Plaintiff M196/2015 v Minister for Immigration and Border Protection
[2015] HCATrans 212
[2015] HCATrans 212
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M196 of 2015
B e t w e e n -
PLAINTIFF M196/2015
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Defendant
Application for injunction
GORDON J
TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO LINK TO MELBOURNE
ON TUESDAY, 1 SEPTEMBER 2015, AT 4.29 PM
Copyright in the High Court of Australia
MR A. ALEKSOV: Your Honour, I appear for the plaintiff. (instructed by Clothier Anderson Immigration Lawyers)
MR C.J. HORAN: If the Court pleases, I appear for the defendant. (instructed by Australian Government Solicitor)
HER HONOUR: Do not sit down, Mr Horan, I just want to have a chat to you, if I may.
MR HORAN: Yes.
HER HONOUR: What is the position of the Minister?
MR HORAN: The application for an injunction is opposed.
HER HONOUR: On what basis?
MR HORAN: The principal basis is that the application is brought well outside the statutory time limit for commencing proceedings and that the delay in commencing proceedings has not been adequately explained. I also submit that the grounds of review are not made out although the extent to which it is appropriate or convenient to have argument on that now is a matter for your Honour.
HER HONOUR: What is the position in relation to when the plaintiff is to be removed from the country?
MR HORAN: He is scheduled to be removed tonight on a flight which leaves at 10.40 pm.
HER HONOUR: Is that maintained - the position has been maintained?
MR HORAN: Yes, your Honour, and so on balance of convenience the Minister relies upon the inconvenience in cancellation of those removal arrangements but I cannot point to any other specific prejudice to the Minister which would arise from the grant of an injunction.
HER HONOUR: One way of looking at it, and I say it is only one way, is that the Court exercises the sort of powers that were considered in Tait’s Case in order to preserve the subject matter so that the matter may be dealt with in a more considered manner.
MR HORAN: Yes, your Honour, I am aware of that and the question of timing and delay goes to the issue of whether the plaintiff has raised a prima facie case for the grant of relief.
HER HONOUR: Well, in Tait’s Case it was preservation of the subject matter regardless of any possible merit or prospect of success.
MR HORAN: Yes, and in this case ‑ ‑ ‑
HER HONOUR: In the sense that if it is not then this person is removed at 10.40 pm this evening.
MR HORAN: Yes, that is correct. In strict terms, it may not remove the subject matter of the proceedings entirely, but in practical terms I accept that it does, in that in theory the decision under review can still be challenged but I accept that ‑ ‑ ‑
HER HONOUR: Practically that is not the position.
MR HORAN: No, that is correct, your Honour. If the plaintiff is removed, then the proceedings would become, if not futile, at least ‑ ‑ ‑
HER HONOUR: Close to futile.
MR HORAN: Close to futile, yes. In relation to the timing, the ‑ ‑ ‑
HER HONOUR: As I understand, notice was given last Friday. Is that the position?
MR HORAN: Yes, the application was filed and served in the middle of today. Before that time, although notice was given of the proposed commencement of proceedings, there was not any articulation of the grounds of the application but ‑ ‑ ‑
HER HONOUR: You cannot draw any comfort from that, though.
MR HORAN: No, nothing really turns on that for the purposes of today’s proceeding. The decision that is sought to be reviewed was made on 3 September 2013 so that in circumstances where the statutory time limit under section 486A is 35 days from the date of the decision which would, by my ‑ ‑ ‑
HER HONOUR: I saw there was some suggestion that it was not served.
MR HORAN: Well, there was but the date of the migration decision, for the purposes of section 486A, is the date of the written notice so that the statutory time limit expired on 8 October 2013. I think it is common ground that the plaintiff received actual notice of the decision no later than 4 November 2013, so that even if ‑ ‑ ‑
HER HONOUR: What date was it?
MR HORAN: It was 4 November 2013 and in the meantime the letter of notification and the copy of the reasons had been returned unclaimed by Australia Post but on that day a copy of the decision and the reasons was emailed to the plaintiff. If the 35‑day period was taken from that date it would have ended on 9 December 2013, so the application for review is commenced somewhere between 20 and 22 months after the statutory time limit had expired. There are also time limits under the High Court Rules which are potentially different - that is six months for the grant of certiorari and two months for mandamus but, on any view, the application is out of time and would need an extension and in order to obtain that extension, the plaintiff must show that it is in the interests of the administration of justice to extend time.
In the present case the affidavit in support of the application addresses the chronology but it appears from that affidavit that there is no specific explanation given for the delay between November 2013, when the plaintiff learned of the decision until June 2015 when he was taken into immigration detention and during that time the plaintiff lived in the community as an unlawful non‑citizen and did not take any steps to review the delegate’s decision.
