Plaintiff M196 of 2015 v Minister for Immigration and Border Protection

[2015] HCATrans 240

[2015] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M196 of 2015

B e t w e e n -

PLAINTIFF M196 OF 2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 17 SEPTEMBER 2015, AT 9.28 AM

Copyright in the High Court of Australia

HER HONOUR:   On 1 September 2015, the plaintiff, M196 of 2015, (“the plaintiff”), sought an 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 substantive proceeding is 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 (“the delegate”) to refuse to grant to the plaintiff a Protection (Class XA) visa.

The Minister had indicated that the plaintiff would be removed from Australia at 10.40 pm on 1 September.  The application for an interlocutory injunction came on for hearing at 4.30 pm that afternoon.  Given the limited time available to consider the application and because of matters properly raised by counsel for the Minister during that hearing, an order was made that preserved the subject matter of the application without giving any consideration to, or expressing any opinion as to, the grounds on which the application was based so that the authority of this Court could be maintained and the Court may have another opportunity to consider it:  see Tait v The Queen (1962) 108 CLR 620.

This is that opportunity.

The plaintiff is a citizen of Pakistan, is a Shia Muslim and of Hazara ethnicity.  He claimed to fear persecution in his home region of Quetta, in the province of Balochistan, because of his religion, his ethnicity, and his imputed political opinion arising from the role and activities of his mother.

The delegate found that the plaintiff could access State protection in a region of Pakistan other than Balochistan.  The delegate found that there was not more than a remote chance that the plaintiff would face persecution on account of his religion, race or political opinion in the reasonably foreseeable future if he were to return to live in Pakistan, outside of Balochistan (“the delegate’s decision”).

In the substantive proceeding, the plaintiff’s complaint would be that the delegate’s decision is affected by jurisdictional error on the basis that the delegate did not correctly apply the “reasonable relocation” principle.  The plaintiff contends that the “reasonable relocation” principle is a qualification on the existence of protection obligations under the Refugees Convention and that for the qualification to be engaged, there must be a “safe haven” within Pakistan to which relocation is reasonable, in the sense of practicable.  The plaintiff submits that what is “reasonable”, in the sense of “practicable”, depends upon the particular circumstances of the asylum seeker and the impact upon that person of relocation within the country of nationality:  see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at 27, [24].

The plaintiff relied upon two grounds in submitting that the delegate did not apply the correct test.  The first ground was that the delegate adopted or applied an impermissible “statistical” mode of analysis and failed to consider whether this individual plaintiff faced a real chance of persecution if returned to Pakistan:  see DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659 and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 495, [58].

The second ground was that the delegate failed to consider all the circumstances personal to the plaintiff in determining whether relocation was reasonable, that the delegate was required to (and did not) identify the safe haven with the required level of specificity and that the delegate was required to (but did not) consider the impact that the conditions in that safe haven would have on the plaintiff.

These reasons will consider the principles applicable to the grant of an injunction, the application for enlargement of time to commence that substantive proceeding and then turn to consider the merits of the substantive proceeding.

The power of the Court to grant an injunction is not in dispute: see section 75(v) of the Constitution. The plaintiff accepted that he must demonstrate that he has a prima facie case and that the balance of convenience favours the grant of the injunction: see Plaintiff M168/10 v The Commonwealth (2011) 85 ALJR 790 at 793, particularly at [15] to [19].

The plaintiff contends that the grounds set out in the Application for an Order to Show Cause are meritorious, and establish a strong prima facie case.

In relation to the balance of convenience, the Minister had indicated an intention to remove the plaintiff by providing a “Notice of Intention to Remove from Australia” to the plaintiff on 28 August 2015.  The plaintiff seeks the injunction to preserve an aspect of the subject matter of the substantive proceeding, relating to whether Australia has protection obligations under the Refugees Convention in respect of this plaintiff.  If the injunction is not granted, the plaintiff contends he will be removed to a place where he will face a real chance of persecution, in circumstances where those claims may not have been determined in accordance with Australian law.  The plaintiff contends that the Minister will suffer minimal prejudice if the injunction is granted, in that the plaintiff will remain in immigration detention pending the resolution of the substantive proceeding, or be released into the community at the discretion of the Minister.

The plaintiff faces an initial hurdle. The delegate’s decision was made on 3 September 2013. The plaintiff is out of time to commence the substantive proceeding. The proceeding was instituted outside the period of days fixed by section 486A of the Migration Act 1958 (Cth) (“the Act”) as well as outside the periods of 6 months and 2 months fixed by rules 25.06.1 and 25.07.2 of the High Court Rules 2004 (“the Rules”). The plaintiff therefore requires an enlargement of time under section 486A(2) of the Migration Act and rule 4.02 of the Rules.

