Plaintiff P21/2016 v Minister for Immigration and Border Protection

[2016] HCATrans 210

[2016] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P21 of 2016

B e t w e e n -

PLAINTIFF P21/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON TUESDAY, 6 SEPTEMBER 2016, AT 11.59 AM

Copyright in the High Court of Australia

MS D.G. TAYLOR:   If it please the Court, I appear for the plaintiff.  (instructed by AUM Legal)

MR P.M. MACLIVER:   If it please your Honour, I appear for the Minister.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Ms Taylor.

MS TAYLOR:   May it please your Honour, this is an application brought on behalf of the plaintiff for both an extension of the time in which to make the application and also for relief.  I hope your Honour has had an opportunity to read the material filed by the plaintiff and the defendant because the written submissions really lay out the plaintiff’s case.

HER HONOUR:   I have read the application for an order to show cause, I have read your submissions and I have also read the defendant’s outline of submissions, as well as the affidavit material.

MS TAYLOR:   I am most grateful for that indication.  Then you will have seen that my learned friend does not take issue with the passage of time between when the plaintiff was interviewed by the delegate and her decision published in October 2013 and when the plaintiff ultimately learnt about it in 2015.

HER HONOUR:   So I understood from paragraph 3 of his submission that he accepts there is a reasonable explanation for that delay up until the decision of the Tribunal in February 2016.

MS TAYLOR:   That is correct.  Your Honour, for that reason I do not propose to dwell on that period of time, save to say – or to make the obvious point that the fault appears to have arisen in the office or the person of the migration agent who was appointed to represent the plaintiff early on in the proceeding.  So there is certainly no suggestion that there was any fault on the part of the plaintiff himself.

That, in itself, raises an issue that I would ask your Honour to bear in mind when considering every aspect of the case and when considering some of my learned friend’s submissions in support of his argument that there is essentially no merit in the plaintiff’s case, and that is the plaintiff and the Minister, for that matter, were poorly served by the migration agent or by the migration agent’s firm.

Your Honour knows that when the plaintiff was interviewed he attended the interview with a Mr Lang and the information that your Honour has is that for reasons that are not explained Mr Lang ceases to be the person allocated the plaintiff’s case within the migration agent’s firm and, again, those reasons are not known to the plaintiff.

But what is relevant, in my submission, is the fact that the plaintiff was poorly let down by the agent appointed to protect his interests and, to that extent, the Crown was let down too.  The Crown had a reason to believe that the person it introduced to the plaintiff was competent and would undertake his duties in a conscientious and competent way and to assess his ‑ ‑ ‑

HER HONOUR:   Can I just ask this question, Ms Taylor ‑ I do not seek to interrupt you ‑ but how do these relate to the grounds that you now prosecute, being grounds 1.1, 2, 4 and 6 of your application?

MS TAYLOR:   Well, they relate not least because in my learned friend’s written submissions he makes reference on a number of occasions ‑ paragraph 7 of his grounds is perhaps a good example where complaint is made in ground 1 about the nature and extent of the test that would be applied and what my learned friend says at paragraph 7 is:

Further, the plaintiff was assisted in making his Protection visa application by a migration agent –

and so on, and that reliance on the flak jacket, or the safety net of the migration agent, is again referred to later on in his submissions – sorry, I am just ‑ yes, paragraph 24.  Again, my learned friend refers to the fact that:

In any event, the plaintiff had the opportunity to make any further claims . . . and the plaintiff’s migration agent provided post‑hearing submissions to the delegate –

and so on.  So the relevance of my point, in my submission, is that there is an underlying assumption on the part of the defendant that the plaintiff received a competent service from the commencement of the process, possibly up to the time ‑ ‑ ‑

HER HONOUR:   Just one moment, Ms Taylor, we are getting feedback.  We will see if we can cut that link off, please.

MS TAYLOR:   Thank you.

HER HONOUR:   That is better.  We will try again.  So I understand the relevance is there is an underlying assumption that the plaintiff received competent support and advice.