Even once he had been taken into immigration detention and retained his solicitors, he elected to request the exercise of ministerial discretion under sections 48B and 195A, instead of bringing judicial review proceedings in relation to the delegate’s decision and it is only recently that those applications or requests were declined on the basis that they did not meet the guidelines for referral to the Minister and shortly thereafter the plaintiff, through his solicitors, notified the defendant of the proposed institution of these proceedings.
So there are really two relevant periods in that chronology. The one is the lengthy period after the notification of the decision and, upon being informed that the period for seeking review by the Refugee Review Tribunal had expired, the plaintiff appears to have chosen to remain in the community without taking any further steps to seek advice or challenge the legality of the delegate’s decision and when taken back into immigration detention and then retaining lawyers there is the shorter period between mid to late July 2015 and the present, most of which was taken up in making and considering the requests for the exercise of ministerial discretion.
The Minister relies on the oft‑cited case of Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470, a decision of Justice McHugh, and at paragraphs [13] to [20] of that decision his Honour makes clear - this is in relation to the time limits under the High Court Rules - that the grant of an enlargement of time is not automatic; that there is a public interest in finality of litigation in relation to the efficacy of decisions of public bodies or officials and that only in exceptional cases that time be enlarged or extended by many months, let alone more than one year.
Accepting none of that is fatal to the grant of an extension of time and it is also necessary to distinguish, perhaps, the issues to do with the extension of time from the issues arising on the application for the injunction the Minister submits that if the applicant cannot meet the relevant principles for the grant of an extension of time, then that is a factor weighing against the grant of injunctive relieve – subject, of course, to your Honour’s observation about the special jurisdiction recognised in Tait v The Queen.
In relation to the grounds of review, there are two grounds relied upon in relation to the delegate’s decision. The decision turned upon a finding in relation to relocation within Pakistan. In essence, the decision rests on two principal findings. The first is – and I will paraphrase – that there are areas within Pakistan where Hazara Shias do not face a real chance of persecution from extremist groups and some of those areas are identified in the delegate’s decision. The second finding is that it was reasonable and practicable for the plaintiff to relocate to those areas.
HER HONOUR: I thought the complaint was the way in which, in relation to the second issue, the delegate dealt with that question.
MR HORAN: Yes. There are two complaints. One attacks the first finding and the second ground attacks the second finding. The attack on the second finding is on the basis that the delegate did not specify a particular area to which the plaintiff could reasonably relocate but instead, having ‑ ‑ ‑
HER HONOUR: Is it not broader than that? I thought the complaint was that paragraph 24 of SZATV had not been applied properly – i.e., the delegate did not go through the processes set out in that paragraph, namely, in determining what was:
“reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant –
himself, and, secondly –
the impact upon that person of relocation of the place of residence within the country of nationality.
MR HORAN: That is correct, your Honour, but that is raised in a particular way. The reason why it is said that that test was not properly applied is because the delegate did not identify, as a reference point, the destination to which the applicant could relocate, other than referring to other areas in Pakistan. Perhaps it is easiest to refer to the plaintiff’s outline of submissions in relation to ground 2. Does your Honour have those?
HER HONOUR: I do. The reason why I think it may be broader than you put it is set out in paragraph 33 of their submissions.
MR HORAN: Yes, that is correct. But the submissions go on to elaborate how that ground is said to be made out and my reading of the submissions in the ground was that it is - to the effect of the submissions in paragraphs 36 and 37 ‑ ‑ ‑
HER HONOUR: But they are further submissions, Mr Horan. Paragraph 36 is a further submission.
MR HORAN: I do not want to – I might leave it to my learned friend to clarify the scope of the ground but we would say that insofar as it is put more generally, the delegate clearly did address the impact of relocation on the particular circumstances of the plaintiff as required by those principles by referring to, at page 13 of the decision, matters such as his ability to speak different languages ‑ ‑ ‑
HER HONOUR: Sorry, where are reading from now?
MR HORAN: This is paragraph 13 of the delegate’s decision – page 13, I am sorry.
HER HONOUR: Yes, and which bits do you want?
MR HORAN: The second paragraph and following where the particular circumstances of the applicant, including the languages spoken by the applicant, his background as having studied, worked and lived in Australia, his capability of finding suitable accommodation and employment, and so on, is addressed. I had read the ground as turning more upon an argument that the principles could not be properly applied unless the delegate identified the specific area to which it was said the applicant, or plaintiff, could have relocated and engaged in a comparison between the conditions in his home area and the conditions in the postulated safe haven. The difficulty said to arise from the delegate’s decision is that the ultimate findings were expressed in terms of relocation to any other area in Pakistan, that is, an area other than the home region of Quetta or Balochistan.
That ground, in my submission, does not correctly represent the task that the delegate should engage in when addressing relocation. In this case the delegate, having made a finding that there was a well‑founded fear of persecution in the plaintiff’s home region of Quetta or Balochistan, then identified other areas in Pakistan in which there were large Hazara communities and in which a finding was made that there was no real chance of serious harm amounting to persecution.
