Plaintiff M64/2015 v Minister for Immigration and Border Protection: Refugee and Humanitarian Visas

In Plaintiff M64/2015 v Minister for Immigration and Border Protection (M64/2015) [2015] HCA 50 (17 December 2015), the High Court of Australia has unanimously held that a decision by a Delegate of the Minister for Immigration and Border Protection (the Minister) to refuse the grant of Refugee and Humanitarian (Class XB) (Subclass 202) visas (Subclass 202 visas) to the plaintiff's family was not affected by jurisdictional error.

Background

The plaintiff was born in Jaghori, Afghanistan in 1994 and he and his family had fled to Iran in 2003 following the disappearance of the plaintiff’s father. The plaintiff was arrested in Iran in 2010 as an undocumented immigrant and was deported back to Afghanistan. Subsequently, he fled Afghanistan and on 29 May 2010 he arrived in Australia, where he was granted a protection visa on 18 August 2011.

On 5 December 2011, his mother and three brothers, the plaintiff’s remaining family in Iran (the visa applicants), as members of the immediate family of the plaintiff, lodged an application for Subclass 202 visas. Because they were a "split family" the application was made on that basis, the visa applicants were not required to establish that they were subject to “. . . substantial discrimination amounting to a gross violation of human rights in their home country”. The application also attracted a concession under which it would have been treated as meeting the "compelling reasons" criterion in the Migration Regulations 1994 (Cth) (the Regulations) Schedule 2, clause 202.222 on the basis of the strength of the visa applicants' family connection with Australia.

After the visa application had been pending for more than two years, on 12 December 2013, the Minister made a decision to remove the prevailing concession for visa applications proposed by unaccompanied minors who held protection visas, and to adjust the policy in relation to "processing priorities" for visa applications in the Special Humanitarian Programme (the SHP).

The changes became effective on 22 March 2014 and on 16 September 2014, the Delegate refused the visa application on the grounds that the application did not satisfy sub-clause 202.222(2) of the Regulations.

Initial Proceedings

In the proceedings before the delegate it was accepted that the visa applicants:

• were subject to a significant degree of discrimination in their home country;
• had strong links to Australia; and
• that there was no other suitable country available for resettlement.

However, the delegate also found that:

•  ". . . Australia does not have the capacity to resettle all applicants who apply for a humanitarian visa at this time";
• " . . . the limited number of visas available and the high demand for them mean that only a small proportion of applicants can be successful"; and
•  " . . . As we can accept only a small number of applicants, the government has set priorities within the SHP. Only the highest priority applications will be successful because there are not enough visas available. Australia does not have the capacity to provide for permanent settlement of all close family proposed applicants at this time ".

Special Case Proceedings

The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking an order to quash the decision of the Delegate to refuse to grant the Subclass 202 visas and an order requiring the Minister to determine the application according to law.

By way of a Special Case referred to the Full Court (see [2015] HCATrans 210 (27 August 2015)) the plaintiff submitted that the Delegate made a jurisdictional error in connection with the application of the Government's administrative policy in relation to priorities within the SHP.

In particular, the plaintiff argued that the:

1. Delegate misconstrued clause 202.222(2)(d) of Schedule 2 to the Regulations;
2. Delegate took into account irrelevant considerations (namely, the number of "places" available in the SHP, or the "priorities" set by the Government within the SHP);
3. Government's policy in relation to "processing priorities" is inconsistent with the Migration Act 1958 and the Regulations; and
4. Government's policy in relation to "processing priorities" was rigidly or inflexibly applied by the Delegate.

In response, the Minister submitted that the central issue in this case was whether the legislative framework that governs Australia's offshore humanitarian program permits the Minister to promulgate policies for the purposes of guiding individual delegates as to the Minister's intentions concerning the overall size of the humanitarian program, and priorities within it.

For the Minister it was argued that there was nothing unlawful about the Minister making, and Delegates giving effect to, policies of that kind and that such policies are necessary in order to produce consistency in the implementation of the broadly expressed statutory criteria.

The questions reserved in the Special Case included:

• Did the delegate:
  
• 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;
• 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 of each of the visa applicants, or persons such as each of the visa applicants, having regard to their individual circumstances; or
• fail to construe clause 202.222(2)(d) as requiring him to assess whether or not there were compelling reasons for giving special consideration to grant 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?
•  If so, did the delegate thereby make a jurisdictional error?

The High Court’s Decision

The High Court held that, in refusing the plaintiff's application, the Delegate's decision was not affected by a jurisdictional error. The High Court held that cl 202.222(2) raises only one criterion for the grant of a visa, namely:

The capacity of the Australian community to provide for the permanent settlement of an applicant in Australia and the number of places in Australia's SHP are considerations that may inform the Minister's state of satisfaction.

The High Court also held that the departmental policy was not inconsistent with the Act or Regulations and that it had not been applied inflexibly.

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Plaintiff M64/2015 v Minister for Immigration and Border Protection (M64/2015) [2015] HCA 50 (17 December 2015) and related transcripts and summaries.