Plaintiff M13/2011 v Minister for Immigration and Citizenship

[2011] HCATrans 176

[2011] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M13 of 2011

B e t w e e n -

PLAINTIFF M13/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause 

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 JUNE 2011, AT 9.35 AM

Copyright in the High Court of Australia

MS N.P. KARAPANAGIOTIDIS:   If your Honour pleases, I appear on behalf of the plaintiff.  (instructed by Asylum Seeker Resource Centre)

MR C.J. HORAN:   If the Court pleases, I appear for the respondent.  (DLA Piper Australia)

HIS HONOUR:   Now, can I ask counsel generally what each side says I should do with the application today.  Should I go on and hear it?  What should I do?

MS KARAPANAGIOTIDIS:   Your Honour, the plaintiff’s position is that the matter is not capable of being remitted.

HIS HONOUR:   I understand that.  That seems to be common ground between everyone.

MS KARAPANAGIOTIDIS:   Yes, your Honour.  The plaintiff’s position is that your Honour should proceed to hear and determine the matter.

HIS HONOUR:   Yes.  Mr Horan.

MR HORAN:   Your Honour, at the very least, the issues that arise are the extension of time application and, as outlined in the written submissions, that largely turns on the question of whether or not there are prospects of success.  So it would at least be convenient to consider both extension of time ‑ ‑ ‑

HIS HONOUR:   It all then gets wrapped up, does it not?

MR HORAN:   Yes.

HIS HONOUR:   If I am to embark on some inquiry about prospects, subject to one further matter to which I will come, it seems I should go on and just hear and determine it, does it not?

MR HORAN:   Yes, your Honour.  At the very least, the respondent would seek orders that the application for an order to show cause be dismissed.  If the hurdle of arguable case is met, it is a matter for the Court as to whether it goes on to consider whether or not final relief should be granted.

HIS HONOUR:   Relief should go, yes.  Is it expected or anticipated that there would be any cross‑examination or is it to go forward on the affidavits?

MR HORAN:   No, there is no cross‑examination on the affidavits.

HIS HONOUR:   Yes, very well.  Can I then understand with both counsel what material I should have.  First, the application for an order to show cause is that originally filed on 9 February 2011, but an amended application was filed on 12 May 2011.  Mr Horan, is there any objection to the matter proceeding on the footing of the amended application?

MR HORAN:   No, your Honour.

HIS HONOUR:   Yes, thank you.  So there is the amended application of 12 May.  In addition, there are then affidavits of Payal Saraf sworn 9 February, two affidavits; there is an affidavit of Jessica Williamson filed on 12 May 2011, sworn 10 May 2011 to which there are three exhibits; there is then an affidavit of Stella Koya in answer sworn 14 June 2011 to which there are 11 exhibits; and, finally, there is a further affidavit of Jessica Williamson sworn 14 June 2011 to which there is one exhibit.  First, have I listed all of the material that I should have and, second, is there any objection to the reception of any of that affidavit material?

MS KARAPANAGIOTIDIS:   Your Honour, there should be ‑ ‑ ‑

HIS HONOUR:   I have omitted the affidavits of service.

MS KARAPANAGIOTIDIS:   Yes.  Affidavit of service, outline of submissions.

HIS HONOUR:   I have the outlines of submissions of both sides.

MS KARAPANAGIOTIDIS:   Otherwise, your Honour, that should be all the material.  Can I indicate that we have an index and all of that material in a folder if that is of any assistance to your Honour to hand up.

HIS HONOUR:   Thank you, no.  I have the file copies and my capacity to lose documents being what it is, it is better I have one set to lose rather than two.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.  There is just one other matter that I have spoken to my learned about this morning.  There is one last affidavit that the plaintiff would seek to file and rely upon.  It is deposed by Ms Williamson and it simply goes to that issue of delay between November 2010 until ‑ ‑ ‑

HIS HONOUR:   The 12 weeks?

MS KARAPANAGIOTIDIS:   Correct.  So, your Honour, I understand that there is no objection to the Court receiving the affidavit and if it is convenient, sir, I will hand that up.

HIS HONOUR:   If there is no objection, that may be filed in Court.

MS KARAPANAGIOTIDIS:   Thank you.  It is an affidavit of Jessica Williamson sworn 15 June 2011.

HIS HONOUR:   Thank you.  Yes.  Mr Horan, is there any objection to reception of any of the material?

MR HORAN:   There is no objection, your Honour.  However, could I just make one point and that is annexure JW-2 to the affidavit of Jessica Williamson of 10 May 2011 is a rather lengthy statutory declaration which was submitted in support of the request under section 48B and I accept that that is relevant as part of the background to be considered on the extension of time application, but just make the point that the matters set out in that statutory declaration are not strictly relevant to the review of the delegate’s decision.