Now, that finding is attacked in ground 1. But putting that to one side for the moment, the delegate observed and identified those areas as including Karachi, Lahore, Multan and Islamabad – this is at the bottom of page 12 and on to the top of page 13 and, in relation to Lahore, had made a finding that two of the applicant’s immediate family, his two sisters, lived in Lahore.
So, against that context of looking at all of those particular circumstances in relation to the plaintiff and noting that there were no impediments to movement within Pakistan, including by Hazaras, has made a finding that it was reasonable in the sense of being practicable for the applicant to relocate to any of those areas. In my submission, that was sufficient to address the principles that were identified in SZATV which are accurately summarised at page 11 of the decision in the first paragraph under the heading “Relocation”.
I mentioned that the other ground challenges the finding about the risk of harm faced by the plaintiff as a Hazara Shia in any of these other areas in Pakistan. The argument that is put by the plaintiff is that that failed to address his particular circumstances and was based essentially or solely on a numerical or statistical analysis and that can be seen, the plaintiff says, at several points in the delegate’s reasons but, in particular, there is a finding in the middle of page 12 in which the delegate refers to the large number of Shia Muslims in Pakistan and goes on to find that:
given the large numbers - in terms of population - involved relative to the numbers killed or injured, and in considering the applicant’s profile, I am of the opinion that the chance that the applicant would be seriously harmed due to his religion or race is remote.
The challenge that he has levelled at that finding is that it involved an assessment of a statistical or numerical nature in assessing the level of risk faced by the applicant and failed to consider the individual circumstances of the applicant.
But what that argument fails to recognise is that that very finding contains a statement by the delegate that refers specifically to consideration of the applicant’s profile and what the delegate has done is properly examined whether or not the plaintiff has an individual profile outside of Quetta, which is his family’s localised area and, having found that the plaintiff did not have any individual profile outside that area, has assessed
whether or not he was likely to face harm by reference to his membership of the racial and religious groups, Hazara Shias, and that does not involve any failure to assess the individual circumstances of the plaintiff. It is plain from ‑ ‑ ‑
HER HONOUR: Mr Horan, I understand all that, and I will hear from Mr Aleksov in a moment. I think that you need to get instructions about two matters. The first is about Tait and, secondly, where is it proposed that this person be taken to?
MR HORAN: Yes, I can get instructions. Would your Honour excuse and I can attempt – seek those instructions now?
HER HONOUR: You can do that while Mr Aleksov deals with the submissions and you can tell me.
MR HORAN: Yes.
MR ALEKSOV: If it please the Court, your Honour, just some matters in response to my friend’s points about the enlargement of time. The injunction seeks to preserve the subject matter of an application seeking an enlargement of time. Whilst my friend has pointed to the factors standing against that enlargement, there are factors standing in favour of the enlargement. Now, we say the first one is the consequences for the applicant, and they are severe. The second is that we say the case has good prospects of success and, with increasing prospects of success, that factor can be given greater weight.
HER HONOUR: Sorry, I did not understand that last proposition. Can you put it again?
MR ALEKSOV: Yes, your Honour, that the stronger the prospects of success of a proceeding, the greater that that factor would weigh ‑ ‑ ‑
HER HONOUR: I see.
MR ALEKSOV: ‑ ‑ ‑ in the exercise of the discretion to enlarge time, and that proposition derives from – or was at least accepted by Justice Crennan in Plaintiff M168/10 (2011) 279 ALR 1, paragraphs [15] through [19]. We also say that there is an explanation for the delay. My friend has accurately summarised that explanation and we say ‑ ‑ ‑
HER HONOUR: The difficulties you face, Mr Aleksov, are those identified by Mr Horan on the enlargement question. One is, one can understand the delay by reference to 486A of the Act in a sense that your client, it seems common ground, did not receive written notification, notwithstanding that the time period runs from the making of the decision. So that would explain that delay. But there is no explanation, is there, of the period between 2013 and 2015?
MR ALEKSOV: That is correct, your Honour. There is a reason for it, but that may not constitute an explanation in the relevant sense. We say that the consequences for the applicant and the prospects of success should outweigh the explanation, or the lack thereof, in the balance that needs to be undertaken when considering the exercise of the discretion to extend time under the Rules. I believe my learned friend rightly pointed out that the lack of an explanation in relation to the Rules would not be fatal, or necessarily fatal, of itself.
HER HONOUR: The second problem you then have is what Justice McHugh says in Marks about extensions of time in respect of the relief that you would ultimately seek in your substantive proceeding.
MR ALEKSOV: Yes, your Honour, and we say for essentially similar reasons the prospects of success and the consequences of the applicant should be the principal factors that weigh in the discretion. I have addressed the explanation for delay and there has been no history to this matter.
