Plaintiff M64/2015 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: French CJ,Bell,Keane,Gordon JJ,Gageler J
• Judgment Date: 17 December 2015
• Neutral Citation: [2015] HCA 50
• Docket Number: M64/2015
• Date: 17 December 2015

[2015] HCA 50

HIGH COURT OF AUSTRALIA

French CJ, Bell, Gageler, Keane and Gordon JJ

M64/2015

Plaintiff M64/2015

Plaintiff

and

Minister for Immigration and Border Protection

Defendant

Representation

C J Horan with K E Grinberg for the plaintiff (instructed by Russell Kennedy Pty Ltd)

S P Donaghue QC with N M Wood for the defendant (instructed by Australian Government Solicitor)

Migration Regulations 1994 (Cth), Sched 2, cl 202.222(2).

Plaintiff M64/2015 v Minister for Immigration and Border Protection

Migration — Visa application — Clause 202.222(2) of Sched 2 to Migration Regulations 1994 (Cth) provides for grant of Refugee and Humanitarian (Class XB) (Subclass 202) visa if Minister satisfied there are compelling reasons for giving special consideration to granting visa — Where applications for Subclass 202 visas refused by delegate of Minister — Where delegate considered capacity of Australian community to permanently settle visa applicants — Where delegate considered departmental policy that established priorities to be accorded to visa applications — Construction of cl 202.222(2) — Whether decision affected by jurisdictional error.

Words and phrases — ‘capacity’, ‘compelling reasons’, ‘irrelevant considerations’, ‘jurisdictional error’, ‘priorities policy’, ‘special consideration’.

Migration Regulations 1994 (Cth), Sched 2, cl 202.222(2).

ORDER

The questions asked by the parties in the special case dated 28 August 2015 and referred for consideration by the Full Court be answered as follows:

Question 1

Did the Delegate:

• (a) construe clause 202.222(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) as requiring or permitting him to consider the capacity of Australia to resettle all applicants who apply for a humanitarian visa;

• (b) fail to construe clause 202.222(2)(d) as requiring him to consider the capacity of the Australian community to provide for the permanent settlement in Australia of each of the Visa Applicants, or persons such as each of the Visa Applicants, having regard to their individual circumstances; or

• (c) fail to construe clause 202.222(2) as requiring him to assess whether or not there were compelling reasons for giving special consideration to granting permanent visas to the Visa Applicants in the circumstances of the particular case, having regard to all of the matters in 202.222(2)(a) to (d) both individually and cumulatively?

Answer

• (a) Yes.

• (b) No.

• (c) No.

Question 2

If so, did the Delegate thereby make a jurisdictional error?

Answer

No.

Question 3

In deciding whether he was satisfied that the Visa Applicants satisfied clause 202.222(2) of Schedule 2 to the Regulations, was the Delegate bound not to consider:

• (a) the number of “;places” available in the SHP; or

• (b) the “priorities” set by the government within the SHP?

Answer

• (a) No.

• (b) No.

Question 4

If so, did the Delegate consider either or both of those matters, and thereby make a jurisdictional error?

Answer

Unnecessary to answer.

Question 5

In deciding whether he was satisfied that the Visa Applicants satisfied the criterion in clause 202.222(2) of Schedule 2 to the Regulations, did the Delegate apply the policy stated in the relevant parts of the Department's Procedures Advice Manual (being Attachment G, sections 71.2, 71.4 and 71.6 and Attachment H, section 7.2) (the Policy)?

Answer

Yes.

Question 6

If so:

• (a) was the Policy inconsistent with the [Migration Act 1958 (Cth)] and Regulations; or

• (b) did the Delegate apply the Policy inflexibly without regard to the merits or circumstances of the case;

and did the Delegate thereby make a jurisdictional error?

Answer

• (a) No.

• (b) No.

It is unnecessary to answer the rest of Question 6.

Question 7

What, if any, relief should be granted?

Answer

None. The proceedings should be dismissed.

Question 8

Who should pay the costs of the special case?

Answer

The plaintiff.

1 French CJ, Bell, Keane and Gordon JJ. The plaintiff is a citizen of Afghanistan born on 20 April 1994. In 2003, the plaintiff and his family, who are of Hazara ethnicity, fled from Afghanistan to Iran. In early 2010, the plaintiff was arrested in Iran as an undocumented immigrant and was deported to Afghanistan. The plaintiff's family remained in Iran.

2 On 29 May 2010, the plaintiff entered Australia as an unaccompanied minor at an ‘excised offshore place’ within the meaning of the Migration Act 1958 (Cth) (‘the Act’). Upon his arrival in Australia, he became an ‘unlawful non-citizen’ and an ‘offshore entry person’ within the meaning of the Act as it then stood.

