Re Minister for Immigration and Multicultural and Indigenous Affairs;ex parte S134-2002

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh,Gummow,Hayne,Callinan JJ,Gaudron,Kirby JJ
• Judgment Date: 04 February 2003
• Neutral Citation: [2003] HCA 1,2003-0204 HCA A
• Court: High Court
• Docket Number: S134/2002
• Date: 04 February 2003

[2003] HCA 1

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S134/2002

Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor

Respondents

and

Ex Parte Applicants S134/2002

Prosecutors

Representation:

J Basten QC with M I Aronson and N C Poynder for the prosecutors (instructed by Craddock Murray Neumann)

D M J Bennett QC, Solicitor-General of the Commonwealth with N J Williams SC, S B Lloyd and G R Kennett for the first respondent (instructed by Australian Government Solicitor)

No appearance for the second respondent

Intervener:

B M Selway QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for the State of South Australia)

B W Walker SC with D S Mortimer intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)

Migration Act 1958 (Cth), ss 36, 65, 414, 417, 474.

Migration Regulations 1994 (Cth), Sched 2, pars 785.21, 785.22.

Re Minister for Immigration and Multicultural and Indigenous Affairs ; Ex parte Applicants S134/2002

Immigration — Refugees — Temporary protection visas — Refugee Review Tribunal (‘the Tribunal’) affirmed decision of delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) not to grant protection visas — Minister not bound to consider whether to exercise power — Minister decided not to exercise power under s 417 of the Migration Act 1958 (Cth) (‘the Act’) to substitute for the decision of the Tribunal a decision more favourable to the prosecutors — Whether decisions of the Tribunal and the Minister ‘privative clause decisions’ under s 474 of the Act.

Immigration — Refugees — Applications for temporary protection visas by mother and children — First prosecutor's application asserted that she was a person to whom Australia had protection obligations under the Refugees Convention — Application not made on basis of membership of a family unit, to one of whom protection obligations were owed — Documents before the Tribunal indicated that the first prosecutor's husband held a temporary protection visa and had applied for a permanent protection visa — First prosecutor did not know of her husband's whereabouts or immigration status — Tribunal did not notice documents or appreciate their significance — Tribunal did not consider whether prosecutors entitled to protection visas on basis of membership of a family unit of which one person was owed protection obligations and had been granted a protection visa — Whether constructive failure to exercise jurisdiction — Whether denial of procedural fairness.

Immigration — Refugees — Whether jurisdictional error in decision by Minister to refuse to substitute for the decision of the Tribunal a decision more favourable to the prosecutors — Utility of relief.

ORDER

1. The times fixed by the Rules of Court for commencing this proceeding are extended.

2. The order nisi granted by Gaudron J on 11 June 2002, as amended by the order of the Full Court made on 4 September 2002, is discharged with costs.

1 Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. The first prosecutor is the mother of five children, who are the other prosecutors. There are, in order of birth, two sons and three daughters. All claim to be citizens of Afghanistan. They arrived in Australia on 1 January 2001.

The visa applications

2 On 21 February 2001, an application was made for Protection (Class XA) visas pursuant to the Migration Act 1958 (Cth) (‘the Act’) and the Regulations made thereunder (‘the Regulations’). Visa Class XA includes two subclasses: 785 (temporary protection) and 866 (protection). The first is a temporary visa and the second a permanent visa. One criterion to be satisfied at the time of application for a permanent visa in the second subclass is that, at the time of the last entry into Australia of the applicant, the applicant be the holder of a current visa. The prosecutors arrived in Australia without any travel documentation and therefore could not satisfy the requirements for a permanent visa. The dispute before this Court concerns the applications for temporary protection visas.

3 On 22 May 2001, a delegate of the first respondent (the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’)) refused the applications. Section 47(1) had required the Minister to consider valid visa applications and s 496 conferred upon the Minister powers of delegation.

4 The delegate said that he was not satisfied that the first prosecutor:

‘is a person to whom Australia has protection obligations under the Refugees Convention and therefore does not meet a prescribed criterion under clause 785.221 for the grant of a Subclass 785 (Temporary Protection) visa. As the applicant fails to satisfy the criteria of either Subclass 785 or 866, I refuse her application for a Protection (Class XA) visa).’

