Where plaintiff suffered from mental health issues, was homeless and not fluent in English, was the delegate's decision unreasonable under Section 62 of the Migration Act, 1958 (Cth)?

Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 (21 April 2022)

Intro:-

The plaintiff seeks writs of certiorari and mandamus in relation to a decision of a delegate ("the delegate") of the defendant ("the Minister") to refuse to grant her a protection visa under the Migration Act 1958 (Cth), based on adverse credibility findings relying in part on her failure to provide further information supporting her claims. The plaintiff's application should be upheld on the ground that the delegate unreasonably exercised the discretion under s 62 of the Migration Act to refuse to grant her a visa without taking any further action to obtain additional information.

Facts:-

The plaintiff, a citizen of Turkey, entered Australia on a Student (Subclass 572) visa on 8 January 2015. On 24 March 2016, she lodged an application for a Protection (Subclass 866) visa. On 14 July 2016, she was notified that her application was invalid because she had failed to provide personal identifiers as required by s 46(2A) of the Migration Act. She had been asked to attend the Department of Immigration and Border Protection[1] ("the Department") to provide fingerprints, but she had misunderstood the request and had gone to a police station instead.

On 3 August 2016, the plaintiff made a valid application for a Protection (Subclass 866) visa, which was in substantially the same form as the invalid application. The application was prepared with the assistance of a translator, and the plaintiff indicated that she would need a translator if called to attend an interview.

In her protection visa application, the plaintiff claimed to be a lesbian and claimed that if she was returned to Turkey she would be killed or forced to marry a man, which she said would be worse than death.

Between August 2016 and April 2017, the plaintiff engaged in sporadic correspondence in broken but intelligible English with the Department about her application. The plaintiff did not hear anything about her application between April 2017 and August 2019. She states in an affidavit filed in support of her application in this Court that during this period her father died, her mental health declined, she became homeless, and she attempted to take her own life and was hospitalised.

On 19 August 2019, in response to a request for a criminal history check from a Senior Status Resolution Officer ("the Status Resolution Officer") at the Department, a Senior Border Force Officer sent an email to the Department stating that there was no record of charges or convictions but there was information indicating that the plaintiff had serious mental health issues. Subsequent emails show that, around this time, the plaintiff had been admitted to hospital under the Mental Health Act 2007 (NSW).

On 6 January 2020, an officer of the Department sent a letter to the plaintiff inviting her to attend an interview in Melbourne on 31 January 2020. Departmental emails from August 2019 show that the plaintiff was in New South Wales (in addition to being homeless and having no money). The plaintiff states in her affidavit that she does not recall receiving or reading the letter at the time.

On 14 February 2020, the plaintiff received two further letters by email from the delegate requesting further information. The first letter requested further information from the plaintiff pursuant to s 56 of the Migration Act ("the s 56 letter"). It stated that:

(1) the plaintiff's failure to attend the 31 January 2020 interview and her delay in lodging her application for a protection visa were relevant to an assessment of whether her claims for protection were genuine;

(2) the plaintiff's claims lacked "substantiating details such as dates and locations" and the delegate needed further information to be satisfied that her claims were genuine; and

(3) information indicating that the plaintiff had obtained a new Turkish passport and intended to return to Turkey "directly contradict[ed]" the plaintiff's claims that she could not return to Turkey because she feared she would lose her life.

The letter asked whether the plaintiff had any comments or further information to provide in relation to those matters. The inclusion of the third point in the letter is not insignificant. It means that the delegate must have reviewed the file and read the relevant correspondence and must therefore have been aware that the plaintiff was living in New South Wales, was homeless and had recently been admitted to hospital under the Mental Health Act.

The second letter invited the plaintiff under s 57 of the Migration Act to comment on the information indicating that she had obtained a new Turkish passport and intended to return to Turkey ("the s 57 letter"). The letter stated that the plaintiff's apparent willingness to return to Turkey could suggest that she did not genuinely fear that she would lose her life upon return.

