Plaintiffs S271/2014 v Minister for Immigration and Border Protection & Anor
[2016] HCATrans 41
[2016] HCATrans 041
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S271 of 2014
B e t w e e n -
PLAINTIFFS S271/2014
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
REFUGEE REVIEW TRIBUNAL
Second Defendant
Application for order to show cause
BELL J
TRANSCRIPT OF PROCEEDINGS
FROM SYDNEY BY VIDEO LINK TO MELBOURNE
ON THURSDAY, 18 FEBRUARY 2016, AT 10.02 AM
Copyright in the High Court of Australia
PLAINTIFFS S271/2014 appeared in person.
MR B.D. O’DONNELL: Your Honour, I appear for the Minister and also for the applicant on the summary dismissal motion. (instructed by DLA Piper Australia)
TEPOLA RAICEBE, affirmed as interpreter.
HER HONOUR: Thank you, Madam Interpreter. Madam, do you understand some English?
PLAINTIFFS S271/2014: Yes, ma’am.
HER HONOUR: What I propose to do is to proceed. I am going to explain some things to you before I call on Mr O’Donnell who appears for the Minister. If you wish me to, I will pause so that everything I say can be interpreted for you, or would you prefer me to continue speaking and you tell me if there is any matter you would like interpreted? What would you prefer? I think I will have the interpreter interpret that for you. Madam Interpreter, can you interpret what I just said to the plaintiff?
THE INTERPRETER: Madam, she has chosen the option that if she can answer you in English, then she will, otherwise it will be interpreted for her.
HER HONOUR: Thank you. Do you understand that your case has been placed before me today because the Minister wishes me to dismiss your proceeding? What I propose to do is to hear what the Minister has to say first and then I will invite you to tell me what you want to say about why I should not dismiss the proceeding. Do you understand?
PLAINTIFFS S271/2014: Yes, ma’am.
HER HONOUR: Yes. Very well, if you would like to take a seat and we will hear next from Mr O’Donnell. Just before I invite Mr O’Donnell to say anything, would you please tell me if you do not understand everything that Mr O’Donnell says? If you just stand up I will immediately get Madam Interpreter to interpret Mr O’Donnell’s submissions. Do you understand?
PLAINTIFFS S271/2014: Yes, ma’am.
HER HONOUR: Very well. Mr O’Donnell, can I ask you to speak slowly?
MR O’DONNELL: Normally, your Honour, the first thing I would ask is whether your Honour had read the written outline of submissions that I had handed up, and if your Honour had that would short circuit a lot of this. I am suspecting that your Honour would like me to go through it anyway for the benefit of the plaintiff. My preference would be, if your Honour has read it, to quickly summarise and answer any questions, but I understand your Honour’s fairness concern.
HER HONOUR: Yes, I have read your outline of submissions. Thank you for those, Mr O’Donnell. I will just inquire of the first plaintiff whether she has read and understood those submissions.
MR O’DONNELL: I will just show her the document to see if she has seen it.
HER HONOUR: Thank you. I understand, Mr O’Donnell, that the first plaintiff has not read the outline of submissions.
MR O’DONNELL: It was hard to communicate, but it seems to me that if she has seen the document – I am not sure of that. She certainly, from what she said to me just then, has not read it, or has not had it read to her.
HER HONOUR: Was it served?
MR O’DONNELL: I am 99 per cent confident. I am now 100 per cent confident that it was served.
HER HONOUR: Yes, very well. I think in the circumstances, Mr O’Donnell, if you could take me through those submissions.
MR O’DONNELL: I understand, your Honour.
HER HONOUR: Again, I will ask you to speak slowly so that we can be sure that the first plaintiff understands what you are putting to me.
MR O’DONNELL: Your Honour, this application for an order to show cause ‑ the applicants’ – plural - application for an order to show cause was filed on 23 October 2014 and, as far as I can ‑ your Honour should find that on the file ‑ ‑ ‑
HER HONOUR: Yes, yes.
MR O’DONNELL: As far as I can tell, no other step has been taken by the applicant since that filing. There are two arguments that are raised by the application to show cause, as I understand them, and all I have is the bare application to show cause.