What is the basis of that application?  The plaintiff submits it is appropriate to enlarge the time in which to commence the substantive proceeding because the claim for relief is meritorious, the consequences for the plaintiff in not enlarging time would be severe, any prejudice to the Minister in granting the enlargement of time is minimal and there is a sufficient explanation for the delay.

Enlargement of time is not automatic.  In respect of the enlargement of time to commence applications for constitutional relief, Justice McHugh in Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 473 to 474, especially at [13], said that in addition to considering the plaintiff’s prospects of success, the “explanation for . . . a delay is . . . a relevant consideration” and that a “case would need to be exceptional before the time for commencing proceedings was enlarged by many months.” In respect of delays greater than a year, as in this case, his Honour said at page 474:

The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

Some explanation for the delay in filing the substantive proceeding was set out in an affidavit of Ms Sanmati Verma, the plaintiff’s solicitor, dated 1 September 2015.  Taken at its highest, the plaintiff did not receive notification of the delegate’s decision until after the period in which he could seek review by the Refugee Review Tribunal had expired.  However, that does not explain the subsequent delays.  There is no explanation for the delay between November 2013, when the plaintiff learned of the delegate’s decision, and June 2015, when he was taken into immigration detention.  It appears that before his arrest in June 2015 on charges of drug trafficking and possession of the proceeds of crime, the plaintiff lived in the community as an unlawful non‑citizen.  During that period, the plaintiff did not take steps to review the delegate’s decision.  The plaintiff accepts that there is no express explanation for his delay but submits that the Court should infer that he did not know of his right to commence the substantive proceedings.  I do not accept that that inference can and should be drawn from the material before the Court.  During the course of argument, the plaintiff’s counsel referred the Court to a report dated 23 August 2012 from a forensic psychologist that concluded that the plaintiff was suffering from a severe psychological illness.  That report predates the delegate’s decision and no later medical evidence was provided in respect of this first period of delay.

The second period of delay is shorter.  It runs from late June, when the plaintiff was released on bail but taken into immigration detention, to 1 September 2015.  In late June 2015, during the course of an interview with an officer from the Department of Immigration and Border Protection, the plaintiff was recorded as saying he was depressed but that he was not taking any medication.  In Part C of the Compliance Client Interview, the officer refers to the police having advised that the plaintiff had a significant psychiatric condition and he was a self‑harm risk.  No medical evidence was provided to this Court.  During the second period, the plaintiff pursued other avenues of redress but did not file any proceeding seeking to challenge the delegate’s decision.  The plaintiff’s decision to seek other avenues of redress rather than commence legal proceedings has been held not to be a sufficient reason to justify this second period of delay in filing the substantive application:  see Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 and Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279.

The Minister submits, and I accept, that the time elapsed since the date of the delegate’s decision and the fact that the material presented by the plaintiff does not provide an adequate explanation for the delay in commencing the substantive proceeding is a factor weighing heavily against the grant of the interlocutory relief sought by the plaintiff.  However, that unwarranted delay in the plaintiff filing the substantive proceeding would not of itself determine whether it is in the interests of the administration of justice that the plaintiff should now be permitted to pursue the substantive proceeding in this Court.  I turn now to consider the merits of the two grounds raised in the proposed substantive proceeding.

The plaintiff submits, as I have said, that the merits of the substantive proceeding are strong and the issues are of short compass.  As seen earlier, the plaintiff’s contention is that the delegate’s decision is affected by jurisdictional error.  The delegate’s decision concerned relocation within Pakistan.  The plaintiff’s contention is that the delegate did not correctly apply the “reasonable relocation” test in determining whether the plaintiff could access internal relocation.

Before turning to the two specific complaints, some preliminary matters should be noted.  First, the plaintiff accepts that the delegate accurately summarised the plaintiff’s claims made in writing and at the oral interview with the delegate.  Second, the delegate accepted that the plaintiff is a Shia Muslim of Hazara ethnicity from Quetta in Balochistan.  Third, the delegate found that there was a real chance the plaintiff would be subject to persecution due to his Shia Muslim religion and Hazara race if he were to return to Quetta or Balochistan now or in the reasonably foreseeable future.

I turn then to the delegate’s decision.  The delegate considered whether the plaintiff could reasonably relocate to another region in Pakistan where there was no real chance of the feared persecution.  The delegate correctly identified the test as follows:

“The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country:  Randhawa v MILGEA [Minister for Immigration, Local Government and Ethnic Affairs] (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the [plaintiff] and the impact upon that person of relocation within his or her country.”

The delegate then addressed the question of relocation.  First, the delegate accepted that there was a lack of security in several regions of Pakistan and therefore accepted the plaintiff’s claims that some localities were too dangerous to be considered for relocation.  However, the delegate went on to state that there were places in Pakistan “where every aspect of life is not overwhelmed by conflict and a fear of extremist groups”.  Next, the delegate made a finding that “[w]hile extremists have been known to have a presence in cities all over Pakistan, the violence tends to be directed specifically against people with a profile”.

