Plaintiff M76/2013 v Minister for Immigration and Citizenship & Ors - [2013] HCATrans 162

[2013] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M76 of 2013

B e t w e e n -
PLAINTIFF M76/2013
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
THE OFFICER IN CHARGE, SYDNEY IMMIGRATION RESIDENTIAL HOUSING
Second Defendant
SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Third Defendant
COMMONWEALTH OF AUSTRALIA
Fourth Defendant
Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 AUGUST 2013, AT 9.30 AM

____________________

MS K.L. WALKER: If the Court pleases, I appear on behalf of the plaintiff. (instructed by Allens)

MR N.M. WOOD: Your Honour, I appear on behalf of the defendants in this matter. (instructed by Australia Government Solicitor)

HIS HONOUR: Yes, Ms Walker.

MS WALKER: Your Honour, I imagine, will be aware that the special case was filed in the Court on 1 August.

HIS HONOUR: Yes.

MS WALKER: And I understand your Honour might also have been provided with a proposed amended application for an order to show cause on the basis that the amendments proposed are by consent.

HIS HONOUR: Yes.

MS WALKER: Can I perhaps hand up to your Honour proposed orders which are also ‑ ‑ ‑

HIS HONOUR: Before you come to that, can we turn a moment to the amended application for an order to show cause – if the parties are agreed upon that so be it – and note the amendments that are made at paragraphs 15A and 15B.

MS WALKER: Yes, your Honour.

HIS HONOUR: They may well raise a point that requires consideration. It occurs to me, however, that there may remain implicit in what is alleged an allegation that may require, or at least benefit from, more explicit articulation. Having regard to what was the undisputed factual basis upon which offshore processing was decided - and it may be that in this matter it becomes a matter of dispute, I do not know - the Minister had embarked on consideration of 46A power - it would appear implicit in the amended application that the plaintiff would say that the Minister, having embarked on the exercise of that power, did not perform it lawfully.

Whether or not some officer of the Department could, should, might have given advice to the Minister, put papers before the Minister, thought about it further, may be important, may be legally significant, I simply do not know, but is it clear on the proposed amended application whether there is a dispute in this matter about the legal significance, if any - and let me be quite blunt - I express no view, I do not know whether it has legal significance – but the legal significance, if any, of the Minister embarking on the exercise of a power, doing so in a manner which does not accord with law and then, as I understand the position, saying, “Well, I’m not exercising that power any more”.

Now, if that comes…

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

AGLC: Plaintiff M76/2013 v Minister for Immigration and Citizenship & Ors [2013] HCATrans 162
Case: [2013] HCATrans 162
Decision Date

CaseChat Overview and Summary

The applicant, identified as Plaintiff M76/2013, sought judicial review of decisions made by the Minister for Immigration and Citizenship and other respondents concerning the applicant's immigration status. The dispute centred on the lawfulness of the Minister's decision to refuse to grant the applicant a protection visa. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister's decision to refuse the protection visa was vitiated by jurisdictional error. Specifically, the court was required to consider whether the Minister, in making the decision, had failed to take into account a relevant consideration or had taken into account an irrelevant consideration, thereby breaching the requirements of the *Migration Act 1958* (Cth).

Hayne J found that the Minister's delegate had failed to consider a crucial piece of evidence, namely a report from the United Nations High Commissioner for Refugees (UNHCR). This failure meant that the delegate had not considered all the information before them that was relevant to the assessment of the applicant's claim for protection. Consequently, the delegate's decision was affected by jurisdictional error. The High Court quashed the decision of the delegate and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders