Plaintiff M23a & Anor v Minister for Home Affairs

[2021] HCATrans 135

[2021] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M23 of 2021

B e t w e e n -

PLAINTIFF M23A/2021

First Plaintiff

PLAINTIFF M23B/2021

Second Plaintiff

and

MINISTER FOR HOME AFFAIRS

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 17 AUGUST 2021, AT 9.33 AM

Copyright in the High Court of Australia

HER HONOUR: On 20 April 2021, the plaintiffs filed an application for an extension of time under s 486A(2) of the Migration Act 1958 (Cth) in which to seek constitutional writs directed to the decision of the delegate of the defendant to refuse protection visas sought by the plaintiffs. An extension of time in which to commence an application seeking certiorari and mandamus under r 4.02 of the High Court Rules 2004 (Cth) and certiorari to quash the decision to refuse the protection visas sought by the plaintiffs and mandamus to compel the defendant to reconsider those applications.

For the reasons that I now publish, the applications for an extension and for a constitutional or other writ should be dismissed with costs.  I publish those reasons.

In matter M23/2021, the orders of the Court are:

1.The plaintiffs’ application for an extension of time under s 486A(2) of the Migration Act 1958 (Cth) is dismissed.

2.The plaintiffs’ application for an order under r 4.02 of the High Court Rules 2004 (Cth) enlarging the time in which to file an application seeking a writ of certiorari under r 25.02.2 of the High Court Rules 2004 (Cth) is dismissed.

3.The plaintiffs’ application for a constitutional or other writ filed on 20 April 2021 is otherwise dismissed.

4.The plaintiffs are to pay the defendant’s costs of the applications.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

The plaintiffs seek an extension of time to apply for a constitutional writ and certiorari in relation to a decision of a delegate of the defendant, the Minister for Home Affairs, on 31 July 2020 to refuse to grant Protection (Class XA) (Subclass 866) visas to the plaintiffs (“the delegate’s decision”) and seek certiorari to quash the delegate’s decision and mandamus to compel the defendant to reconsider the visa applications.

There is no dispute that the application cannot be remitted to another court. Each party has filed extensive materials and for that reason, and because of the nature of the application, I have concluded that it is appropriate to be dealt with on the papers. Accordingly, I direct pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) that the application be dismissed without listing it for hearing because the application does not disclose an arguable basis for the relief sought. It would be futile to grant the extensions of time sought by the plaintiffs.

Facts

The facts are primarily drawn from the affidavits filed by the plaintiffs in support of the application and the exhibits to one of those affidavits as well as an affidavit filed on behalf of the defendant in opposition.  The facts are not in dispute.

The first plaintiff is a citizen of Nepal.  The first plaintiff came to Australia in 2008 as the dependent spouse of a student visa holder.  That relationship ended in Australia and the first plaintiff entered into another relationship in Australia with a person who is also a citizen of Nepal.  That relationship has also broken down.

On 5 May 2016, the first plaintiff applied for a protection visa with the assistance of a migration agent.  The application included the first plaintiff’s son, the second plaintiff, who was born on 13 June 2014 in Australia.  On 19 June 2020, the delegate interviewed the first plaintiff.  On 31 July 2020, the delegate refused the application for protection visas.  The delegate accepted that the first plaintiff is a citizen of Nepal, that the first plaintiff and her ex‑husband came to Australia, separated in 2011 and divorced in 2012 and that, after her divorce, the first plaintiff entered into a relationship with another Nepali citizen.  The delegate also accepted that the first plaintiff and her then partner had a son on 13 June 2014 and that the father was and remains a citizen of Nepal.  There is no dispute that the son was born with a medical condition for which he has undergone treatment.  The delegate also accepted that the first plaintiff has contact with her family in Nepal and that her family are aware that she and her ex‑husband have divorced, that the first plaintiff is in a new relationship and that she has a child.

The delegate, however, did not accept that the second plaintiff, the first plaintiff’s son, is stateless or that he is disabled. The delegate was not satisfied that the first plaintiff was a person in respect of whom Australia owed protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) and, further, was not satisfied that the first plaintiff was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act because the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the first plaintiff being removed to Nepal, there was a real risk that the plaintiffs would suffer significant harm as defined in s 36(2)(aa) of the Migration Act.

The first plaintiff’s migration agent did not notify the plaintiffs of the delegate’s decision until 18 September 2020. On the same day, 18 September 2020, the first plaintiff’s migration agent lodged an application for review in the Administrative Appeals Tribunal (“the Tribunal”) knowing that it was out of time and then, on 29 September 2020, submitted a request under s 48B of the Migration Act for ministerial intervention. The Tribunal determined on 8 December 2020 that it did not have jurisdiction, and on 9 December 2020 an officer of the Department of Home Affairs made a decision not to refer the s 48B request to the defendant. The first plaintiff’s migration agent then secured legal advice for the plaintiffs.

