VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 899

FEDERAL COURT OF AUSTRALIA

VQAR v Minister for Immigration & Indigenous & Multicultural Affairs

[2003] FCA 899 MIGRATION – protection visa – whether notification in prescribed way

Migration Act 1958 ss 53(4), 66(1), 501, 501A Migration Regulations 2.16(1)(d) [2001] FCA 788 – cited VQAR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V562/03 HEEREY J 19 AUGUST 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V562 OF 2003

BETWEEN: VQAR

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 19 AUGUST 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V562 OF 2003

BETWEEN: VQAR

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 19 AUGUST 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This application is solely concerned with one factual issue, namely, whether an officer of the Department of Immigration and Multicultural and Indigenous Affairs notified the applicant in "the prescribed way" of a decision of 31 July 2001 to refuse the application for a protection visa made by the applicant on 7 June 2001. If there was no such notification, the applicant seeks, and the respondent Minister does not dispute, an order in the nature of mandamus requiring the giving of notice and an appropriate declaration. 2 The prescribed way of notification at the time, relevantly for present purposes, was "by handing a notice of decision to the applicant or a person specified by the applicant under s 53(4) of the Migration Act 1958"; see s 66(1) of the Act and reg 2.16(1)(d). 3 At the relevant time the applicant was in immigration detention at the Maribyrnong Immigration Detention Centre (the Centre). He had entered Australia on 21 October 1989 on a visitor entry permit valid for either three months or six months, there is some uncertainty as to which. In any event, he has remained in Australia ever since. He was taken into immigration detention on 5 July 1996. On 12 July 1996 he applied for a spouse visa. That was rejected on 3 June 1997, on character grounds, by a delegate of the Minister pursuant to s 501 of the Act. An application brought in the Administrative Appeals Tribunal (the Tribunal) to set aside that decision was successful, but on 18 October 2000, the Minister, acting under s 501A(2) of the Act, personally decided to set aside the decision of the Tribunal. 4 Various litigation in the Federal Court and the High Court followed, but for present purposes I need only refer to an application for a protection visa which was made by the applicant on 7 June 2001. Shortly after lodging that application the applicant on 15 June 2001 brought proceedings in the Federal Court seeking a declaration that he was entitled to release from detention on a bridging visa. That challenge was dismissed by Goldberg J on the same day. 5 On 18 June 2001 the applicant was advised that he needed to provide further details for his protection visa application. There was no response to that request. On 31 July 2001 a decision by a delegate of the Minister rejecting the applicant's protection visa application was sent by fax to the Centre. 6 The evidence as to what happened then is as follows. Ms Viviana Barrio, the business manager for the Department at the Centre, deposed that shortly after the applicant had lodged his protection visa application he told her that the reason he was applying for the visa was so that he could be released from detention. Ms Barrio said to him that no officer could grant him a bridging visa because his refusal had been under s 501. 7 Ms Barrio deposed that she received the protection visa decision by fax. She recalled giving him the decision. He came to her office. She believed that she explained to him that his application had been refused and drew his attention to his review rights in the Tribunal. She clearly recalled walking back with him from her office to the detainees' area. He then said, in substance, that he did not really care about the decision because he could not be released anyway. He said words to the effect: "Anything I ask, they say no. They always say no to me." 8 According to Ms Barrio, she frequently spoke with the applicant in English. In some cases the applicant was offered an interpreter and would say that he could speak English and did not need one. He regularly spoke in English with the other detainees. 9 An identity card is kept for each detainee at the centre for recording significant events. After advising the applicant of the protection visa, and in accordance with her usual procedure, Ms Barrio wrote on the identity card "PV refused 31/07/01". It was her practice not to make an entry on the identity card until after she had notified the detainee of the event she recorded. 10 After giving the decision to the applicant, and in accordance with her usual practice, Ms Barrio filled out a "notification of decision" form advising staff of Australasian Correctional Management Pty Ltd, who managed the Centre, that the applicant had received notification that his primary application had been unsuccessful. The pro forma states: "Could you please ensure your staff are made aware of this and observe and report any change on his behavior." 