HER HONOUR: Yes.
MR O’DONNELL: One is an argument that the complementary protection criteria recently – well, not so recently now – inserted into section 36 of the Migration Act were not properly addressed. That is unparticularised. I will not, unless your Honour wants me to, but I can take your Honour to the part of the Tribunal reasoning where the complementary protection criteria are referred to and addressed. Now, it may be that there is an argument about a constructive failure to address those criteria or a failure to address them properly, but no such argument is particularised in the documents. So, all I can say about that is I do not see anything there and it would be for the applicant to prove it.
The second argument that is raised in the notice to show cause is an argument which is slightly more complicated to address but, in my submission, is still unfounded, and that is an argument from this Court’s decision in Teoh that when exercising a discretion under the Migration Act a decision‑maker – if I can use that broad term – must give primary consideration to the interests of any children affected.
Now, the important point there is that Teoh was a judicial review application relating to a decision to cancel a visa. The visa cancellation power is a discretionary power. I mean, it has gone through numerous iterations since. The power, as it existed under Teoh, was in a different numbered section and looks different, but functionally it was this. Once the Minister is satisfied of certain preconditions, he or she then has a broad discretion.
Section 65 of the Act, which this decision was made under, that is, the section of the Act dealing with whether or not a visa should be granted, is not a discretion. Indeed, it is, at least on its face, a mandatory provision; if certain conditions are satisfied the Minister must grant the visa and if those conditions are not satisfied, he or she must not. Those conditions – the fuzziness, if I might use that term, being that those conditions are states of mind of the Minister, those conditions are whether the Minister is satisfied that certain visa criteria are there.
In my submission, it is clear that Teoh only operates with respect to the exercise of a discretion. Where you have a pure satisfaction provision – what Justice Gummow would have called a jurisdictional fact provision just where the fact is an opinion – there is no scope for Teoh. Now, that does not mean that there is no scope for the interests of children because they may come in under one of the visa criteria that are imported by section 65 and then by the regulations. The interests of children may even – something like the Convention on – the Convention on the Interests of the Child – the Rights of the Child, might even come in in interpreting some of those criteria but it will not come in through the Teoh route. The problem here is that it was the adults who claimed refugee status ‑ ‑ ‑
HER HONOUR: As I understand it – and please correct me if I am wrong – the claims for protection such as to satisfy the criteria either as a refugee or the complementary protection criterion under section 36 of the Migration Act were made by the first plaintiff and the claims of her two children were as members of her family unit, and there was an issue relating to the fourth plaintiff. As I understand it, initially the Department of Immigration and Border Protection considered that the fourth plaintiff had not made a valid application for a visa because he had earlier applied for a protection visa and that application had been refused.
MR O’DONNELL: And that application ‑ sorry to interrupt your Honour – if I can use this nomenclature. One can apply for a protection visa in one’s own right or one can apply as a family member. That is not quite how the regulations are structured but I think your Honour will forgive me for summarising it that way. The fourth applicant had previously applied in his or her own right and had been refused. The fourth applicant then applied – I believe it is his right – as a family member of the first applicant, and that was rejected by the Tribunal on the basis it was two bites at the cherry.
In a subsequent decision ‑ and the acronyms always elude me for non‑famous cases – in a subsequent decision of SZGIZ v Minister it was held that an application in the Full Federal Court more than an application as a family member is a different application from an application in one’s own right and therefore it is not – if I might use the colloquialism – two bites at the cherry. I think that is what your Honour was referring to.
HER HONOUR: Yes.
MR O’DONNELL: All of that collapses you back to the point that the children are applying as members of the family unit of the adults and the visa criteria with respect to the adults is whether they fear persecution and they were held to have – they were found by the Tribunal and the decision‑maker ‑ Minister’s delegate below not to have feared persecution or not to be the subject of complementary protection obligations.
HER HONOUR: Your point, Mr O’Donnell, is when one turns to the plaintiff’s show cause application, the grounds on which they challenge the decision of the Refugee Tribunal are, firstly, that the Tribunal failed to consider the best interests of the children as a primary consideration ‑ ‑ ‑
MR O’DONNELL: Yes.
