JARK (representing a class as defined in Paragraph 1 of "Nature of the Claim" in the Writ of Summons) v Minister for Immigration and Border Protection and Anor; SAS v Minister for Immigration and Border Protection...
[2014] HCATrans 148
[2014] HCATrans 148
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S147 of 2014
B e t w e e n -
JARK (REPRESENTING A CLASS AS DEFINED IN PARAGRAPH 1 OF “NATURE OF THE CLAIM” IN THE WRIT OF SUMMONS)
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S148 of 2014
B e t w e e n -
SAS
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE BY VIDEO LINK TO SYDNEY
ON MONDAY, 7 JULY 2014, AT 5.00 PM
Copyright in the High Court of Australia
____________________
MR R. MERKEL, QC: May it please the Court, I appear with MR J. WILLIAMS and MR D.P. HUME for the plaintiffs in both matters. (instructed by Shine Lawyers)
MR A. MARKUS: May it please the Court, I appear for the defendants in both matters. (instructed by Australian Government Solicitor)
HER HONOUR: Mr Merkel, there is no court list, but the Court has been advised you have an urgent application to make?
MR MERKEL: Yes, your Honour. Can I at the outset express my gratitude to your Honour and apologise for the lateness of the application today. The situation, your Honour, concerns what I believe was 45 but now I think will be 48 named individuals who are Sri Lankan Tamils who were on a boat of approximately 150 Sri Lankan Tamils that left, I think India, but on the way to Australia. There is evidence from Ian Rintoul, who is a refugee advocate, that he was in telephone contact late in June over two or three days and it appeared that the boat was in some distress, and he notified the Australian authorities, and the navy then moved to assist the boat.
HER HONOUR: Do you know the name of the boat, Mr Merkel?
MR MERKEL: No, I do not, your Honour. What has happened then, your Honour, is that there has been basically a blanket of silence from the Australian Government concerning the boat other than it would appear that the individuals are all in the custody of Australian naval officers. It is proposed, from what we can gather from press reports and from the Minister’s silence and the Minister’s conduct, that they will be handed over to the Sri Lankan navy. It was out in the public domain ‑ initially an official denial of that, but the Sri Lankan Government seems to have accepted that it would accept the persons delivered to them by the Australian naval officers. What has happened, your Honour, is that ‑ ‑ ‑
HER HONOUR: Are you saying to me that unless there is some urgent relief granted today, that is the probability?
MR MERKEL: Yes, your Honour – not probability, we say it is imminent. There was an announcement today that some 40‑odd Sri Lankans were handed over to the navy. I am told – and I do not have details – that they may have been Sinhalese, but all the reports would suggest that handing over is inevitable unless there be some intervention by the Court in that process.
HER HONOUR: Now, does the affidavit material deal with that aspect of the matter, Mr Merkel? You will appreciate with the best will in the world I have not had time to read the affidavit material, so if there is anything particular you wish to rely on would you be good enough to point it out to me?
MR MERKEL: Your Honour ‑ ‑ ‑
HER HONOUR: I should record that the papers, it is my understanding, were filed at around 4.30 this afternoon.
MR MERKEL: Yes, your Honour. Your Honour, can I just explain the structure of the case ‑ ‑ ‑
HER HONOUR: Yes, certainly.
MR MERKEL: ‑ ‑ ‑so that I can fit the individuals concerned? We received instructions initially from what we believed to be 45 individual plaintiffs, but as a result of a late email ‑ ‑ ‑
HER HONOUR: Who is the “we”? Your instructing solicitor is Shine Lawyers?
MR MERKEL: Yes, Shine Lawyers through Ian Rintoul.
HER HONOUR: Yes, thank you.
MR MERKEL: When we gave him the scheduled list to the proposed proceeding which is in the affidavit that sets out 45 names of persons who were on the boat, it turned out that there were three that he was not aware of, and three that were missing that he was aware of. If the three that he was not aware of came from a different source, and that is from a Mr Pannekoek Aran Mylvanagam, who is President of the Tamil Refugee Council – so based on his additional instruction, I would believe there would be 48 separate writs of summonses by each individual ‑ ‑ ‑
HER HONOUR: It has just made me think, when you recorded his name on the transcript, should we be concerned to refer to the plaintiffs by their initials only, something of that sort?
MR MERKEL: Yes, your Honour. I have asked for none of the documents that contain names of the individuals to be made public, and we will get in due course from the Registry the letters that should be used to cover the 48 people.
HER HONOUR: Yes, but for the purposes of this urgent application tonight, may we just use initials?
MR MERKEL: Yes, your Honour. We have called them for ease of reference “the group of 45”, which now should be “the group of 48”.
HER HONOUR: Group of 48, yes.
MR MERKEL: Your Honour ‑ ‑ ‑
HER HONOUR: There is initiating process under the name of somebody whose initials are JARK. Do I have that right?
MR MERKEL: Yes, but there should be filed, by the time we start or finish in Sydney, in the Court the other 47 writs of summonses. I have not got instructions, but I can no doubt get instructions from Sydney when that is done.
HER HONOUR: So there will be individual writs for 48 people, including JARK?
MR MERKEL: Yes, your Honour.
HER HONOUR: We have that writ, and then there is another separate writ for a plaintiff whose initials are SAS?
MR MERKEL: Yes, your Honour. That is the representative proceeding, and your Honour will be aware that ‑ ‑ ‑
HER HONOUR: That is the individual proceeding, I think, Mr Merkel.
MR MERKEL: Sorry, your Honour. That is the second of the 48.
HER HONOUR: I see. Now I understand the structure, yes.
MR MERKEL: There is also a writ by JARK which he represents a class defined in paragraph 1 of the nature of claim.
HER HONOUR: Yes.
MR MERKEL: The class, your Honour, in paragraph 1 of the nature of the claim is representing each of the persons of Sri Lankan nationality and Tamil ethnicity who were on the same boat as the plaintiff, and who have not asked the Minister in writing to be removed to Sri Lanka. That is brought under Rule 21.09.1 of the High Court Rules, but is a proceeding that is prohibited by section 486B(4) of the Migration Act.
HER HONOUR: Yes.
MR MERKEL: Your Honour, I can only say that this Court, in a judgment I have not got before me, had noted in a footnote in one of the migration cases that the Court has not considered the constitutional validity of 486B(4) ‑ ‑ ‑
HER HONOUR: Subsection (4).
MR MERKEL: Subsection (4).
HER HONOUR: That is to be part of the proceedings, a challenge to the validity.
MR MERKEL: Correct, your Honour. We would say that is an open question, the extent to which the Court’s jurisdiction and discretion could be hindered or prevented from being exercised when it is in the interests of justice to do so. The representative proceeding would only be properly brought if the claim that 486B(4) is invalid succeeds. But it is true, that process that we bring the represented proceeding – but what the evidence shows, and I will take your Honour to what ‑ ‑ ‑
HER HONOUR: Well, there may ultimately be other ways of having the point tested, whatever ‑ ‑ ‑
MR MERKEL: The problem we have got, your Honour, is that communications were cut off totally on 30 June. Since then, there have been reports in the media and indirectly by implicitly through the Minister that the individuals will be handed over to the Sri Lankan navy, but also, they have been cut off from having any communication from anyone, so it would look like whatever phone contact they were able to achieve from the boat has now been prevented so no one can actually give any instructions concerning the litigation. We cannot get the names, and there is evidence that there are a large number of children involved on the boat. We cannot get any instructions concerning the individual names to actually bring any separate proceedings, so the representative proceeding, if and when we can get instructions, could be overtaken by individual proceedings which could then be consolidated ‑ ‑ ‑
HER HONOUR: That was the point I was raising with you, Mr Merkel.