MS TAYLOR:   That is right, and in the particular facts of this case, in my submission, that is an assumption that cannot be made, and it should not be made, because it all went badly wrong for the plaintiff.  He does not know the stage at which it went badly wrong and neither does anyone else.  One can point to the failure of his agents to tell him about the decision, and we know something went badly wrong at that stage, but there is no reason to assume it all went well up to that point.

HER HONOUR:   But there is no reason to suggest it went wrong though, is there?

MS TAYLOR:   One does not know, one simply does not know.

HER HONOUR:   Can I ask these questions of you, Ms Taylor?  I mean it is clear, is it not, that there was a migration agent present at the interview?

MS TAYLOR:   Yes, yes, there was.

HER HONOUR:   It is clear, is it not, that after that hearing, or after that interview, the migration agent forwarded additional submissions – was afforded an opportunity and took that opportunity to provide further submissions ‑ ‑ ‑

AT 12.06 PM VIDEO LINK DISCONNECTED

AT 12.07 PM VIDEO LINK RESTORED

HER HONOUR:   Ms Taylor, I think we might be back up.  Can you hear me now?  I apologise, we seem to have lost the link.

MS TAYLOR:   Well, the link was broken at the point when your Honour was scoring some serious hits in terms of the plaintiff’s case that I must concede.  There is every appearance of the migration agent doing a conventional job, certainly up to the point where his further submissions are filed, and that is the point at which we lost the connection in Perth.

HER HONOUR:   All right.  Well, I will take those hits, or accept that they are the concessions, and let us move on.

MS TAYLOR:   Yes.  So, your Honour, my brief point on that is that because of the particular facts in this case, approach what happened from beginning to end with a certain degree of circumspection; that is the point I wish to make.  As far as the time from February until the filing of the application goes, your Honour has seen the evidence filed from my instructing solicitor and also the outline of submissions.

What I would say in addition to that is that it is very difficult to say what amounts to reasonable time when someone is looking for representation.  It is not easy for my instructing solicitor or anyone in his position to find someone willing to take on a case like this, and nor is it necessarily within his gift to determine how long it will take for someone to assess the papers.

He is a sole practitioner, in a suburban office in Perth, who is dependent on the goodwill of the Bar to look at a set of papers in a case in which they may or may not be paid.  He is not able to represent the plaintiff and to deal with an application such as this without the assistance of someone else, and he tells you in his affidavit – and it is outlined in the submissions – the steps he took to find someone, and that appears at paragraphs 36 and 37 in the submissions.  In my submission, the most important point is that there is no prejudice to the defendant from the few months or weeks it took for my instructing ‑ ‑ ‑

HER HONOUR:   Ms Taylor, if one accepts that - and, as I said to you, there is the acceptance by the Minister that there was a reasonable explanation for the delay up to the decision of the Tribunal on 2 February - then are you not really having to meet the substantive merits of each of the grounds you continue to pursue?

MS TAYLOR:   Well, I am.  Your Honour, I did not wish to assume for a moment, however, that I did not need to cover the reasonableness of the period from February until May.

HER HONOUR:   Yes.

MS TAYLOR:   I would submit that the explanation given by my instructing solicitor who, of course, your Honour will have seen acted with considerable conscientiousness when first instructed by the plaintiff in June 2015 - in my submission, he simply proceeded in the same vein.  He was conscientious, he tried to further the plaintiff’s cause by obtaining the assistance of counsel, but the time scale in which that occurred was not entirely within his gift.  That is the only point that I wish to make in that regard.

Then I have to deal with the most difficult aspect of the plaintiff’s case and that is whether there is any merit in any of the grounds advanced on his behalf.  In my submission, this case turns on its own facts.  I could not find any reported case that mirrored the problem that this plaintiff has encountered.  My learned friend could not draw my attention to any reported case, or unreported case for that matter, of which he was aware that covered the same point.