On 17 February 2020, the plaintiff responded by email as follows:

"i am [name redacted] is waiting for my case, i havent go back turkey with getting passport, i am in sydeny without money and home, i have been reaaly bad situation to come back melbourne for case, no body listen to me even government, call me bla bla or whatever or ye ye ye, i am really suffering mentally and phscichly, i dont even have phone or money, i will have court in sydey for steal chochlate cause suffering financily, dowling court.. if i go back mine where am i now? people call me this and that... please help me"

In response, on the same day, the plaintiff received an email from the delegate stating that the Department was "prepared to re‑schedule [the 31 January 2020] interview to be held in Sydney in the week commencing 9 March 2020". The plaintiff was "encourage[d] ... to contact [her] previous case manager in Status Resolution should [she] require assistance". The Status Resolution Officer sent the plaintiff a separate email on 17 February 2020 stating that the plaintiff's application was continuing and the Department needed to interview her for the application to progress.

On 20 February 2020, the plaintiff responded to the delegate's email, stating:

"to protection visa assessment

i am on the street without money how can i make it to come melbourne, i really in bad situation, i came here for good life live my identity but here what i am living is like iam relegionous person from turkey, my life is worse then being death.." (emphasis added)

On 3 March 2020, the Status Resolution Officer wrote to the plaintiff stating:

"If you are continuing to experience difficulty, we may be able to provide some support for you.

Please contact me by email or phone so that we can discuss your current situation."

There was no response to this email.

Two weeks later, on 17 March 2020, the delegate refused to grant the plaintiff a protection visa. The plaintiff was notified of that decision by letter dated 18 March 2020.

Delegate's reasons

Under the heading "Findings of Fact", the delegate set out her reasons for finding that the plaintiff's claims were not credible. The delegate said that she had raised concerns about the plaintiff's failure to attend her scheduled interview in Melbourne and the plaintiff "did not engage with" the offer to schedule another interview in Sydney. The delegate said that she was not satisfied that the plaintiff's response to her concern about the plaintiff's failure to attend her scheduled interview in Melbourne constituted "a reasonable explanation for her failure to attend". The delegate said that the plaintiff's failure to "engage" with the offer to reschedule the interview was a "further reason for concern about the credibility of [the plaintiff's] protection visa claims".

The delegate recorded that:

(1) the plaintiff's failure to respond to the delegate's concerns about the plaintiff's delay in applying for a protection visa "raise[d] further concerns that the [plaintiff's] claims [might] not be credible";

(2) "[t]he [plaintiff's] failure to respond to [the delegate's] concerns regarding the lack of detail in her protection claims ... suggest[ed] that the [plaintiff's] situation [was] not as described in her protection visa application";

(3) "[a]s flagged with the [plaintiff] ..., the [plaintiff's] statement of claims lack[ed] substantiating details", "no further details or supporting documents were provided" and "[t]his raise[d] concerns that her claims [were] not credible"; and

(4) the plaintiff "did not respond to [the delegate's] concern ... about the fact that [the plaintiff] had obtained a new Turkish passport" and "[t]his raise[d] concerns that the [plaintiff's] claims for protection [might] not be genuine".

The delegate said that because she had "not been able to interview" the plaintiff and having considered the information before her (including the plaintiff's limited responses to her requests for further information), she could not be satisfied that the plaintiff's claims were credible and she rejected them "in their entirety". The delegate concluded that she did not accept as credible the plaintiff's "claims that she is a lesbian" and did not accept the plaintiff's "claim that she was subjected to past harm in Lebanon [sic] by the authorities or her family members because she is a lesbian". The reference to Lebanon was obviously an error.

Issues:-

(a) Ground 1: in rejecting the plaintiff's claims to be a lesbian and to have suffered past harm in Turkey, did the delegate reasoned illogically, irrationally or unreasonably?

(b) Ground 2: whether the delegate acted unreasonably in exercising their discretion under s 62 of the Act to refuse to grant the visa without taking any further action to obtain additional information from the Plaintiff which had been sought under Section 56 of the Act,and/or the Plaintiff's views on information which had been sought under Section 57 of the Act?