The delegate continued:

‘None of the other family members included as part of the application addressed above have made separate claims for a Protection Visa. Given my findings in the case of Applicant 1, I also refuse their applications for a Protection Visa. No person included in this application has been granted a protection visa.’

The Tribunal and the Minister

5 An application by the prosecutors then was made for review by the second respondent (the Refugee Review Tribunal (‘the Tribunal’)). As the Act then stood, Pt 7 (ss 410-473) dealt with review of protection visa decisions. Section 412 provided for applications for review by the Tribunal and, in the present case, s 414(1) stated that ‘the Tribunal must review the decision’ of the delegate. Section 418 provided for the Secretary to the Minister's Department to give to the Registrar of the Tribunal documents in the Secretary's possession or control and considered by the Secretary to be relevant to the review. In its reasons for decision given on 26 July 2001, the Tribunal stated that it had before it the Department's file. In addition to the written material relied upon, the first prosecutor gave oral evidence to the Tribunal. Her elder son addressed the Tribunal.

6 The Tribunal affirmed the decision not to grant protection visas. The Tribunal was not satisfied that the first prosecutor's country of nationality was Afghanistan. It found that the first prosecutor's credibility in general was remarkably poor. The Tribunal was not satisfied that her children were Afghan nationals. In that regard, the Tribunal said:

‘The [first prosecutor] is not an Afghan national and there is no evidence the children have any nationality other than hers (the Tribunal does not accept that the [first prosecutor's] husband is an Afghan national as there is no evidence supporting this claim).’

In the result the Tribunal stated that it was not satisfied that the prosecutors had a well-founded fear of persecution in Afghanistan.

7 In her original application, the first prosecutor had stated that her husband, of Afghan nationality, was ‘MISSING SINCE 2 YRS AGO’. Section 101 of the Act obliged the first prosecutor to fill in the application form in such a way that ‘no incorrect answers’ were given. No point under that section is taken against the first prosecutor. The reasons given by the Tribunal include the following passage:

‘The Tribunal asked the [first prosecutor] what had since happened to her husband. The [first prosecutor] said she only knew that he had fled. She did not know what had happened to him. He left on foot in the middle of the night. He was on his own. The Tribunal asked whether her husband had left the country, and if so who helped him leave. The [first prosecutor] said that about six months later someone came and told her father he had taken her husband out of the country.’

8 It is now accepted that the Department's file, which was before the Tribunal, included two pages marked with folio numbers 121 and 124. Folio 121 indicates that the husband was in possession of a temporary protection visa and had made an application for a permanent protection visa. Folio 124 identifies by number the first prosecutor and under the heading ‘Informant 1’ there appears ‘Afghan — husband is Pakistani who came on an earlier boat and has a visa — travelling with brother-in-law’. There is also a handwritten notation but there is no agreement as to when or by whom it was made on the document. It reads:

‘husband is in A/A — wife claims not to know his whereabouts’.

9 On 3 August 2000 the husband had been granted a temporary protection visa with a period of validity until 3 August 2003. At some time thereafter and before the arrival of the first prosecutor and the children on 1 January 2001, he had lodged an application for a permanent protection visa. In that application, he had named the first prosecutor and the children as his dependants.

10 It is apparent from the tenor of the Tribunal's reasons that either it did not notice the presence of either folio on the file or it did not appreciate their significance. This conclusion is not really disputed in the submissions for the prosecutors. The result is that both the first prosecutor and the Tribunal proceeded upon a false basis as to the whereabouts of the husband. As will later appear, that is significant for the present litigation in this Court.

11 It appears that, two days after the Tribunal gave its decision, the first prosecutor learned of her husband's situation. An application then was made for the exercise by the Minister of his powers under s 417 of the Act to substitute for the decision of the Tribunal a decision more favourable to the prosecutors. Detailed advice was tendered to the Minister. This included as an issue for consideration by him a current...