Against the background of those findings, the delegate stated:

Country information indicates that some 20 per cent of Pakistan’s Muslims are Shia, and depending on which population figure are [sic] relied on, there would be between 17 and 26 million Shia in the country.  This demography is relevant to assessing whether there is a real chance of the [plaintiff] coming to serious harm on account of his religion.  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, given the large numbers – in terms of population – involved relative to the numbers killed or injured, and in considering the [plaintiff’s] profile, I am of the opinion that the chance that the [plaintiff] would be seriously harmed due to his religion or race is remote.

I accept that the [plaintiff] may be recognised in Quetta as a person with this profile.  However, I am of the opinion that this profile does not extend beyond his family’s localised area within Quetta.  I am not satisfied that the [plaintiff] would be recognised or targeted outside Quetta.  I do not accept that the [plaintiff] has been personally targeted by Lashkar‑e‑Jhangvi or any other extremist group.  I do not accept that he holds a profile outside of his home region that distinguishes him from the wider Hazara or Shia community.

I do not accept that any profile held by the [plaintiff’s] family is likely to place him at risk of harm outside his home region.  I do not accept that his personal or family profile would attract the attention of extremists in any other area, where he may choose to relocate.  I do not accept that the [plaintiff’s] personal profile and family connections are of a kind which would have extremists from Quetta or Balochistan generally pursing or tracking him down through Pakistan.  While the [plaintiff] 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.”  (emphasis added)

The delegate then turned to the question of whether Hazara communities existed in Pakistan, but outside Quetta.  The delegate referred to country information as stating that many Hazaras were leaving Quetta “for safer places in Pakistan such as Karachi, Islamabad, Lahore and elsewhere” and referred to a 2010 report that there were Hazara settlements in Karachi, Lahore and Multan.  The delegate then made a finding that the migration of Hazara communities within Pakistan was well documented and that there were no legal barriers to prevent people moving to live elsewhere in Pakistan.  The delegate did not accept that Quetta was the only place Hazaras were able to live in Pakistan.

Next, the delegate turned to the plaintiff’s personal circumstances – including his education, his language ability, his employment background, his resourcefulness and the fact that his sisters lived in a specific city in Pakistan outside of Balochistan.  After discussing these circumstances, the delegate stated that while she accepted that there would be challenges, she could find no evidence that it was not possible or reasonable for the plaintiff to relocate to areas outside Balochistan.

Finally, the delegate summarised the two steps to her decision:  first, whether the plaintiff could relocate to an area within Pakistan where he did not have a real chance of being persecuted for a Refugees Convention reason; and, second, whether it was reasonable, in the sense of practicable, for the plaintiff to relocate within Pakistan, including assessing whether the plaintiff could safely access a relocation option within Pakistan.  The delegate concluded that she was satisfied that the plaintiff could relocate within Pakistan and made a finding that there was not more than a remote chance that the plaintiff would face persecution on account of his religion, race or political opinion in the reasonably foreseeable future if he were to return to live in Pakistan, outside of Balochistan.

I then move to ground 1 of the plaintiff’s complaints.  The plaintiff’s first contention is that the delegate found the plaintiff was not exposed to a real chance of persecution in areas within Pakistan other than Balochistan on the sole basis of an impermissible “statistical” mode of analysis and that the delegate failed to consider whether this individual plaintiff faced a real chance of persecution if returned to Pakistan:  see Appellant S395/2002 at 495, especially at [58]. The plaintiff submitted that the approach adopted by the delegate suffered from the same defects as those identified by Justice Mansfield in DZADQ at 673, especially at [65]. In my view those contentions are rejected.

The findings of the delegate must be read in the context of the whole record of her decision.  Contrary to the plaintiff’s contentions, the delegate correctly applied the “reasonable relocation” test.  As the extracts from, and the analysis of, the delegate’s decision reveals, the delegate addressed the risk of persecution to the plaintiff in two ways – by reference to Shias and Hazaras in Pakistan generally, and by considering the personal circumstances and profile of this individual plaintiff.

The “statistical” analysis of the number of Shias and Hazaras in Pakistan was a, not the sole, factor considered by the delegate.  The country information referred to by the delegate established that most Hazaras comprise an ethnic minority of the Shia population in Pakistan.  The references in the delegate’s decision to the number of Hazaras living in Pakistan were inconsistent.  In one part, the delegate referred to estimates suggesting that there are up to 600,000 Hazaras living in Pakistan.  Another part of the delegate’s decision refers to six to seven thousand Hazaras living in Pakistan.

Despite those differences, the delegate’s decision records that the delegate considered both the number of Shias, on account of religion, and Hazaras, on account of race, in Pakistan as a factor to be taken into account when considering whether this individual plaintiff faced a real chance of persecution if returned to Pakistan.  That is not impermissible.  There is no prescribed method for assessing that question.

