HIGH COURT OF AUSTRALIA
FRENCH CJ,
BELL, GAGELER, KEANE AND GORDON JJPLAINTIFF M64/2015 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND BORDER
PROTECTION DEFENDANTPlaintiff M64/2015 v Minister for Immigration and Border Protection
[2015] HCA 50
17 December 2015
M64/2015
ORDER
The questions asked by the parties in the special case dated 28 August 2015 and referred for consideration by the Full Court be answered as follows:
Question 1
Did the Delegate:
(a)construe clause 202.222(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) as requiring or permitting him to consider the capacity of Australia to resettle all applicants who apply for a humanitarian visa;
(b)fail to construe clause 202.222(2)(d) as requiring him to consider the capacity of the Australian community to provide for the permanent settlement in Australia of each of the Visa Applicants, or persons such as each of the Visa Applicants, having regard to their individual circumstances; or
(c)fail to construe clause 202.222(2) as requiring him to assess whether or not there were compelling reasons for giving special consideration to granting permanent visas to the Visa Applicants in
the circumstances of the particular case, having regard to all of the matters in 202.222(2)(a) to (d) both individually and cumulatively?
Answer
(a)Yes.
(b)No.
(c)No.
Question 2
If so, did the Delegate thereby make a jurisdictional error?
Answer
No.
Question 3
In deciding whether he was satisfied that the Visa Applicants satisfied clause 202.222(2) of Schedule 2 to the Regulations, was the Delegate bound not to consider:
(a)the number of 'places' available in the SHP; or
(b)the 'priorities' set by the government within the SHP?
Answer
(a)No.
(b)No.
Question 4
If so, did the Delegate consider either or both of those matters, and thereby make a jurisdictional error?
Answer
Unnecessary to answer.
Question 5
In deciding whether he was satisfied that the Visa Applicants satisfied the criterion in clause 202.222(2) of Schedule 2 to the Regulations, did the Delegate apply the policy stated in the relevant parts of the Department's Procedures Advice Manual (being Attachment G, sections 71.2, 71.4 and 71.6 and Attachment H, section 7.2) (the Policy)?
Answer
Yes.
Question 6
If so:
(a)was the Policy inconsistent with the [Migration Act 1958 (Cth)] and Regulations; or
(b)did the Delegate apply the Policy inflexibly without regard to the merits or circumstances of the case;
and did the Delegate thereby make a jurisdictional error?
Answer
(a)No.
(b)No.
It is unnecessary to answer the rest of Question 6.
Question 7
What, if any, relief should be granted?
Answer
None.The proceedings should be dismissed.
Question 8
Who should pay the costs of the special case?
Answer
The plaintiff.
Representation
C J Horan with K E Grinberg for the plaintiff (instructed by Russell Kennedy Pty Ltd)
S P Donaghue QC with N M Wood for the defendant (instructed by Australian Government Solicitor)
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- AGLC
- Plaintiff M64/2015 v MIBP [2015] HCA 50
- Case
- [2015] HCA 50
- Decision Date
CaseChat Overview and Summary
The High Court was required to consider several legal issues. These included whether the delegate had construed clause 202.222(2)(d) as requiring or permitting consideration of Australia's capacity to resettle all humanitarian visa applicants, or alternatively, whether the delegate failed to consider the capacity to resettle each applicant individually. The court also had to determine if the delegate failed to assess whether compelling reasons existed for special consideration, having regard to all relevant matters under clause 202.222(2). Further questions concerned whether the delegate was bound not to consider the number of places available in the Special Humanitarian Programme (SHP) or the government's established priorities, and whether the delegate's application of departmental policy constituted jurisdictional error.
The Court reasoned that clause 202.222(2) authorises the decision-maker to consider a broad range of factors relevant to an applicant's successful absorption into the Australian community, including their ability to support themselves and the impact this might have on the community. The Court found that the delegate's consideration of the "capacity of the Australian community to provide for the permanent settlement" was a correct construction of the provision. The Court also held that the delegate was not bound to disregard the number of places available in the SHP or the government's processing priorities, as these did not operate as an informal cap or quota in the same way as a statutory limit. The Court concluded that the delegate had correctly applied the relevant departmental policy and had not made a jurisdictional error.
Ultimately, the High Court answered the questions posed in the special case. It found that the delegate had construed clause 202.222(2)(d) as requiring or permitting consideration of Australia's capacity to resettle all applicants, but did not fail to consider individual circumstances or the existence of compelling reasons. The Court determined that the delegate did not make a jurisdictional error by considering the number of places or the priorities policy, nor by applying the departmental policy. Consequently, no relief was granted, and the proceedings were dismissed with costs ordered in favour of the plaintiff.