HER HONOUR: Is that right, given what Justice McHugh says at paragraph [16] of Marks?
MR ALEKSOV: Yes, your Honour, and we say that the consequences to the applicant are so severe – and there are passages of this Court which describe them as a matter of life and death – that they should outweigh what Justice McHugh has said at paragraph [16]. In many respects, your Honour, that merges aspects of – or it merges with the other aspects identified by Justice McHugh concerning the nature of the litigation, consequences of the grant or refusal of an extension to the parties and the public interest. The two other factors relate to the history of the matter and the conduct of the parties. Again, that merges within the explanation of delay to some extent. I have addressed those, your Honour, and they are set out in full in the affidavit of Sanmati Verma.
HER HONOUR: What is set out in the affidavit?
MR ALEKSOV: The history of the plaintiff’s conduct vis-à-vis his migration status in Australia and how ‑ ‑ ‑
HER HONOUR: I do not understand how that assists you.
MR ALEKSOV: It does not, your Honour, not particularly.
HER HONOUR: No.
MR ALEKSOV: No, it does not. We just draw attention to it because we are obliged to, and then we say that the prospects of success are strong and that the consequences for the applicant are so severe that those two factors in combination should outweigh the countervailing factors in the question – or in the balance in relation to the exercise of discretion to extend time under the Rules. As your Honour has correctly noted, there is an adequate explanation under 486A of the Act, being that he was not notified within the 35 days that he would have had.
Unless there is anything further I can assist your Honour there, that brings me to the grounds. It is submitted that the delegate did not apply the correct test in determining whether the plaintiff could access state protection in Pakistan, being the internal relocation – or reasonable relocation test, for two reasons.
The first being ground 1 is that the relevant test requires that the decision‑maker forms state of satisfaction that there is a place within the country of reference where the visa applicant does not face a real chance of persecution. In undertaking this consideration, your Honour – if I could trouble your Honours to turn to page 12 of the decision record, the essential reasoning of the Tribunal is that whilst – and I am reading from what appears as paragraph 3 starting at point 3 or 4 on the page:
Country information indicates that . . . there would be between 17 and 26 million Shia in the country.
The applicant is a Hazara Shia – and notes that:
There have been attacks on mosques, on Shia processions and on certain prominent Shia people over many years. There will doubtless be instability as there has been for a long time, but in my assessment –
and this is what we say is the critical aspect where the delegate went wrong:
given the large numbers – in terms of population – involved relative to the numbers killed or injured, and in considering the applicant’s profile, I am of the opinion that the chance that the applicant would be seriously harmed due to his religion or race is remote.
Now, the applicant’s profile is a reference to his claims that his mother was a high profile member of the Pakistan People’s Party.
HER HONOUR: His father was killed?
MR ALEKSOV: Yes, his father was killed by reason of having a high profile in Quetta for his commercial interests and being a prominent member of the Hazara community and his mother, who appears to still be alive, the delegate was prepared to act on the basis that she was a high profile member of the Pakistan People’s Party and the reference to the applicant’s profile in that paragraph on page 12 is a reference to his profile as the son of a prominent member of the Pakistan People’s Party.
So, in relation to his claims to fear harm on the basis of his religion or race, we say that there was only one strand of reasoning that the Tribunal adopted which was that he was a Shia Hazara, there are many of them. Though there have been attacks on people of that profile the attacks have been few and they are many in number and, therefore, the applicant suffers only a remote chance of harm.
Where we say this analysis goes wrong is that it treats the applicant as a member of a class rather than considering whether this individual applicant has a well‑founded fear of persecution and I have extracted the relevant passages on which I rely at paragraphs 27 through 30 of my written submissions.
HER HONOUR: Yes.
MR ALEKSOV: We say this submission is confirmed when regard is had to the paragraph 2 following and the final sentence which concludes ‑ ‑ ‑
HER HONOUR: Where are you reading now?
MR ALEKSOV: Page 12 at about point 6 on the page, the paragraph commencing “I do not accept”. The final sentence of that paragraph concludes:
While the applicant has the physical features of a Hazara, which may identify his race and religion, I do not accept that these features will have any appreciable impact on what might become of him upon return, given the number of Shias and Hazaras in Pakistan.
We say that an inference should be drawn from these passages that what the Tribunal did was to assess whether any member of the class of people who are Shia or Hazara face a real chance of persecution rather than the required test which is whether this individual applicant faces persecution. A very similar argument, your Honour, was accepted by the Federal Court in a case called DZADQ v Minister for Immigration [2014] FCA 754, especially at paragraph 65. That is ground 1, your Honour.
