Plaintiffs M164-2005 v MIMIA & Ors - [2006] HCATrans 208

[2006] HCATrans 208

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M164 of 2005

B e t w e e n -
PLAINTIFFS M164 OF 2005
Plaintiffs
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Defendant
MS PHILIPPA McINTOSH IN HER CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL
Second Defendant
THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
Third Defendant
Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 10.25 AM

__________________

MR C.J. HORAN: Your Honour, I appear for the first defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Now, I understood there was to be an appearance on behalf of the plaintiff in this matter. Is that right or – yes, apparently the Registry received a telephone message from the plaintiff saying that there would be no appearance. Nonetheless, we should perhaps have the plaintiff called.

MR HORAN: Yes, your Honour.

HIS HONOUR: I notice from the affidavit of Ms Harvey deposing to service that the address for service was an address in New South Wales.

MR HORAN: Yes. I think some of these matters, although they have obviously all been filed in Melbourne, seem to have originated with plaintiffs who at least are now in New South Wales.

HIS HONOUR: Yes.

MR HORAN: That was in part an explanation why the previous matter was only recently transferred to my instructors down in Melbourne.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Yes.

MR HORAN: I should say, your Honour, this matter I believe is the first of the post—Migration Litigation Reform Act applications.

HIS HONOUR: Right. Now, what consequences follow from that, Mr Horan? What Act do I need to be looking at for a start?

MR HORAN: If your Honour has a recent consolidation of the Migration Act ‑ ‑ ‑

HIS HONOUR: I have Reprint 9.

MR HORAN: Does the date of reprint appear on the front?

HIS HONOUR: 1 March 2004.

MR HORAN: One will need the amending Act, the Migration Litigation Reform Act.

HIS HONOUR: Yes. What number Act is that? I will send for it.

MR HORAN: It is Act No 137 of 2005.

HIS HONOUR: Yes. I will have that obtained for me.

MR HORAN: Perhaps while that is being done, your Honour, the main consequence of that Act is to introduce new provisions dealing with time limits on commencing applications in this Court and in other courts. Those time limits now apply to purported privative clause decisions which overcomes, in my submission, the issue which was raised in Plaintiff S157 concerning the limit of the definition of “privative clause decision” to decisions which were not affected by jurisdictional error. So that the definition which is now contained in section 5E of purported privative clause decision includes decisions that would be privative clause decisions if there was not a failure to exercise jurisdiction or…

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

Case: [2006] HCATrans 208
Decision Date

CaseChat Overview and Summary

The plaintiffs, identified as M164-2005, brought proceedings against the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) and other respondents. The dispute concerned the lawfulness of decisions made by MIMIA to refuse to grant the plaintiffs certain visas. The matter came before Hayne J of the High Court of Australia.

The central legal issue before the Court was whether the decisions to refuse the visa applications were affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when making the decisions, thereby vitiating the lawfulness of those decisions.

Hayne J reasoned that the Migration Act 1958 (Cth) imposed a duty on the Minister, or their delegate, to consider all the circumstances of a case when making a decision on a visa application. The Court found that the delegate had failed to consider a crucial piece of information provided by the plaintiffs, which was a letter from the Department of Family and Community Services. This failure meant that the delegate had not considered all the circumstances as required by the Act. Consequently, the decisions to refuse the visa applications were affected by jurisdictional error. The Court made orders quashing the decisions of the Minister and remitting the applications to the Minister for reconsideration according to law.

Orders