3 On 18 August 2011, the plaintiff was granted a Protection (Class XA) (Subclass 866) visa by the defendant (‘the Minister’). Subsequently, the plaintiff's mother and three younger brothers (‘the Visa Applicants’) applied for Refugee and Humanitarian (Class XB) (Subclass 202) visas under the Australian Government's Special Humanitarian Programme. The plaintiff proposed the Visa Applicants for entry into Australia in accordance with the Migration Regulations 1994 (Cth) (‘the Regulations’). The application was refused by a delegate of the Minister (‘the Delegate’).

4 The plaintiff then commenced proceedings in the original jurisdiction of this Court pursuant to s 75(v) of the Constitution, seeking certiorari to quash the Delegate's decision to refuse to grant the visas, and mandamus to require the Minister to determine the application according to law. The plaintiff contends that the decision of the Delegate was affected by one or more jurisdictional errors.

5 The plaintiff argued that the Delegate misconstrued and misapplied the regulation pursuant to which the application was determined, and that the Delegate unlawfully applied a departmental policy which was inconsistent with the requirements of the Act and the Regulations, or applied that policy inflexibly and without regard to the merits of the particular application. The policy required that the lowest priority be accorded to the application on the basis of the type of visa that the plaintiff had been granted, and the circumstance that he arrived in Australia as an ‘irregular maritime arrival’.

6 The parties agreed to state a number of questions for determination by this Court, in the form of a special case, with a view to resolving the plaintiff's challenge to the Delegate's decision. Before considering the parties' arguments, it is necessary to give a brief description of the programme under which the visas were sought, the terms of the application, and the basis for, and the detail of, the Delegate's decision to refuse it.

Australia's Humanitarian Programme

7 Australia's Humanitarian Programme is the component of Australia's Immigration Programme that provides for the immigration of refugees and people in refugee-like situations. The offshore component of the Humanitarian Programme has two categories: ‘Refugee’ and ‘Special Humanitarian Programme’ (‘SHP’). The Refugee category comprises four visa subclasses: Refugee (Subclass 200), In-country Special Humanitarian (Subclass 201), Emergency Rescue (Subclass 203) and Woman at Risk (Subclass 204). The SHP category comprises one visa subclass: Global Special Humanitarian (Subclass 202). The Refugee and Humanitarian (Class XB) (Subclass 202) visa (‘Subclass 202 visa’), sometimes referred to as a ‘split family visa’, is directed to the immigration of people who are subject to substantial discrimination amounting to gross violation of their human rights in their home country, and who are members of the immediate family of a person in Australia who has already been granted a Subclass 202 visa, or has been granted a Protection (Class XA) (Subclass 866) visa or a Resolution of Status (Class CD) (Subclass 851) visa.

8 Each year, the Australian Government consults with State and Territory governments, peak refugee and humanitarian bodies, the United Nations High Commissioner for Refugees (‘the UNHCR’), and the public, and makes a decision as to the size and composition of the Humanitarian Programme. In the 2014-2015 financial year, the Australian Government decided that the Humanitarian Programme would comprise 13,750 places, including a minimum of 11,000 places for offshore applicants. On 17 August 2014, the Minister announced that 5,000 places would be allocated to the SHP category in 2014-2015. A minimum of 4,400 places were committed for persons affected by the conflicts in Iraq and Syria, and those places were to be provided predominantly out of the SHP allowance.

The visa application

9 On 5 December 2011, the Visa Applicants applied for Subclass 202 visas as prescribed in item 1402 of Sched 1 to the Regulations (‘the Visa Application’). The plaintiff proposed the Visa Applicants for entry into Australia in accordance with approved form 681 and cl 202.211(2) of Sched 2 to the Regulations.

10 The plaintiff's proposal contained information that assistance would be provided to the Visa Applicants by way of permanent housing in Australia. In December 2011, the plaintiff's carer sent a letter to the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) (‘the Department’) in support of the Visa Application. On 19 April 2012, The Victorian Foundation for Survivors of Torture Inc, known as Foundation House, sent a letter to the Department in support of the Visa Application to the effect that the plaintiff's mental health would ‘significantly improve’ if the Visa Applicants were granted protection in Australia. On 31 May 2012, the plaintiff's carer sent a further letter to the Department, requesting that the processing of the Visa Application be expedited.

11 On 2 April 2014, the Department sent a letter to the plaintiff's mother, care of the plaintiff, outlining changes affecting the...