HER HONOUR: ‑ ‑ ‑ and subsidiary to that that the Tribunal did not warn the first plaintiff of its intention to not take into account the best interests of the child ‑ ‑ ‑
MR O’DONNELL: Because Teoh is a natural justice doctrine, not an irrelevant consideration doctrine, although people often – yes. My response to that is that is Teoh, Teoh applies to discretions, this is not a discretion.
HER HONOUR: All right. I understand those points. Your contention, as I further understand it, is this. There is a 35‑day limit under the Migration Act for bringing proceedings in this Court’s original jurisdiction to challenge a migration decision.
MR O’DONNELL: Correct.
HER HONOUR: The decision of the Tribunal was a migration decision. This Court may make an order extending that 35‑day period provided an application is made in writing for it to do so, and that application must specify why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and then if the Court is satisfied that it is so necessary the Court may extend time. That is the first of the time limits.
You refer to three time limits, I think, in your written submission. In addition to that 35‑day time limit under the Migration Act, the High Court Rules specify that an application for certiorari must be brought within six months of the date of the decision and an application for mandamus must be brought within two months of the date of the decision.
There are statements in this Court that it requires exceptional circumstances before the Court would consider dispensing with those requirements of the Court Rules in a case where there was an application for certiorari that was more than a year after the date of the decision. Now, do I understand, Mr O’Donnell, from your written submissions, that the Minister reposes extending the 35‑day time limit or dispensing with the Rules?
MR O’DONNELL: The short answer is yes. The long answer still amounts to yes, but the long answer is that – at least as far as I can tell from what has been served on us – there has been no affidavit explaining the delay ‑ ‑ ‑
HER HONOUR: Yes.
MR O’DONNELL: ‑ ‑ ‑ and no affidavit explaining why it would be in the interests of justice. Now, you know, if an excellent explanation had been given, then the Minister’s position would have been different, but given that there is no explanation, and given that the plaintiffs have had over a year, the Minister’s position is that the time limit should not be excused, should not be lifted.
One other thing – the reason why it went to the merits is that there are also statements within the authorities on those time limits that one factor that bears on the decision is the strength of the case, and so it is necessary for me to say that the case is not, at least on its face, a strong one and all these factors regarding the lateness of the – the out of time nature of the application ‑ ‑ ‑
HER HONOUR: Yes. Indeed, from your written submissions I just seek to clarify one thing. If the extension is not granted, plainly, the proceedings must be dismissed. You also move under the Rules for summary dismissal on the ground that the application to show cause you say does not disclose a cause of action within the meaning of rule 27.09.4(a), alternatively that it is an abuse of the process of the Court. Turning to the first of those grounds, is that because of your assertion developed a little earlier in relation to each of the grounds that there is no arguable case?
MR O’DONNELL: Yes, it might be a criticism of the submissions that it begins at the end, but one of my concerns was each of the routes to dismiss this ends up with your Honour having to – as one of the elements – consider whether there are prospects of success in the matter, so I kind of bit that bullet to begin with ‑ ‑ ‑
HER HONOUR: I understand.
MR O’DONNELL: ‑ ‑ ‑ and said, look, there are not great prospects in this matter, but formally the argument is it is out of time, your Honour should not extend the time limit because there is no excuse for the out of time nature and there are not good prospects, or there is no cause of action because there is no good prospects or it is an abuse of process because nothing has been done since it was originally - so they all eventually collapsed to that point is why I focused on that.
HER HONOUR: Yes, thank you, Mr O’Donnell. I might take up some matters now with the first plaintiff. You filed an application in this Court on 23 October 2014. In that application you were challenging the decision of the Refugee Review Tribunal, made back on 14 March 2013. The Migration Act requires that if you seek to bring proceedings in this Court challenging a decision, such as the decision of the Refugee Review Tribunal, you must do so within 35 days of the decision.