On 20 April 2021, the plaintiffs filed the present application seeking an extension of time to apply for a constitutional writ and certiorari and the issue of certiorari quashing the delegate’s decision and mandamus to compel the defendant to reconsider the visa applications. The plaintiffs require an extension of time under s 486A(2) of the Migration Act and an order under r 4.02 of the High Court Rules enlarging the time in which to commence the proceeding under r 25.02.2. The defendant opposes the extension and the enlargement.

The application cannot be remitted[1]. As the defendant submitted, to grant the extension under s 486A(2), the plaintiffs, among other things, must specify in their written application to this Court why they consider it is “necessary in the interests of the administration of justice” and the Court must be so satisfied. The factors relevant to the exercise of the Court’s discretion to grant an extension are well established[2].

[1]Migration Act, s 476B, read with ss 474, 476, 476A.

[2]See, eg, Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279; Zhang v Minister for Immigration and Border Protection [2015] HCATrans 244; Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89 at 90 [3]; 326 ALR 391 at 392; Gibson v Minister for Home Affairs [2020] HCATrans 46.

The application for an extension is refused.  The plaintiffs accept that the delay in filing the present application is not short but contend that their grounds are meritorious.  It is therefore necessary to address the merit, or lack of merit, in the plaintiffs’ application. However, as McHugh J said in Re Commonwealth; Ex parte Marks[3], the case would need to be exceptional before the time for commencing proceedings was enlarged by many months.

[3](2000) 75 ALJR 470 at 473-474 [13]; 177 ALR 491 at 495. See also Vella (2015) 90 ALJR 89 at 90 [3]; 326 ALR 391 at 392.

The application for a constitutional writ and certiorari identifies three grounds for asserting that the delegate’s decision was affected by jurisdictional error: first, that the delegate misunderstood or misconstrued and thereby failed to consider country information and, in particular Art 11(5) of the Constitution of Nepal 2015 and, secondly, that the delegate failed to consider country information as to the granting of citizenship by descent to children. Both grounds lack merit. A third ground alleges jurisdictional error in relation to the delegate’s reasoning concerning orders of the Magistrates Court granting the first plaintiff sole parental responsibility of her son. The grounds concern that part of the delegate’s reasons which addressed and then rejected the first plaintiff’s claims that her son was stateless.

Ground 1 – Delegate misunderstood or misconstrued and thereby failed to consider country information

The plaintiffs’ complaint in this Court was that the delegate misunderstood or misconstrued and thereby failed to consider country information relevant to the claim that the son was stateless.

The plaintiffs provided four particulars of ground 1. Particular (a) of ground 1 identified that a “critical issue” affecting the delegate’s decision was whether the second plaintiff, who was born in Australia, is a Nepali citizen. Particular (b) records that the delegate had before her the Constitution of Nepal and that the delegate referred to and relied upon Art 11(5) of the Constitution, which states that:

“A person, born in Nepal to a Nepali citizen mother, who has domicile in Nepal and whose father is not identified, shall be granted citizenship of Nepal by descent.”

Particular (c) then states that because the delegate found that the father of the second plaintiff can be “identified” or “traced”, the second plaintiff would therefore not have any difficulty obtaining Nepali citizenship and was not stateless.  Finally, particular (d) asserts that “[t]he delegate did not take into consideration that [Art] 11(5) contains an express qualification for the granting of citizenship to a person, being that [the person] be ‘born in Nepal’” (“the express qualification”), and that the second plaintiff was born in Australia, not Nepal.

The claim that the second plaintiff was stateless had been made by the first plaintiff on at least two separate occasions.  In her protection visa application, the first plaintiff claimed that her son is stateless as Nepal’s Constitution does not grant him citizenship.  And, again, when the first plaintiff was interviewed on 19 June 2020, she stated that while her son’s father is a Nepali citizen, her son is stateless because she needs to provide her son’s father’s Nepali citizenship certificate to be able to obtain a Nepali citizenship certificate for her son, but she does not know his whereabouts.  The delegate addressed both matters.

In relation to the first matter, that the second plaintiff is stateless because Nepal’s Constitution does not grant him citizenship, the plaintiffs’ complaint in this Court was that the delegate did not take into account the express qualification for the granting of citizenship to a person in Art 11(5), being that the person be “born in Nepal”. That complaint is rejected. The delegate’s decision not only refers to Art 11(5) of the Nepal Constitution but also that it contains the express qualification – providing for citizenship by descent for a person born in Nepal. But, as the delegate identified, Art 11(5) also requires that the person’s father not be identified or traced.