So, if this plaintiff were to be successful in his application, it is not a question of floodgates being opened and lots of plaintiffs in his position pouring through.  But what you have is someone who has been denied an opportunity to seek review because of what happened, who must then seek remedy before this Court and seek to impeach the nature of the decision‑making process that took place when he was interviewed by the delegate and when she gave her reasons.

The first ground – and, in my submission, the strongest, although it appears - it may appear to be the weakest – relates to the nature of the process that the delegate undertook, and your Honour will have read that criticism is made of the delegate based on the transcript of what took place.  What appears to be taking place at the beginning is that the delegate is setting the parameters of the interview, and whether she is going through a checklist on the file or whether she is operating off a template is not for the plaintiff to know, but she is clearly concerned to establish that the plaintiff has some idea of the purpose of the interview and what is going on.

Your Honour will have seen reference is made to the passage in the transcript where the delegate asks him if he understands – this is referred to at paragraph 10 in the written submissions ‑ paragraph 42:

Delegate:We’ll be assessing you today and the refugee convention - are you familiar with that convention?

Plaintiff:No.

Delegate:The refugee convention is the one that covers race, religion, political opinion, social group.  Is that familiar to you?

Plaintiff:Yes.

Delegate:You sure?  Do you want me to read . . . 

Plaintiff:I understand.

Well, it could not be more cursory or ambiguous, in my submission.  Your Honour will know from the reference to the reported cases that the Court on many occasions has cautioned decision‑makers about their need to be sensitive when dealing with people who are first of all communicating in a foreign language, who are first of all communicating with authority in circumstances where they have fled persecution by authorities and in circumstances where their own environment is strange.  Here is someone who arrived at Christmas Island by boat and no one would suggest that is an easy experience for anyone.

So, my submission in regard to what went on is that this was not for the delegate’s benefit, it was not so the delegate could tick a box or a template saying check that you have told him the Refugee Convention is an issue; check that you have told him it covers race, religion and so on; you know, check, whether he wants it read out; check whether you need to probe this.  It is not about the delegate, it is about ensuring that the person whose application is being scrutinised understands the process and, if you like, understands the test, and it needs to be seen from the applicant’s point of view, not from the point of view of somebody who may have been hearing their 50th case.

It is very tempting, in my submission, for decision‑makers at the commencement of a hearing to go through the motions of ensuring that a person understands what is going on, but unless there is significant effort made to ensure that the person actually does understand, then that nod in the direction of procedural fairness is really illusory.  In my submission, that is what took place in this case.

Paragraph 45 of the written submissions really sums it up.  Once the delegate embarks on the process of nodding in the direction of procedural fairness and explaining what is going on, she really must commit to it, and she cannot do it a little bit, she must do it in such a way as to satisfy herself before she moves on that the applicant knows what is going on.

HER HONOUR:   When you are looking at a requirement for procedural fairness you accept, I assume, that one has to look at it in the context of the statutory framework within which the decision‑maker is exercising that power and, secondly, having regard to the particular facts and circumstances of the case.

MS TAYLOR:   I must accept both those things.

HER HONOUR:   I understand.  So here there was a requirement, as I understand your submission, that the delegate had to not only in a sense ask the questions which were set out at 42 but go on and explain the nature and extent of the process and the test.

MS TAYLOR:   Well, that would be ideal, and ‑ ‑ ‑

HER HONOUR:   Well, I put it to you in two ways because I want to know what it is that was to occur in this case.

MS TAYLOR:   Yes.

HER HONOUR:   It cannot be a standing rule, can it?

MS TAYLOR:   Well, your Honour, I do not think one will find it as a rule written down anywhere, but what one can see is that at the start of the interview the delegate was setting the scene – if I just deal with it in plain English.  He was setting the scene and seeking to ensure that she was satisfied that the plaintiff knew what was going on and the criteria that she would be dealing with that day.