Now, I understand in your application you ask for orders that the time limit under the High Court Rules for commencing the proceedings be dispensed with. You do not, I believe, in terms ask for an order extending time under the Migration Act, but perhaps that might be implied. I understand the Minister does not take a technical objection of that kind. But the point that the Minister raises against you is that under the Migration Act and under the Rules that govern this Court in the conduct of its business, your application is very, very late. You require a very big indulgence from the Court for these proceedings to go ahead and you have not given any explanation for why you have taken so long to commence them, nor why having commenced them in October 2014 you have taken no further step in them. Do you understand?
PLAINTIFFS S271/2014: Yes, ma’am.
HER HONOUR: What do you want to tell me about those matters? Would you like to tell me in Fijian with the assistance of Madam Interpreter?
PLAINTIFFS S271/2014: Yes, ma’am.
HER HONOUR: Yes, why do you not do that? Thank you, you tell me in Fijian and it will be interpreted.
PLAINTIFFS S271/2014 (through interpreter): The reason why it was late for us to apply to the High Court because the Immigration Department have been telling us to go back to Fiji and there was no passport for my children, it was delayed ‑ ‑ ‑
PLAINTIFFS S271/2014: We were waiting for the passport for my second daughter which was born here.
HER HONOUR: I see. The other matter that the Minister raises and is very prominent in the Minister’s reasons for saying I should not grant you an extension of time in which to bring these proceedings is that the grounds of your challenge to the decision made by the Tribunal are misconceived and do not point to you having an arguable case for getting the relief that you ask this Court to give you. Do you understand what I have just put to you?
THE INTERPRETER: I will interpret that, madam.
HER HONOUR: Thank you, if you would interpret that.
PLAINTIFFS S271/2014: Apart from the written submission that we have given to you.
HER HONOUR: Now, when you refer to a written submission, you are referring I think to a number of documents that you filed with this Court. One is a document titled “To Whom It May Concern” and it is dated 15 February 2016. In addition to that a bound folder of documents was handed in to the Registry and attached to that bound folder were further documents bearing the heading “Supporting documents for a rethink on the status of Fiji nationals now seeking political asylum in Australia and New Zealand from the political upheaval, police military brutality and the non‑independent judiciary in Fiji”. Finally, by an email communication yesterday, a number of documents that were said to have been omitted from the bound volume was also sent to the Registry of this Court. Is that the material you were referring to a moment ago?
PLAINTIFFS S271/2014: Yes, ma’am.
HER HONOUR: One moment, I am just going to ask Mr O’Donnell something about that. Mr O’Donnell, were you served with any of this material?
MR O’DONNELL: I was shown the first document your Honour refers to, the “To Whom It May Concern” document, this morning just before Court. I think that is when my instructing solicitor got it; in fact, that is when my instructing solicitor got it. As to the other two documents, this is the first either I or my instructing solicitor have heard of those documents.
HER HONOUR: Well, now, I will just hand those other documents down to you so that you and those who instruct you can see them. If you would just wait for a few moments, Madam, until Mr O’Donnell has an opportunity to see the material. Take a seat.
MR O’DONNELL: Your Honour, the brevity of my consideration might cause your Honour some scepticism, but I am quite certain that this material is what the Tribunal would refer to as country information. It might very well – indeed, some of the provisions of the Constitution, of the Fijian Constitution, might clearly be relevant to the Minister or the Tribunal in the exercise of their jurisdiction but, with the greatest respect to the plaintiffs, it is not at all relevant without some further explanation and there is only some very narrow eye of the needle loopholes by which it could be made relevant to this Court’s jurisdiction.
HER HONOUR: Yes, thank you, Mr O’Donnell. Madam, the Minister objects to receiving that material in evidence because he says it is irrelevant in law to the issues raised by your application in this Court. The reason for that is that your application challenges the decision made back in March 2013 by the Refugee Review Tribunal on the ground that in the respects that you identify in your application the Tribunal committed errors of a significant kind that lawyers describe as jurisdictional errors, errors that in law tainted the validity of the decision of the Tribunal. What, as I understand it, you wish to place before the Court today is a volume of information about current circumstances in terms of the operation of Fiji’s institutions of government. Is that so? Perhaps, Madam Interpreter, you could assist. Is there anything ‑ ‑ ‑
THE INTERPRETER: I just asked, Madam, if it was clear to her.
