Tangilanu v Brown [2016] HCATrans 273 (15 November 2016)

Last Updated: 17 November 2016

[2016] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M92 of 2016

B e t w e e n -

ALUNGAMONU TANGILANU

Plaintiff

and

ANDREW BROWN DELEGATE FOR THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 15 NOVEMBER 2016, AT 11.27 AM

Copyright in the High Court of Australia

MS A. TANGILANU appeared in person.

MR C.E.A. HIBBARD: Your Honour, I appear for the defendant. (instructed by Clayton Utz Lawyers)

HIS HONOUR: Subsequent to the hearing on the last occasion, there was received in the Registry an email, apparently from Ms Tangilanu (“the plaintiff”),dated 2 November 2016, asking for another extension of time in accordance with r 4.02 of the High Court Rules 2004 (Cth) and s 486A(2) of the Migration Act 1958 (Cth) (“the Act”). For the reasons which follow that application is unnecessary and is rejected.

By application for an order to show cause filed on 5 July 2016, the plaintiff, who is self-represented, seeks “[t]o review and correct the denial of my application [for] visa subclass 461, New Zealand Family Relationship dated 22 January 2015”. The defendant (“the Minister”) accepts that the application may be treated as one for certiorari to quash the delegate’s decision of 22 January 2015 on the ground that the delegate failed to afford the plaintiff procedural fairness.

The application was not filed until more than 17 months after the expiration of the time limited by s 486A of the Act and approximately 12 months outside the time limited by r 25.06.1 of the High Court Rules. Consequently, the plaintiff requires an extension of time. The Minister, however, opposes an extension. Although counsel for the Minister fairly conceded that the plaintiff may be taken to have provided an adequate explanation for the delay - inasmuch as she has at all times been self-represented and engaged in pursuing every other available avenue of review and appeal - the Minister contends that it would be futile to extend the time because it is plain that the application for an order to show cause is bound to fail.

The plaintiff is a citizen of Tonga and the holder of a Permanent Resident visa in New Zealand. For the last 23 years she has been married to a New Zealand citizen who is the holder of an Australian Subclass 444 (Special Category) visa. The couple have three children, two of whom are of school age and still in their parents’ care, and a third who is hoping to come to join the plaintiff and her husband in Australia.

The family live in a south-eastern suburb of Melbourne in rented accommodation and the two younger children attend a local school where they are said to be doing well. The plaintiff’s husband is in full-time work and thus is able to provide for the plaintiff and the children. The plaintiff is devoted to home duties and her responsibilities as a mother.

The plaintiff arrived in Australia with her husband on 17 July 2014 on an 8503 visa marked “No further stay”. Thereafter, in order to allow the plaintiff to apply for a subclass 461 visa, the Minister waived the no-stay condition. The plaintiff lodged the application for visa on 24 November 2014.

Under reg 2.03 of the Migration Regulations 1994 (Cth) (“the Regulations”), the criteria for the issue of a subclass 461 visa are as prescribed in cl 461 of Sched 2 to the Regulations. Insofar as is relevant for present purposes, they are as follows:

“461.21 - Criteria to be satisfied at time of application.

461.211 - The applicant is not a New Zealand citizen.

461.212 -

(1) The applicant meets the requirements of subclause (2) . . .

(2) An applicant meets the requirements of this subclause if the applicant is a member of the family unit of:

(a) a person who is in Australia as the holder of a Subclass 444 (Special Category) visa; or

(b) a person who:

(i) is outside Australia; and

(ii) will be accompanying the applicant to Australia; and

(iii) will, on entry, be the holder of a special category visa.

. . .

461.22 - Criteria to be satisfied at time of decision

461.221 - The applicant continues to satisfy the criterion in subclause 461.212(1) . . .

Evidently unaware of the precise meaning of those requirements, shortly before 24 November 2014, the plaintiff’s husband returned to New Zealand for a brief stay to attend to family business. Consequently, when on 24 November 2014 the plaintiff lodged her application for visa, her husband was not a person who was in Australia within the meaning of sub-cl 416.212(2)(a). Nor was he a person within the meaning of sub-cl 416.212(2)(b) because he was outside Australia and he would not be accompanying the plaintiff to Australia. Thus, at the time of the application, the plaintiff did not meet the requirements of sub-cl 461.212(2).

Conscious of the difficulty which that created, on 28 November 2014, the delegate wrote to the plaintiff as follows:

“At the time you made your application the person who is in Australia as the holder of the Subclass 444 (Special Category) visa was not in Australia.

Department records indicate that Mosese Matangi Tangilanu departed Australia on 14/11/2014 and was no longer the holder of a Subclass 444 (Special Category) visa because the visa ceased on their departure from Australia.

As you do not meet the requirements of this visa, you may wish to withdraw your application.”