HER HONOUR:   I think they are only some of the facts, are they not, and this comes back to the point where you started and that is this ‑ not only does the plaintiff at that point have that process, and I understand that you complain about the extent of it, but it was in the context in the facts and circumstances of this case of the matters that I put to you before, which I think you conceded were difficult for you, and that is we have a migration agent present ‑ ‑ ‑

MS TAYLOR:   Yes, yes.  Well, I am not sure and it is certainly no part of my job to speculate, but your Honour may ‑ ‑ ‑

HER HONOUR:   Nor is it my job to speculate.

MS TAYLOR:   No, no, but your Honour may look at whether it is permissible for the decision‑maker to essentially shift the burden of ensuring that the process is fair onto the migration agent because that appears to be a theme that runs through my learned friend’s submission when he prays in aid the presence of the migration agent – essentially to protect the plaintiff’s rights.

As I say, I am not sure – and I certainly could not find anything written down that would indicate it was for the migration agent to speak up and say, at any stage, excuse me, decision‑maker, but you have not actually outlined the process and the information that you are seeking today, in such a way as to leave the plaintiff in no doubt about what is going on.  It has been done at a brisk pace, designed to satisfy the delegate that she has set the scene for this plaintiff, and my submission essentially is it was done in a cursory way that was meaningless.

HER HONOUR:   Yes, I think I have that point.

MS TAYLOR:   In relation to ground 2, your Honour sees the written submissions at paragraph 52 and onward.  In addition to what is written, my main submission is that the delegate’s emphasis on the Karuna Group was unnecessarily narrow based on what the plaintiff had said and the information he had given about other organisations or bodies or people, both known and unknown, whom he feared, and as a result of that she failed to take into account matters that might have caused her to reach a different decision. 

That is essentially summed up in paragraph 62 where it is submitted on behalf of the plaintiff that the narrowness of the delegate’s view caused her to reach conclusions about why the plaintiff went into hiding that may not have reflected the reality of the situation.  For example, your Honour will have read that the delegate accepted what the plaintiff has said about the beating he and his father received in 1990.  She also accepted what he had said about the attempts at extortion and the actual extortion.  But very little, if any, mention is made of the disappearance and death of people within the plaintiff’s own family and within his community and society. 

What one has when you read the delegate’s decision, in my submission, is an impression that the plaintiff was not able to give enough information about things that had happened, and that is picked up in my learned friend’s written submissions as well where, in paragraph 15 – this relates to ground 1 but it applies to ground 2 as well – he makes reference to the paucity of evidence.

Well, in terms of the plaintiff, he gives a detailed description of what happened in 1990, he gives a description of what happens to his wife’s cousin’s husband who disappears in 2006, gives the account of his brother being killed in 1985, he gives the account of his brother’s death in 2004 and he gives the account of his brother‑in‑law being taken by the army and being killed or believed to have been killed in 1987/1988. 

All of this needs to be seen in the context of a civil war that lasted for more than 20 years.  The fact that dates occur over a long period of time is actually a point in the plaintiff’s favour, not against him, because it demonstrates the nature of the society in which people were trying to survive at a time when the passage of five years or more meant nothing.

If that was the case, if you start with the earliest date, 1985, with the plaintiff’s brother being killed, well, if nothing happened for the next five years the delegate may say, well, there was no real basis for fear.  But then you have the beatings in 1990, then you have a gap when, on the plaintiff’s case, nothing of major consequence other than extortion and hiding ‑ ‑ ‑

HER HONOUR:   Can I put to you two specific matters which seem to provide, or may provide, some difficulty for you and I will deal with them in two groups if I can.  At page 20 of the decision in response to a direct question from the delegate your client was asked whether any of his siblings encountered problems with the Karuna Group or had been harassed and the plaintiff said no.

MS TAYLOR:   Well, that is just about the Karuna Group, but the question does not relate ‑ ‑ ‑

HER HONOUR:   No, is it?  That is my point.  It seemed to be – it was problems with the Karuna Group or had been harassed.  There seemed to be alternative propositions put to him.

