It’s not controversial that if Applicants are unresponsive to the Minister’s requests for information a delegate can exercise the discretion (under s62 Migration Act) to refuse the visa. The recent single judge (Gordon J) High Court decision of Plaintiff S183 v Minister [2022] HCA 15 demonstrates that the discretion has to be exercised reasonably.
Plaintiff S183 was a Turkish lady who feared persecution because of her sexuality. She had engaged in scattered correspondence with the Department in broken but intelligible English. By August 2019 the plaintiff was homeless and eventually hospitalised due to her declining mental state. In January 2020 she was invited to an interview in Melbourne (even though she lived in Sydney). She told the Department that she had no money and couldn’t travel to Melbourne. The interview was re-scheduled in Sydney and the Applicant didn’t attend (and the visa was refused).
Gordon J noted the following:
[32] … 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. …
[33] 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.
[34] No one from the Department attempted to correct the plaintiff’s misunderstanding as to the location of the interview she was being offered….
[35] 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.
As a result her Honour granted an (18 month) extension of time and proceeded to quash the delegates decision.
Creative commons acknowledgment for the photograph.