MR MERKEL: Yes, but we have a hurdle at the moment because they are incommunicado.
HER HONOUR: Let me just get this right then. The writ of summons, which is the originating process issued at 4.30 under the name of a plaintiff with the initials JARK, is cast as a representative proceeding notwithstanding section 486B(4) of the Migration Act, and it is contemplated that there will be 47 other individual writs under individual names. Is that ‑ ‑ ‑
MR MERKEL: I think more accurately, probably 48, but I have got instructors in Sydney that can ‑ ‑ ‑
HER HONOUR: I am counting his as the first.
MR MERKEL: We have given him a separate one individually so he will not be caught by section 486B(4), so he would be one of the 48.
HER HONOUR: I see, and you have got a separate one for someone whose initials are SAH?
MR MERKEL: SAS.
HER HONOUR: SAS. But I can put that to one side for ‑ ‑ ‑
MR MERKEL: All the writs are in common form, save for the representative aspect, so SAS is identical to the other 47 individual claims.
HER HONOUR: Yes, very well.
MR MERKEL: Your Honour, the material on which we rely at this stage is an affidavit of Daniel John Webb. Could I hand up two copies of it, your Honour?
HER HONOUR: I must confess, I have not had any opportunity at all to read this, Mr Merkel.
MR MERKEL: No. Rather than delay the matter, your Honour, we have sought to bring it on as quickly as possible.
HER HONOUR: That is not a criticism or anything of that order. It is just a request for your assistance if there are particular aspects which are relevant to the urgent application.
MR MERKEL: Yes. Your Honour, the affidavit – Daniel Webb is from the Human Rights Law Centre, and they have been working specifically on the problems of refoulement to Sri Lanka. As a result of this particular episode – his affidavit, your Honour, is a short one. He is the Director of Legal Advocacy. He indicates in paragraph 3 he makes the affidavit of his “own knowledge”. At paragraph 4:
On 2 July 2014, the Human Rights Law Centre made a request for urgent action to the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. That request outlined the basis for our concerns that Sri Lankan asylum seekers returned to Sri Lanka would face a significant risk of serious harm –
I will come to the copy of the request, your Honour, in a moment because it sets out a lot of the relevant facts. Then he said ‑
In March 2014, the Human Rights Law Centre published a report –
on Sri Lanka asylum seekers, and it outlined –
the extent of Australia’s co‑operation with Sri Lanka to prevent asylum seekers from seeking protection in Australia. The report also outlines the human rights risks such co‑operation produces.
He then, your Honour, swears that the matters in those reports he believes to be “true and correct”. The report to the United Nations Rapporteur sets out that in relation to – does your Honour have that? That is exhibit 1, DJW1.
HER HONOUR: Yes, I have that.
MR MERKEL:
We write in relation to two groups of Sri Lankan asylum seekers, including at least 37 children, who were reportedly travelling to Australia to claim protection. Circumstantial evidence and logical inference suggest that these asylum seekers have been intercepted at sea by Australian officials and are being held incommunicado with a view to transferring them to the custody of Sri Lankan officials.
We are concerned that both groups will be returned to Sri Lanka without any opportunity to make a protection claim and in contravention of Australia’s non‑refoulement obligations –
Then “The first boat”, which is the boat I believe our clients are on, your Honour –
There are reports that a boat carrying 153 Tamil asylum seekers has been intercepted by Australian authorities and that those aboard are going to be handed over to the Sri Lankan military –
and there are media reports to that effect, your Honour –
The attached statement from Mr Ian Rintoul –
which I will take you to in a moment –
. . . outlines the information provided to him by asylum seekers on the boat. The asylum seekers had advised they were Tamils from Sri Lanka who were coming to Australia via the Indian state of Tamil Nadu.
Despite previous contact, the asylum seekers have not been heard from for three days. The Australian Government will not disclose the current whereabouts of the asylum seekers, whether they are in Australian custody and, if so, where they will be sent, citing its policy of not commenting on “on water matters” –
and there is again a reference to media reports to that effect –
The circumstantial evidence and logical inference strongly suggest that they are being held incommunicado by Australia, in violation of Article 9 of the International Covenant on Civil and Political Rights.
We are gravely concerned that these asylum seekers will be denied the opportunity to make a protection claim and will be returned to Sri Lanka in contravention of Australia’s non-refoulement obligations under the Refugee Convention, the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
“The second boat”, I do not need to trouble your Honour with. I do not believe that is the one we are concerned with, but it is the same situation –
the Australian Government refuses to confirm the whereabouts of the asylum seekers and will not disclose where it plans to send them.
There are reports that these asylum seekers have been subjected to a dramatically abbreviated ‘screening’ process involving a single, four‑question interview conducted on the high seas without any legal assistance.
Apparently, your Honour, that is Australia’s way, it is suggested from the reports, of discharging its obligations under the Convention - four questions, and the answer “it does not tick the correct box”, which may have to fall within the words of the Convention would mean they would be refouled –
Many of the asylum seekers facing return to Sri Lanka are likely to have valid protection claims. Historically, 90 percent of Sri Lankan boat arrivals to Australia have been found to be refugees. In 2012‑13, during which time the number of boat arrivals from Sri Lanka increased significantly, the Department of Immigration and Border Protection (DIBP) reported a 52 percent final grant rate of protection visas for Sri Lankans arriving by boat.
The Australian Government’s own data reveals that the majority of Sri Lankan asylum seekers arriving by boat are found to have genuinely fled the risk of persecution. Returning up to 200 Sri Lankan asylum seekers without any fair, thorough or accountable assessment of their claims creates a clear risk that Australia will be returning people to serious harm.
Your Honour, the situation in Sri Lanka is quite severe and dangerous, both on the reports that we have from this affidavit but also on the Australian Government’s own travel advisory reports, which I will hand up to your Honour and briefly refer you to. What the affidavit says –
While the human rights situation in Sri Lanka has improved since the end of the civil war in 2009, it is well documented and accepted that serious human rights violations – including arbitrary arrest, detention and even torture – remain widespread in the country, particularly against the Tamil minority.
Again, there are footnotes of well‑known and authoritative agencies that support each of these statements –
In November 2011, for example, the United Nations Committee against Torture expressed concern at the “widespread use of torture and other cruel, inhuman, or degrading treatment of suspects in police custody”. The Committee also highlighted “reports that suggest that torture and ill‑treatment perpetrated by State actors, both the military and the police, have continued in many parts of the country”.
Leading international organisation, Human Rights Watch (HRW), reports that asylum seekers returned to Sri Lanka are at particular risk of human rights violations. HRW has documented at least 13 cases in which people who unsuccessfully sought asylum in the United Kingdom were returned to Sri Lanka and endured serious human rights abuses, including torture and rape. Some said they were beaten with batons and burned with cigarettes. In many of the cases the reports were corroborated by medical evidence. This is consistent with a May 2010 report by the Edmund Rice Centre which claimed that asylum seekers returned to Sri Lanka from Australia were detained and assaulted by Sri Lankan police.
In May 2012, the US State Department County Report on Sri Lanka documented unlawful killings by “the government, its agents or its parliamentary allies”, together with the continuance of “enforced and involuntary disappearances” and “frequent” arbitrary arrests and detention. It noted that it is difficult to obtain “reliable statistics” on many human rights violations because “complainants were killed and some families feared reprisals if they filed complaints”.