MS TAYLOR:   Well, in my submission, your Honour, that is like dancing on the head of a pin.

HER HONOUR:   Right.

MS TAYLOR:   If he hears, have any of your family members been harassed by the Karuna – sorry, have problems with the Karuna Group or harassed - if the delegate went on to say, or harassed by anyone else such as the army or such as the militia or such as the LTTE or something like that and he had said no then there is nothing I could do or say on his behalf to rescue that situation.  But there is ‑ ‑ ‑

HER HONOUR:   Well, then can I put two other things to you which seem to sit with that, and they may be separate, but then you have pointed out to me that there is a break between 1990 and then the subsequent events.  As I read the delegate’s decisions it is that the delegate made a finding that, in a sense, since 2006 the plaintiff had not been pursued and he and his family had not suffered harm at the hands of paramilitary groups for the seven years preceding her decision. 

Then the third fact which seemed to sway in some part was the delegate’s finding that he had lived – so the break after 2006 - at his normal residence in Sri Lanka and had not been pursued during that period, at least from 2009 to 2012.  The reason why I raise these is they are factual findings and in a sense I wonder whether this is more merits review, that is, you are ‑ ‑ ‑

MS TAYLOR:   Well, your Honour, I am certainly conscious of my learned friend’s submissions saying that what the plaintiff is trying to do is to attack the merits of the decision.  There is an inevitable perception of an attack on merits when one is criticising process and conclusions that are regarded as being too narrow ‑ ‑ ‑

HER HONOUR:   Yes.

MS TAYLOR:   ‑ ‑ ‑ but that is inevitable.  It does not undermine complaints about the process.  Of course, I appreciate that without genuine cause for concern about the process this case must fail; that is appreciated.  But I do say that you cannot articulate problems with the process without making some reference to the narrow nature of the decision‑making, and also the ambiguities in terms of language, bearing in mind it has been conducted through an interpreter and so on.

What is clear from the corpus of the plaintiff’s evidence is that his fears did not relate just to the Karuna Group - and your Honour will remember his evidence regarding the name of that group - he says was given to him by elders at the temple to whom he spoke about the extortion.  But from his perspective, he and his family were being targeted, essentially because they were Tamils; also because some of them had money.  Those two things were not mutually exclusive and they did not necessarily have to co‑exist at the same time.

But from his perspective, the persons or the groups targeting him, members of his community, members of his family and his business associates were drawn from organisations that included government, the army, the militia, local paramilitary groups and criminal organisations. 

It is a difficult criticism made of him by the decision‑maker and my learned friend to say, well, he could have been more specific about who was after them and that is a hard criticism for anyone to make in the context of the country information that was available to the delegate from a wide range of sources that pointed to both the organised and random nature of violence in this country that spanned decades where one of the features of the violence was that people swapped sides.  So if it were just an attack on the merits of the decision‑maker, this application would fail but, in my submission, it is more than that.

HER HONOUR:   All right.  Do you wish to say anything more about grounds 4 and 6?

MS TAYLOR:   No, your Honour.

HER HONOUR:   Thank you very much.  I will hear from Mr Macliver and you will have a right of reply, of course.

MS TAYLOR:   Thank you.

MR MACLIVER:   Yes, thank you, your Honour.  Your Honour, turning firstly to ground 1, the defendant submits that there was nothing unusual in the way that the Tribunal – sorry, we did not reach that stage ‑ ‑ ‑

HER HONOUR:   The delegate.

MR MACLIVER:   In the delegate’s conducting of the interview with the plaintiff.  In my experience, having looked at quite a few of these interview transcripts over the years, I am unable to see that anything that the delegate said or did ‑ ‑ ‑

HER HONOUR:   I think the complaint is what she did not say.

MR MACLIVER:   Yes.  Well, as your Honour pointed out to my learned friend, this has to be looked at in the context of the statutory framework and the particular facts of the case, and the fact is, your Honour, that this plaintiff made an application for a protection visa relying upon the grounds of the Convention, and he was assisted, as we know, by a migration agent and I think we can safely assume that the migration agent explained to the applicant ‑ ‑ ‑

HER HONOUR:   We have no evidence of that, we do not know, do we?

