Plaintiff S183/2021 v Minister for Home Affairs

In *Plaintiff S183/2021 v Minister for Home Affairs*, heard by Gordon J of the High Court of Australia, the plaintiff, a citizen of Turkey, sought judicial review of a delegate's decision to refuse her application for a protection visa. The plaintiff had lodged her application in August 2016, claiming to fear persecution if returned to Turkey due to her sexuality and past experiences. The delegate had issued letters under sections 56 and 57 of the *Migration Act 1958* (Cth) requesting further information and inviting comment, but the plaintiff, who suffered from mental health issues, homelessness, and limited English proficiency, failed to attend a scheduled interview in Melbourne or substantively respond to the letters. Although an interview was offered in Sydney, the plaintiff did not attend, reportedly due to a lack of understanding. The delegate ultimately exercised discretion under section 62 of the Act to refuse the visa without further action, finding the plaintiff's claims not credible, partly due to her non-attendance and lack of response.

The legal issues before the Court included whether the delegate acted unreasonably in exercising the discretion under section 62 of the *Migration Act* to refuse the visa without obtaining further information. The Court was also asked to determine if the delegate's reasoning in rejecting the plaintiff's claims was illogical, irrational, or unreasonable. Furthermore, the Court considered whether the delegate had failed to comply with the requirements of section 57 of the Act, specifically by not providing particulars of relevant information to the plaintiff and not ensuring, as far as reasonably practicable, that the plaintiff understood the relevance of that information. Finally, the Court examined whether the delegate had failed to take into account relevant country information as required by a direction given under section 499(1) of the Act.

Gordon J found that the delegate's adverse credibility findings were based on a flawed process of reasoning. The delegate proceeded on an unstated and incorrect premise that the plaintiff's failure to engage with the process was solely attributable to doubts about the veracity of her claims. This reasoning was deemed unreasonable. Regarding section 57, the Court determined that the plaintiff's submission that the delegate failed to ensure she understood the relevance of the information was misconceived, as compliance with section 57(2)(b) is assessed objectively, not by the recipient's subjective understanding. The Court noted that the section 57 letter clearly identified the relevant information and explained its relevance to the plaintiff's claims.

The Court ordered that the period for applying for a remedy be extended to 8 November 2021 and that the time fixed for certain rules be enlarged. A writ of certiorari was issued to quash the delegate's decision to refuse the protection visa, and a writ of mandamus was issued directing the Minister to determine the plaintiff's application according to law. The application was otherwise dismissed, and the defendant was ordered to pay the plaintiff's costs.