It is apparent, however, that the plaintiff did not understand the meaning of the letter. According to her evidence, which is not contradicted, if she had properly understood the letter she would have withdrawn her application and submitted a fresh application after her husband returned to Australia. Instead, based upon her imperfect and consequently erroneous comprehension of the letter, she replied by email dated 17 December 2014 as follows:

“We just got checked and open your email now and know what is going on . . . please can you proceed on with the application please. My husband Mosese is back with us and living on as before . . . Mosese is supporting me in this application . . . Mosese has to travel urgently to New Zealand to sort out the tenants living in our house property and now is back and everything before is no change.” (ellipses in original)

Thereafter there was no further correspondence between the delegate and the plaintiff until 22 January 2015 when, without further notice, the delegate decided to refuse the application on the basis that, because the plaintiff’s husband was not in Australia at the date of the plaintiff’s application, the plaintiff did not meet the requirements of sub-cl 461.212(2).

On 18 March 2015, the plaintiff applied to the Migration Review Tribunal (now the Administrative Appeals Tribunal) for review of the delegate’s decision. The application was, however, out of time and thus, on 16 April 2015, the Tribunal determined (as it was bound to do) that it had no jurisdiction to deal with the matter.

On 23 June 2015, the plaintiff applied to the Federal Circuit Court of Australia for judicial review of the delegate’s decision. But on 21 March 2016, Judge Jones dismissed the application (as his Honour was bound to do) because the Federal Circuit Court had no jurisdiction to review the delegate’s decision.

On 21 April 2016, the plaintiff sought an extension of time in which to appeal to the Federal Court of Australia but, on 6 May 2016, North J dismissed the application as futile, which it was.

Now the matter comes here. The essence of the plaintiff’s complaint is that the delegate denied her natural justice:

(a) by failing to make sufficiently clear in his letter of 28 November 2014 that, because the plaintiff’s husband was not in Australia at the time of making the application, the plaintiff did not meet the requirements of sub-cl 461.212(2);

(b) by failing to make sufficiently clear that the problem could be overcome by her withdrawing her application and submitting a fresh application as soon as her husband returned to Australia; and

(c) when the plaintiff responded by email to the letter of 28 November 2014 in terms which ex facie conveyed that she did not understand the significance of the letter, by failing further to clarify the delegate’s advice in a manner which would have enabled the plaintiff to understand its significance and so take appropriate action before the delegate refused the application.

As at present advised, it appears to me that those contentions are reasonably arguable. Subdivision AB of Div 3 of Pt 2 of the Act is a legislative statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. Included in that statement, s 57 provides in part:

1. that the Minister must give to an applicant for visa information that the Minister considers would be the reason or part of the reason for refusing to grant a visa (“relevant information”);
   
2. that the Minister must ensure as far as is reasonably practicable that the applicant understands why the information is relevant to consideration of the application; and
   
3. that the Minister must invite the applicant to comment on the information.
   

In this case, information that the plaintiff’s husband was not in Australia at the time of making the application was relevant information. Consequently, it was incumbent on the delegate (a) to give the plaintiff particulars of that information; (b) to ensure as far as was reasonably practicable that the plaintiff understood why it was relevant to consideration of the application; and (c) to invite the plaintiff to comment on it. In my view, it is reasonably arguable that the delegate did not sufficiently comply with those obligations.

Granted, the letter of 28 November 2014 identified the fact that: “at the time you made your application the person who is in Australia as the holder of the Subclass 444 (Special Category) visa was not in Australia.” Arguably that was sufficient to comply with the obligation imposed by s 57(2)(a). But was it enough to comply with the obligation imposed by s 57(2)(b)? Can it really be said that the letter was drafted in terms which ensured, so far as was reasonably practicable, that the plaintiff understood why the fact that her husband was not in Australia at the time she made her application was relevant information? Perhaps it can. But the letter nowhere expressly states that it was a requirement of the grant of the visa that was sought that the plaintiff’s husband needed to have been in Australia at the time the plaintiff made her application. The letter states that: “An applicant meets the requirements of this visa if the applicant is a member of the family unit of a person who is in Australia as the holder of a Subclass 444 (Special Category) visa”. (emphasis added)

I do not overlook that the letter also states: “At the time you made your application the person who was in Australia as the holder of the Subclass 444 (Special Category) visa was not in Australia”. It may be that the majority of lawyers would infer from that paragraph that it was a condition of the grant of the visa which was sought that the plaintiff’s husband needed to have been in Australia at the time of making the application. But it hardly leaps out from the letter that “the time you made your application” was when the plaintiff lodged it, and, in any event, the plaintiff was not a lawyer, as the delegate well knew from her application form.

The plaintiff had not previously been given any information about the need for her husband to be in Australia at the time of making the application. So far as the evidence goes, the only information which the plaintiff had been given was as set out in the application form as follows:

“The New Zealand Citizen Family Relationship (subclass 461) visa allows a person or persons who do not hold a New Zealand passport but are members of the family unit of a New Zealand citizen who holds or will hold upon entry to Australia a Special Category (subclass 444) visa (SCV) to travel to, enter, reside and work in Australia on a temporary basis.”