Ground 2 relates to the second aspect of the internal relocation test, whether relocation is reasonable. It is correct that our argument focuses on the failure by the Tribunal to identify any particular place within Pakistan to which the plaintiff may have relocated. My friend took your Honour to the relevant passages of the delegate’s reasons dealing with that question and, ultimately, we say that the passage at about point 5 on page 13 confirms
While I accept there would be challenges in doing so, I can find no evidence that it is not possible or reasonable for the applicant to relocate to areas outside of Balochistan.
We say that confirms that the Tribunal’s state of mind was that the applicant might reasonably relocate to anywhere within Pakistan. Taking that as a premise, your Honour ‑ ‑ ‑
HER HONOUR: Is that right – can I just test that proposition for a moment and that is if one reads the preceding paragraphs, to be fair to the delegate, he – I assume it is a he, I should not say that. Is it?
MR ALEKSOV: It is she, your Honour.
HER HONOUR: Sorry, she goes through and identifies, in effect, very personal attributes of the applicant.
MR ALEKSOV: Yes, that is right, your Honour. We do not attack the delegate’s identification of those personal attributes. They do appear to have been the relevant attributes insofar as reasonableness is concerned. Where we say the delegate failed is that if one takes as a premise that the delegate considered that anywhere other than Balochistan within Pakistan was the postulated place of relocation, we say that involves an error given that the test, we say, requires a comparison between conditions prevailing in the place of habitual residence and those prevailing in the safe haven.
That statement is derived from the decision of the England and Wales Court of Appeal in E v Secretary of State for the Home Department approved and endorsed recently by this Court in SZSCA (2014) 314 ALR 514 at paragraph [30] by the majority of Chief Justice French, Justices Hayne, Kiefel and Keane.
If there is to be or if the correct test requires a comparison, we say it follows that it is necessary that comparators be identified. If there are to be comparators identified that must be so for the purpose of testing whether an applicant’s personal circumstance – or testing how an applicant’s personal circumstances would be affected by the nature of a place to which he might relocate.
Now, if that is so, we submit it follows that the decision‑maker must, in identifying the postulated place of relocation, descend at least to a sufficient level of specificity to enable consideration to be given to the impact that the conditions in the postulated safe haven will have on a person with the characteristics of the asylum seeker.
HER HONOUR: Where do you get that from?
MR ALEKSOV: That is a submission, your Honour.
HER HONOUR: That is not from what the Court said either in SZSCA, is it?
MR ALEKSOV: No, there is no authority which I could find that supports that proposition. We say that proposition follows when regard is had to the comparison that has been identified as necessary in SZSCA. We say that follows or rather it follows that the delegate’s reference to the circumstances that were personal to the applicant such as his linguistic skills, his education, his resourcefulness away from home, that test can only be performed - the inquiry as to what impact those features or how those features will be impacted in a particular place can only be performed when that place is identified with a sufficient level of specificity that enables that to occur and when one notices that Pakistan ‑ ‑ ‑
HER HONOUR: Is it your position that the delegate does not identify three places at the top of page – or in 12 and 13?
MR ALEKSOV: Yes, that is correct, your Honour. Our position is that what the delegate does there is identify that there are Hazara communities in those places and in the preceding page, the delegate also mentions one additional place, Lahore ‑ ‑ ‑
HER HONOUR: No, Lahore is mentioned at the top of page 13.
MR ALEKSOV: I beg your pardon, Islamabad – on the preceding page.
HER HONOUR: That is by reference to the country information, is it not?
MR ALEKSOV: Yes, yes. The top of page 13 is also by reference to country information – “A 2010 report indicated”. All that country information does, we say, your Honour, is identify that Hazara communities exist in those places and it does not test the impact of relocation upon the applicant of relocation to any one of those places.
In the circumstances, your Honour, we say that constructively, because the postulated place of relocation was identified at such a high level of generality, there was no testing of the impact of relocation upon him in his personal circumstances. Your Honour, I should also note that an application under the Freedom of Information Act has only been made today. It was made on 27 July and has not been responded to yet.
HER HONOUR: I could not quite work that out. I read somewhere that they had had some limited response.
MR ALEKSOV: No. Yes, your Honour, there has been a response requesting an extension of time in which to provide the materials requested and that was consented to.
HER HONOUR: When is the end date for that response?
MR ALEKSOV: On 28 September, your Honour. Unless I can assist the Court further, your Honour, those are the submissions of the plaintiff.
HER HONOUR: Thank you, Mr Aleksov. Mr Horan.
MR HORAN: Your Honour, could I just address three brief matters. The first is the flight details. The second, the Minister’s position on Tait, and the third, just some brief submissions in reply on the prospects on the substantive grounds. I think there is an instructor from AGS there who should have a folder and at tab 29 of that folder there is an itinerary which identifies the flight details which in summary are that the removal is to Lahore via Abu Dhabi, as I said earlier, leaving from Melbourne at 10.40 pm this evening.