The UNHCR advises that Sri Lankan people with certain profiles still require protection under the Refugee Convention. In particular, people with links or suspected links to the LTTE, opposition politicians, journalists, human rights activists, witnesses to abuses and LGBTI people may be or are likely to be in need of protection. Sri Lankans continue to be at risk of reprisal for any criticism of the Government.
After her visit to Sri Lanka in August 2013, the UN High Commissioner for Human Rights encouraged Australia to consider each Sri Lankan asylum case on its merits. However, the Australian Minister for Immigration and Border Protection, Scott Morrison, has been clear in his intention to return all Sri Lankans. At a press conference on 30 September 2013, the Minister said that Australia seeks “to ensure that people who may seek to come from Sri Lanka would be intercepted outside of our sea border and returned directly and all of them.”
Then there is a request for urgent action. Your Honour, the annexure to that is the statement of Mr Ian Rintoul, and he says:
I first had phone contact with a boat carrying 153 Tamil asylum seekers on the night of Thursday 26 June, 2014. I had a number of conversations with individuals on the boat between Thursday night and the morning of Saturday 28 June.
They stated that there were 153 people on board, including 37 children and 32 women. The youngest of the children was one year old. They also said that they were Sri Lankan Tamils and their boat had left from near the port of Pondicherry in India.
India is not a Convention country, your Honour –
They gave me their GPS coordinates and said that they were heading to Christmas Island. They said that they had left India on 13 June and that they were going to Christmas Island.
They stated that the engine was going and they were making slow progress, but they had an oil leak and asked if they could get help from the Australian navy or rescue authorities.
On the morning of Friday 27 June, I contacted the Australian Maritime Rescue Authority (AMSA) and informed them that there was an asylum boat that needed assistance.
The AMSA person I spoke to said they were aware of the boat and confirmed the GPS coordinates that I gave to him. The AMSA representative said they had been in direct contact with the boat and would schedule phone conversations with the boat at least twice a day. He also told me that AMSA had informed other relevant Australian government authorities.
On three occasions, I was given the GPS coordinates of the boat and on each conversation they were able to tell me approximately how far they were from Christmas Island.
On my last contact with the boat, on Saturday 28 June, at around 10.30am (AEST), I was told that they thought they had enough oil to keep the engine going for only another four or five hours. They said that they were 175 nautical miles from Christmas Island.
Now, as your Honour would be aware, in the normal course they would be taken to Christmas Island and sent to a regional processing country if not left in Australia. I will just continue reading and then say what inferences I would ask your Honour to draw from this material –
The person also stated that they had a phone call and had been told that an Australian navy vessel had been dispatched to meet them. They asked if I knew about this and asked when help from Australia would arrive.
I was unable to confirm that information at the time, but said I would try.
I also asked them to call if there was an emergency and the engine stopped. I told them I would call back in four or five hours to check on their progress.
I tried a number of times to call the boat after that, but I was unable to reach them.
Your Honour, given the material and the press statements, it seems highly likely that not having been taken to Christmas Island, not having been sent -or any indication they were sent to a regional processing centre, being at sea and the press reports plus the Minister’s statement last September that he proposed to intercept them on sea and send them back to Sri Lanka, the high probability, your Honour, is that they are currently in detention and it is proposed to hand them over to the Sri Lankan navy. Now, your Honour, exhibit 2, which I will not keep your Honour delayed upon, it is ‑ ‑ ‑
HER HONOUR: What is the link between them being on the boat and being in the custody of the Australian Navy?
MR MERKEL: Your Honour, when they are in the custody of the Australian Navy, they are in the custody of officers of the Commonwealth who are required to act in accordance with law and could not hand them over ‑ on the case that I will come to shortly ‑ could not hand them over without some specific legislative authority. At the moment, the structure of the Act ‑ ‑ ‑
HER HONOUR: I understand that point, Mr Merkel. I am just making an inquiry about the factual aspects. The boat was in difficulties, there was a report in relation to the difficulties.
MR MERKEL: Well, no, but the navy was ‑ ‑ ‑
HER HONOUR: I am just a bit unclear about what happened next.
MR MERKEL: Yes, your Honour, there was an incommunicado, the inference being that the – if the authorities are aware of the boat, if the boat sank or something catastrophic happened, then one would expect in the usual course that that would cease to be an on water operational matter. The Minister has refused to discuss or disclose what has happened but the implication – the irresistible inference is that the navy would have arrived, would have prevented any further communications because the people are held incommunicado. There is this on water process of asking four questions and then there is the Minister’s intent to return them to Sri Lanka.
HER HONOUR: Where is the evidence about the four questions?
MR MERKEL: That was in the Human Rights Law Resource Centre at ‑ ‑ ‑
HER HONOUR: Sorry, you did mention it. I just ‑ ‑ ‑
MR MERKEL: Yes. No, it is in that first exhibit, your Honour.
HER HONOUR: Yes.
MR MERKEL: Yes, it is in ‑ page 2 under “The second boat”. I should say ‑ ‑ ‑
HER HONOUR: Yes. You passed over that.
MR MERKEL: Yes:
There are reports that these asylum seekers have been subjected to a dramatically abbreviated ‘screening’ process involving a single, four‑question interview conducted on the high seas without any legal assistance.
I should say, your Honour, all of the press reports, which are the only information we can get apart from Mr Rintoul, seem to state unambiguously that the asylum seekers are being held by the navy and it is the intent of government to hand them over and that none of them have been denied – and Mr Morrison, of course, would be well equipped to say that these people will be brought to Australia to be sent for regional processing and dealt with in the manner required by the Migration Act.
HER HONOUR: Do you mean to convey that the Australian naval authorities are somehow in charge of this boat with 153 persons on board?
MR MERKEL: I think more likely, your Honour, they may have probably been taken into the custody of the Australian Navy on a boat rather than be left on a dangerous boat. Whatever else is said about border protection ‑ ‑ ‑
HER HONOUR: I was trying to get that part of the picture a little clearer.
MR MERKEL: Yes, sorry, your Honour. The one thing that is clear about the so‑called border protection policy is it is designed to stop people drowning ‑ ‑ ‑
HER HONOUR: Yes, of course.
MR MERKEL: ‑ ‑ ‑ on dangerous boats, which this obviously was becoming. So the inference is that they are in the custody of Australian naval officers under the direction of the Minister for Immigration on an Australian navy vessel and at imminent risk of being handed over by those officers to the Sri Lankan navy.
Your Honour, the second report is a report issued by the Human Rights Law Resource Centre, March 2014. It is a current report on the situation investigated by an officer of the centre and written up by the centre on the situation in Sri Lanka, and particularly, your Honour, at pages 38 through to 48 it deals specifically with risks of harm and detention for Sri Lankan Tamils in Sri Lanka and it basically makes it fairly clear – I would ask your Honour to basically quickly browse it, but it makes it clear that there is a serious risk, a real risk, which is the language of the Convention for both refugee protection and complementary protection under the Torture and ICCPR Convention.
There obviously is a real risk of people who wish to claim that protection of suffering significant harm or persecution if they return as asylum seekers under the protection of the so‑called protection of the Sri Lankan navy. There are 10 pages of it, your Honour, and it sets out the risks they suffer and at paragraph 7.2 at page 44 the “Failure to ensure adequate protection of returnees”.
