Plaintiff M54/2023 v Minister for Immigration

[2023] HCATrans 109

[2023] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M54 of 2023

B e t w e e n -

PLAINTIFF M54/2023

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Defendant

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 30 AUGUST 2023, AT 2.15 PM

Copyright in the High Court of Australia

HER HONOUR:   By application for a constitutional or other writ filed on 12 July 2023, the plaintiff seeks an extension of time in which to seek orders in the nature certiorari and mandamus and other relief.  In the absence of an arguable claim for the relief sought, the application for an extension of time must be refused.  I publish my reasons and direct that those reasons be incorporated into the transcript.

The orders of the Court are:

1.Pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) the application be determined without listing it for hearing.

2.The application for an extension of time be refused.

3.The plaintiff pay the defendant’s cost.

I publish those orders.

The plaintiff applies under s 486A(2) of the Migration Act 1958 (Cth) (“the Act”) for an extension of time to apply for remedies in this Court’s original jurisdiction. The remedies the plaintiff would seek are a writ of certiorari to quash the decision of the delegate of the Minister dated 27 October 2022 to refuse to grant the plaintiff a Class XA—Protection visa (subclass 866) and a writ of mandamus requiring the defendant to determine the visa application according to law.

The plaintiff submits that the interests of justice favour the granting of an extension on four bases:  (1) that the delay is not particularly long; (2) that she struggled to obtain legal assistance; (3) there is no prejudice to the Minister; and (4) the grounds for the relief sought are reasonably arguable.  The defendant opposes the extension.

The plaintiff’s application for constitutional writs was filed on 12 July 2023, seven months outside the 35 days allowed by s 486A(1) of the Act. The plaintiff points to r 25.02.2 of the High Court Rules 2004 (Cth) (“the Rules”) which provides that an application for a writ of certiorari must be filed within six months after the day the decision sought to be quashed was made, as indicative of the delay not being especially lengthy. The defendant concedes that the affidavit of the plaintiff’s lawyer that sets out the steps taken, including a request under the Freedom of Information Act1982 (Cth) and briefing counsel, partly explains the delay but does not explain a period of five weeks in which the plaintiff took no steps in relation to her application. The defendant submits, in any event, that the extension of time should be refused because the proposed ground for the relief sought has no merit. That is the real issue in this application.

The plaintiff is a citizen of the Solomon Islands.  She arrived in Australia on 11 October 2021 on an International Relations visa (subclass 403) for the activity “Seasonal Worker”.  On 25 June 2022, the plaintiff applied for a Protection visa on the basis that she had been beaten and strangled “near to death” by her husband frequently and that she had made reports to the police on many occasions.  The medical and police evidence had been found and destroyed by her husband.  She had flown to Australia to get away from him and spend some time alone.  She claimed that she had been strangled and abused multiple times until she was rescued by a member of her family.  She did not think that she would have been able to relocate within the Solomon Islands if she returned.  She would be subject to torture and death and the authorities would not protect her.

On 27 September 2022, a delegate of the Minister sent a request to the plaintiff for more information regarding her application.  The pro forma letter to which the specific request was attached required the provision of the information within 28 days and contained a warning that, if the information was not provided in time, the application could be decided without a further request.  It also indicated that further time might be provided if the information could not be given for reasons beyond her control.

The plaintiff was requested to explain the delay in lodging her application for a Protection visa after arriving in Australia.  It was pointed out that it was a matter which raised concerns about the genuineness of her protection claims.  In the application form the plaintiff had stated her relationship status as “never married” but claimed she was a victim of domestic violence by her partner or husband.  She had not provided details of her partner or husband.  She was invited to provide details and evidence relating to her husband and evidence of their marriage, together with details of any children.