The second aspect is the decision in Tait v The Queen. Of course, the Minister accepts that that is a binding decision. It was directed to a different situation to the ordinary extension of time applications. It involved, as your Honour will know, an application for special leave to appeal which was adjourned with a stay and, in granting the adjournment, the court granted that adjournment without consideration of the grounds of the application so that the authority of this Court may be maintained and we may have another opportunity of considering it.
To the extent that that reasoning is applicable by analogy to the present case, it is distinct from the considerations referred to by Justice McHugh in Marks so it may provide – I think as your Honour stated earlier – a different basis for granting interim or interlocutory relief which does not involve or depend on any consideration of the prospects of success on the application.
HER HONOUR: What are the Commonwealth’s instructions on that aspect?
MR HORAN: We accept that that is a binding decision although it is in a different context of a capital case involving the scheduled execution. So, if applied – it has been applied in other circumstances more broadly to circumstances where the subject matter of litigation would be destroyed in the absence of interlocutory relief. To some extent, the present case might fall into that category for the reasons that I have outlined earlier. In my submission, it does not totally displace consideration of the ordinary principles governing the grant of interlocutory or interim relief. For those reasons, the submissions that have been made on ‑ ‑ ‑
HER HONOUR: I do not understand that last submission – does not totally displace.
MR HORAN: It may provide an alternative basis for your Honour to grant relief purely to enable the Court to properly consider the grounds of the application.
HER HONOUR: In a sense, that is all Tait does. It preserves the ability of the Court to consider properly the subject matter of a litigation which would otherwise be destroyed.
MR HORAN: That is correct, but the Minister submits that the arguments that are presented on this application enable the Court to give sufficient consideration to the grounds of both the application for injunctive relief and the substantive grounds of the application to enable a decision to be made on the general principles governing interlocutory relief rather than relying on the special jurisdiction recognised in Tait.
So, if your Honour is able to give adequate consideration to the grounds of the application that is before the Court today, there is no need to adjourn the application with a grant of interlocutory relief. What that means is that if your Honour forms a view that the Court does not, or has not had, a proper opportunity to address the issues raised by the application and that the application needs to be adjourned to a later date then Tait v The Queen would support the grant of interlocutory relief for that period.
Alternatively, your Honour might consider that the Court has had sufficient opportunity to consider the issues raised by the application and has come to the view that injunctive relief should be granted on ordinary principles, namely, that the plaintiff has shown a prima facie case and that the balance of convenience favours the grant of that relief.
But, thirdly, again assuming that your Honour considers that the Court has had a proper opportunity to consider the application, the application can be refused on the basis that the plaintiff has not satisfied the ordinary principles, namely, that there has not been shown a serious issue to be tried on the application for an extension of time and, although, to some extent less reliance is placed on this, the balance of convenience does not favour the grant of relief.
So the submissions that are put by the Minister are directed on the assumption that the Court is past the threshold of being able to give adequate consideration to the substantive merits of the application, then the Court can – and in my submission, should – conclude that there is insufficient prospect of success on the application for an extension of time to justify the grant of interim or interlocutory relief. The matters I have relied are principally the explanation for that long period between November 2013 and June or July 2015 and, secondly, the substantive merits or prospects on the application – on the grounds of the application for an order to show cause.
Just in conclusion on the question of prospects, on ground 1, the submission as put by the plaintiff is that the delegate did not give consideration to the individual circumstances of the plaintiff when considering whether there was a real risk or a real chance of serious harm.
The Minister’s submission in response to that ground is that the delegate adopted what is an orthodox and conventional approach to dealing with claims of this nature and that is to deal first with all individual claims arising from particular circumstances connected with the plaintiff’s profile and then deal with the plaintiff as a member of the group comprising Hazara Shias.
At that second stage, there is no superadded requirement to address individual circumstances which have already been addressed when dealing with the individual claims as to whether or not the plaintiff has any particular risk of persecution by reason of something particular or specific to him as an individual as opposed to simply being a Hazara Shia. In our submission, that is an orthodox approach and it involved no error.
Ground 2 is a contention that the delegate was required to identify specific areas in order to engage in a comparison of the circumstances in the home area as compared to the area of relocation. I should for completeness note, your Honour, that there were observations of potential relevance on that issue made by his Honour Justice Hayne as a single Judge in a case of Plaintiff M13/2011 and again, I think, the AGS instructor might have a copy of that in Court. It is at tab 2 of the folder – if I could ask if that could be handed up.
This is a decision which is not of particular assistance to the Minister in this case, but it was a relocation decision in which a primary decision by a delegate was set aside. At paragraphs [21] and [22], his Honour deals with the application of those principles to that case. One of the reasons, the central reason why the decision was set aside in that case was that his Honour concluded that the particular circumstances of the plaintiff had not been considered in forming an opinion that she could relocate. His Honour continues:
So much follows from the delegate not knowing ‑ ‑ ‑
HER HONOUR: Sorry, where are we reading from now?
