Plaintiff M174/2016 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gageler,Keane,Nettle JJ.,Gordon J.,Edelman J.
• Judgment Date: 18 April 2018
• Neutral Citation: [2018] HCA 16
• Docket Number: M174/2016
• Date: 18 April 2018

Plaintiff M174/2016

Plaintiff

and

Minister for Immigration and Border Protection & Anor

Defendants

[2018] HCA 16

Gageler, Keane, Nettle, Gordon AND Edelman JJ

M174/2016

HIGH COURT OF AUSTRALIA

Migration — Pt 2 Div 3 subdiv AB of Migration Act 1958 (Cth) — Where plaintiff applied for protection visa — Where plaintiff claimed real chance of harm due to being Christian — Where plaintiff claimed to attend church regularly — Where delegate of Minister for Immigration and Border Protection called reverend of church and reverend provided information on plaintiff's attendance at church — Where delegate did not provide plaintiff with information provided by reverend or invite plaintiff to comment on it — Where delegate refused to grant protection visa to plaintiff — Whether delegate failed to comply with s 57(2) of Migration Act.

Migration — Pt 7AA of Migration Act 1958 (Cth) — Where plaintiff “fast track review applicant” within meaning of Migration Act — Whether decision affected by jurisdictional error because of failure to comply with s 57(2) a “fast track reviewable decision” within meaning of Pt 7AA — Where “new information” defined as documents or information not before Minister when deciding to refuse to grant protection visa that Immigration Assessment Authority considers may be relevant — Power of Authority to get new information — Power of Authority to consider new information — Obligation of Authority to invite applicant to comment on new information — Nature of review by Authority — Whether Authority's decision not to interview plaintiff and certain other persons or to have regard to certain information provided by plaintiff legally unreasonable.

Words and phrases — “condition of valid performance”, “decision”, “decision that is made in fact”, “de novo consideration of the merits”, “exceptional circumstances”, “fast track reviewable decision”, “jurisdictional error”, “legally effective decision”, “legally unreasonable”, “new information”, “not a valid decision”, “not previously known”, “personal information”, “relevant information”, “review material”, “unreasonable failure to exercise power”, “would be the reason, or part of the reason for refusing to grant a visa”.

Migration Act 1958 (Cth), ss 5, 46A, 54, 55, 56, 57, 69, Pt 7AA.

Migration Regulations 1994 (Cth), reg 4.43.

Representation

J T Gleeson SC with R C Knowles for the plaintiff (instructed by Victoria Legal Aid)

S P Donaghue QC, Solicitor-General of the Commonwealth and N M Wood for the first defendant (instructed by Australian Government Solicitor)

Submitting appearance for the second defendant

ORDER

The questions referred to the Full Court be amended and answered as follows:

Question (1)

Did the delegate fail to comply with s 57(2) of the Migration Act 1958 (Cth) (“the Act”)?

Answer

No.

Question (2)

Could any failure by the delegate to comply with s 57(2) of the Act have the consequence that:

• (a) there is no “fast track reviewable decision” capable of referral by the Minister (or his delegate) to the Immigration Assessment Authority (“the Authority”) under s 473CA of the Act; or

• (b) an essential precondition for the valid exercise of power by the Authority under s 473CC of the Act is not satisfied,

with the result that the Authority has no jurisdiction to conduct a review under Pt 7AA of the Act?

Answer

No.

Question (3)

Did the Authority fail to conduct a review in accordance with Pt 7AA because it was legally unreasonable for the Authority to fail to exercise its statutory powers to get, or to consider, new information?

Answer

No.

Question (4)

What, if any, relief should be granted?

Answer

None.

Question (5)

Who should pay the costs of and incidental to the special case?

Answer

The plaintiff.

1 Gageler, Keane AND Nettle JJ. This special case in a proceeding on an application for constitutional writs in the original jurisdiction of this Court raises a question of statutory construction pivotal to the operation of Pt 7AA of the Migration Act 1958 (Cth) (“the Act”). Part 7AA was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“the 2014 Amendment Act”) to provide for what the simplified outline of the Part in s 473BA of the Act describes as “a limited form of review” of a “fast track decision” constituted by a refusal to grant a protection visa to an applicant statutorily designated to be a “fast track applicant”.

2 Pivotal to the operation of Pt 7AA is identification of a “fast track reviewable decision”, which the Minister administering the Act (“the Minister”) is obliged by s 473CA to refer to the Immigration Assessment Authority (“the Authority”) and which the Authority is obliged by s 473CC to review and either to affirm or to remit to the Minister for reconsideration.

3 Is a fast track reviewable decision nothing more than a decision to refuse to grant a protection visa to a fast track applicant that is made in fact? Or is a fast track reviewable decision limited to a decision to refuse to grant a protection visa to a fast track applicant that is not invalid for non-compliance with the code of procedure for dealing with visa applications set out in subdiv AB of Div 3 of Pt 2 of the Act?

4 The answer is that a fast track reviewable decision is a decision to refuse to grant a protection visa to a fast track applicant that is made in fact, regardless of non-compliance with the code of procedure.

5 Two further substantive questions are raised on the agreed facts set out in the special case. They concern whether the delegate of the Minister failed to comply with s 57 of the Act in dealing with the plaintiff's application for a protection visa and whether the Authority acted unreasonably in failing to get or consider new information under s 473DC and s 473DD of the Act. Each of those further questions is answered in the negative.

The legislative scheme

6 The term “fast track applicant” is defined for the purposes of the Act to encompass two categories of person 1. One is a person who is an unauthorised maritime arrival, who entered Australia on or after 13 August 2012 and before 1 January 2014, who has not been taken to a regional processing country, to whom the Minister has given a notice under s 46A(2) determining that the

prohibition imposed by s 46A(1) on the making of an application for a protection visa does not apply, and who has made a valid application for a protection visa in accordance with that determination 2. The other is a person who is, or who is included in a class of persons who are, specified by legislative instrument for the purpose of the definition 3. The agreed facts in the special case reveal that there were nearly 12,000 fast track applicants, including the plaintiff, as at March 2017.

7 For the most part, the general scheme of Div 3 of Pt 2 of the Act applies to a valid application for a protection visa that is made by a fast track applicant in the same way as it applies to a valid application for any other visa made by any other applicant. Section 47 imposes a duty on the Minister to consider the application. Section 65 imposes a duty on the Minister to grant the visa if satisfied, relevantly, that the criteria prescribed for the visa have been met or to refuse to grant the visa if not so satisfied. Section 66 imposes a duty on the Minister to notify the applicant of the decision 4 and, in the event that the decision is to refuse to grant the visa, to give the applicant written reasons as to why the Minister considers that any criterion for the grant of the visa is not met 5. In the case of a fast track reviewable decision, the notification is also required to state that the decision has been referred for review under Pt 7AA 6.

8 Within Div 3 of Pt 2, subdiv AB sets out a code of procedure which governs the Minister's consideration of the application. The subdivision “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” 7. The matters with which the subdivision deals include the requirement of s 54 that the Minister “must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application”, the requirement of s 55 that “[u]ntil the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision”, and the requirement of s 56

that “[i]n considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa”.

9 Section 57 is also located within subdiv AB. The section deals with “relevant information”. Section 57(1) defines that term, subject to an immaterial exclusion, to mean information that the Minister considers meets three conditions. The first condition is relevantly that the information “would be the reason, or part of the reason … for refusing to grant a visa”. Whether or not that condition is met, it has been held in this Court in respect of a materially identical provision, “is to be determined in advance – and independently – of the [Minister's] particular reasoning on the facts of the case” 8. For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant's claim” 9. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of...