HIS HONOUR:   I understand that.  Thank you.  While we are talking about Ms Williamson’s affidavit of 10 May, may I simply draw attention to the fact that exhibit 3 to that affidavit, which was described as having two psych reports in it, as filed has one.  It has the report of Ms O’Connor.  It does not have the report of the treating psychiatrist, I think.  That is as filed.  It may not be as intended, but the parties should be aware of that fact.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.  It was intended that the letter of Dr Carol Silberberg be attached and, I did note, I think there is a reference to two exhibit JW‑3s and that may have caused the error.

HIS HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   Your Honour, I would seek to rely upon that attachment and I will hand up a copy and provide also a copy to my learned friend.

HIS HONOUR:   Is there any objection to my receiving it, Mr Horan?

MR HORAN:   No, your Honour.

HIS HONOUR:   That will be received and marked exhibit A.  Exhibit A will be copy letter dated 1 September 2009 from Dr Carol Silberberg to Department of Immigration and Citizenship.

EXHIBIT:Exhibit A.....Copy Letter dated 1 September 2009 from Dr Carol Silverberg to Department of Immigration and Citizenship

HIS HONOUR:   Counsel should proceed on the assumption that I have read and am generally familiar with the papers in the file.  It may perhaps be of assistance to counsel if I said that in the first instance I would be glad if argument were directed principally to the question of relocation.  I understand that the plaintiff would seek to put her case in a number of ways, but in the first instance I would be assisted if argument were confined to whether the delegate in his decision made a jurisdictional error in his consideration of whether there is a real risk of persecution for a Convention reason because the delegate did not make inquiries of the kind described by three members of the Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, particularly at page 27, paragraph 24. Ms Karapanagiotidis.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.  Your Honour, may I first hand up a book of authorities?

HIS HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   The matters that the plaintiff was proposing to focus on, your Honour, certainly the issue of relocation and effective state protection, it was not proposed to take up the Court’s time in arguing the additional grounds and simply what is raised in the submissions and the application are relied upon.

HIS HONOUR:   Can I best understand this by beginning with the delegate’s decision and if I could go to that and just make sure that I understand the way in which it is put together and what it is saying.

MS KARAPANAGIOTIDIS:   Yes, your Honour. 

HIS HONOUR:   That is found at exhibit PS‑1 to the affidavit of Payal Saraf sworn 16 December.

MS KARAPANAGIOTIDIS:   Correct.  Your Honour, if we commence with the decision, there is a summary of the claims for protection, first page, paragraph 4, and those claims are lifted, your Honour, from the protection visa application.  That is the one that is annexed in the affidavit of Jessica Williamson, 14 June 2011 and, I understand, Ms Koya’s affidavit also.  This is a case, your Honour, that, you would be aware, there was no interview, there were no submissions and at the stage of filing the protection visa application the plaintiff was unrepresented and deposes to having completed the application herself with a friend, English being the second language.

So you have a summary of the claims for protection and we then have the delegate considering or outlining the material for the decision‑maker, legal framework and under 7, reasons and findings.  Your Honour, my copy, and I understand your copy, they are not paginated.  So if we go to paragraph 7, “Reasons and Findings”, there is an acceptance that the plaintiff is a citizen of Malaysia ‑ ‑ ‑

HIS HONOUR:   I was struck, on the next page, by the record of her claims under the heading “Is the harm feared for a Convention reason?  Claims”, and then the finding that appears under that at about point 8 of that same page:

I find that religion and membership of a particular social group are the essential and significant reasons for the harm feared as outlined in subdivision AL -

I had read that, rightly or wrongly, and this will be a matter for Mr Horan, as a positive finding that the plaintiff did fear harm and a positive finding that the harm she feared was for reason of (a) religion, (b) membership of a particular social group.  I took that as a finding to that effect.

MS KARAPANAGIOTIDIS:   Yes.  Support for that interpretation, your Honour, is also found at – where it commences “Is the fear of Convention‑based persecution well founded?”, over the page there is discussion as to religion and it is about the third paragraph from the bottom of the page commencing:

I accept that the applicant does not share the innate religious beliefs -

So the subparagraph is ‑ ‑ ‑

HIS HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   Yes.  The delegate goes on:

the innate religious beliefs of her own, or the Muslim, community.  As such, this places her at risk of persecution on religious grounds by groups within her local community.  Therefore I am prepared to I accept that the applicant has been persecuted by elements within her local community and there is a real chance of persecution occurring should he –

No doubt that is intended to be she –

return to Malaysia, based on her religion.

So, your Honour, there is a clear finding by the delegate that it is non‑state agents and the fear is Convention based by reason of religion.  Then if we go to its consideration of a particular social group and so if we move down that page to the next page, you will see that there is a subheading “Membership of a particular social group”.

HIS HONOUR:   I had read that as a finding that she fell into a group that is described variously in the document, but whose elements take account of her having formed a relationship seen socially as an inappropriate relationship, both across religious and leading to her having a child out of marriage.

MS KARAPANAGIOTIDIS:   Yes, that is right.  Then in that paragraph it goes on to say, well, relocation will cure that. 