Your Honour, the most compelling evidence which I will hand up to your Honour is the travel warnings given by the Australian Government about going to Sri Lanka. There are two documents I have handed up to your Honour. The first is the Department of Foreign Affairs and Trade travel advisory.
HER HONOUR: Should I mark that exhibit A, Mr Merkel?
MR MERKEL: Yes, if your Honour could. Thank you, your Honour.
EXHIBIT:Exhibit A…..Department of Foreign Affairs and Trade travel advisory
MR MERKEL: Your Honour, this is issued on 24 June 2014 and, again, I will not take you through the detail of it but it corroborates and reinforces what is set out in the Human Rights Law Resource Centre affidavit. Your Honour will see “Exercise a high degree of caution” and then to the fifth dot point:
We advise you to exercise a high degree of caution in Sri Lanka at this time because of the unpredictable security environment:
Security forces maintain a visible presence throughout the country. Military and police checkpoints are present along some roads and road closures can occur without warning.
Then it says –
In the Northern Province . . . which includes Mannar –
and a number of other Tamil districts, your Honour –
post‑conflict security force activity is ongoing.
It sets out in detail basically an advisory that says it is a dangerous place to be in. The other document which – if I could tender it as exhibit B,
your Honour, is the DFAT country information report for Sri Lanka as at 31 July 2013 which is to the same effect but can I just read your Honour two paragraphs at 2.26, which is about four pages in:
Although Sri Lanka is a party to all the major human rights conventions, the international community continues to express concerns about the failure to uphold basic freedoms, including freedom of association and freedom of expression. While less pronounced than during the civil conflict, there continue to be credible reports of instances of arrest and detention without charge, as well as reports of enforced disappearances and abductions, and intimidation and harassment of the media and members of civil society.
Then at 2.29, your Honour ‑ this was the Australian Government in its previous reincarnation:
Australia was one of 41 co‑sponsors of the resolution on Sri Lanka adopted by the UN Human Rights Council on 21 March 2013. At Sri Lanka’s 2012 Universal Periodic Review at the UN Human rights Council, Australia recommended that Sri Lanka:
.take action to reduce and eliminate all cases of abductions and disappearances;
.take action to reduce and eliminate all cases of abuse, torture or mistreatment by police and security forces; and
.take action to facilitate greater participation by citizens and civil society in helping to implement human rights action plans.
So that your Honour a combination of the material before you shows that for Sri Lankan Tamils who are asylum seekers who are returned there is a real risk of serious harm and persecution occurring.
Your Honour, there is also the affidavit of my instructor, George Newhouse. Does your Honour have that?
HER HONOUR: Yes, I do.
MR MERKEL: Your Honour, he says that he is:
the solicitor for the plaintiff in each proceeding including the representative proceeding.
I have been instructed in this matter by Ian Rintoul who is an Australian citizen and a refugee advocate. He has advised me that he has had numerous conversations with individuals on the boat between Thursday night 26 June 2014 and the morning of Saturday 28 June 2014 but has been unable to contact the boat since then. As a result of those conversations and of further conversations that he has had with family members related to persons on the boat, he has instructed me to issue the 45 writs and the representative proceeding in this matter on the basis that each of the named persons in the proceedings wishes the proceeding to be brought on behalf of that person. In relation to the representative proceeding, Ian Rintoul has advised me that there are numerous other persons, including children, on the boat who would also desire that the claims brought in these proceedings be brought on their behalf.
Ian Rintoul has also advised me that as a result of the conversations that he had with the individuals and the members of their families, they seek to make a claim for protection based on the circumstances provided for under s 36(2) and –
It should be 36(2A) –
of the Migration Act 1958 (Cth).
The media report concerning the persons on the boat indicate that each of the plaintiffs and representative persons are currently being detained by Australian Naval Officers and may be immediately refouled to Sri Lankan Navy Officers. If that occurs, the relief sought in these proceedings would be rendered nugatory.
Then he produces annexure A which is a copy of the schedule known as “The Group of 45 Detainees”. Your Honour, I believe when I left chambers there was a short further affidavit which was to exhibit a letter from Mr Rintoul saying he had looked at the schedule. Three names that he wanted to be on it were missing and three names he was not aware of were on it and it turned out that the gentleman who was the president of the Tamil Refugee Council had got instructions from family members or had spoken to the other three names which takes the 45 to 48.
Your Honour, that is the evidentiary material that we have been able to file to date. We, of course, will be seeking on the return of the application, your Honour, to actually exhibit the press reports and we would then expect to hear from the Australian Government. I should also indicate that at about 4.30 I am instructed Mr Newhouse had telephoned a representative of the Australian Government Solicitor in Sydney saying this application would be made and that the matter would be on in the Court at 5 pm in Sydney. I do not know whether a representative of the AGS is in Sydney. We have not formally served them with the documents because we said we are making an interim application, your Honour.
MR MARKUS: If your Honour pleases, I should just indicate that I am present in Court in Sydney. My name is Markus, I am a solicitor from the Australian Government Solicitor’s Office.
HER HONOUR: Thank you, Mr Markus.
MR MERKEL: Your Honour, the way in which the case is proposed to be put is sought to be summarised in the writ of summons. It is the same in both, so could we check if your Honour has either the representative or the individual claim.
HER HONOUR: Just let me turn that up. Yes, I have that.
MR MERKEL: Is that the individual or the representative one, your Honour?
HER HONOUR: I have the representative claim in front of me.
MR MERKEL: Yes, if I can stay with that one, your Honour, because it is the same. In the representative claim, your Honour, I will jump over the representative part and just go to the duty not to remove, take, deport or surrender. There are a number of bases on which the claim is put, your Honour, none of which we understand to have been determined by the Court but there is a significant body of authority that would suggest the grounds are grounds of some substance.
The first, your Honour, is that the power under the Constitution but particularly section 61, does not authorise the defendants to remove, take, deport or surrender the members of the class into the custody of the government of Sri Lanka or its military, navy, officers, agents or delegates for a number of reasons. First, your Honour, is that the Migration Act including 198AD, neither that nor any other Commonwealth statute authorises the prohibitive conduct.
Your Honour will recall the Tampa Case raised a similar but slightly different question and in Tampa the majority found that there was not an implied abrogation of what may have been a common law power to remove people from the Tampa to a foreign country. Chief Justice Black and Justice North, so it ended up a two/two division on that found that – or Chief Justice Black explicitly but I think Justice North’s judgment explicitly or if not implicitly – found that the scheme under the Migration Act provided particularly under Part 2, Divisions 8 and 9, setting out precisely the circumstances – and they have been developed a great deal since then – implicitly abrogate any common law right to remove someone in circumstances outside those provided for in Divisions 8 and 9.
Now, your Honour, since the Tampa Case, this Court of course has developed a body of jurisprudence on Chapter II - Pape, Williams (No 1) and Williams (No 2) - which would reinforce the approach taken by Chief Justice Black in Tampa. Can I just summarise, your Honour – can I just read to you in one paragraph, at paragraph 65 of the judgment. It is reported in [2001] FCA 1329, but at paragraph 65 – it is a short paragraph – his Honour concluded:
Because I have concluded that there is no non‑statutory executive or prerogative authority for the detention of those rescued, and because no source of statutory authority is put forward by the appellants as justifying any such detention, it is now necessary to consider the alternative arguments –
and his Honour had earlier found that there was an implied abrogation of any common law right. Now, your Honour, we say that the jurisprudence of this Court would not authorise detention for the purpose of removal to Sri Lanka as a non‑designated country, for example, or authorise removal to a country in respect of which the protection of non‑refoulement is being claimed or sought to be claimed.