Ground 2 – unreasonable exercise of s 62 discretion

The logical starting point is ground 2, which concerns the delegate's decision to exercise the discretion under s 62 of the Migration Act to refuse to grant the plaintiff a protection visa without taking any further action to obtain additional information from the plaintiff.

Section 62 of the Migration Act, headed "Failure to receive information does not require action", provides:

"(1) If an applicant for a visa:

(a) is invited to give additional information; and

(b) does not give the information before the time for giving it has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information.

(2) If an applicant for a visa:

(a) is invited to comment on information; and

(b) does not give the comments before the time for giving them has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant's views on the information." (emphasis added)

It may be accepted that the Migration Act does not impose an obligation on a decision-maker to give reasons for exercising the discretion conferred by s 62. Nonetheless, it was common ground that the power must be exercised reasonably.

The principles are well established and may be stated shortly. "Parliament is taken to intend that a statutory power will be exercised reasonably by a decision‑maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker" (emphasis in original). That conclusion will be open where a decision is "so unreasonable that no reasonable person could have arrived at it", although it is by no means limited to such a case. It is concerned with both outcome and process.

In the present case, the critical point is that it was apparent on the face of the email sent by the plaintiff on 20 February 2020 that she did not realise that the Department was offering her an interview in Sydney. Her response to the email offering to reschedule the interview in Sydney was: "i am on the street without money how can i make it to come melbourne, i really in bad situation" (emphasis added).

This also has to be seen in the context of other information on the plaintiff's file which was in evidence before this Court, including the plaintiff's email sent three days earlier, in which she said, among other things: "i am in sydeny without money and home, i have been reaaly bad situation to come back melbourne for case, no body listen to me even government, call me bla bla or whatever or ye ye ye, i am really suffering mentally and phscichly". The Minister submitted that this was "a rational response written in English". That submission cannot be accepted. The information before the delegate indicated that the plaintiff was homeless, had no money, struggled to communicate in English and had been experiencing serious mental health issues requiring hospitalisation.

No one from the Department attempted to correct the plaintiff's misunderstanding as to the location of the interview she was being offered. It is not necessary to decide whether, given the plaintiff's circumstances, someone should have attempted to correct the plaintiff's misunderstanding in Turkish because no attempt was made in English. The email sent on 3 March 2020 stating that the Department might be able to provide support if the plaintiff "continued to experience difficulty" and inviting the plaintiff to contact the Status Resolution Officer did not ameliorate the situation. The plaintiff obviously was experiencing difficulty, and the offer of support did not attempt to inform the plaintiff that she had misunderstood that she was being offered an interview in Sydney. That was the critical issue that needed to be addressed.

The Minister submits that it was not unreasonable for the delegate to exercise the discretion conferred by s 62 because "the plaintiff [was] given multiple opportunities to respond to the delegate's request for information and [did] not respond[] substantively" (emphasis added). The Minister also drew attention to the difficulty the Department had experienced in contacting the plaintiff in the seven months or so leading up to the delegate's decision.

To say that the plaintiff did not respond substantively is to ignore what the plaintiff did communicate, namely, that she was in desperate circumstances and could not go to Melbourne. No reasonable decision-maker could have ignored the plaintiff's misunderstanding, particularly having regard to her circumstances, and proceeded to refuse to grant a visa for reasons that depended on the plaintiff's failure to provide further information and to attend an interview.

It must be accepted that, if a visa applicant is unresponsive, there may come a point in time where it is reasonable for a decision‑maker to exercise the discretion under s 62 of the Migration Act and make a decision to refuse to grant a visa. But no reasonable decision-maker could have decided that that point had been reached when the plaintiff had obviously misunderstood what was being offered to her and no one attempted to correct her misunderstanding.