HIS HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   So, your Honour, what you commenced with in terms of that finding, so finding:

I find that religion and membership of a particular social group are the essential and significant reasons for the harm feared -

in my submission, that is correct.  That is the finding made by the delegate and it is supported by the reasons it provides.  So essentially it then goes on to look at (a) the issue of relocation and then (b) the issue of the availability of effective state protection.

HIS HONOUR:   Yes.  Relocation is dealt with I think twice in the reasons and as to part in identical terms.  We get immediately above the heading “Relocation within Malaysia” the sentence, “While the applicant has not declared”, et cetera.  Then at the end of the section headed “Relocation within Malaysia”, “There is no country information”, et cetera, “I can find no reason as to why she would”.  Now, are there other references that could be taken as findings on the subject of relocation?

MS KARAPANAGIOTIDIS:   No, your Honour, aside from the comment, I think it is made twice in the decision of “she has not declared where she is residing.”

HIS HONOUR:   Where she came from, yes.

MS KARAPANAGIOTIDIS:   The finding as to relocation is as it is set out by the delegate under “Relocation within Malaysia” and it is effectively those two paragraphs.  So one is lifting the quotation and the other, your Honour, which you see is “no country information” that your Honour has already referred to:

I can find no reason as to why she would not be able to relocate within Malaysia in order [to] seek greater anonymity, distance from her aggressors and adequate protection.

That exhaustively deals with the issue of relocation within this decision.

HIS HONOUR:   Yes.  What then struck me – again this may be a matter more for Mr Horan than for you – is that if we look at SZATV, which I think is not in your bundle ‑ ‑ ‑

MS KARAPANAGIOTIDIS:   No, your Honour, it is not.

HIS HONOUR:   ‑ ‑ ‑ and it was not, I think, mentioned by the Minister in the Minister’s submissions, SZATV and its companion case SZFDV, both in 233 CLR, are where we have looked at the questions, or some of the issues of relocation.  In SZATV 233 CLR 18, particularly at pages 26 and 27, three members of the Court, Justices Gummow, Crennan and I, dealing with the Minister’s submission about relocation, relocation in that case in, I think, the Ukraine by a journalist who had written things that might be said not to have been complimentary of the government, we identified the way:

The Minister framed the issue . . . as being whether it be reasonable, in the sense of practicable, for the appellant [in that case] to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.  This formulation does not suffer from the defects urged by the appellant.  It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well‑founded fear of persecution.

But it is the next paragraph, paragraph 24:

However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory.  What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

Now, it occurred to me that a possible point of view about this matter was that not knowing where this plaintiff had been living in Malaysia and not directing attention to whether it was reasonable in the sense of practicable having regard to her particular circumstances and the impact upon her of relocation of a place of residence, it may be that there is a difficulty in the reasoning as revealed in the statement of reasons.

MS KARAPANAGIOTIDIS:   Yes, your Honour.  In fact, what is argued by the plaintiff is that there are – well, firstly, that the correct test in terms of looking at the issues of reasonableness and practicability of relocation was not applied and it is said that that can be inferred by reason of a number of factors.  One of them, your Honour, that I was going to commence with is precisely that the delegate did not know where the plaintiff ‑ ‑ ‑

HIS HONOUR:   From where to where.

MS KARAPANAGIOTIDIS:   Correct.  The delegate has powers within the Migration Act, not mandatory ones, so obviously there are differences between what binds the Tribunal, but there are powers to obtain further information and the absence of information should not or does not lead to a positive finding that therefore there is no impediment to this plaintiff or this applicant.  The other factors relied upon, your Honour, if I can outline the way in which it is put by the plaintiff ‑ ‑ ‑

HIS HONOUR:   Please.

MS KARAPANAGIOTIDIS:   I should say that the defendant makes reference to the difference between section 66, so notification of decision by a delegate, and section 430, which is the Refugee Review Tribunal to record its decision.  Your Honour, if I can not continue with that - it has just been indicated to me that that argument is now withdrawn.

HIS HONOUR:   Yes, I see.

MS KARAPANAGIOTIDIS:   So I will proceed my outlining the matters relied upon.  Number one, not knowing where the plaintiff was residing.  Number two, the actual words also used, your Honour:

I can find no reason as to why she would not be able to relocate within Malaysia –

There is no reference to reasonableness and there is no reference to the relevant test and the language itself is not implored in that consideration of relocation.

HIS HONOUR:   It is, I assume, not irrelevant to notice that she is now a 56‑year‑old woman on her own in the country.

MS KARAPANAGIOTIDIS:   Correct, your Honour.  It is said there was, even on her application, an intention to convey those concerns or if we were to describe them as impediments.  It is raised on the material, in my submission.  If your Honour goes to the protection visa application and, again, your Honour, that is affidavit of Jessica Williamson, 14 June 2011.  I do not know whether your Honour has attempted to read answers 41 onwards.

HIS HONOUR:   With some difficulty.