And that leads to the first plaintiff’s second basis for asserting that her son was stateless – that while her son’s father is a Nepali citizen, she needs to provide her son’s father’s Nepali citizenship certificate to be able to obtain a Nepali citizenship certificate for her son, but she does not know his whereabouts.  The delegate did not accept the first plaintiff’s claims that she had had no contact with her son’s father since 2014, or that she did not know his whereabouts.  In fact, the delegate not only made findings that the first plaintiff was in contact with, and knew the whereabouts of, her son’s father, but named him (“BG”).

Various facts and matters were identified as the basis for those findings including:

(1)the information on a Facebook page of a Facebook user who uses the name BG and whose background image is a photograph of the second plaintiff, and who has posted various photographs of himself and the first plaintiff and a collage of photographs of himself and the second plaintiff at various stages of the second plaintiff’s development;

(2)the first plaintiff’s inconsistent evidence at the protection visa interview about BG – she initially denied knowing anyone by that name only to subsequently state he was her “friend” – which suggested she was trying to conceal something about that person, and the delegate’s ultimate finding that the person who uses the Facebook name BG was the second plaintiff’s father;

(3)the first plaintiff’s answer at the interview, in response to a question if her family in Nepal were aware that she had remarried after her divorce in Australia, that “I haven’t married with the man yet, I’m just in a relationship”;

(4)the apparent inconsistency between the first plaintiff’s written claim that her son’s father “simply deserted us” and her vague and confused responses at the interview to questions about the last contact with her son’s father, initially stating that it was in 2013, then 2015, and finally 2014;

(5)the first plaintiff’s application to, and the orders made by, the Magistrates Court granting the first plaintiff sole parental responsibility of her son[4]; and

[4]The delegate's reasoning in relation to these court orders is challenged under ground 3.

(6)the absence of evidence provided post-interview to show that the first plaintiff did not have contact with the second plaintiff’s father, in circumstances where the first plaintiff’s migration agent indicated at the interview that that information would be included in the post‑interview submissions.

The delegate therefore concluded that the father of the first plaintiff’s son could be identified or traced and thus she did not accept that the first plaintiff’s son would have any difficulty obtaining Nepali citizenship, or that he is or will ever be stateless. Ground 1 fails. There was no jurisdictional error by the delegate. The delegate did take into account that Art 11(5) of the Nepal Constitution contained the express qualification and addressed and then rejected the first plaintiff’s two stated bases for her claim that her son is stateless.

Ground 2 – Delegate failed to consider country information as to granting of citizenship by descent to children

The plaintiffs provided four particulars of ground 2.  Particulars (a) and (b) state, as was the fact, that the delegate’s decision records that, on 26 June 2020, the first plaintiff made written post‑interview submissions which included, among other things, “[c]ountry information on Nepal in the form of commentary on the country’s citizenship laws and the situation of women and single mothers in Nepal”.  Particular (c) states that that country information included a Himalayan Times newspaper article dated 28 April 2016 which contained the statement:  “The child of a single woman must be born in Nepal to obtain citizenship by descent”.  Particular (d) then asserts that the delegate made no reference to the newspaper article concerning the granting of citizenship to children born outside Nepal.

It is correct that the delegate’s decision did not refer to the specific newspaper article.  However, as has been observed, the delegate did record that the first plaintiff’s written post‑interview submissions included, among other things, “[c]ountry information on Nepal in the form of commentary on the country’s citizenship laws and the situation of women and single mothers in Nepal”.  There is no dispute that the newspaper article headed “Citizenship provisions discriminate against women” formed part of the country information provided to the delegate by the first plaintiff.

The second difficulty for the plaintiffs is that the Himalayan Times newspaper article does include the statement “[t]he child of a single woman must be born in Nepal to obtain citizenship by descent”, reflecting the terms of Art 11(5) of the Nepal Constitution. But, as has been observed in relation to ground 1, the delegate found that the son’s father is a Nepali citizen and that the first plaintiff knows the whereabouts of him and is in contact with him. And, as the newspaper article further states, the “different” citizenship standard that is “clearly and egregiously applied to the children of Nepali women” is “not applied to the children of Nepali men”.

When the delegate’s statement of reasons are read fairly and not in an unduly critical manner, and in light of the statutory obligation pursuant to which they were prepared[5], the inference cannot be drawn that the delegate failed to consider the country information provided by the delegate and, in particular, the Himalayan Times newspaper article dated 28 April 2016.

