Plaintiff S183-2021 v Minister for Home Affairs
[2022] HCATrans 21
[2022] HCATrans 021
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S183 of 2021
B e t w e e n -
PLAINTIFF S183/2021
Plaintiff
and
MINISTER FOR HOME AFFAIRS
Defendant
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION TO MELBOURNE
ON THURSDAY, 3 MARCH 2022, AT 9.29 AM
Copyright in the High Court of Australia
HER HONOUR: In accordance with the usual practice for remote matters, I will announce the appearances.
MR A.M. HOCHROTH appears for the plaintiff. (instructed by Legal Aid NSW)
MR D.A. HUGHES appears for the defendant. (instructed by Clayton Utz)
HER HONOUR: Yes, Mr Hochroth.
MR HOCHROTH: May it please the Court. Can I commence by identifying the materials that the plaintiff relies upon in this matter? There are four affidavits, including one that just came in yesterday. Those four affidavits are an affidavit of [the plaintiff] affirmed on 5 October 2021, and it has accompanying it exhibits which are numbered P1 through to P26.
HER HONOUR: Yes.
MR HOCHROTH: I read that affidavit and tender those exhibits. There is then an affidavit of Stephanie Elyse Blaker, affirmed on 4 November 2021, and it has accompanying exhibits S1 through to S7.
HER HONOUR: Yes.
MR HOCHROTH: I read that affidavit and tender those exhibits.
HER HONOUR: Yes.
MR HOCHROTH: Can I say as an aside that in the application itself at paragraph 9, that affidavit is described as having been affirmed on 25 October 2021, but that is a typographical error and ‑ ‑ ‑
HER HONOUR: There is no problem about that, Mr Hochroth.
MR HOCHROTH: Thank you. There is then a further affidavit of Stephanie Elyse Blaker affirmed on 11 February 2022, which has an exhibit S8.
HER HONOUR: Yes.
MR HOCHROTH: I read that affidavit and tender the exhibit.
HER HONOUR: Yes.
MR HOCHROTH: And, finally, an affidavit of Stephanie Elyse Blaker affirmed on 2 March 2022, which has exhibits S9 through to S17. I read that affidavit and tender those exhibits.
HER HONOUR: Thank you. Could I ask a question - I assume that the application for the subpoena is no longer pursued?
MR HOCHROTH: Correct, your Honour. We have managed to sort that out informally.
HER HONOUR: Thank you. Can I ask another question of Mr Hughes?
MR HOCHROTH: Yes.
HER HONOUR: Is the extension for time opposed still, Mr Hughes?
MR HUGHES: It is opposed, your Honour.
HER HONOUR: Really? They are your instructions?
MR HUGHES: On the discretionary grounds only, your Honour, that are raised in the response.
HER HONOUR: I see. Thank you. Yes, Mr Hochroth.
MR HOCHROTH: May it please the Court. If it is convenient to the Court, I was intending to address the merits of the application first, and the extension of time last.
HER HONOUR: I think that would be useful, thank you.
MR HOCHROTH: Thank you. Can I just say in relation to that affidavit of Ms Blaker affirmed on 2 March, exhibits S10 through to S17 are documents that have ‑ ‑ ‑
HER HONOUR: I should say to you, Mr Hochroth, that I spent last night reading it and the exhibits, so I am pretty well familiar with the contents of them, as well as the affidavits and the parties’ submissions.
MR HOCHROTH: Thank you, your Honour, I am grateful to your Honour for that indication. The documents S10 through to S17 have all come from the departmental file, however my learned friend’s instructing solicitor has alerted us this morning, and I am grateful to this, to the fact that exhibits S12, which is found at page ‑ ‑ ‑
HER HONOUR: Page 17.
MR HOCHROTH: Page 17, yes, that is a document which is on the file but was not on the file at the time of the delegate’s decision, and document S15, which is pages 25, 26, 27 is also a document that is on the departmental file now but was not at the time of the delegate’s decision.