MS KARAPANAGIOTIDIS:   It is difficult, yes.  But some matters that I have lifted ‑ ‑ ‑

HIS HONOUR:   Is it here that there is reference to the fact that the father of her child knows people in Kuala Lumpur, knows taxi drivers, et cetera, or is that from some other document?

MS KARAPANAGIOTIDIS:   No, your Honour.  You might be referring to the affidavit.

HIS HONOUR:   Yes, I see.

MS KARAPANAGIOTIDIS:   What there is reference to, though, is a description of herself as a, “Helpless poor woman.  No one is there to look after me.  I have no money in which to bribe the authorities”, a claim, I might say, that was accepted by the delegate.  “I have nobody there for me.  Now I’m 54 years.  No one is there to look after me.”  So there are issues relevant to her financial destitution and to the fact that she is a 54‑year‑old woman with no family or other supports and that, it is submitted, was not given consideration. 

Along with that, the delegate made findings, your Honour, that – accepted her factual claims.  There were no adverse credibility findings here and her factual claims, even on the case that she raised, was that she had been abused seriously by the ex‑partner, attempted murder by her son and he described her as being vulnerable and isolated.  So those matters were also accepted, but not, in my submission, given consideration when dealing with the issue of reasonableness.

HIS HONOUR:   You were ticking off a list of factors that you said bore on this question of relocation.  There is, first, not known from where to where; two, she is a woman of this age who describes herself as being on her own without any support.

MS KARAPANAGIOTIDIS:   Or means.

HIS HONOUR:   Is there a third element?

MS KARAPANAGIOTIDIS:   Third, your Honour, there being no reference to the applicable test, no reference to practical considerations or reasonableness.  It is submitted that it should not simply be presumed that the delegate did turn his mind to these issues.  Your Honour, I have attached some authorities in relation to that proposition which I do not think is a particularly controversial one.  If it is not stated, it is a critical matter.

HIS HONOUR:   There is no doubt we should not approach a set of reasons of this kind in some mutilatingly narrow sense in which we parse and analyse each phrase and tear it apart as though it were a statute.  I understand that.  These are administrative decisions which are to be read with – I will not say a forgiving eye, but at least an eye that is not unduly narrow and carping, but I was struck.  Now, there we are.  Mr Horan will no doubt tell me why I should not be struck.  But have we captured sufficiently the essence of the case you would seek to make on relocation?

MS KARAPANAGIOTIDIS:   Yes, your Honour.  The authorities that have been referred to by the plaintiff are the well‑known authorities of Randhawa and NAIZ which turned on the ‑ ‑ ‑

HIS HONOUR:   To which should be added what we have said about the subject.  I know Randhawa is seen as the relevant authority, but we did actually think about it in those other two cases.  Yes.

MS KARAPANAGIOTIDIS:   Yes, your Honour.  The authorities of SZAIX and SZCBT, 4 and 5, are there to stand for the proposition that, although you do not narrowly tear a decision apart nor on critical matters can we presume that it in fact has been considered.  They are the matters that the plaintiff relies upon.

HIS HONOUR:   Thank you.  Yes, Mr Horan.  You see the core of the difficulty that I am presently struggling with.  What is the answer to it?

MR HORAN:   Yes, your Honour.  Well, there is no easy answer.

HIS HONOUR:   There never is in these cases, Mr Horan, there never is.

MR HORAN:   One has to start with the findings and the reasons of the delegate and I accept that the proper reading of the delegate’s reasons was that the delegate accepted that the feared harm from non‑state actors, including the plaintiff’s ex‑husband and her son, was for Convention reasons, in particular, religion and membership of the two particular social groups that were as they were characterised in the delegate’s reasons.  That seems to have been based on the view that the vulnerability of the plaintiff arose from her alienation from both religion and from her local and religious communities, so that although the harm, the subjective motivation of the ex‑husband and the son may have been private and personal, her vulnerability to that harm arose from a Convention based reason.  At least that is the way the delegate approached the matter so that there is a finding there that there was a fear of Convention‑based harm from non‑state actors.

The question then became one of relocation and/or availability of protection from the state.  In relation to relocation, I accept that the findings that are set out are set out in a rather summary manner in the statement of reasons and, as I mentioned, my learned friend was about to make a point which I sought to correct in the written outline, and just for avoidance of all doubt, it relates to a submission I advanced in paragraph 32 of the written submissions which sought to give some greater latitude to the delegate in relation to the drafting of the statement of reasons than would be the case in relation to, for example, the Tribunal.

What that paragraph failed to take into account was that the obligation to provide written reasons in section 66 when read with section 25D of the Acts Interpretation Act effectively imposes the same obligation on the delegate.  So that the line of authority about drawing inferences from failure to set out findings and so forth is capable of application to a delegate’s statement.  So to that extent, I no longer rely on that paragraph of the outline.