The Minister's reliance on s 51A of the Migration Act, which provides that Subdiv AB of Div 3 of Pt 2 (which contains s 58, among other provisions) is taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with", is misplaced. The complaint which has been upheld is of unreasonableness, not denial of natural justice.

Given that the plaintiff's application must be upheld on the basis of ground 2, it is strictly unnecessary to consider the remaining grounds. It is appropriate, however, to say something about each ground.

Ground 1 – unreasonable finding that claims for protection were not credible

By ground 1, the plaintiff contends that in rejecting her claims to be a lesbian and to have suffered past harm in Turkey, the delegate reasoned illogically, irrationally or unreasonably. The parties' submissions on this ground raise three issues. First, can the formation of a state of satisfaction be impugned on the basis that the process of reasoning engaged in was unreasonable? Second, did the delegate in fact rely entirely, or substantially, on the plaintiff's failure to provide substantive responses and to attend an interview in reaching her credibility findings? Third, assuming the answer to the first two questions is "yes", was it unreasonable for the delegate to rely on the plaintiff's failure to provide substantive responses and to attend an interview?

The first issue arises because of the terms of s 65 of the Migration Act, which provides that the Minister (or her delegate) is to grant a visa if satisfied that, relevantly, the criteria prescribed for the visa are satisfied and is to refuse to grant the visa if not so satisfied. The delegate refused to grant the plaintiff a protection visa because she was not satisfied that the plaintiff met the relevant criteria.

Drawing on the reasons of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS, the Minister submits that the proper test for whether the formation of a state of satisfaction is unreasonable is whether the state of satisfaction reached "is one at which no rational or logical decision maker could arrive on the same evidence". In other words, the process by which the decision‑maker did in fact reach their state of satisfaction is said to be less relevant. In this respect, the Minister distinguished the test for unreasonableness in respect of "an exercise of a power".

The Minister's submissions are rejected. As stated above, unreasonableness is concerned with both outcome and process[9]. Whether what is being reviewed is an exercise of a power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said: "the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage"[10] and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) "if there is no logical connection between the evidence and the inferences or conclusions drawn". Leaving aside the supposed distinction between the exercise of a power and the formation of a state of satisfaction, it is not in dispute that adverse credibility findings are susceptible to jurisdictional error on the basis of unreasonableness.

The second issue raised is therefore to identify what inferences or conclusions were drawn by the delegate. That is, what is the proper construction of the delegate's reasons? The Minister submitted that the delegate did not rely solely on the plaintiff's failure to provide further information and to attend an interview; rather, the delegate relied on the underlying doubts she had about the plaintiff's claims compounded by the plaintiff's failure to provide further information and to attend an interview.

The difficulty with this argument is that even if the delegate also relied on her underlying doubts in finding that the plaintiff's claims were not credible, it is not, and could not be, suggested that the delegate did not also rely on the plaintiff's failure to provide further information and to attend an interview. And the Minister did not submit that if the delegate relied on the plaintiff's failure to provide further information and to attend an interview, and that was an error, the error was not material.

Whether or not the plaintiff's failure to provide further information and to attend an interview was the only matter relied on by the delegate, the delegate's reasons make it plain that those matters were the critical considerations. The first paragraph of the reasons under the heading "Findings of Fact" describes the plaintiff's failure to "engage with" the delegate's offer to schedule an interview in Sydney, which was said to be "further reason for concern about the credibility of her protection visa claims". The next three paragraphs each start by identifying the plaintiff's failure to respond to a particular concern raised by the delegate and finish with the conclusion that this "raise[d] concerns" about the credibility of the plaintiff's claims. The final paragraph states that given that the delegate was unable to interview the plaintiff and having considered the information before her (including the plaintiff's limited responses to her requests for further information), the delegate could not be satisfied that the plaintiff's protection claims were credible and, therefore, the delegate rejected the plaintiff's claims "in their entirety".