HER HONOUR: I see. Is there anything you wish to say to me about the documents that you have sought to place before the Court?
PLAINTIFFS S271/2014 (through interpreter): Madam, I have just included this information because it deals with the group that I had joined called the SODELPA which was in my application in 2013. I just want to let you know that there has been country information that members of the SODELPA has gone through a lot of difficulties in Fiji at the moment and that is why I feel that it is relevant.
HER HONOUR: Thank you. I understand the reasons that you have sought to place the material before me, but it is not material that I can take into account in the determination of the Minister’s application, that is it is not material that is relevant to any assessment of the merits of the challenge that you make to the decision made by the Refugee Review Tribunal in March of 2013. So I will not receive that material.
What I have before me, apart from the application to show cause, which you filed in October 2014 – I have your affidavit which was sworn on 12 October 2014 and filed with the application and which sets out the history and, importantly, sets out a copy of the Tribunal’s reasons and I have read those reasons. Do you understand that?
PLAINTIFFS S271/2014: Yes, ma’am.
HER HONOUR: Is there anything further you wish to put to me as to why I should not make the orders that the Minister seeks dismissing your application?
THE INTERPRETER: Madam, can I just clarify with her that you have not – you say that you are not going to receive those documents. I just want to clarify with her in the Fiji language – those documents that we were talking about just prior to the ‑ ‑ ‑
HER HONOUR: Yes.
PLAINTIFFS S271/2014 (through interpreter): Madam, I would like to refer to the welfare of my children. One of them was born here and is now in school. I feel that it would be very difficult for my child to adopt or adapt to the Fijian way of life. Of course, Madam, also I am worried about their wellbeing because I feel that the life here will look after them – especially their wellbeing here, they will be kept well here compared to Fiji.
HER HONOUR: Thank you. Please take a seat again, Madam. Mr O’Donnell, just a couple of matters. In your summons you seek orders also substituting the Administrative Appeals Tribunal for the second defendant. I note that the second defendant has now filed a submitting appearance and I understand that the Refugee Review Tribunal is no longer a separate entity. I think as of July last year it became part of the Administrative Appeals Tribunal.
MR O’DONNELL: Yes.
HER HONOUR: Yes. I will make that order. You also, very properly, seek an order that the first plaintiff be appointed as litigation guardian for the third and fourth plaintiffs. I think, in fact, it should be for the second and third plaintiffs. Those are the children.
MR O’DONNELL: I am sorry, your Honour, yes. You are quite right because the fourth plaintiff was the spouse. Yes, I am so sorry.
HER HONOUR: Not at all, Mr O’Donnell.
MR O’DONNELL: Can I make that amendment?
HER HONOUR: Well, Mr O’Donnell, I really wonder whether there is utility in that. I am persuaded that the orders – the principal relief that the Minister seeks should be granted. There are formalities, including the requirement for written consent from a person appointed as litigation guardian and in the circumstances it seems inutile. The other matter I just wish to raise with you is am I right in my understanding ‑ ‑ ‑
MR O’DONNELL: Sorry, just formally, given what your Honour has just said, I do not press order 1.
HER HONOUR: Yes, thank you. Am I right in my understanding that the show cause application is one that it would be open to this Court to remit to the Federal Circuit Court which has a like power to dispense with the 35‑day period. I should indicate a provisional view, Mr O’Donnell, that
a proceeding that does not have arguable prospects of success and that is grossly out of time should not be remitted to that court.
MR O’DONNELL: Yes.
HER HONOUR: This is not one of those decisions which ‑ ‑ ‑
MR O’DONNELL: Cannot be remitted.
HER HONOUR: ‑ ‑ ‑ cannot be remitted, as I understand it. Is that so?
MR O’DONNELL: I think that is the case. There is something in my material that indicates that one of the parties did begin proceedings in the Federal Circuit Court and then abandoned them so that is the complication.
HER HONOUR: I see.
MR O’DONNELL: There is also the complication that the last time I looked at those remitter provisions was a couple of amendments ago so I do not ‑ ‑ ‑
HER HONOUR: All right, Mr O’Donnell, I am troubling you unnecessarily. Thank you. Now, Madam, is there something further you wish to put to me? Is there anything further you wish to put to me, Madam?
