DCP16 v Minister for Immigration and Border Protection & Anor

[2020] HCATrans 41

[2020] HCATrans 041

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M80 of 2019

B e t w e e n -

DCP16

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 20 MARCH 2020, AT 11.05 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI, SC:   If the Court pleases, in this matter I appear with MR J.P.W. MALONEY for the applicant.  (instructed by abode migration lawyers)

MR G.A. HILL:   If the Court pleases, I appear for the Minister.  (instructed by Australian Government Solicitor)

GAGELER J:   Thank you.

MS DE FERRARI:   Your Honours, I hope to be brief.  There are two broad issues which we submit make this a suitable case for this Court’s intervention.  The first one is the approach by the court below to consideration of what claim was properly raised before the Authority and the delegate.  The court below also saw that as a question at paragraph 30.

GAGELER J:   Is that not ultimately a question of fact in any given case?

MS DE FERRARI:   Well, in a sense, yes, your Honour, what was raised by the appellant in this matter, but the reason why we say there is an issue of principle arises by how the court below looked at whether the claim in respect of fear for threats of violence and violence by extortionists against his wife were still being pressed at the time before the delegate and the Authority, and finding that they were not being pressed because the wife had by then put herself in safety. 

The question of principle really is whether that is an open approach to be taken when we say that the proper approach is really to look at what is likely to happen if the applicant goes back.  If the person goes back, would the wife still keep herself at a distance from him, so that she can still be safe, to be in safety.  So one might say, well, the claim was not pressed any more.  So ultimately there is a finding of fact but ‑ ‑ ‑

GAGELER J:   But the real question is what was he putting to the Authority, is it not?  What was his case before the Authority?  It might have been put in a different way and it appears that the Full Court accepted that it might have been put in a different way, but these findings that you are taking us to are findings of fact as to what the actual case was before the Authority.

MS DE FERRARI:   But they are findings of fact that are based on the fact that it is proper to see that the applicant’s wife is now at the present moment not in harm’s way because she has removed herself.  That is no more relevant – that is not a proper way to go, any more than it is appropriate to look at the fact that the person in Australia is not in harm’s way from the harm that the person would fear if they were returned to the country from which they fled.  That is the point, your Honour. 

It is a finding of fact, but the court arrived at that finding of fact by misconstruing the test they were meant to be applying, and that is, is there a real chance that in the reasonable future that the person would be exposed to harm.  So ultimately, yes, it is looked at how it was put, but it was interpreted in that way based on a wrong test.

GAGELER J:   Where do we see the indication of this wrong test?

MS DE FERRARI:   Yes, your Honour, if your Honour goes to the application book at page 60, at paragraph 45 the Full Court said:

And it is understandable why he was not making continuing –

and the court highlights that:

claims concerning the safety of his wife and his children.  After he had spoken to his wife . . . it would seem that she had moved back for . . . and disconnected her telephone.  There is no evidence or claim made concerning harassment or threats to the wife after this time –

Well, of course there are not, because she has put herself out of harm’s way.  But that is the same way that he has put himself out of harm’s way.  That paragraph carries on to paragraph 47:

By reason of the foregoing matters –

that is, having found that the claim was not made as a continuing one:

it is well understandable that neither the delegate nor the Authority expressly discussed separate and ongoing fears concerning the safety of the appellant’s wife.  Such fears were not the focus or substantial element of the appellant’s claims at the time –

But, your Honours, he made the claim as to what happened to him and his wife until they both put themselves out of harm, and the question is what would happen if he was sent back?  So that, we say, is where the wrong test was adopted.

Your Honours, the second issue before this Court is the court below’s consideration of the reasonableness of the finding of bail.  Your Honours would know, as was said in the submissions, there are inconsistent authorities on this point.  This case and ABA15 – in fact, since this application was filed there have been a number of other cases as well.  So there is a body of inconsistent authorities. 

Now, it seems to us that the Full Court here started with an approach that the Authority was not required to engage in what it called the “triply contingent hypothetical”.  That is at application book 70, paragraph 98.  Your Honours will see it starts with that sentence:

the Authority was dealing with a triply contingent hypothetical.

Then it progresses from that to paragraph 100 on the next page:

to find that ABA15 was distinguishable.

But in respect of distinguishing ABA15, the court then also says in the last part of that paragraph:

if there is evidence that a person has family in the country of return, a decision‑maker may permissibly reason that a family member may be prepared to act as guarantor (if that is required), unless the person puts forward reasons why the family member cannot or will not do so.  But to so reason may first require the decision maker has put the person on notice as to the guarantee question.

The Minister accepts that the applicant was not here put on notice, so that fits into how the Authority can or must proceed if it is intending to determine a matter on something that was simply not raised in the decision below, and that is the question of guarantor.  The Minister, as I understand it, says, well, the onus effectively shifted on the applicant because to say well, there is no person there that would act as a guarantor for me – the onus shifted on the applicant, the Minister appears to say, because the delegate had put in, we say, a very rolled‑up manner to the applicant the existence of the Immigrants Act law in Sri Lanka, and your Honours will see at court book 151 how the delegate put it in that very rolled‑up manner to the applicant who was there unrepresented.

Now, there is nothing there about guarantors – may be required, will be required – nothing at all.  So we say it is erroneous to suggest that there is an onus shifting on the applicant to somehow put submissions to the Authority to say – do not find that a guarantor will be required or may be required but that can be satisfied because I will not have someone who is able to be that person.

GAGELER J:   You said that there are inconsistent authorities.  How would you describe the inconsistency in point of principle?

MS DE FERRARI:   The inconsistency depends on whether the Authority’s decision is as pressed on the basis of a guarantor may be required, or whether the reasons of the Authority are expressed on the basis that a guarantor will be required.  So it seems to be that the authorities depart simply in terms of the way in which the language is used by the Authority. 

The point is simply that if there is this issue of guarantor, that is, the triply contingent hypothetical, then it has to be raised properly for a person to be able to address it, and if it is not done at the delegate level, then it has to be done by the Authority.  It is not appropriate, we say, for the courts to take different approaches by focusing on the slight variation of language of the Authority when as a matter of fact the issue is never put to the applicant, in any event.  That is the way in which the courts are departing, your Honour.

GAGELER J:   All right.

MS DE FERRARI:  Unless there is anything further, your Honours.

GAGELER J:   Mr Hill, we do not need to hear from you.

We are not persuaded that there are sufficient prospects of success to warrant the grant of special leave to appeal.  Special leave is refused with costs.

Is there something to be said about costs?

MS DE FERRARI:   Yes.  Will your Honour hear me on the question of costs?

GAGELER J:   Of course.

MS DE FERRARI:   Your Honour, this matter comes before the Court by reason of a pro bono referral by the Court.  We respectfully submit in those circumstances there should be no order as to costs.

GAGELER J:   Thank you.  Mr Hill?

MR HILL:   Your Honours, I submit that that factor is not a reason to depart from the usual position as to costs.

GAGELER J:   We disagree with you, Mr Hill.  That is a sufficient reason to depart from the usual approach to costs.

MR HILL:   If the Court pleases.

GAGELER J:   The application will be dismissed with no order as to costs.

The Court will now adjourn to 10.00 am on Wednesday, 15 April at a location to be fixed.

AT 11.17 AM THE MATTER WAS CONCLUDED