MR HORAN: I am sorry, this is in the middle of paragraph [22].
HER HONOUR: Yes.
MR HORAN:
So much follows from the delegate not knowing from where the plaintiff would have to relocate.
The facts of the case – if your Honour turns back to paragraph [19], there are some observations of potential relevance such as the present where two points are made about the delegate’s statement of reasons:
First, the delegate expressly stated that he did not know where the plaintiff had been living before she left Malaysia. The question of “relocation” was treated as a possibility to be determined without regard to where the plaintiff had previously been living.
HER HONOUR: It does seem to help you very much, does it?
MR HORAN: No. So, I thought, though, that I should draw the Court’s attention to this decision because it is the only decision that I am aware of that has looked at a case in which there was a failure to identify specific places from which or to which an individual could relocate. The difference in this case is, we would submit, that in that case there was a complete failure to identify both the region of origin and the relocation destination, whereas in the present case the delegate has identified and made findings in relation to the specific home region of the plaintiff and, furthermore, has identified the range of safe areas to which the plaintiff could relocate. In particular, they include the three areas that are mentioned at the top of page 12 of the delegate’s decision.
HER HONOUR: Is that right? What the delegate does is the delegate refers at the foot of 12 and the top of 13 to country information and says:
I have also considered whether Hazara communities exist in Pakistan, outside Quetta –
He sets out two aspects to them and says:
The migration of Hazara communities within Pakistan is well documented, I do not accept that Quetta is the only place -
Does she ever make a finding about what those other places are?
MR HORAN: There are only the findings that are at the bottom of page 12 and the top of page 13.
HER HONOUR: Are they findings or just extracts from country information?
MR HORAN: We would submit they are – in the context of the delegate’s decision they are findings that they are areas in which Hazaras safely live. The approach taken by the delegate, which appears from about point 6 or 7 on the previous page, page 12 – this is addressing the individual profile of the applicant in relation to relocation but the delegate is looking at “risk of harm outside his home region” ‑ ‑ ‑
HER HONOUR: Where are you reading from? You know this better than I do, Mr Horan.
MR HORAN: I am sorry, yes. The paragraph, at about point 6 on the page, commencing:
I do not accept that any profile held by the applicant’s family is likely to ‑ ‑ ‑
HER HONOUR: But that is the applicant’s family.
MR HORAN: Yes, but it is addressing his imputed profile.
HER HONOUR: Yes.
MR HORAN: But the point I am trying to make from this paragraph is that the delegate is looking generally at areas outside his home region but then the next sentence indicates that the approach adopted by the delegate is to look at any other area where he may choose to relocate. So, the particular place to which the plaintiff can relocate is, ultimately, a matter of
his choice in a context where there are areas in which Hazara Shias do not face a real risk, or a real chance of harm. So that is to explain the approach that was adopted by the delegate and we say that that does not involve any failure to apply the principles in relation to relocation.
One last thing is noteworthy in relation to this exercise in comparison. The delegate refers at page 13 – again, at about point 6 on the page – in the paragraph, “While I accept there would be challenges in doing so”, there is reference there by the delegate to the principle that:
Whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio‑economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense.
Those observations reflect principles which were articulated in the House of Lords case of Januzi which, his Honour Justice Gageler, referred to recently in the case of SZSCA (2014) 314 ALR 514 at paragraphs [43] to [44].
So the point in conclusion is that the comparison exercise is not one that requires a comparison of living conditions or quality of life which might then require much more specificity in identifying the areas, the subject of comparison. But in the context of the Convention it is sufficient to reach a conclusion that it is reasonable in the sense of practicable to relocate to an area in which the plaintiff does not face a real chance of serious harm. That is the approach adopted by the delegate in this case.
So, for those reasons, we say that the prospects on the substantive grounds are not sufficiently strong to justify the grant of an extension of time. In those circumstances, there is not a sufficiently strong prima facie case on that application to warrant the grant of the interlocutory relief sought in relation to the plaintiff’s removal this evening. If your Honour pleases, those are our submissions.
HER HONOUR: Thank you, Mr Horan. The Court will adjourn for a moment.
AT 5.33 PM SHORT ADJOURNMENT
UPON RESUMING AT 5.51 PM:
HER HONOUR: The plaintiff, M196 of 2015, (“the plaintiff”), seeks an urgent interlocutory injunction to restrain the defendant, the Minister for Immigration and Border Protection, (“the Minister”), and his delegates, from removing the plaintiff from Australia pending the resolution of the substantive proceeding. The Minister has indicated that the plaintiff will be removed from Australia at 22.40 pm this evening from Tullamarine Airport.
The substantive proceeding is an application for an enlargement of time to commence an application for an order to show cause in the original jurisdiction of this Court under section 75(v) of the Constitution seeking relief in relation to the decision of a delegate of the Minister to refuse to grant to the plaintiff a Protection (Class XA) visa.