It does not strain language to construe that as meaning that if an applicant is the member of a family unit of a New Zealand citizen who holds a SCV, that is enough. Moreover it is apparent from the plaintiff’s email of 17 December 2014 that she did construe it in that fashion.

In those circumstances, the question arises why it did not then become incumbent on the delegate to take further steps to ensure, so far as was reasonably practicable, that the plaintiff correctly understood the intended effect of the letter. More specifically, why was it not reasonably practicable for the delegate to telephone the plaintiff and explain the situation to her in plain English or to send her a further letter, in terms which a layman would be more likely to understand, to the effect that:

1. It was a condition of the grant of the visa that the plaintiff’s husband needed to have been in Australia as at the date on which the plaintiff lodged the application;
   
2. Departmental records indicated that the plaintiff’s husband was not in Australia as at the date on which the plaintiff lodged the application, and
   
3. If so, the plaintiff would not satisfy the requirements of the grant of the visa and it would have to be refused?
   

Counsel for the Minister submitted that, even if that were so, the plaintiff lost no opportunity to advance her case and that there was no practical injustice. He invoked the recent decision of this Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901 at 914 – 915 at [82] in support of that submission. But, as at present advised, I think it to be at least reasonably arguable that the plaintiff did lose an opportunity to advance her case and that there was a practical injustice. The consequence of the rejection of the plaintiff’s application is that she cannot now apply for another visa for the next three years and, although it is within the discretion of the Minister to waive that stipulation, there is at present no reason to suppose that he is disposed to do so. Nor can the plaintiff remain in this country with her husband and children, notwithstanding that, over the last two years, they have quite lawfully established a worthwhile life here together. The result of the delegate deciding to refuse the application for visa has thus profoundly affected the plaintiff’s position.

So far as can be told from the evidence, and it was not suggested otherwise in argument, the plaintiff currently satisfies all of the requirements for the grant of the subclass 461 visa and, but for the very short period of time during which her husband returned to New Zealand to attend to family business, she has so satisfied the requirements at all relevant times since she arrived in this country. Accordingly, were it not for the fact that her application for visa has been refused, it appears likely that she would be granted such a visa forthwith. In those circumstances, it may readily be inferred that, if before the delegate made the decision to refuse the visa which was sought, the plaintiff had been made to understand that she could not qualify for a visa unless her husband was in Australia at the time of lodgement of the application, the plaintiff would have withdrawn the application and thereby brought about the result that the delegate did not decide to refuse the application. That would have left the plaintiff free to lodge a fresh application on the basis of her husband’s return to Australia. Hence, it is reasonably arguable that the delegate’s failure to comply sufficiently with the requirements of s 57(2)(b) has resulted in substantial practical injustice.

In the result I make the following orders:

1. The title of the proceeding shall be amended by substituting for the name of the defendant wherever it appears the name “The Minister for Immigration and Border Protection”.
   
2. The time for filing the plaintiff’s application to show cause is extended until 5 July 2016.
   
3. The defendant shall show cause before the Court on a date to be fixed why certiorari should not go to quash the decision of the defendant’s delegate dated 22 January 2015 to refuse the plaintiff’s application for a subclass 461 visa.
   

Ms Tangilanu, the result of that is that the further hearing of your application will be referred to a Full Court for hearing in Canberra some time probably in the first half of next year. In order that that may be done, it is in a practical sense necessary that you be represented by competent counsel. I do not suggest that you do not have the right to appear alone, but it is a matter which is going before a Full Court which involves consideration of difficult provisions of the relevant legislation and therefore is something in which, if I may say so respectfully, you require the assistance of counsel.

I appreciate that you do not have counsel, or necessarily the means to obtain access to counsel, but there may be arrangements which can be made in conjunction with the Registrar through contacts between the Court and counsel prepared to act on your behalf.

What I am proposing to do, therefore, is, as soon as we conclude this matter, which will be in a couple of moments, to ask you to wait either in here or outside so as to speak with the Registrar to see if such arrangements can be made, and then to adjourn the further hearing of this matter to another date before me in a week or two’s time to see whether counsel can be obtained and therefore what further directions should be made. Do you understand that?

MS TANGILANU: I understood your Honour means if I go to Canberra then I have to seek myself a lawyer. It will help my case.

HIS HONOUR: Practically speaking, yes.

MS TANGILANU: Yes, I will do that one, thank you very much. Yes.

HIS HONOUR: Could you wait by after this matter is finished to speak to the Registrar about the possibility of obtaining counsel.

MS TANGILANU: Thank you, your Honour.

HIS HONOUR: Thank you.

I shall further order that the further hearing of this matter be adjourned to a date to be fixed in consultation with the Registrar for further directions, and finally, that each party’s costs of the application today be reserved.

Is there anything further sought, Mr Hibbard?

MR HIBBARD: No, your Honour.

HIS HONOUR: Thank you very much.

AT 11.48 AM THE MATTER WAS ADJOURNED