PLAINTIFFS S271/2014 (through interpreter): I am just worried if I take my children back to Fiji that we will also be in trouble because my father‑in‑law is one of the people that had been in custody due to the establishment of – they had intended to establish a different government in Fiji so that is why I am worried about taking my children back to Fiji because my father‑in‑law is involved in this court case that is about the intention of having a different government in Fiji.
HER HONOUR: Thank you. Yes, if you would resume your seat, thank you, madam.
On 23 October 2014, the plaintiffs filed an application for an order to show cause. They claimed relief by way of prohibition directed to the first defendant, the Minister for Immigration and Border Protection (“the Minister”), to restrain him from acting upon the decision of the Refugee Review Tribunal (“the Tribunal”) given on 14 March 2013, certiorari to quash the Tribunal’s decision and mandamus directed to the Tribunal’s successor, the Administrative Appeals Tribunal, to determine their applications for protection visas according to law.
By summons filed on 12 January 2016, the Minister applies for an order dismissing the plaintiffs’ application pursuant to rule 29.09.4(a) of the High Court Rules 2004 (Cth) (“the Rules”). The Minister also seeks an order regularising the proceedings by substituting the Administrative Appeals Tribunal as the second defendant. That order is made.
The plaintiffs are citizens of Fiji. They are unrepresented on the hearing of the Minister’s summons. The first plaintiff has appeared on behalf of each plaintiff and has been assisted by an interpreter. The plaintiffs applied for Protection (Class XA) visas on 31 May 2012. On 12 June 2012, the Department of Immigration and Citizenship advised the fourth plaintiff by letter that his application was not a valid application because he had been refused a protection visa on 8 April 2010.
In light of the provisions of section 48A of the Migration Act 1958 (Cth), the fourth plaintiff was advised by the Department that his application would be considered as a request to the Minister to exercise his public interest power under section 48B. On 13 September 2012, a delegate of the Minister refused the applications of the first, second and third plaintiffs. The plaintiffs sought a review of the delegate’s decision by application to the Tribunal lodged on 25 September 2012. Following a hearing before the Tribunal, by letter dated 15 March 2013, the Tribunal informed the plaintiffs of its decision, the record date of which was 14 March 2013, affirming the delegate’s decision. On 14 April 2013, the first, second and third plaintiffs sought ministerial intervention under section 417 of the Migration Act. On 25 June 2013, the Minister declined to intervene.
The Department’s view of the effect of section 48A was held to be incorrect in a decision of the Federal Court of Australia which was handed down after the Tribunal’s determination[1]. It followed that the fourth plaintiff was able to make a valid application for a protection visa as a member of the family unit of a person making a claim to engage Australia’s protection obligations. The fourth plaintiff’s outstanding protection visa application was considered by a delegate of the Minister and refused on 23 July 2015. As the Minister observes, the plaintiff’s show cause application is deficient in that it does not challenge the latter determination. Nonetheless, the Minister does not rely on this deficiency in his application for summary dismissal.
[1] SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.
The Tribunal’s determination is a migration decision to which section 486A of the Migration Act applies. An application for a remedy in the exercise of the Court’s original jurisdiction in relation to a migration decision must be made within 35 days of the date of the decision. The Court has power to extend that period on conditions which include that it is satisfied that it is necessary in the interests of justice to make the order.
The plaintiffs also require an enlargement of time under the Rules in which to apply for certiorari[2] and mandamus[3] to issue. The time limit for the former is six months and the time limit for the latter is two months. The Minister opposes the extension of the 35‑day limit, submitting that the plaintiffs have failed to show why it is in the interests of the administration of justice to make the order sought, and he submits that the plaintiffs have not demonstrated any special circumstances that would warrant an enlargement of time of this magnitude under the Rules. The last‑mentioned submission directs attention to the statement of Justice McHugh in Re Commonwealth; Ex parte Marks[4]:
[2] High Court Rules, r 25.06.1.
[3] High Court Rules, r 25.07.2.
[4] (2000) 177 ALR 491 at 496 [16].
“The periods for applying certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.”