HER HONOUR: Can I just confirm that that is pages 25, 26 and 27?
MR HOCHROTH: That is correct, your Honour. So…..it is accepted that all of the other documents contained in S10 through to S17 were on the departmental file at the time of the delegate’s decision. I am sure ‑ ‑ ‑
HER HONOUR: All right. I might just confirm that with Mr Hughes, to make sure that that is on the record.
MR HUGHES: Those are my instructions, your Honour.
HER HONOUR: Thank you very much, Mr Hughes. Yes, Mr Hochroth.
MR HOCHROTH: Thank you, your Honour. I did intend to make some reference to the evidence. Given that your Honour has read it, I will do this quickly.
HER HONOUR: No, you do not need to do it quickly. There is no need to labour it. I do not seek to shorten it at all, but to say that I am now familiar with the materials, I think the chronology, and I think the arguments you seek to raise.
MR HOCHROTH: Thank you, your Honour. Could I ask your Honour to take up the plaintiff’s affidavit and turn to exhibit P1?
HER HONOUR: Yes.
MR HOCHROTH: This is the initial protection visa application which was made by the plaintiff on 23 March 2016. Can I just ask your Honour to note the following matters. I am using the page numbers that are at the top of the page ‑ ‑ ‑
HER HONOUR: That is very helpful, thank you.
MR HOCHROTH: So if your Honour turns a few pages in to page 17, your Honour will see that there is a section there which talks about family members, members of the same family unit who are in Australia but not included in this application. What has been filled out here is the name of a person who is a cousin of the mother of the plaintiff. Your Honour will see that when it talks about the address, the address is given as a town in Turkey, so clearly the plaintiff has not understood that the intent of this section is to talk about people who are in Australia and not included in the application. But your Honour will see the line at the very bottom of the page:
HE WOULD KILL ME –
I just draw attention to that as a reason for why that person is not being included in the application, so obviously not properly responsive to the question that is asked there, but an indication of the plaintiff’s relationship with that person. Can I then ask your Honour to go to page 26. This is a page dealing with an interpreter’s declaration ‑ ‑ ‑
HER HONOUR: Sorry, what page was that? I misheard you. Page 26?
MR HOCHROTH: Page 26 at the top of the page.
HER HONOUR: Yes, please.
MR HOCHROTH: The page should be headed “Interpreter’s declaration”.
HER HONOUR: I have that, thank you.
MR HOCHROTH: Your Honour will see question 14:
Were your statement and other information read back to you in your own language?
The answer is given as yes, and then some interpreter’s details are given. There is no signature - the absence of a signature is explained elsewhere in the evidence, and I will take your Honour to it, but your Honour sees the name of the interpreter there together with an address. The interpreter number seems - again, the plaintiff seems to have misunderstood and has given what appears to be the interpreter’s phone number as opposed to their accreditation number, but your Honour will see that there is an accreditation number. Then, turning a bit further, the next page, your Honour, starts Part C of the application.
HER HONOUR: Yes.
MR HOCHROTH: If I could ask your Honour to turn to page 30 at the top of the page, your Honour will see questions 29 and 30:
Which languages do you speak, read or write (including English) -
and Turkish and English are both given, and then question 30:
If you are called for an interview, will you need an interpreter?
The answer is yes, and Turkish to English is given as the language required.
HER HONOUR: Yes.
MR HOCHROTH: If I can then ask your Honour to turn to page 37 at the top of the page, your Honour will see there is a handwritten statement under “Additional information”:
I COMPLETE THIS APPLICATION BY MYSELF. I GOT HELP FOR STATEMENT TRANSLATE WHO WAS –
and your Honour sees the name, that is the same name as the interpreter:
SHE SENT ME SETTLEMENT BY POST SO THERE WAS NO SIGN IN INTERPRETER’S DECLARATION.
So that is the evidence that I was referring to earlier when I said there is an explanation for why there is no signature. If your Honour goes to page 47 at the top of the page ‑ ‑ ‑
HER HONOUR: Can I ask what this is directed to, other than to direct to the fact that she needed a Turkish interpreter at all times?