HER HONOUR: Your real complaint seems to be – I would like it clarified if I do not have this correct – that the 48 potential plaintiffs wish to have protection visa applications decided according to law under the Migration Act.
MR MERKEL: Yes, your Honour.
HER HONOUR: That is the nub of it, is it not, Mr Merkel?
MR MERKEL: It is, your Honour, and we say that there is no statutory authority or executive power to thwart that other than as provided by the legislation which could be through a designated country or it could be through the Australian process, but what they cannot do is deny all process of the kind that they have.
Now, there is a second leg to this, your Honour, which is an additional leg, and your Honour may recall the special leave application that was before your Honour in SZQRB last December. That was about complementary protection case and in that case that concerned the Minister having lifted the bar – sorry, made an inquiry to see whether he would lift the bar and he then wanted to stop that inquiry and deport the individual concerned. What happened there, your Honour, is the Full Federal Court sat a full court of five and ordered that having commenced the assessment process of whether he would lift the bar he was prohibited from not concluding it in accordance with law which would include procedural fairness.
HER HONOUR: Well, I understand that, but, for the purposes of an urgent application tonight, as I understand it, the nub of it is that 48 potential plaintiffs - and there has not yet been the time to issue all the individual writs – wish to make an application for protection under the provisions of the Migration Act and that interlocutory injunctive relief would allow the time for the proper development of the factual understanding that is necessary because you seem to be a little in the dark about some aspects of the facts but you are asking me to draw inferences on evidence, I understand that, and the interlocutory injunctive relief would also allow the time for available legal arguments to be assembled.
MR MERKEL: Yes, your Honour, that is the nub of it.
HER HONOUR: That is the nub of it.
MR MERKEL: It is, your Honour.
HER HONOUR: In a sense it is not possible on the state of the material to be absolutely certain about the precise factual basis upon which you would pursue the claim, as I understand it anyway.
MR MERKEL: That is correct, your Honour.
HER HONOUR: I mean, you are pointing proleptically at section 198AD, but it is a little hard for me to understand, and I do not know if you wish to say any more about it, but at paragraphs (8), (9) and (10) – well, (10) in particular, there is the suggestion that some sort of decision has been taken in relation to the exercise of powers under 46A(2), but I have a very unclear appreciation at the moment about applications being made or being sought to be made or just what the situation is, frankly.
MR MERKEL: I think, your Honour, that is correct, although when one goes into the sections your Honour has mentioned, what the authorities have made clear in this Court and in the Federal Court case concerning the complementary protection visa was that there is a duty to accord procedural fairness and ‑ ‑ ‑
HER HONOUR: Yes, and the duty you mentioned to complete any task that is started. I do understand that. I just have a very imperfect understanding of precisely what tasks have been started. I really appreciate no more than that 48 plaintiffs would like to make protection applications and have them dealt with according to law.
MR MERKEL: Your Honour, this is a case where unless interim relief is granted their ability to do so would be rendered nugatory. We would say it is a classic case where the balance of convenience strongly favours the grant of injunctive relief because of that, your Honour, because ‑ ‑ ‑
HER HONOUR: Well, at least a short injunction perhaps, Mr Merkel, then if there is – I realise Mr Markus is here this evening and I will ask him but he is probably not in a position to offer any assistance to me. So perhaps the proper course is to grant an injunction, say, till 4.00 pm tomorrow and a return date at 2.15 pm, something like that. I know you will undertake your best efforts to serve.
MR MERKEL: Yes, your Honour.
HER HONOUR: There are two things I am concerned about. One, is whether there needs to be an order made in both matters – that is a structural matter, and secondly, do you have a draft?
MR MERKEL: Yes. Can I hand up the drafts, your Honour, in each action.
HER HONOUR: Perhaps I will look at that.
MR MERKEL: I should also say, your Honour, we have prepared an application for interlocutory relief which we would make returnable but not expecting the Commonwealth to proceed unless they wish to, but the initial orders we have sought, your Honour - which one does your Honour have?
HER HONOUR: I have them both in front of me.
MR MERKEL: They are both the same, your Honour.
HER HONOUR: They are both the same.
MR MERKEL: They are both the same, that we have leave to make the application for urgent interim relief nunc pro tunc, that pursuant to the Rules the time for service and compliance be dispensed with and until a date and we are content with your Honour’s suggestion that it would be until 4.00 pm tomorrow or further order, the defendants be restrained from
taking, removing, deporting or surrendering the members of the class, being each of the persons of Sri Lankan nationality and Tamil ethnicity who are on the same boat as the plaintiff and who have not asked the first defendant in writing to be removed to Sri Lanka. That picks up the words I think at section 189, your Honour.
HER HONOUR: Yes.
MR MERKEL: So we do not – if anyone actually asks for removal there would be no reason why that could not occur.
HER HONOUR: Now, what about the class, the difficulties of identifying the class – that is to say, the difficulty for the Minister?
MR MERKEL: Well, your Honour, the boat had 153 persons on it and the evidence is they were all Sri Lankan Tamils and it is defined as each of the persons who were on the same boat as the plaintiff and who have not asked. They would all be the persons who were taken into custody. Your Honour, it could only apply if the Commonwealth had custody of the individuals and it is preventing them from removing them.
HER HONOUR: You are telling me, are you, that this is certain for the purposes of an injunction having proper utility?
MR MERKEL: Yes, your Honour, because the boat had 153 Tamils is the evidence. The inference is it was intercepted by the Australian Navy and the individuals concerned would then be in custody of the navy, and it is on the same boat as the plaintiff who is identified and there would not, on that basis, be any other boat. It would be a sufficiently certain class, your Honour, which the Minister would well be able to ascertain.
HER HONOUR: Yes, just pardon me one moment. I was going to ask you, Mr Markus ‑ ‑ ‑
MR MARKUS: Your Honour, I do not know whether I can assist your Honour but I would like to say a few words.
HER HONOUR: Yes. Mr Markus, I was certainly going to give you an opportunity to do that. It might be convenient if I do that now, Mr Merkel.
MR MERKEL: Yes, your Honour.
HER HONOUR: Yes, Mr Markus.
MR MARKUS: Thank you, your Honour.
HER HONOUR: Have you been provided with copies of the proposed orders by Mr Merkel’s instructing solicitor?
MR MARKUS: I have been provided with the writ of summons when I arrived in Court and it has on page 2 two paragraphs under the heading “Interlocutory relief”. If orders are sought in that form ‑ ‑ ‑
HER HONOUR: Yes. I think one of Mr Merkel’s juniors present there at the Bar table ought to be able to provide to you two copies of proposed orders and by all means take a moment to look at them, Mr Markus.
MR MARKUS: Yes, thank you, your Honour. I have just been handed some additional documents.
HER HONOUR: Well, take your time to have a look at those because that is what I was going to ask you about and that is what I have just been discussing with Mr Merkel.
MR MARKUS: I understand, your Honour. Your Honour, can I start first with the difficulty that arises out of the fact that these proceedings or proposed proceedings are brought as representative proceedings – the application itself on page 3 seeks to challenge the constitutional validity of section 486B for this is an interlocutory application and for the purposes of this application the validity of that provision must be assumed. In those circumstances there is a difficulty in seeking relief in relation to persons other than the main plaintiff, in my respectful submission.
