Date of Judgment: 18 March 2025 - [2025] HCASJ 15

HIGH COURT OF AUSTRALIA
GLEESON J
PLAINTIFF M114/2024 PLAINTIFF
AND
MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS DEFENDANT
[2025] HCASJ 15
Date of Judgment: 18 March 2025
M114 of 2024
ORDERS
1.The plaintiff's amended application filed on 8 January 2025 for a constitutional or other writ is dismissed.

2.The plaintiff pay the defendant's costs.

Representation
The plaintiff is represented by Russell Kennedy Lawyers
The defendant is represented by the Australian Government Solicitor

GLEESON J. The plaintiff is a citizen of Papua New Guinea ("PNG"). On 6 February 2020, she arrived in Australia on a Visitor Visa (FA 600), and on 27 October 2023, she lodged an application for a protection visa. Her protection claims were expressed to be "driven by a deeply distressing and traumatic experience of continuous attack, abuse, and domestic violence perpetrated by her ex-husband" in PNG. The plaintiff's application to this Court alleges that the protection visa application "also outlined more broadly [the plaintiff's] fear of remaining vulnerable to violent and powerful men and stated that this fear was rooted in the cultural and social dynamics that perpetuate gender-based violence in PNG".
On 9 February 2024, the plaintiff's application for a protection visa was refused by a delegate of the defendant because the delegate was not satisfied that the plaintiff is a person in respect of whom Australia has protection obligations for the purposes of the Migration Act 1958 (Cth) ("Migration Act").
The plaintiff has not sought merits review of the delegate's decision. She would now be out of time to do so. The delegate's decision was a "primary decision" for the purposes of s 476(4) of the Migration Act, so that neither the Federal Circuit and Family Court of Australia (Div 2) nor the Federal Court of Australia has jurisdiction to hear an application for judicial review of that decision.[1] That being so, Parliament has also prevented this Court from remitting a proceeding such as this, commenced in its original jurisdiction, to those courts.[2]
[1]Migration Act 1958 (Cth), ss 476 and 476A.
[2]Migration Act 1958 (Cth), s 476B. See also MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 at 616 [13], 660-661 [191].
On 23 December 2024, the plaintiff filed an application for a constitutional or other writ seeking: (1) an extension of time within which to apply to this Court for judicial review of the delegate's decision;[3] (2) an enlargement of time for filing an application for writs of mandamus and certiorari;[4] (3) that a writ of certiorari issue to quash the delegate's decision to refuse the plaintiff's protection visa application; (4) that a writ of mandamus issue directed to the defendant requiring him to determine the matter according to law; and (5) costs. On 8 January 2025, the plaintiff filed an amended application which made minor typographical changes to the application.
[3]Migration Act 1958 (Cth), s 486A(2).
[4]High Court Rules 2004 (Cth), r 4.02, r 25.02.1 and 25.02.2.
Having read the amended application,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] HCASJ 15
Decision Date: 18 March 2025

CaseChat Overview and Summary

In the matter of SZGIY v Minister for Immigration and Citizenship, the Federal Court of Australia addressed the plaintiff's application to extend time limits for making a judicial review application regarding the Minister's refusal to grant a visa. The plaintiff contended that the Minister's delegate had not properly considered two pieces of information provided, leading to an incorrect inference of delay. The plaintiff sought an extension of time to challenge the Minister's decision.

The central legal issues involved whether the Minister's delegate had erred in inferring delay from the provided information and whether the delegate's questions to the plaintiff sufficiently elucidated the relevance of the information. The court also considered whether the plaintiff's proposed grounds for judicial review were sufficiently compelling to warrant extending the time limits for filing the application.

The court determined that the inference drawn by the delegate was not distinct information that indicated whether the visa conditions were met. Moreover, the relevance of the second piece of information was implicitly identified through the delegate's questions. The court found that the plaintiff's explanation for her delay was incomplete and, therefore, not persuasive enough to justify extending the time limits. Consequently, the application for an extension was dismissed, and the plaintiff was ordered to pay the defendant's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON J

As to the second piece of information, it comprises an inference drawn from information given to the delegate by the plaintiff. It is arguable that the (incorrect) inference of delay from two neutral facts is not distinct information in the sense that it says nothing of itself about whether the conditions for the grant of the visa were met.[18] In any event, it is strongly arguable that the delegate did not need to do more to explain the relevance of the second piece of information because the relevance was implicitly identified by the delegate's questions to the plaintiff. Conclusion [18]SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27]. The merits of the plaintiff's proposed grounds are weak. The plaintiff's explanation for her delay in filing the application is incomplete. In those circumstances, I am not satisfied that it is necessary in the interests of the administration of justice to make the orders extending the time periods for the making of the application. Accordingly, the amended application is dismissed. The plaintiff should pay the defendant's costs.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON J

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