11 On 3 August 2001 Ms Barrio sent an email to the Department's manager of detention services advising that the applicant's case had been discussed in a meeting that morning. He had been included in the observation because "he had received a negative decision the other day". The email advised that as he was not showing "concerning signs", he was removed from observations that morning. The email goes on to make further observations about the applicant's current behavior, including that he was "in a residents' meeting today, apparently pretty happy, laughing and chatting in English" and that "he has been observed talking to other detainees pretty fluently and it does not look like the language is a problem". 12 An affidavit was sworn by Madeleine Aikenhead, who was the assistant business manager at the time. She confirms the evidence of Ms Barrio as to the keeping of the identity card. She deposed to recalling the receipt of the applicant's protection visa application refusal on 31 July 2001. She spoke about this to Ms Barrio. The conversation stuck in her mind because it was the first protection visa refusal she had come across which was based on Article 1F of the Refugees Convention and Ms Aikenhead was unfamiliar with the right of appeal to the Tribunal, which Ms Barrio explained to her. 13 The applicant gave evidence and was cross-examined. He did not positively assert that he never received the notification. At one stage he accepted in cross-examination that Ms Barrio gave him a document on 31 July which he gave to his solicitor. In re-examination he said he was confused and was referring to another document. 14 The onus of proof, in my view, rests on the applicant. True it is that is an onus to prove a negative, and it may be that there is an evidentiary onus on the Minister to raise some evidence, but clearly that has been satisfied and the ultimate onus falls on the applicant to make out a case for the relief he seeks. I am satisfied that the applicant has not made out his case. 15 My reasons for that conclusion are as follows. First, I have no hesitation in accepting the evidence of Ms Barrio and Ms Aikenhead. In particular, Ms Barrio, whom I thought was an impressive witness, clearly knew the applicant well and had often had conversations with him in English. Ms Barrio does not speak Italian, the applicant's native tongue. Her first language is Spanish. The relationship was amicable and she said that she quite liked him. 16 The Minister's case is supported by the documents to which I have referred. It is true, as counsel for the applicant pointed out, that of the three documents, the identity card with its notation, the minute to the department, and the email of 3 August, none explicitly says in terms that the notification of the decision was handed to the applicant. However, all of the documents are, at the very least, consistent with that having happened. The more documents there are that are consistent with, albeit not conclusive of, the existence of the fact in issue being as the respondent says, the less likely it is that they all can be explained on the ground of mistake or coincidence. 17 There was reliance by counsel for the applicant on a Departmental instruction which was to the effect that if a letter was handed to any person in immigration detention who appeared to read and understand the document, they should be asked to sign a document recording that fact. This was not done. It was not suggested that there was any significant default by Ms Barrio or Ms Aikenhead in that regard and the fact and it was not done falls far short of establishing that the notification was not handed over. 18 I think also the inherent probabilities strongly favour the Minister's case. There is no suggestion that the notification of refusal was not received at the Centre, and no rational reason why the officers should not hand the document over to the applicant. They both deposed that this was the normal practice, as one would expect. It was not suggested that there was any personal advantage to be gained by them in not handing it over to him; on the contrary, not to do so would lay them open to complaints. 19 Finally, there is the circumstance that the applicant's strategy in applying for a protection visa in order to get a bridging visa, and thus obtain release from detention, had been shown to be ineffective. It is understandable, therefore, that he had no interest in the matter when he received the adverse decision and had resigned himself to remaining in detention in the way Ms Barrio describes. 20 The application will be dismissed with costs. 20 21 I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate: Dated: 29 August 2003 Counsel for the Applicant: T Hurley & S Cash

Solicitor for the Applicant: Acquaro & Co

Counsel for the Respondent: S Donaghue

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 19 August 2003

Date of Judgment: 19 August 2003