Secondly, your Honour, the factual assumptions behind the orders that are being sought are, in my respectful submission, entirely speculative. I know – not what the facts are but, your Honour, it is not clear to me on the basis of what I have heard - I should say, your Honour, that I have not seen the affidavit of Mr Webb, which appears to be the principal affidavit being relied upon, but on the basis of what has fallen from Mr Merkel, it is not entirely clear to me and it may not be clear to your Honour whether the plaintiff and those persons who are described as the group of 45 or 48 have ever entered Australia, whether they are in Australia at the moment.
There are assumptions as to what the intention of the Australian authorities and the Australian naval forces may be. There is some suggestion that these people are detained by the navy. There are references to press reports to that effect. Well, your Honour, with the greatest respect, the factual assumptions made are simply not sufficient to justify the exercise of the sort of judicial power that is being sought to be exercised in these circumstances. In my respectful submission, the references to the press reports simply do not provide a sufficiently certain factual basis for the making of the orders that are being sought.
I say that, your Honour, even in light of your Honour’s suggestion that orders could be made for a short interlocutory period. In my respectful submission, for the reasons I have just outlined, that would not be appropriate. Your Honour, I am not sure I can really take it a lot further because I have got very little in the nature of substantive instructions. I am here simply to represent the best interests of the Commonwealth for the time being on the basis of the limited information that is available or that was available to me before the hearing started. Unless your Honour has any specific questions, those are my submissions.
HER HONOUR: Thank you, Mr Markus. Mr Merkel, I am not comfortable about making an injunction where there would be some doubt about who is the person who is the plaintiff seeking the relief. You do know the names of the 48 persons.
MR MERKEL: Yes, sorry, there are 48 individual ‑ ‑ ‑
HER HONOUR: Persons.
MR MERKEL: There should be 48 individual writs of summons with the name of an applicant in each one.
HER HONOUR: Yes.
MR MERKEL: So we would ask for the same order to be made in each one.
HER HONOUR: Yes. I think that is a far better course.
MR MERKEL: Sorry, your Honour, I should have explained that to your Honour. The form of order that I handed up to your Honour is the same form of order we would ask to be made in the 48 summonses. So each matter will have an individual applicant who is named.
HER HONOUR: Well, you see, paragraph 3, which is in the representative proceedings is – this is the point I raised with you before – directed to restraining conduct in relation to members of a class, whereas the form of order in relation to what I will call the individual proceedings, paragraph 3 is directed to that plaintiff.
MR MERKEL: Yes, sorry, your Honour. I should do it in two parts because I think I am making it more difficult for your Honour and myself.
HER HONOUR: Yes.
MR MERKEL: The form of order in the proceeding by the plaintiff SAS will be the same order in each of the 48 proceedings that I understand have been issued, so each order will only relate to the plaintiff in that matter.
HER HONOUR: Is there anything more you want to say, Mr Merkel, in response to what Mr Markus has said?
MR MERKEL: Yes, your Honour. In respect of the representative proceeding, two things, your Honour. The fact that the constitutional validity of the section is assumed is not an absolute assumption. Your Honour, we say there are substantive grounds. It is a procedural prohibition and the Court has long accepted that special rules apply on urgent interim applications to preserve the subject matter of the litigation, and even though there is a body of authority that suggests prima facie statutory provisions are to be assumed to be valid, it cannot be right, your Honour, that a person who has a substantial argument, which this Court has recognised as one that is open, could be precluded merely because a statute’s validity which they are challenging is assumed and therefore they cannot preserve the subject matter and their interest in the action to be able to test the provision.
I should say, your Honour, on the face of it it is hard to conceive of any reason – and this case probably represents a good example of it – as to why the prohibition on a representative proceeding or joint plaintiffs or class proceedings could be justified in a way that is not unduly inhibiting the Court’s jurisdiction. This case is a good example of it. It does not lie in the mouth of the Commonwealth, your Honour, with respect, to say we can conceal all the information that you need to launch a proceeding and now you come along and say the Court should not be granting inferences in your favour about the basis for the proceeding.
We have given a factual and a realistic basis for both the representative claim and the individual claims. So we say, your Honour, that this Court will make orders preserving the subject matter of proceedings where the balance of convenience strongly dictates that is so and we say this is a classic case where the Commonwealth should not be able to produce a result that would effectively endanger the lives and subject the individuals on the boat who are seeking to have their claims determined from having them determined merely because the Commonwealth has been able to preclude the Court and the people who would wish to represent the individuals, who include children, from making those claims.
We say it would be a very odd result if the Court were unable to preserve the subject matter in those circumstances. We are dealing with human lives here, your Honour. We are not dealing with property or monetary claims. So we would say that it is appropriate for your Honour to make the orders. I am conscious, your Honour, that order number 3 is an injunction and we have got instructions to give an undertaking – I think it is from the Tamil Refugee Council – the usual undertaking as to damages, your Honour. It is an incorporated body, and we have provided for that in each order, your Honour.
HER HONOUR: Well, why do I not work off the individual orders for the moment?
MR MERKEL: Yes, thank you, your Honour.
HER HONOUR: Just give me a moment, if you would not mind, Mr Merkel. Just give me the names of the deponents again, Mr Merkel, will you? I have in front of me an affidavit of Daniel John Webb. Could you give me a full list of the deponents?
MR MERKEL: Yes, it is Daniel John Webb and George Newhouse, your Honour.
HER HONOUR: Yes.
MR MERKEL: Exhibits A and B.
HER HONOUR: Thank you.
MR WILLIAMS: Your Honour, there is also a further affidavit by Emma Marie Stephens filed today.
HER HONOUR: Thank you, I will find that.
MR MERKEL: I think, your Honour, that is the one I did not have which is explaining the 45 jumping to 48.
HER HONOUR: Mr Rintoul’s position again, Mr Merkel?
MR MERKEL: I think – he is a refugee advocate, your Honour, who is prominent in this area, but I cannot give you any more than that.
HER HONOUR: No, thank you. Now, that undertaking as to damages, Mr Merkel, that is in relation to the interim relief till 4.00 pm tomorrow?
MR MERKEL: Yes, your Honour.
HER HONOUR: Just give me the name of the entity again.
MR MERKEL: It is the Tamil Refugee Council, which I am instructed is an incorporated association.
HER HONOUR: Thank you.
An urgent ex parte hearing has been sought today by the plaintiffs for orders restraining the defendants, the Minister for Immigration and Border Protection (“the Minister”) and the Commonwealth of Australia from surrendering the plaintiffs into the custody of the government of Sri Lanka. The plaintiffs will be referred to me by their initials, SAS and JARK.
The Court was informed by Mr Merkel of Senior Counsel that unless an urgent interim injunction was granted today the plaintiffs would imminently be taken, removed, deported or surrendered by Australian naval personnel into the custody of the government of Sri Lanka or its navy personnel.
It should be noted that one set of proceedings, not yet allocated a number, has been brought on behalf of the individual plaintiff with the initials SAS and a second set of proceedings, not yet numbered, styled representative proceedings has been brought by the plaintiff whose initials are JARK and that second set of proceedings includes a challenge to the validity of section 486B(4) of the Migration Act 1958 (Cth) (“the Act”) which provides that representative or class actions are not permitted in migration proceedings.
The Court has been informed that some 48 plaintiffs are seeking the same relief and that 48 individual writs will be issued so that it may be that proceedings are at some point consolidated rather than proceeding in breach of section 486B(4). The plaintiffs each seek orders under rule 25.09.1 of the High Court Rules 2004 (Cth) that the defendant show cause why a writ of habeas corpus should not issue in respect of them. They also seek prohibition and declarations and an interlocutory injunction restraining the defendants by their officers, agents or delegates from taking, removing, deporting or surrendering the plaintiffs into the custody of the government of Sri Lanka or its military, navy, officers, agents or delegates until the hearing and determination of these proceedings.