Notwithstanding that, the question whether or not the summary manner of dealing with relocation indicates a failure to apply the correct test depends on all of the circumstances and a reading of the delegate’s reasons as a whole in the light of the claims and the material that were put before the delegate, and in this case the material was much more limited than would be the case with a Tribunal decision which would proceed after a full ‑ ‑ ‑

HIS HONOUR:   Because there had not been any interview.

MR HORAN:   Yes, and so it was simply based on the answers to the questions advanced in the application.  That is not any fault of the applicant.  It is simply a function of the fact that this is a primary decision which would ordinarily be subject to full merits review in the Tribunal.  Be that as it may, the delegate was required to address this issue solely by reference to the material advanced in the application. 

In relation to the matters which have been raised by your Honour, in my submission, there is sufficient consideration in the delegate’s written reasons to indicate that the delegate was aware of the question that needed to be asked and answered, namely, whether it was reasonable or practicable for the plaintiff to relocate to an area in which she would not face the feared harm.  As I said, it is a rather summary consideration, but, nevertheless, the delegate does state, immediately before finding that there is no reason why she would not be able to relocate within Malaysia, that the applicant is a 53‑year‑old female.  That provides some indication that at least the delegate must have been addressing himself to the practical realities or the particular circumstances of the plaintiff.

HIS HONOUR:   I must say to you Mr Horan, I am struck by the notion that a 53‑year‑old on her own in a society where she fears persecution on account of religious reasons, and social reasons probably, can somehow readily relocate.  Even translated to Australia that is a proposition that does not strike me as instantly self‑evident and in another society there may be other societal difficulties of a kind that are not readily swept away.

MR HORAN:   The question is whether the delegate applied the correct test or asked the right question, not whether the delegate arrived at the correct answer.  There are two separate issues which should not be – which need to be kept somewhat separate.  One is the practical ability to relocate.  The second is the vulnerability to harm of the type that was feared by the plaintiff because your Honour has drawn attention to the fact that as a woman in her mid‑50s with no direct family support and facing a risk of harm, that that might suggest it would not be practicable for someone in that position to relocate.  But if, as a practical matter, she could relocate, then on the delegate’s findings, there no longer would be a risk of harm.  So those two issues are quite discrete.

Having found that there was a risk of harm in her local community, the delegate found that that would be avoided if the plaintiff moved to a larger community where her background was not known and the sole question was, was it reasonable for a person in the plaintiff’s position to relocate.  Now, the delegate has adverted to the fact that the applicant is, then, a 53‑year‑old woman and, in my submission, makes a finding that was open that there was nothing in the material before the delegate to indicate any reason as to why she would not be able to relocate to an area outside her local community.

The two matters that are raised as relevant considerations are, firstly, the fact that the delegate I think states expressly that he was unaware where she had been residing.  In that regard, I note that in Randhawa, which, in my submission, is consistent with the Court’s subsequent observations in SZATV, a submission was advanced that the Tribunal in that case was required to look at the question of reasonableness of relocation by reference to specific areas and take into account all of the lifestyle adjustments that would be involved in relocation to a specific area. 

That aspect of the submission was not accepted by the Court, so that relocation does not have to be asked or answered in relation to a specific area that would be available to the applicant or plaintiff.  It was sufficient simply to identify that if she moved out of her current area, which was where the finding of feared persecution arose, that she would no longer face that risk.  In other words, the area to which she would relocate would be one where there was no appreciable risk of Convention‑based persecution.

The second point in relation to her being helpless and poor, in my submission, the material indicates that the helplessness and the claims that no one was there to protect the plaintiff related to the protection from the harm feared from her ex‑partner and her son and so in that sense it was not directly relevant as a factor that would militate against relocation because it was by relocation that she would avoid that harm and so there would be no need for protection against that harm.

In relation to her financial resources, the material does indicate – and at the page that your Honour was referring to, the answer to the question, “What do you fear may happen to you if you go back to that country?”, there is reference in that answer to the fact that the plaintiff had started working as a nurse and had taken it as a challenge to support her son and so she was able to ‑ ‑ ‑

HIS HONOUR:   At what age and stage was this occurring is, I think, not unimportant.

MR HORAN:   Yes.  Well, it was certainly in the past and one would indicate that it would have been a period going back ‑ ‑ ‑

HIS HONOUR:   Because she at one point moved to Singapore, did she not, and, I think, was nursing there?

MR HORAN:   Well, that is material which is contained in the statutory declaration put to the Minister.

HIS HONOUR:   I see.

MR HORAN:   I mean, in one sense it does indicate a capacity to relocate and obtain work, but that was not material that was before the delegate.

HIS HONOUR:   Yes, I see.

MR HORAN:   But all the delegate had was a background that indicated that she had worked and had supported her son up until he had left and married his wife.  The only reason to point to that is that the context was not simply that the plaintiff was a helpless, poor, middle‑aged woman.  It was in the context of a plaintiff who had obtained work and had employment and had raised her son and her main problems arose from the fear of harm from her ex‑partner and her son which was the very thing that would be, on the delegate’s finding, avoided if she were able to relocate. 