Even if, as the plaintiff suggests, the delegate did not address the question of the number of Shias and Hazaras separately, a view I do not accept, that would not constitute error.  It would not constitute error because, as stated, the “statistical” analysis of the number of Shias and Hazaras in Pakistan was a, not the sole, factor considered by the delegate.

There were two further sets of relevant findings.  It is to those that I now turn.

The delegate also addressed other facts and matters generally applicable to Hazaras – the fact of, and location of, Hazara settlements in specific locations outside Quetta, and that migration of Hazara communities is well documented.

A further or third set of findings, personal to the plaintiff, was also made by the delegate in the context of finding that there was not more than a remote chance that the plaintiff would face persecution if returned to Pakistan, outside of Balochistan.  Those findings included that the plaintiff lacked a profile outside Quetta.  This third set of findings must be read in the context of the finding by the delegate, referred to earlier, that “[w]hile extremists have been known to have a presence in cities all over Pakistan, the violence tends to be directed specifically against people with a profile”.  The delegate relevantly found that the plaintiff’s profile did not extend beyond his family’s localised area and, that outside that area, he did not hold a profile that distinguished him from the wider Hazara or Shia community, that any profile held by his family would not be likely to place the plaintiff at risk of harm outside his home region, and his “personal profile and family connections” were not of the kind that would mean extremists would track him down outside of Quetta or Balochistan.

The plaintiff criticised the finding that violence tends to be directed specifically against people with a profile on the grounds that the finding lacked specificity, was not comprehensive, and did not establish that low‑profile people were not targeted or did not have a reasonable fear of persecution.  That contention should also be rejected.

This is not merits review.  The merits of the plaintiff’s application for a visa and the factual findings were a matter for the delegate.  The delegate’s reasons “are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

In my view the plaintiff has failed to establish a prima facie case in relation to ground 1.  The delegate correctly applied the “reasonable relocation” test and addressed the risk of persecution to the plaintiff in two ways – by reference to Shias and Hazaras in Pakistan generally, and by considering the personal circumstances and profile of this individual plaintiff.

I now move to consider ground 2 raised by the plaintiff.  The second ground was that the delegate failed to consider all the circumstances personal to the plaintiff in determining whether relocation was reasonable, that the delegate was required to, and did not, identify the safe haven with the required level of specificity, and that the delegate was required to, but did not, consider the impact that the conditions in that safe haven would have on the plaintiff.  The plaintiff submitted that the delegate’s consideration was not a genuine engagement with the feasibility of internal relocation of the plaintiff, having regard to his circumstances.

In dealing with the question of relocation, the delegate identified four specific cities in Pakistan where Hazara communities existed, which included the city where the plaintiff’s sisters lived, and then turned to consider the plaintiff’s personal circumstances.  As I have explained earlier, the delegate had found that violence from extremists tended to be directed towards people with a profile, and that the plaintiff did not have a profile outside of Balochistan.  The delegate concluded that, although there would be challenges, it was possible and reasonable for the plaintiff to relocate to areas outside of Balochistan.

The delegate did not specify “a” safe haven within Pakistan.  In the circumstances of this plaintiff, it was unnecessary to do so:  see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440 and 443. In fact, the delegate had identified more than one place outside of Balochistan to which it was possible and reasonable for the plaintiff to relocate. The decision of this Court in Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 740 at 743, in particular at [19] to [20] does not assist the plaintiff. As counsel for the plaintiff accepted, the ratio of that case was dealing with a different problem – a failure of a delegate to identify where a person was from, not the specific location the person could relocate to.

What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the plaintiff and the impact upon that person of relocation of their place of residence within the country of nationality:  see SZATV at 27, in particular at [24]. The delegate addressed that question.

The plaintiff has failed to establish a prima facie case in relation to ground 2.

For those reasons, the plaintiff has failed to establish a prima facie case in relation to his application for injunction.  In the circumstances, it is unnecessary to consider the balance of convenience.  There would be no utility in granting the plaintiff an enlargement of time.  It is not necessary in the interests of the administration of justice.  In the circumstances, the application will be dismissed with costs.

I propose to make the following orders:

1.The application for an extension of time under section 486A(2) of the Migration Act 1958 (Cth) and rule 4.02 of the High Court Rules 2004 in which to make the application for an order to show cause dated 1 September 2015 is refused.

2.The plaintiff pay the defendant’s costs.

Anything you wish to say, Mr Goodwin?

MR GOODWIN:   No, your Honour.

HER HONOUR:   Mr Aleksov?

MR ALEKSOV:   No, your Honour.

HER HONOUR:   Thank you.  The Court will be adjourned.

AT 9.58 AM THE MATTER WAS CONCLUDED