It would seem that there is no obstacle to this Court remitting the plaintiffs’ show cause application to the Federal Circuit Court, which has the same original jurisdiction in relation to migration decisions as is conferred on this Court under section 75(v) of the Constitution[5]. The Federal Circuit Court has power to enlarge the time in which to bring an application in the original jurisdiction[6]. Nonetheless, it would not be appropriate to remit the proceedings if, as the Minister submits, no circumstances justifying the enlargement of time are disclosed and no arguable case is made on the materials that have been filed for the grant of the relief that is claimed.
[5] Migration Act 1958 (Cth), s 476(1).
[6] Migration Act 1958 (Cth), s 477(2).
The first plaintiff’s claims to engage Australia’s protection obligations arise from her support for the SDL party and her membership of the Methodist Church in Fiji. The Tribunal accepted the first plaintiff’s evidence, in particular the Tribunal accepted that the first plaintiff supported the SDL party by voting for its candidates at elections and by helping to prepare food for meetings organised by the party. The Tribunal also accepted that the first plaintiff is a member of the Methodist Church in Fiji. However, the Tribunal was not satisfied that individuals are exposed to harm in Fiji by reason of voting for the SDL party or supporting it in the way that the first plaintiff has done. The Tribunal was not satisfied that the first plaintiff is a refugee and it was not satisfied that the first plaintiff met the criterion for complementary protection under section 36(2)(aa) of the Migration Act. The Tribunal observed that nothing in the material before it provided any basis for finding that there are substantial grounds to believe that as a necessary and foreseeable consequence of the first plaintiff being removed from Australia to Fiji, there would be a real risk that she would suffer significant harm. The finding that the first plaintiff did not meet the criteria for the issue of a protection visa dictated the outcome of the review of the applications of the second and third plaintiffs.
The plaintiffs rely on two grounds for the relief claimed. First, they contend that the Tribunal committed jurisdictional error by failing to consider the best interests of the first plaintiff’s children in making its determination. Secondly, they contend that the Tribunal misconstrued the complementary protection criterion for the grant of a protection visa. The Minister submits that each ground is misconceived.
The issue for the Tribunal was whether the first plaintiff met the criteria for the grant of the visa under section 36(2). In circumstances in which it was found that she did not, the Tribunal was obliged to affirm the delegate’s decision. As the Minister submits, the Tribunal did not have a discretion to set aside the delegate’s decision by reason of a view that it formed as to the best interests of the first plaintiff’s children.
The asserted misconstruction of the complementary protection criterion is identified as the misapplication of “the term ‘significant risk of severe harm contrary to the evidence before the Tribunal’”. The criterion in section 36(2)(aa) is that the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm. “Significant harm” is defined in subsection (2A). I accept that no arguable basis for the conclusion that the Tribunal misconstrued the complementary protection criterion is disclosed in the material filed in support of the application.
The plaintiffs sought to rely on a bundle of material relating to the current state of Fiji’s political institutions. I did not receive that material in circumstances in which it cannot bear relevantly on a consideration of the merits of the case the plaintiffs make for the relief claimed in their application. The plaintiffs do not point to any circumstances that would justify the very substantial enlargement of time in which to bring their application and, as indicated, the application does not disclose an arguable case in support of either ground of challenge.
For these reasons, the orders sought by the Minister should be made. This conclusion makes it unnecessary to consider the Minister’s further submission that the proceedings are an abuse of the process of the Court.
The application for an order to show cause filed on 23 October 2014 is dismissed with costs.
MR O’DONNELL: Just one small matter, your Honour.
HER HONOUR: Yes.
MR O’DONNELL: The Minister is not seeking costs against the two minor applicants, only against the first and fourth.
HER HONOUR: Thank you.
MR O’DONNELL: I did not mean to quibble, but it might be worth making ‑ ‑ ‑
HER HONOUR: No, not at all. Thank you for that, Mr O’Donnell. I withdraw the order for costs and substitute “the first and fourth plaintiffs are to pay the Minister’s costs”. Yes, thank you, and thank you, madam interpreter, you are now excused.
AT 11.08 AM THE MATTER WAS ADJOURNED
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