So that in that context it should not be inferred that the delegate had somehow misunderstood the question or not addressed the relevant factors in making the finding that there was no reason as to why the plaintiff would not be able to relocate within Malaysia.

Now, I cannot, apart from relying on the written submissions – that is really the argument in relation to relocation.  It is simply a matter of whether, on the basis of the delegate’s findings, relatively brief, but in the light of the material that was put before the delegate, whether that gives rise to an inference that the delegate did not properly apply that test. 

Now, if the inference is drawn that the test was not properly applied, it would still be necessary to deal with the question of state protection, because if the delegate was correct in finding that there was no impediment to the applicant accessing adequate state protection should she choose to do so, that would also provide a basis for finding there was no well‑founded fear of persecution from her ex‑husband and her son.  So there are really two independent bases for the decision.  One was the ability to relocate and the other was the availability of state protection.

HIS HONOUR:   How would the availability of state protection fit with the finding that there was a real risk of persecution for a Convention reason?  Does not the finding of real risk, in effect, swallow, to use an inaccurate term, swallow anything said about availability of state protection, or is that not right?

MR HORAN:   Well, it is a matter of construction of the reasons.  The finding that there is a real chance of persecution based on religion was made before considering the question of state protection.

HIS HONOUR:   Where do I find best what the delegate says about state protection?

MR HORAN:   I think on page ‑ ‑ ‑

HIS HONOUR:   If I come from the back, is it the second‑last page of the bundle or is it ‑ ‑ ‑

MR HORAN:   Well, perhaps if I could ask your Honour to go back a couple of pages further to the two paragraphs just before consideration of “Membership of a particular social group”.

HIS HONOUR:   Commencing, “I accept that the applicant does not share”?

MR HORAN:   Yes.

HIS HONOUR:   Those paragraphs, yes.

MR HORAN:   The first of those paragraphs is the finding about risk of persecution and the acceptance that the plaintiff:

has been persecuted by elements within her local community and there is a real chance of persecution occurring should [s]he return to Malaysia, based on her religion.

But then the delegate goes on immediately to say:

However, I also find that this fear is likely to be greatly reduced should she relocate (which I address under Relocation with Malaysia) and it is not being perpetrated by State authorities despite her claim that police protection has been withheld due in part to [her] religion (which I will consider under Adequate State Protection).

So those are the twin issues that were seen to offset any well‑founded fear of persecution from the non‑state actors comprising her ex‑partner and her son.  Then when dealing with the state protection a couple of pages further on, the delegate then, although accepting that there were some elements of the police that were corrupt and accepting that the plaintiff may have been asked to pay a bribe on the previous occasion, nevertheless finds that the police force as a whole would provide protection in relation to claims by the plaintiff including the claim that her son had attempted to kill her.

HIS HONOUR:   Where do I find that?

MR HORAN:   That is a sentence in – it is on the page with the heading “Adequate State Protection” and in the first full paragraph under the quote, second sentence:

I am therefore willing to accept the applicant’s claim that elements of the police are corrupt and she may have been requested to pay a bribe to engage their services.  However, while corruption within the police exists, it is not reported to be absolute, and given the nature of the applicant’s claim, essentially one of attempted murder by her son, I have found no evidence to suggest the police would unanimously withhold their protection.

HIS HONOUR:   We then get this next sentence:

There is no evidence available to me that indicates that corruption within the Royal Malaysian Police is solely or more frequently encountered by particular groups –

We then get some country information and over the next page in the second paragraph on that page:

country information supports the applicant’s belief that elements of the Malaysian Royal Police are corrupt and I accept that the applicant’s reluctance to approach them –

We then go off into the one‑stop sentence which again seems to be, well, look, nothing is said to me that shows that this will not work.  Now, is that a sufficient answer?

MR HORAN:   Yes.

HIS HONOUR:   It is a question, not a statement.

MR HORAN:   The delegate first says that any corruption is not so endemic that protection would not be available in relation to the sorts of things that the plaintiff was raising, secondly finds that there was not a selective Convention‑based discriminatory withholding of protection because she was a Hindu woman or because of her membership of a particular social group, and that is reading somewhat into that sentence your Honour drew attention to.

HIS HONOUR:   Yes.  I had read that, I must say to you, Mr Horan, I read that as the absence of a finding rather than a positive finding.  I cannot find that it is religiously biased because there is no evidence.

MR HORAN:   And regarded the “claim as indicative of the situation faced by most citizens of Malaysia”.  So there was nothing Convention based about the corruption.  It was simply the way the system operated in Malaysia.  However, having found that that degree of corruption was not an impediment to effective protection in relation to a claim such as attempted

murder – and then the delegate takes into account the broader context of the legislation available in relation to domestic violence claims and the other government agencies that would be available to provide support and resources in relation to those matters.  Taking all those things into account, the delegate concludes that:

While no state can guarantee the protection of all citizens and residents from all forms of harm at all times, country information shows the Malaysian government provides a widespread protection service for women subject to abuse and violence.  I find that there is no impediment to the applicant accessing adequate state protection in Malaysia should she choose to do so.

