection visa where that refusal is based on Articles 1F, 32 or 33(2) of the Convention. Relevant provisions of the Act 5 Section 36 of the Act provides for a class of visas which are known as "protection visas". 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 Convention. 6 Section 65(1), which relates to the grant of visas, relevantly provides that: "After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and … (b) if not so satisfied, is to refuse to grant the visa." 7 Schedule 4 to the Migration Regulations (1994) ("the Regulations") is headed "Public Interest Criteria and Related Provisions." It sets out relevant criteria of which the Minister must be satisfied before granting a protection visa. One of those criteria is criteria 4002 which provides: "4002 The applicant is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security." 8 Section 500 of the Act provides that applications may be made to the AAT for review of a decision to refuse to grant a protection visa on certain grounds. Relevantly it provides that: "s 500(1) Applications may be made to the Administrative Appeals Tribunal for review of: (a) … (b) decisions of a delegate of the Minister under section 501; or (c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely Article 1F, 32 or 33(2); other than decisions to which a certificate under section 502 applies." 9 This section does not apply to decisions in which a certificate under s 502 of the Act applies. Section 502 empowers the Minister as part of a decision to refuse a protection visa relying on Article 33(2) to include a certificate declaring the person to be an excluded person. This decision must be taken personally and if the Minister makes such a decision he must cause notice of the making of the decision to be laid before each House of Parliament within fifteen sitting days of the House after the day on which the decision was made. 10 There is no right of appeal under s 500 against a decision under s 502. 11 In the present case the Minister has not made such a decision or issued a certificate under s 502. 12 Reverting to s 500, it is to be noted that ss (4) provides that certain decisions are not reviewable under Part 5 or Part 7 of the Act. Part 5 of the Act is concerned with the review of decisions by the Migration Review Tribunal and Part 7 is concerned with review of decisions by the RRT. 13 The Delegate, before making a decision, was furnished with an assessment of Mr Kaddari provided by the Australian Security and Intelligence Organisation ("ASIO"). The effect of this report was that Mr Kaddari was assessed to be directly a risk to Australian national security and ASIO recommended against the issue of a protection visa to Mr Kaddari. It was on this basis that the delegate found that Mr Kaddari did not satisfy criterion 4002 and refused his application under s 65. 14 I am informed that no reasons for the orders made on 23 December 1999 were given by the Deputy President but the orders made indicate that the basis for the decision was that the applicant did not satisfy public interest criterion 4002 and that therefore there was no jurisdiction in the Tribunal to review the decision Applicant's submissions 15 A decision made under s 65 and incorporating, by reason of criterion 4002, considerations of Australian national security is not reviewable by the AAT. The applicant submits that criteria 4002 is ultra vires, being inconsistent with the overall exclusive code of review said to be established by ss 500 and 502. 16 The applicant submits that the AAT jurisdiction in respect of protection visas is set out in s 500(1)(c) of the Act referred to above. It relevantly provides that an application may be made to the AAT for a review of a decision relying on Article 33(2). 17 Article 33 of the Convention is the central provision of the Convention. It is concerned with the prohibition of expulsion or return (refoulement) of refugees. Article 33 provides: "1. No Contracting State shall expel or return … a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country." (Emphasis added) 18 The applicant contends that there is a discernible scheme or plan shown in the legislation that a refusal of a protection visa relying on Article 33(2) is reviewable by the AAT, except where the Minister made the decision personally under s 502. It is said that there is no material difference between Article 33(2) and criterion 4002, and so the effect of criterion 4002 is that the Minister may make a decision based on Article 33(2), under s 65, without review by the AAT. Consequently the effect of the inclusion of criterion 4002 is to take away the right of review conferred by s 500. However it is said by the applicant that Parliament, in s 502, has already set out the limited circumstances when a non-reviewable decision may be made. Therefore the inclusion of the criteria in is contrary to the objectives of the Act and is ultra vires because the Regulations cannot take away rights conferred by the Act. 19 Counsel accepted that criterion 4002 is satisfied when a person is assessed to be directly or indirectly a risk to Australian national security, whereas Article 33(2) refers to reasonable grounds for regarding the person as a danger to the security of the country. He submits there is no difference in substance between the notions of "risk" and "danger" and refers to the Shorter Oxford Dictionary. It was conceded that the reference to "Australian national security" may be a narrower term than the "security of Australia", however, the applicant submits that the extent of Australia's compliance with its obligations under the Convention turns on criterion 4002. Criterion 4002 is to be construed so as to be consistent with the obligations under Article 33(2) and to construe it as providing a ground for refusing refugee status outside what is permitted by the Convention would be to adopt a construction inconsistent with Australia's treaty obligations. 20 Reference is made to s 504 which provides a general power to make Regulations not inconsistent with the Act. Because criterion 4002 departs from or varies the comprehensive plan which the legislature is said to have adopted to achieve its purposes the applicant submits it is invalid. Reference is made to s 505(b) which provides that Regulations may require the Minister to take an assessment, finding, or decision of the specified person or organisation to be correct. Reasoning 21 A convenient starting point is s 65(1) of the Act which requires the Minister to refuse a visa unless he is satisfied that the criteria prescribed by the Act or Regulations have been satisfied. One of these criteria is the public interest criteria set out in criterion 4002 which appears in Schedule 4 of the Migration Regulations. In this case, clearly, the Minister cannot be satisfied that the criterion 4002 has been satisfied because of the existence of the adverse ASIO report. Accordingly, if criterion 4002 is validly prescribed, the visa cannot be granted. 