Plaintiff M174/2016 v Minister for Immigration and Border Protection

The High Court has decided a special case on ‘fast track reviewable’ refugee visa decisions in Pt 7AA of the Migration Act 1958 (Cth) and the operation of s 57(2). Section 57(2) provides that, in considering a visa application, the Minister must give particulars of ‘relevant information’ to the applicant in a way that the Minister considers is appropriate in the circumstances; ensure, as far as is reasonably practicable, that the applicant understands why that information is relevant; and invite the applicant to comment on it. Pt 7AA provides the structure for fast track review, which requires that ‘fast track reviewable’ decisions by the Minister be automatically reviewed by the Immigration Assessment Authority to affirm the decision or remit it for further consideration.

The plaintiff, an Iranian citizen, applied for a temporary protection visa on the basis that he was a Christian and would face a real chance of harm if returned to Iran, and became a ‘fast track applicant’ (see at [54]). In support of this application, he stated that he regularly attended a Melbourne church, and submitted a letter of support from the Reverend of that church (at [55]). With the plaintiff’s consent, the Minister’s delegate contacted the Reverend, who mentioned that he attended the church only irregularly: the delegate did not share the file note mentioning this response with the plaintiff or invite any comment on the regularity of his attendance (at [57]). The delegate’s refused to grant a temporary protection on the basis that he had not genuinely converted to Christianity and would not face persecution on return to Iran, based partly on Reverend’s information about church attendance (see [59]ff).

On review, the Authority considered the Reverend’s information and affirmed the delegate’s decision, though it rejected the delegate’s conclusion that the plaintiff had attended the church solely to strengthen his refugee claim, and instead found that he attended church because he enjoyed social contact, not because of any real commitment to Christianity (at [63]). In coming to that conclusion, the Authority did not interview the plaintiff or his ‘supporters’ Continue reading

Alley v Gillespie

The High Court has answered questions in a stated case brought by a common informer challenge to the capacity of a member of the House of Representatives elected at the July 2016 federal election. Section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) provides that any person who has sat in Parliament ‘while he or she was a person declared by the Constitution to be incapable of so sitting’ is liable to pay ‘any person who sues for it in the High Court’ a sum of money. The defendant was declared elected as a member of the House of Representatives on 20 July 2016. On 7 July 2017, the plaintiff commenced proceedings under the Common Informers Act, contending that the defendant was incapable of sitting as an MP because he holds shares in a company that leased premises to Australia Post, contrary to s 44(v) of the Constitution. After a query about whether the High Court has jurisdiction to decide the anterior question of the defendant’s eligibility to sit as an MP, Bell J formulated the questions for the Full Court as follows:

(1) Can and should the High Court decide [in this proceeding] whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the [Common Informers Act]?

(2) If the answer to question (1) is yes, is it the policy of the law that the High Court should not issue subpoenas in this proceeding directed to a forensic purpose of assisting the plaintiff in his attempt to demonstrate that the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers Act?

The Court unanimously answered Question 1 ‘no’, and consequently it was not necessary to answer Question 2.

The joint judges (Kiefel CJ, Bell, Keane and Edelman JJ) held that whether the defendant is incapable of sitting as an MP is a question to be determined by the House of Representatives, unless it resolves to refer the matter to the Court of Disputed Returns. This answer to Question 1 is determined by ss 46 and 47, and their relation to s 44, of the Constitution. Section 46 Continue reading

BRF038 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on when discrimination amounts to persecution and procedural fairness guarantees under Nauruan refugee law. The appellant, a Sunni Muslim, fled Somalia in 2006, then stayed in Yemen, and finally arrived by boat at Christmas Island in September 2013. Australian authorities transferred him to the Republic of Nauru, where he sought refugee status. During his processing, he claimed that he fled Somalia due to war, trouble, hunger and starvation, and later fled Yemen due to racism and a lack of security (see details at [10]–[15]). The Nauruan Secretary refused his application for refugee status on the basis of scepticism about parts of his account (see [16]), and the Nauruan Refugee Status Review Tribunal and Nauruan Supreme Court both upheld that determination. On appeal to the High Court, the appellant contended that the Tribunal failed to accord him procedural fairness in reviewing the Secretary’s determination.

The Court (Keane, Nettle and Edelman JJ) allowed the appeal, ordering that the Tribunal’s decision be quashed and the matter remitted Continue reading

Pickering v The Queen

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on whether part of a general defence of compulsion is available for the crime of manslaughter under Queensland’s criminal code. During a fight with his best friend, Pickering produced a knife and warned the deceased to stay away from him. The deceased charged at him and during the scuffle Pickering’s knife stabbed and killed the deceased. A jury acquitted him of murder, but convicted him of manslaughter. The QCA rejected Pickering’s arguments that the trial judge should have directed the jury on the general defence of reasonably resisting violent threats (known as ‘compulsion’) in s 31(1)(c) of the Criminal Code 1899 (Qld), and not just the narrower defence of self-defence in s 271. Section 31 provides that a person is not criminally responsible for an act or omission when it is reasonably necessary to resist actual and unlawful violence threatened to that person, though the protection does not extend to actions which would constitute murder Continue reading