The individual plaintiff and the plaintiff styled as a representative plaintiff each filed a writ of summons at about 4.30 pm this afternoon and several affidavits in support dated 7 July 2014. None of that material has yet been filed and served on the defendants, but as a result of a telephone call passing between the instructing solicitors of Mr Merkel to the Australian Government Solicitor, Mr Markus, solicitor, has appeared in Sydney by video link.
The plaintiffs are citizens of Sri Lanka. They are Tamils. Affidavits sworn today by Daniel John Webb, George Newhouse and Emma Marie Stephens explain that there are 48 plaintiffs and explain their circumstances. The affidavit of Daniel John Webb contains exhibits concerning the position of Sri Lankan Tamils who are returned to Sri Lanka. As well, Mr Merkel tendered two exhibits, being the Australian Government’s travel warning concerning Sri Lanka, exhibit A, and the current Department of Foreign Affairs and Trade country information report for Sri Lanka, exhibit B.
The argument advanced on behalf of the plaintiffs in support of the grant of an urgent interim injunction for each of them is that Commonwealth officers who purport to detain persons in custody must act lawfully to the extent that their conduct is justified by a clear statutory warrant. The Court has been informed that each of the 48 plaintiffs wishes to apply for protection visas under sections 36(2) and 36(2A) of the Act permitting them to access Australia’s protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Refugees Convention is the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951. The Protocol is the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.
The principles to be applied for the grant of an interlocutory injunction, including an interim injunction, are well settled – see Plaintiff 168/2010 v The Commonwealth (2011) 85 ALJR 790, [2011] HCA 25 at 793, paragraphs 15 and 16 to 19. The first necessary inquiry is to ask whether the plaintiff has made out a prima facie case of entitlement to relief, then it is necessary to consider the balance of convenience. For the purposes of this urgent application for interim relief it is unnecessary to do more than note that this Court has jurisdiction and power to protect the utility of proceedings in this Court as was shown in Tait v The Queen (1962) 108 CLR 620 at 625, [1962] HCA 57.
On the material before me the following matters have been advanced. The plaintiffs were travelling to Christmas Island on a boat containing 153 asylum seekers. The plaintiffs include 32 women and 37 children. The plaintiffs had travelled by boat from Pondicherry in India and they are travelling toward Christmas Island. The plaintiffs are presently located on the sea and it is not clear whether this is within or without Australia’s territorial waters.
The plaintiffs are, as I mentioned before, Sri Lankan and Tamils. The plaintiffs wish to apply for refugee protection in Australia. The position in Sri Lanka for the Tamil minority appears problematical from the exhibits, notwithstanding the end of a civil war in 2009. Some of the information about the plaintiffs was conveyed to and by Ian Rintoul, a refugee advocate, who had contact by telephone with persons on the boat to which reference has been made.
On the material before me I have been asked to draw the inference that there is a probability that the plaintiffs are presently detained in the custody of Australian navy personnel and, as I mentioned, in the absence of urgent interim relief will be imminently surrendered to the Sri Lankan Government.
To the extent that the plaintiffs seek to have their applications for protection as refugees processed in accordance with law, they have made out for present purposes a prima facie case for urgent relief. It must, however, be noted that it is not entirely clear on the material before me what steps are next proposed by the plaintiffs, including steps to overcome the prohibition on representative proceedings in migration matters, to which I have referred.
As to the balance of convenience, the proceedings should be returned within the shortest possible period so that any extension of any order made today is done on proper notice to the Minister, particularly given a submission made by Mr Markus that a number of matters relied on by Mr Merkel, appear somewhat speculative and the precise location of the plaintiffs is unknown. The risks of the return of the plaintiffs to Sri Lanka may be grave so the balance of convenience favours the making of the orders sought.
The Minister would not necessarily contest this conclusion at a further hearing on notice, in particular in relation to an application for an interlocutory injunction. Interlocutory injunctive relief, including urgent interim relief, facilitates the conduct of any application brought under section 75(v) of the Constitution by allowing time for the proper development of an understanding of both the relevant facts and the available legal arguments.
In my view, on the material before me today, orders should be made which preclude action by the defendants or their delegates, particularly naval personnel, from removing the plaintiffs into the custody of the Sri Lankan Government, particularly naval personnel, at least until 4.00 pm tomorrow. The orders I make are – and the orders are to be made in common form in each of 48 applications for relief:
1.The plaintiff have leave to make the application for urgent interim relief nunc pro tunc.
2.Pursuant to rule 13.02.2(b)(ii) of the High Court Rules 2004 (Cth) (“the Rules”) compliance with rule 13.02.2(b)(i) be dispensed with.
3.Until 4.00 pm on Tuesday, 8 July 2014, or until further order of the Court or a Justice of the Court, the defendants be restrained by themselves or by their officers, agents or delegates from taking, removing, deporting or surrendering plaintiff SAH (in the first instance; each individual plaintiff on each individual order to be identified by initials) into the custody of the government of Sri Lanka or its military, navy, officers, agents or delegates.
4.Direct that the plaintiff serve forthwith the writ of summons, the affidavits relied on in support of the application today for urgent interim relief, the summons for interlocutory injunction filed this day and a copy of this order.
5.Order that the costs of the proceeding before the Court today be reserved.
6.Direct that the proceedings be listed before me at 2.15 pm on 8 July 2014.
7.The Court notes that the Tamil Refugee Council has given the usual undertaking as to damages in respect of the orders made in paragraph 3 in each of the 48 instances.
Anything further, Mr Merkel?
MR MERKEL: Your Honour, was your Honour intending to make a similar order in the class proceeding?
HER HONOUR: No, I did not think that was necessary to do so. Is it?
MR MERKEL: Yes, it would be, your Honour, because the other people – that would mean the 100 or so, 90 to 100 or so, would not have the protection of a court order and could be removed.
HER HONOUR: But there is no application in ‑ ‑ ‑
MR MERKEL: Yes, there is, your Honour. The 48 individual proceedings are the individual proceeding – the 49th proceeding is the class proceeding in which their representative proceeding is sought to have the order made for the class – I handed up, your Honour, a second form of order in that proceeding. That is the one with JARK representing a class.
HER HONOUR: I said to you I would work off the individual one.
MR MERKEL: Sorry, your Honour.
HER HONOUR: I thought we were putting to one side this representative ‑ ‑ ‑
MR MERKEL: Because that would leave unprotected the remaining 90 people.
HER HONOUR: This is the first I have heard about 90 people. We have been ‑ ‑ ‑
MR MERKEL: No, there are 153 on the boat, 48 have been able to be identified. That would leave 105, to be precise, who are unidentified.
HER HONOUR: Well, I did not understand you to have instructions other than in relation to the 48, Mr Merkel.
MR MERKEL: That is correct, but, your Honour, the evidence is that others would wish to have that application and JARK is seeking to bring it, having the same interest as they are representing all the members of the class.
HER HONOUR: Is JARK also bringing a proceeding on his own behalf?
MR MERKEL: Yes, he is bringing a proceeding on ‑ ‑ ‑
HER HONOUR: Because I thought you told me he was one of the 49.
MR MERKEL: Yes, he is. He is one of the 48.
HER HONOUR: One of the 48, sorry.