The third issue is whether it was unreasonable for the delegate to rely on the plaintiff's failure to provide further information and to attend an interview as supporting the conclusion that her claims were not credible. The short answer is that it was unreasonable. On the face of the emails sent by the plaintiff on 17 and 20 February 2020, the plaintiff: was homeless; was not fluent in English; was suffering from mental health problems ("i am really suffering mentally"); had no phone and no money; and did not understand that the delegate was offering to reschedule the interview in Sydney.

Yet, the delegate found that the plaintiff's claim to be a lesbian and her claim that she was subjected to harm in Turkey on that account were not credible because the plaintiff had:

(1) failed to respond properly to the delegate's concerns raised in the letters sent on 14 February 2020;

(2) failed to attend her scheduled interview in Melbourne or provide a "reasonable explanation" for why she did not attend; and

(3) failed to "engage" with the offer to reschedule the interview in Sydney.

No reasonable decision-maker could have reasoned in the way that the delegate reasoned. First, it is not correct that the plaintiff "did not engage" with the offer to reschedule the interview in Sydney. She did not understand that an interview in Sydney was being offered (as was plain on the face of the emails) and, as explained above, the delegate did not attempt to correct this misunderstanding.

Second, it was unreasonable for the delegate to find that the plaintiff had failed to provide "a reasonable explanation for her failure to attend" her scheduled interview in Melbourne. The delegate was aware of information indicating that the plaintiff was in Sydney, struggled to communicate in English, was homeless, had no money and was suffering from serious mental health issues.

The delegate's conclusion that the plaintiff's failure to "engage" with the offer to reschedule the interview was a "further reason for concern about the credibility of her protection visa claims" was a combination of the first and second errors. The delegate did not refer to the plaintiff's difficulties understanding and communicating in English, her mental health issues or homelessness. Nor did the delegate acknowledge the fact that the plaintiff misunderstood that she was being offered an interview in Sydney. As explained, all of those matters were evident on the face of the plaintiff's correspondence and other emails on the plaintiff's file.

The delegate proceeded on the false unstated premise that the only explanation for that failure to engage was that there was some doubt about the veracity of the plaintiff's claims. The adverse credibility findings that the delegate arrived at by this flawed process of reasoning were not reasonable.

Extension of time

The Minister resisted the grant of an extension of time, relying on the asserted weakness of the plaintiff's grounds, the plaintiff's failure to invoke her right of merits review and her failure to satisfactorily explain the delay.

An extension of time should be granted. The plaintiff's substantive application has merit. Her delay in making the application to this Court was also satisfactorily explained. When the plaintiff was able to seek merits review, she was suffering from acute mental illness and was restricted in her ability to access her email because public libraries were closed as a result of the pandemic lockdown[19]. None of those matters were challenged by the Minister. The delay is also explained in part by the difficulty of the Legal Aid Commission of New South Wales taking instructions (as a result of the plaintiff being in detention, not being fluent in English and suffering from mental health problems) and the pandemic. Finally, the Minister identifies no prejudice that would result from the grant of an extension of time.

Conclusion:-

A writ of certiorari should issue to quash the impugned decision. As "the duties of the Minister to consider and determine the application remain unfulfilled ... their performance is able to be compelled by a constitutional writ of mandamus", and such a writ should issue.

The orders of the Court are:

1. Pursuant to s 486A(2) of the Migration Act 1958 (Cth), the period within which an application may be made for a remedy to be granted in relation to the decision made by a delegate of the defendant on 17 March 2020, notified to the plaintiff on 18 March 2020, is extended to 8 November 2021.

2. Pursuant to r 4.02 of the High Court Rules 2004 (Cth), the time fixed by rr 25.02.1 and 25.02.2(b) be enlarged in respect of this application.

3. A writ of certiorari issue to quash the decision made by a delegate of the defendant on 17 March 2020, notified to the plaintiff on 18 March 2020, to refuse to grant the plaintiff a protection visa.

4. A writ of mandamus issue directed to the defendant requiring the defendant to determine the plaintiff's application for a protection visa according to law.

5. The application otherwise be dismissed.

6. The defendant pay the plaintiff's costs of and incidental to the application.

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