The plaintiff is a citizen of Pakistan. He is a Shia Muslim and of Hazara ethnicity. He claims to fear persecution in his home region of Quetta in the province of Balochistan. The delegate found that there was a real chance that the plaintiff would be subject to persecution in that area. However, the delegate found that the plaintiff could access state protection in a region of Pakistan other than that province. The plaintiff submits that the decision is affected by jurisdictional error insofar as the delegate purported to find that the plaintiff could access state protection in a region of Pakistan other than that province and, in particular, the plaintiff contends that the delegate did not correctly apply the “reasonable relocation” test.
In the circumstances, given the limited time available to consider this matter and, in particular, given the matters raised by the Minister, in particular by reference to the decision which had previously considered the relocation provisions, this is a case, in my view, in which it is appropriate for this Court to exercise the powers of the kind exercised in Tait v The Queen (1962) 108 CLR 620. It is appropriate, in my view, to make an order that would preserve the subject matter of the application without giving any consideration to or expressing any opinion as to the grounds on which it is based, but entirely so that the authority of this Court may be maintained and the Court may have another opportunity to consider it.
In the circumstances, Mr Horan, it is appropriate that there be a short order.
MR HORAN: I am not sure that I have a specific form of order based on any past precedent, but it would be to the effect that the ‑ ‑ ‑
HER HONOUR: The only question for me is a time limit and that is when the two of you can come back and we can have the full argument on the questions. So you two can tell me when that is appropriate and then there will be an order that until a particular date and time the Minister be restrained from removing the plaintiff.
MR HORAN: Yes. I think my learned friend wishes to say something to your Honour.
MR ALEKSOV: Your Honour, in relation to the time, we would submit that the time should be made conditional upon us receiving the response to the freedom of information request. At present we do not know just when that will be although we expect it is on 28 September – we have been advised that it is on 28 September.
HER HONOUR: I do not know that I can do that, for two reasons. I do not know what that information request is about and I do not know what it seeks or why there has been the delay. Now, the Minister himself may be able to shed some light on that matter but, at the moment, the application is based upon the material before the Court and it would seem to me that you two should choose a time when I am available that the matter can be heard. It may be that the Minister in the circumstances will respond to the request in the meantime.
MR HORAN: Yes, your Honour. I think ordinarily, your Honour, although it is commonplace for FOI applications to be made once proceedings are commenced, that is often overtaken by the court processes in preparing court books and the ‑ ‑ ‑
HER HONOUR: We are not going to have court books, Mr Horan.
MR HORAN: No.
HER HONOUR: We are going to have a hearing of an interlocutory application. The only question is whether or not the Minister proposes to respond sooner rather than later.
MR HORAN: Yes.
HER HONOUR: I do not know anything about it, and I ask you to take that into account when we fix the time.
MR HORAN: Yes, your Honour. The Minister will, outside of the processes of the FOI application, need to discover relevant documents to the plaintiff as soon as possible. That was what I was adverting to and I can get instructions on when that can occur but it should be done with expedition.
HER HONOUR: I do not quite understand what is left over other than me considering an application for enlargement of time, having considered and having proper time to read the delegate’s decision as well as all of the other materials that you have referred to me which I have not yet had proper time to consider.
MR HORAN: I agree with your Honour that it is necessary to simply fix a time that is convenient to the Court and to the parties. From our viewpoint we will accommodate any appropriate time period, whether that be next week or in a fortnight or subsequently, but a date perhaps in the week commencing 14 September might be a good starting point, your Honour.
HER HONOUR: All right. I have 15 September available at 9.30. Is that suitable to both of you?
MR HORAN: Yes, your Honour
MR ALEKSOV: Yes, your Honour.
HER HONOUR: All right. The orders that I will make are as follows:
1.Until 4.15 pm, Australian Eastern Standard time, on Tuesday, 15 September 2015, or further order, the Minister not remove the proposed plaintiff, M196 of 2015, from Australia.
2.Direct that any additional material, whether by way of affidavit or submissions, should be filed and served no later than 12 noon on Monday, 14 September 2015.
3.Costs of this application are reserved.
Anything else, Mr Horan?
MR HORAN: No, your Honour.
HER HONOUR: Mr Aleksov?
MR ALEKSOV: Yes, your Honour, in relation to the costs of the application, my instructor communicated with the Minister late last evening requesting that they give an undertaking not to remove the plaintiff. In light of the outcome today, we would seek our costs of today’s appearance.
HER HONOUR: Yes, well, I have reserved them and I will deal with them on the Tuesday.
MR ALEKSOV: Very well, your Honour.
HER HONOUR: Adjourn the Court.
AT 5.59 PM THE MATTER WAS ADJOURNED
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