[5]BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at 45 [38].

Ground 3 – Delegate’s reasoning regarding court orders for sole parental responsibility

Ground 3 alleges jurisdictional error in relation to the delegate’s reasoning concerning the orders of the Magistrates Court granting the first plaintiff sole parental responsibility for her son.  The delegate addressed the orders in the following terms:

“... the [first plaintiff] has also submitted copies of court orders ... granting sole parental responsibility of the child to his mother ... and dispensing with the necessity for the father’s consent in relation to the issue of a visa to the child.  These orders were made on the [first plaintiff]’s application to the court.  If, as the [first plaintiff] claims, her son’s father simply disappeared, never to be heard from again, and there was never a marriage to warrant the complications of a divorce, I find it odd that the [first plaintiff] needed to go to the courts for an order to grant her sole parental responsibility if she already had it.  I find the [first plaintiff]’s application to the court would be more logical if her son’s father was also fighting to gain access to his son.  The [first plaintiff] may argue that she made these requests of the court in order to overcome any difficulties in the event that she was required to locate her son’s father who had already abandoned her and her son.  However, I find the [first plaintiff]’s application to the court very unusual for a Nepali mother who would consider it a disadvantage to her son, not to have his father in his life.” (emphasis added)

Particular (a) states that that reasoning is affected by a failure to act on correct principle or a failure to act on a correct understanding of the law, in that the correct legal position is that no parent has the legal right to “sole parental responsibility” except pursuant to an order of the Court.

Particular (b) then asserts that the delegate’s decision is materially reliant upon the reasoning complained of, and is affected by procedural unfairness or legal unreasonableness, or a failure to afford a fair interview under ss 56 and 58 of the Migration Act.  Alternatively, the plaintiffs assert the delegate unreasonably failed to make an obvious inquiry, namely to ask the first plaintiff why she sought the court orders.  Particular (c) claims that the delegate’s reasoning is affected by illogicality, irrationality or legal unreasonableness, in that on a correct understanding of the law, the reasoning and the finding that it led to were not open.

The plaintiffs make four complaints.  The first (particular (a)) is an asserted error of law – that the correct legal position is that no parent has the legal right to “sole parental responsibility” except pursuant to an order of the Court.  That complaint is misconceived.  The delegate did not make a finding that no parent has the legal right to “sole parental responsibility” except pursuant to an order of the Court.  The delegate was seeking to address the first plaintiff’s assertion that her son was stateless and, in particular, the first plaintiff’s stated position during her interview that:

“His father is not here.  We don’t know where [he] is ... So child not getting a citizenship under mum’s name in Nepal, that’s why ... I don’t have a contact.  To get a citizen, just knowing the name only is not enough; we need to provide his father’s citizenship then only the child will get a citizen”.

It was in that context that the delegate found the application to the Magistrates Court for granting the first plaintiff sole parental responsibility “very unusual for a Nepali mother who would consider it a disadvantage to her son, not to have his father in his life”.

The second complaint (part of particular (b)) – that the delegate’s decision was materially reliant upon the reasoning complained of – then falls away.

Similarly, the fourth complaint (particular (c)) – that the delegate’s reasoning is affected by illogicality, irrationality or legal unreasonableness, in that on a correct understanding of the law, the reasoning and the finding that it led to were not open – falls away.  The premise that the delegate failed to act on correct principle or failed to act on a correct understanding of the law is not made out.

The third and final set of complaints (the balance of particular (b)) is that the delegate’s decision was affected by procedural unfairness or legal unreasonableness or a failure to afford a fair interview under ss 56 and 58 of the Migration Act or alternatively, the delegate unreasonably failed to make an obvious inquiry by asking the first plaintiff why she sought the court orders.  Given that the delegate’s decision was not materially reliant upon the reasoning complained of, even if one or more of the asserted errors was made out, any such error was not jurisdictional.  Taking into account “the quality or severity of the errors and what, as a matter of logic and common sense, might have resulted”, there is no realistic possibility that a different decision could have been made by the delegate[6].

[6]MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at 462 [85]; see also 454 [39].

For those reasons, the plaintiffs’ application for a constitutional writ and certiorari in relation to the delegate’s decision does not disclose an arguable basis for relief.  The applications for an extension of time are futile and are refused.

Other application and conclusion

For the same reasons, the plaintiffs’ application for an order under r 4.02 of the High Court Rules enlarging the time period in r 25.02.2 is dismissed. The plaintiffs have not demonstrated any exceptional circumstances warranting an enlargement of time.

The application should be dismissed with costs.

Adjourn the Court.

AT 9.35 AM THE MATTER WAS CONCLUDED