The delegate’s request also pointed out that the claims lacked details, such as incidents, dates and locations.  This lack of detail also raised concerns about the genuineness of the claims.  Further information and documentary evidence about what happened was requested.  In more specific questions the plaintiff was asked to provide responses by way of further details, information or any evidence of claims made in her application, such as of being kidnapped and tortured, when she sought assistance from the authorities and why the authorities did not protect her.  Her claim that all evidence relating to the incidents, such as reports and medical records, were found and destroyed by her husband was said to be contradictory to a later claim that when she sought to report the situation to the authorities, she was refused assistance.  She was asked to clarify the discrepancy.  The plaintiff was asked whether she had continued to receive threats since she had left home and if so to provide details.  The request concluded with a note that if the plaintiff was unable to provide more information about the claims, to provide an explanation as to why they could not have been provided.

The plaintiff did not respond to the communication.  On 27 October 2022, a delegate decided that no interview with the plaintiff was required and refused the application on the basis that the plaintiff had “been given a reasonable opportunity to provide additional information and evidence to substantiate” her claims and that the lack of response raised concerns about the genuineness of her claims.

There is one ground given by the plaintiff for the relief sought with respect to this decision. It is that the decision was affected by legal unreasonableness. The plaintiff argues the decision was unreasonable in the circumstances because the delegate exercised the discretion under s 62 of the Act to refuse to grant the Protection visa without taking any further steps to obtain information and because of the findings that her lack of response raised concerns about the genuineness of her claims. There is no dispute that the matter cannot be remitted to the Federal Court of Australia or the Federal Circuit and Family Court of Australia.

The plaintiff relies on the decision in Plaintiff S183/2021 v Minister for Home Affairs[1] for the proposition that the discretion in s 62 must be exercised reasonably. There can be no doubt that the discretion is subject to the requirement of reasonableness in the legal sense, as explained in Minister for Immigration and Citizenship v Li (“Minister v Li”).[2]  The defendant does not contend to the contrary.

[1] (2022) 96 ALJR 464 at 470 [31]; 399 ALR 644 at 651.

[2] (2013) 249 CLR 332 at 362-367 [63]-[76].

That is not to say that this matter is to be assessed according to the very different circumstances that arose in Plaintiff S183/2021 where, for example, the plaintiff’s communications evidenced a difficulty with English and the information before the delegate showed she had problems with her mental health, which further affected her ability to understand.  Here, as the plaintiff herself points out, she had been in communication with the Department in person and by email before the request for further information was made.  She was at that earlier time responsive.

The plaintiff contends that the defendant was obliged to follow up to see if the plaintiff sought to provide further information, to avoid a conclusion of legal unreasonableness.  That is not correct as a matter of law and cannot be said to arise from the circumstances.

Section 62(1) of the Act provides that if an applicant for a visa is invited to give additional information and does not give the information before the time for giving it has passed, the Minister may make a decision to grant or refuse the visa without taking any action to obtain the additional information. What is or is not unreasonable in the exercise of a statutory discretion must be considered in the context of the statute.[3]

[3]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [67]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551 [12].

It is correct to observe that there was no urgency in the making of a decision in this matter.  That was also the case in Minister v Li,[4] but there the Tribunal refused a request for an adjournment for no apparent reason, thereby bringing a process that had advanced to a hearing abruptly to an end.

[4]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

It is true that the plaintiff did not have legal representation at the time of the request, but the information requested was within the plaintiff’s knowledge and no inference can be drawn that it was beyond her capacity to respond within the period between the request and the decision.  If documents could not be provided, she could have explained why she could not do so and in a timely way.

It is not possible to conclude that the delegate’s decision to proceed to decide the matter lacked evident and intelligible justification.  The delegate had clearly communicated concerns about the genuineness of the plaintiff's claim.  It was made plain that without the detailed information an adverse inference might well be drawn.  In circumstances where it cannot be said that there was not sufficient time for a response to the request, the inference that the delegate did draw as to the credibility of the claim had the necessary logical connection.

In the absence of an arguable claim that the delegate’s decision was legally unreasonable, it would be futile to grant the extension of time necessary for the plaintiff’s application for constitutional writs to proceed.  The application for extension is refused.

Pursuant to r 25.09.1 of the Rules, I order that the application be determined without listing it for a hearing.

The plaintiff should pay the defendant’s costs.

Adjourn the Court.

AT 2.16 PM THE MATTER WAS CONCLUDED