HIS HONOUR:   How does that fit with a finding that there is a real risk, a real chance of persecution occurring should she return to Malaysia based on her religion?

MR HORAN:   Well, it has to be regarded that the subsequent findings qualify the earlier finding, so that it removes that real chance, so that thereby supporting the finding set out at the conclusion that the fear of persecution is not well founded.  So that any risk of persecution from non‑state actors is adequately addressed by the state’s mechanisms for protecting victims of domestic violence.  There is a tension between the way those two findings are expressed but they have to be reconciled in some manner and there would not be any need to make a conclusion in relation to state protection if it were not relevant to the assessment of whether the fear was well founded.

Now, if there was error in both those findings, as the plaintiff alleges, then there may be a basis to find that those errors affected the decision in a way that would amount to jurisdictional error.  But, in my submission, if either of those findings was open and does not disclose legal error or a failure to address the correct question, then the decision should stand.  If your Honour pleases, those are the respondent’s submissions.

HIS HONOUR:   Yes, thank you, Mr Horan. 

MS KARAPANAGIOTIDIS:   Your Honour, in relation to the adequate state protection finding, in my submission, that should be read as a finding upon relocation, adequate state protection upon relocation, and the reason that submission is put is, if we consider what the delegate actually says – so, for example, under “Membership of a particular social group”, and it is the paragraph, your Honour, that we have already considered, the one that commences, “I accept that as a woman, alienation from her family” and it ends:

While the applicant has not declared where she was residing before departing Malaysia, I can find no reason as to why she would not be able to relocate within Malaysia in order [to] seek great anonymity, distance from her aggressors, and adequate protection.

Again, that finding or that expression, your Honour, is used on the relocation issue, the paragraph that we have gone to:

I can find no reason as to why she would not be able to relocate within Malaysia in order [to] seek great anonymity, distance from her aggressors, and adequate protection.

I think that that language is also used on the religion argument.  So, your Honour, in my submission, if you consider the – upon a reading of the whole decision, it is really the delegate looking at the issue of relocation and then adequate state protection arising as an issue upon relocation.  So that is the first submission that the plaintiff seeks to make, that in fact they are interrelated and it is sufficient for the Court to make a finding in relation to the relocation issue alone.  However, if the plaintiff is not correct in that submission, it is contended that the delegate fell into error in considering whether there was adequate state protection available.

The reason for that is, it was accepted by the delegate that the harm feared was from non‑state agents and it was Convention based and so then the issue becomes the adequacy of protection that is offered, not whether there is a Convention nexus, it becomes whether there is an effective system in place.  Now, your Honour, if we consider the delegate’s finding on this issue, it is the paragraph that my learned friend took your Honour to.  So “Adequate State Protection” is the subheading and it is after the quotation from the country information which ends with:

The government generally respected the human rights of its citizens; however, there were problems in some areas.

Then it is that paragraph:

This report, along with other country information, cite incidents of corruption within state protection agencies including the Royal Malaysian Police.  I am therefore willing to accept the applicant’s claim that elements of the police are corrupt and she may have been requested to pay a bribe to engage their services.

If I can stop there, your Honour, her factual claim was that she had to bribe them, could not afford the bribe and then effectively was turned away in relation to an allegation of attempted murder.  The delegate continues –

However, while corruption within the police exists, it is not reported to be absolute, and given the nature of the applicant’s claim, essentially one of attempted murder by her son, I have found no evidence to suggest the police would unanimously withhold their protection.

It is the language there and what follows – there is no requirement or the test involved does not require a finding that corruption within the police is absolute, so 100 per cent perhaps, or that they would withhold protection unanimously, every police member, every police station would withhold protection, and then it goes on to say:

There is no evidence available to me that indicates that corruption within the Royal Malaysian Police is solely or more frequently encountered by particular groups therefore I regard this claim as indicative of the situation faced by most citizens of Malaysia.

Your Honour, it is that finding also that, in my submission, is problematic.  Perhaps the delegate was considering it because he considered the plaintiff’s claim that she would be deprived adequate protection due to her religion, and she says that in the protection visa application, “Because I’m a Hindu and I couldn’t bribe them, they turned me away”.  So that is how she has put it and it may explain why that reasoning was engaged in, but it is not a requirement, in my submission.  There has already been a finding that there is a Convention nexus in relation to that harm feared by her. 

Respondents S152, your Honour, is the often‑quoted case in relation to effective protection.  It is in the folder.  It should be tab 6, your Honour.  Paragraph 26 where there is the statement that Mr Horan has referred to broadly in the submissions that no country can guarantee that its citizens will at all times and in all circumstances be safe from violence, and that is certainly accepted by the plaintiff.  There is reference to Australian courts, guarding against violent attacks, but obviously not being able to guarantee against them and there is the comment here:

The Ukrainian State was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.