22 There is no express provision to which I have been directed which limits what may be included within the public interest criteria. The notion of the "public interest" is one which appears frequently in the area of public law. It is construed by the Courts in a wide manner, especially in circumstances where it forms part of the exercise of an administrative decision at the highest level such as in the present case. Unless expressly set out, the relevant aspects of the public interest are to be determined by an examination of the scheme of the legislation as a whole. In the present case, it seems to me that there is no inconsistency between the notion of the "public interest" and the seeking of a determination based on an adverse report from ASIO as required by criterion 4002. 23 One principal submission made by the applicant is that in substance the public interest requirement in the criterion is substantially the same obligation as that in Article 33(2). I cannot agree with the applicant's primary proposition. In my view there are significant differences between the two. In the case of Article 33(2) it is necessary for a determination to be made whether there are "reasonable grounds", which prescribes an objective test and not necessarily only a substantial opinion or a report. In the case of the criterion the only matter to be taken into account is the fact that a competent Australian authority (and there is no dispute that ASIO is such an authority) has assessed the person to be a risk to Australian national security. The Minister is not required under this criterion to examine the reasonableness or investigate the determination of the Australian authority. The mere existence of such an assessment is sufficient. In the present case there is no doubt that such an assessment has been made. 24 In my view there is a real distinction between having "reasonable grounds" for regarding a person as a danger to security and the lower threshold of simply having an assessment as to the risk to national security. 25 In many cases the position will be that there is no objective or substantial "evidence" in relation to a person who is suspected of being a risk to national security. However, in order to protect the community of a country from persons who may represent a possible threat to the national security of that country one can readily understand why in the public interest it may be desirable to exclude such persons from the country. The grounds on which assessments of national security risks are made are frequently not capable of being clearly formulated or evidenced. 26 Counsel referred to the decision in Director General Security v Sultan (1998) 90 FCR 334 where Sundberg J referred to the argument that s 500 gives jurisdiction to the AAT and criterion 4002 should not therefore be construed so as to detract from jurisdiction. His Honour commented that the section and the criterion dealt with different matters. He said that the operation of s 500 does not apply to the decisions to refuse a visa because criterion 4002 has not been satisfied. He said that s 65 is clear and that the Minister was required to refuse to grant a visa if not satisfied that no adverse security assessment exists. 27 With respect I agree with his Honour's view. It is this difference between the Article and the criterion, and the legislative contexts in which they occur, which leads me to the conclusion that the criterion is not invalidly prescribed because it runs counter to an alleged exclusive plan or scheme of appeal contained in Part 9 of the Act and in particular ss 500 and 502. 28 Counsel for the applicant referred to the Full Court judgment in Daher v Minister for Immigration & Ethnic Affairs (1997) 77 FCR 107 at 110 where their Honours said: "In the present case, it is an object of the Act that reviews of decisions taken under Art 1F of the Convention shall be conducted by the Administrative Appeals Tribunal. That object is not merely to be inferred from the Act. The Act makes it explicit by conferring jurisdiction upon the Administrative Appeals Tribunal and by excluding review under Pt 7 of the Act. The rationale is not stated but it can be understood. The Administrative Appeals Tribunal is a high ranking review tribunal, the President of which is a judge of this Court. It is a body which is well suited to dealing with the issues which arise under Art 1F. The Act has specified that, for the purposes of reviewing such a decision, the Administrative Appeals Tribunal shall be constituted by a presidential member. High quality decision making is sought." 29 These remarks and that case do not bear on the present circumstances. The quotation simply confirms that in cases where there is jurisdiction such jurisdiction is to be exercised by a high-ranking review tribunal. 30 In submissions the applicant also referred to the statement of the High Court in Shanahan v Scott (1957) 96 CLR 245 at 250 where the majority (Dixon CJ, Williams , Webb and Fullagar JJ) said in relation to a regulation making power: "The result is to show such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purpose of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends." 31 In the present case criterion 4002 and ss 500 and 502 are concerned with different subject matters. It cannot be said that the criterion attempts to add new and different means of carrying out the provisions of the Act or to depart from or vary an exclusive plan which the legislature has adopted. There is nothing in ss 500 or 502 which, in my view, is inconsistent or which override the regulation making power in respect of public interest requirements. More specifically, the existence of a right of appeal under s 500 cannot restrict the power of the Governor General to make regulations as to what the Minister may take into account in the public interest when making a decision under s 65 of the Act. 32 Finally, I note that, as Counsel for the Minister points out, persons adversely affected by decisions made on criterion 4002 grounds are not deprived of appeal rights. An appeal to the RRT remains available under s 411(1)(c) of the Act because there is a decision to refuse a protection visa. 33 For the above reasons I am of the view that the appeal should be dismissed and the applicant should pay the costs of the respondent. 34 For the sake of completeness I note that Counsel for the applicant submitted that in the event decision was a nullity the AAT could nevertheless still review it. He referred to the decision of the Full Federal Court in Collector of Customs v Lawlor (1979) 2 ALD 1 at 4-7 and 19-27 which was submitted as authority for the proposition that the AAT has jurisdiction to review decisions by an official purported to be made in the exercise of powers conferred whether or not on the proper interpretation of the enactment such powers are conferred. In the present case, by the same reasoning, I consider that this Court has jurisdiction to hear and determine the present appeal. 35 The appropriate orders are that the application to the Court should be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 18 May 2000 Counsel for the Applicant: C Colborne Counsel for the Respondent: S McNaughton Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 April 2000 Date of Judgment: 18 May 2000