MR MERKEL: What I said to your Honour is he did not want to bring a class proceeding in his own proceeding and run into a constitutional issue so he has brought ‑ ‑ ‑
HER HONOUR: So he is one of the – let us just get this clear – he is one of the 48?
MR MERKEL: Correct.
HER HONOUR: So he is covered by the injunctive relief?
MR MERKEL: Correct.
HER HONOUR: He is also bringing a representative proceeding on behalf of the balance of the 153 and on what instructions is he doing that, Mr Merkel?
MR MERKEL: He is doing it on the basis on the affidavit – we cannot have instructions from the individual but he is bringing a representative proceeding on the basis that they all have a common interest under the representative rule and have the same interest in the result. He is bringing it sufficiently in his own capacity as representative because a representative proceeding does not need to have instructions other than by the person who is the representative and he is given that instruction. The evidence does disclose that others outside the number that have been…..would wish to bring the same claims but are unable to do so in their own name because of ‑ ‑ ‑
HER HONOUR: Does this not throw up the problem about certainty – the one I raised with you? That is why I thought we were avoiding paragraph 3 of that ‑ ‑ ‑
MR MERKEL: But it would leave them unprotected, your Honour. One possible way of overcoming it, your Honour – does your Honour have paragraph 3 of that order?
HER HONOUR: Yes.
MR MERKEL: After “were on the same boat as the plaintiff” I wrote in the words while your Honour was considering the matter “, who are in the custody of the defendants or their officers and who have not asked”. We would submit that would give sufficient certainty and would not allow the members of the class to have their rights defeated by being removed in between now and say 4.00 pm tomorrow. When your Honour mentioned women and children, a lot of them would be in that representative class.
HER HONOUR: Are the 49 all men, are they?
MR MERKEL: No, no. I just had names, your Honour, but I think they have date of birth next to them and I would assume – and I am not sure but I might have instructions in Sydney that might help me more on it but there would be no doubt that the unrepresented group would include a large number of women and children. Indeed, by definition the children would not be able to give instructions to Mr Rintoul, for example, but some of the family members may have given instructions for the children. We just do not have that detail. Sorry if I have caused some confusion about that, your Honour.
HER HONOUR: Well, I just did not appreciate that – I thought the representative proceedings were really a holding mechanism while you got under way all the writs that you were foreshadowing. That is why I asked you whether he was one of the number ‑ ‑ ‑
MR MERKEL: Yes, the 49 proceedings that we would be issuing between now and tomorrow, the 48 plus the one, but can I indicate what I was looking at while your Honour was considering the matter. Under the High Court Rules 24.02 – and this was particularly in the light of Mr Markus’ observations about speculation which your Honour referred to in your Honour’s reasons – under 24.02 a subpoena could be issued but only upon a note from a Justice and what I was proposing to ask your Honour for leave to do between now and tomorrow at 2.15 was a note from your Honour that we be able to issue a subpoena under 24.02.3 to the Secretary of the Department – I put “and/or the Minister” – to provide the names of the persons in custody who are part of the 153, but not the 48 and also the location of those persons and also records of any arrangement with the Sri Lankan Government concerning the removal of those persons to Sri Lanka or to its authorities because they are matters only within the knowledge of the Secretary of the Department and the Minister and we would expect the AGS to co‑operate in any event in respect of that information but it would remove the speculation. We would say that would ensure that those individuals could bring an action in their own right and then maybe we would consolidate all the proceedings but we would ask ‑ ‑ ‑
HER HONOUR: Yes, that is what I thought you were foreshadowing.
MR MERKEL: But our fear, your Honour, thus the urgency and why we are here at this hour tonight is that absent that protection there is the real risk if transfer is under way and proposed that that would defeat all of those rights but by 2.15 pm tomorrow.
HER HONOUR: Yes, I see.
MR MERKEL: There is one other matter I did want to mention to your Honour but I will do that separately if I might.
HER HONOUR: Did you say 24 ‑ ‑ ‑
MR MERKEL: Rule 24.02.
HER HONOUR: Yes.
MR MERKEL: No subpoena shall be issued except upon a note from a Justice.
HER HONOUR: Yes.
MR MERKEL: Then we would propose Form 11 which enables the Secretary or the Minister who would have information about the identity of the – what would appear to be 105 individuals we would believe plus where they are located.
HER HONOUR: I might ask Mr Markus whether a subpoena would be necessary, Mr Merkel.
MR MERKEL: Yes, thank you, your Honour.
HER HONOUR: Thank you.
MR MARKUS: Your Honour, I do not have instructions but a subpoena would only be able to be issued either to give evidence or to require production of documents, not to produce information of the sort that is being sought.
HER HONOUR: Yes.
MR MARKUS: Your Honour, I simply do not have instructions so I am not in a position to assist.
HER HONOUR: Perhaps we should reserve the subpoena issue. If I grant the injunction in the representative proceedings, reserve the subpoena issue till you have drafted something.
MR MERKEL: Thank you, your Honour.
HER HONOUR: Which conforms with the Rules and it may be a subpoena does become otiose, who knows.
MR MERKEL: Yes, thank you, your Honour. If we could just indicate we may take that up with your Honour’s associate
.
HER HONOUR: Yes.
MR MERKEL: Your Honour, the other matter I did want to mention - your Honour did mention 36(2) and 36(2A) and the Refugees Convention. Section 36(2A) takes us, your Honour, to the Torture Convention and the ICCPR and there is also a Children’s Convention, so if your Honour is looking at the reasons it is two separate sources of protection, one or the other is available.
HER HONOUR: Yes.
MR MERKEL: One or the other is being claimed.
HER HONOUR: Yes, the reason they are there in the reasons is anybody can look and see what the precise basis is.
MR MERKEL: Thank you, your Honour.
HER HONOUR: That is why both of them were mentioned to take from the material precisely what was being put. Now, you are suggesting then that there be analogous orders so they would be mutatis mutandis in the way I have announced the orders in relation to the individual plaintiffs. This would now be the unnumbered proceeding but the proceeding where the initiating process is under the initial of the person JARK. So they would be mutatis mutandis because I have not followed precisely ‑ ‑ ‑
MR MERKEL: No, I understand that.
HER HONOUR: Because a lot of it was not necessary for urgent interim relief, Mr Merkel. So they would need to follow that. I have not used the locution “prohibited conduct” which was taken out of the initiating process. You will have heard that I have not used that. So it should be to “4.00 pm on Tuesday, 8 July 2014 or until further order of the Court or a Justice of the Court the defendants be restrained, whether by themselves, their officers, agents or delegates, from taking, removing, deporting or surrendering”. Now, the members of the class – is it possible to identify them by reference to the material, Mr Merkel?
MR MERKEL: Yes, your Honour, it is in the heading – “The class as defined in paragraph 1 of the nature of claim in the proposed writ of summons”.
HER HONOUR: Yes. Well, I think that should be added in when you take out the order so that it is a lot clearer. I also consider it would be appropriate to add the extra verbiage that you suggested “who are in the custody of the defendants or their officers” to make that restraint more certain. Yes, very well.
MR MERKEL: Thank you, your Honour.
HER HONOUR: Otherwise orders are made mutatis mutandis and should be served, as I ordered, forthwith, Mr Merkel.
MR MERKEL: Yes, thank you, your Honour.
HER HONOUR: Thank you. Nothing further?
MR MERKEL: No, your Honour.
HER HONOUR: Adjourn the Court.
AT 6.42 PM THE MATTER WAS ADJOURNED
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