MR MACLIVER:   No, there is no evidence, your Honour, except that the result was, at the end of the day, an application being made for a protection visa on Convention grounds.  Clearly, the delegate was not prepared to grant a visa simply on the basis of the application and the written material and, quite properly, invited the plaintiff to an interview.

The transcript, I would submit, makes clear that the plaintiff was sufficiently appraised of the reason for that interview, that it was going to deal with claims that he had made under the Refugees Convention, and was also going to examine his claims against the new protection visa criteria, the complementary protection now provided for in section 36(2)(aa), and that also appears to have been explained to the plaintiff.  He was asked by the delegate:

Has anyone explained that to you?

This is about line 24, 23 and 24 in the transcript – and his response was “Yes”.  But, nevertheless, it appears that the delegate went one step further and asked the plaintiff to read something explaining that further and that that was done.  Then he was asked “Does that make sense?” - answer “Yes”.  That is at line 34 on page 2 of the transcript.

Then your Honour will see that the delegate went to some trouble to further explain to the plaintiff the purpose of the interview and what use may be made of information that the plaintiff provided at the interview and also explained to him if false or misleading statements were provided that could result in refusing a protection visa or that if a protection visa was subsequently granted that such false and misleading statements may result in the visa being cancelled. 

Then the rest of the transcript, your Honour, goes through the process of asking questions and the plaintiff explaining his situation.  We say that there can be no – this Court could not find error on the basis of ground 1, in all the circumstances.

Your Honour, turning then to ground 2, we have made the submission that, in reality, this is an attack on the merits of the decision, and your Honour has canvassed that with my learned friend who, of course, has said that, no, this is more than merits, and has, indeed, submitted that the lengthy history of claims made by the applicant in relation to harm coming to members of his family and business partners, that that long history means that the delegate should have given those matters, if you like, more weight in its assessment of the plaintiff’s claims.

We, with respect, would say, no, that is not the case and, in fact, it is the reverse.  The fact that many of these claims which were not – they were accepted by the delegate, but they occurred so long ago, in the context, of course, as we know, of in effect a civil war that went on for some 25 years but which ended in 2009.  The last claim of harm was the beating at the applicant’s house in September 2006 and we are looking at a delegate’s decision some seven years later in October 2013. 

The question, the ultimate question, the delegate had to decide was, in light of all those matters – and we would suggest in particular the more recent claims of the applicant – and it was the claim of the beating in September 2016 which the delegate accepted which on the plaintiff’s own case caused him to flee his home and then to remain in hiding, moving around for the next six years.

It was on the basis of those matters, in particular, that the delegate had to decide whether, if the applicant was now to return to Sri Lanka, he had a well‑founded fear of persecution.  The delegate clearly considered all of the claims based upon race, based upon imputed political opinion because of an imputed connection with the LTTE, based on a particular social group of both wealthy Tamils and returned failed asylum seekers, the delegate considered all of those claims and did so, of course, having regard to much more recent country information about the current situation in Sri Lanka some four and a half years after the civil war had ended.

We submit that when one has regard to all of those matters that there was no error in the Tribunal’s – sorry, the delegate’s decision as alleged by ground 2 and that this Court should not find that ground 2 is made out and, of course, I do not need to say anything about the other two grounds that are still pressed, your Honour.

HER HONOUR:   Thank you, Mr Macliver.  Ms Taylor.

MR MACLIVER:   Thank you.

MS TAYLOR:   Your Honour there is nothing I wish to submit in reply.

HER HONOUR:   Thank you very much.

The Court will reserve its decision.  The parties will be advised when the written decision is handed down.  It will not be necessary for the parties to attend.

Adjourn the Court.

AT 12.44 PM THE MATTER WAS CONCLUDED