Orders
Orders of the court
The questions asked by the parties in the special case dated 28 August 2015 and referred for consideration by the Full Court be answered as follows:
Question 1
Did the Delegate:
(a) construe clause 202.222(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) as requiring or permitting him to consider the capacity of Australia to resettle all applicants who apply for a humanitarian visa;
(b) fail to construe clause 202.222(2)(d) as requiring him to consider the capacity of the Australian community to provide for the permanent settlement in Australia of each of the Visa Applicants, or persons such as each of the Visa Applicants, having regard to their individual circumstances; or
(c) fail to construe clause 202.222(2) as requiring him to assess whether or not there were compelling reasons for giving special consideration to granting permanent visas to the Visa Applicants in
the circumstances of the particular case, having regard to all of the matters in 202.222(2)(a) to (d) both individually and cumulatively?
Answer
(a) Yes.
(b) No.
(c) No.
Question 2
If so, did the Delegate thereby make a jurisdictional error?
Answer
No.
Question 3
In deciding whether he was satisfied that the Visa Applicants satisfied clause 202.222(2) of Schedule 2 to the Regulations, was the Delegate bound not to consider:
(a) the number of 'places' available in the SHP; or
(b) the 'priorities' set by the government within the SHP?
Answer
(a) No.
(b) No.
Question 4
If so, did the Delegate consider either or both of those matters, and thereby make a jurisdictional error?
Answer
Unnecessary to answer.
Question 5
In deciding whether he was satisfied that the Visa Applicants satisfied the criterion in clause 202.222(2) of Schedule 2 to the Regulations, did the Delegate apply the policy stated in the relevant parts of the Department's Procedures Advice Manual (being Attachment G, sections 71.2, 71.4 and 71.6 and Attachment H, section 7.2) (the Policy)?
Answer
Yes.
Question 6
If so:
(a) was the Policy inconsistent with the [Migration Act 1958 (Cth)] and Regulations; or
(b) did the Delegate apply the Policy inflexibly without regard to the merits or circumstances of the case;
and did the Delegate thereby make a jurisdictional error?
Answer
(a) No.
(b) No.
It is unnecessary to answer the rest of Question 6.
Question 7
What, if any, relief should be granted?
Answer
None. The proceedings should be dismissed.
Question 8
Who should pay the costs of the special case?
Answer
The plaintiff.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, BELL, KEANE AND GORDON JJ, GAGELER J
The issue is not whether arrangements can be made to feed, clothe and house the Visa Applicants by relying upon the support of the plaintiff's carer and the local Hazara community. The issue is as to the capacity of the Australian community to provide for their permanent settlement in Australia. Clause 202.222(2) authorises the decision‑maker to consider a wide range of matters which bear upon their successful absorption into the Australian community, including, but not limited to, their likely ability to support themselves, and the effect that the exercise of that ability is likely to have upon others in the community. Concerns such as these are comprehended in the notion of "provid[ing] for ... permanent settlement … in Australia", that is, as members of the Australian community. These concerns are not apt to be resolved by arrangements for the provision of accommodation and support to the Visa Applicants.Irrelevant considerations The plaintiff submitted that, in considering cl 202.222(2)(d), the Delegate took into account irrelevant considerations. These considerations were said to be the "5,000 places available in the Special Humanitarian Programme for 2014‑15", "the limited number of visas available and the high demand for them", the assertion that "only a small proportion of applicants can be successful", and that "[o]nly the highest priority applications will be successful because there are not enough visas available". The plaintiff argued that the Delegate treated the number of places and visas available as an informal cap or quota on the grant of Subclass 202 visas. This was said to be an irrelevant consideration because the Minister had not utilised the statutory mechanisms[16] in the Act and the Regulations to impose a limit on the number of such visas that may be granted. The plaintiff also argued that, insofar as the priorities policy is an attempt to implement an informal administrative cap or quota on the number of Subclass 202 visas, it is inconsistent with the statutory mechanism for implementing a formal cap or quota. [16]Section 85 of the Act empowers the Minister to limit the number of visas of a specified class that may be granted in a financial year. Section 39 of the Act and cl 202.226 of Sched 2 to the Regulations empower the Minister to fix the number of Subclass 202 visas that may be granted in a financial year by legislative instrument. These arguments cannot be accepted. The plaintiff's characterisation of the Government's decision to allocate 5,000 "places" in the SHP as an informal cap or quota is misconceived. It is true that the Minister did not exercise the statutory power to determine the maximum number of Subclass 202 visas that could be granted in a specified year, but the effect of the priorities policy on the Delegate's consideration of cl 202.222(2)(d) was not equivalent to a "cap" or "quota" fixed under s 85 of the Act. If a cap is fixed under s 85, then once that cap is reached in any given year, all outstanding applications are deemed not to have been made and affected applicants would be required to recommence the application process[17]. [17]Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 88 ALJR 722 at 729‑730 [38]‑[45]; 309 ALR 209 at 218‑219; [2014] HCA 24.