At paragraph 28, your Honour, in the middle of that paragraph there is reference to:

level of State protection required by international standards.  It is not necessary in this case to consider what those standards might require or how they would be ascertained.

And S152 was a case dealing with harm inflicted by non‑state actors for Convention reasons.

HIS HONOUR:   Non-state actors, yes.

MS KARAPANAGIOTIDIS:   So in the plaintiff’s submission, the question for the delegate was, is there an effective, impartial police force that can provide effective protection, your Honour.  That is the question.  It is not, is corruption absolute, will protection be unanimously withheld and is the applicant within a group that will solely or more frequently be targeted?  The paragraph that your Honour was referred to, in my submission, really outlines the reasoning behind the delegate’s finding and the test that it applied. 

Your Honour, what lends support for that submission is there is no reconciliation, no discussion here of the fact that the applicant – I mean, there is a statement, there is a reference to it but no attempt to reconcile the fact that she has attended the police and they have not offered her protection.  Last of all, the final page which deals with the one‑stop crisis centre and other counselling, social workers, legal aid, medical staff, the plaintiff submits that that is not a complete answer to a denial of effective state protection, the fact that there are other policy administrative type services available and, second, your Honour, there is no engagement in either of these paragraphs, no consideration of the efficacy of any of these measures.  There is a statement that they exist.  There is a finding that there is no reason:

I can find no reason as to why she could not seek the assistance of these services, if she is unwilling or unable to engage the protection of the police.

That is the second paragraph on that last page.  Again, in terms of factual claims here, the claim put on the papers was that she, after attending the police, went to a convent and was located there and had to flee from that convent.  So, your Honour, in my submission, there is error demonstrated in the reasons that, firstly, it is said that they are interconnected and you only consider state protection after the finding made as to relocation.  Your Honour, can I just spend one moment responding to some of the matters put in relation to the relocation argument?

HIS HONOUR:   Perhaps if you simply do it in the form of an outline, that would help me.

MS KARAPANAGIOTIDIS:   Yes, your Honour.  I will be brief.  There were submissions made as to whether the finding was open and my learned

friend took your Honour to the factual claims of the applicant.  The point being made, your Honour, is that that is not what the delegate did.  There was no such analysis.  If there was, then perhaps there would not be an argument before your Honour and the submission of the defendant was strained, in my submission, when you resort to picking little references to nursing previously and in what context she described herself as destitute.  Your Honour, I do not seek to make any further submissions.  Thank you.

HIS HONOUR:   Yes.  Thank you.  Subject to anything that counsel may say, I am minded to consider my decision on the arguments that have thus far been advanced.  If I were of the view that the plaintiff were entitled to the relief of the kind she seeks, is there any reason, Mr Horan, why I would not go on to grant that relief?  Is there anything further that you could or would seek to advance in answer to it?

MR HORAN:   No, your Honour.

HIS HONOUR:   Yes.  May I ask you, Mr Horan, if I were of the view that the plaintiff were entitled to relief, she would be entitled, would she not, to certiorari?  Would that follow?

MR HORAN:   Yes, if jurisdictional error ‑ ‑ ‑

HIS HONOUR:   It would be necessary, I think, one, to extend times both under the Act and the Rules; two, it would be appropriate to grant certiorari.  Would it be necessary or desirable to grant mandamus?

MR HORAN:   It is sometimes done in conjunction with an order setting aside or quashing the decision, but it would not strictly be essential because if the decision were set aside, there would be a ‑ ‑ ‑

HIS HONOUR:   There would be an unresolved application.

MR HORAN:   Application which, under the Act, the Minister through his delegates would be under a statutory obligation to decide.  So that it would be possible but not essential to issue mandamus.

HIS HONOUR:   Now, if I were to conclude that on the arguments thus far advanced the plaintiff did not demonstrate an entitlement to relief, it would seem to me I should re‑enter the matter for further argument, but is that right, Ms Karapanagiotidis, or is there anything further that you would wish to advance?

MS KARAPANAGIOTIDIS:   No, your Honour.  The matters sought to be advanced have been put to the Court.

HIS HONOUR:   So it is a case of win or lose on the arguments as thus far put?

MS KARAPANAGIOTIDIS:   Advanced thus far and otherwise in terms of the matters not argued in Court, we rely upon the outline of submission.

HIS HONOUR:   Yes.  Mr Horan relies in answer to that, is that right, Mr Horan?

MR HORAN:   Yes, insofar as there are grounds raised.  The two matters that have not been addressed in oral submissions are the ground relating to the failure to deal with a claim based on fear of persecution for reasons of race and the two grounds relating to the characterisation of particular social group and, speaking for myself, the defendant is content for those matters to be determined on the written submissions.  They ultimately turn upon a construction of the delegate’s reasons.

HIS HONOUR:   Yes.  Well, I will consider my decision in this matter.  Adjourn the Court.

AT 10.45 AM THE MATTER WAS ADJOURNED