MR HOCHROTH: Correct, and to the delegate’s awareness of that fact.
HER HONOUR: Thank you.
MR HOCHROTH: If your Honour turns to page 47, your Honour will see this is the section on reasons for claiming protection. I do not need to take your Honour through them, but your Honour sees the statements given in answer to questions 88, 89, 90 and then over the page the following questions through to page 49, and they generally refer to a statement which will come. Can I note, for your Honour’s benefit, page 52 where there is a question, 101:
Did you receive assistance from an interpreter or anyone else to complete this application?
“No” has been ticked, but that seems clearly incorrect on the basis of the other material that is in the application. Then, over on the next page, page 53, the page number is a bit obscured by a stamp at the top of the page, that stamp is the interpreter’s accreditation stamp, and your Honour can see that the interpreter is NAATI accredited, towards the top right it says:
Translated from Turkish –
Now, I do not propose to go through the statement in detail, but your Honour will see in it the following themes. There is a reference to the plaintiff having realised that she is a lesbian from a young age. She refers in the third paragraph on page 53 to falling:
in love with [S].
It is clear from the balance of the statement that [S] is a girl. In the next paragraph there is a reference to a suicide attempt at the age of 13, and not being able to tell her parents why she had done that. A couple of paragraphs down, there is a reference to a girl named [D]. There is a reference in the next paragraph to having been seen kissing [D], the police being called, being apprehended for 24 hours, subjected to psychological and physical torture, and at the end of that paragraph, finding out later:
that [D] had veiled herself and got married.
There is a reference in the next paragraph to being a member of the Club, and that group having been attacked by nationalist and Islamic groups. There is a reference in the bottom paragraph to meeting [S] after work, walking in a park and then being attacked by:
a group of men with beards -
being apprehended by police for two days, having a black cloth over her head, being tortured, being given neither food nor water. On page 54 there is a reference in the first paragraph to the plaintiff having been raped by a friend of hers called [K], not being able to tell anyone because she had lost her virginity. There is a reference also in that paragraph to having been seen by a manager at work with [S], and them being asked to leave, so a form of employment discrimination.
There is a reference in the next paragraph to nightmares and getting psychological help, in the next paragraph, a reference to hiding her lesbian identity when accepted at a European university, and then in the following paragraph, having told people that she was a non‑believer, being attacked by “a boy called [T]” and being told, towards the end of that paragraph, that [T] would kill her and her friend [N] if she told anyone about the incident.
In the next paragraph there is a reference to falling in love with a girl named [H]. [H] was taken aback by this, and again there is a form of discrimination that follows, being called in by the manager and being told that she was going to be sacked. She:
started getting psychological help.
In the next paragraph there is a reference to the park protest, having participated in that. Towards the end of that paragraph, over the top of page 55, relatives pressuring her parents to marry her, and her mother’s cousin - that is the individual who we saw referred to in the evidence earlier - threatening to kill her. There is further reference to that individual in the next paragraph, being threatened to be killed, and then finally being forced into a car in August of 2014 and escaping, being sent overseas by her parents to protect her, and stating in the last paragraph that if she returns she:
will either die or would be forced to marry –
and she preferred to die. So, that is a broad summary of the claims. The reason I have taken your Honour to the detail of that is because my submission will be that the country information that was available to the delegate and which the delegate is directed to consider supports and corroborates those claims in a number of different respects, which I will take your Honour to in due course.
Now, this application is rejected on 14 July 2016. Your Honour will see that in exhibit P2. The reason it was rejected was the plaintiff had been required to provide personal identifiers and had not, and the reason she had not is that she had misunderstood the request and had gone to the police instead of the Department to submit her fingerprints. That evidence is given by her in paragraph 24 of her affidavit.
She then makes a fresh protection visa application on 3 August 2016, which is exhibit P4. It is essentially identical to the earlier application, but there are some differences, which I will draw your Honour’s attention to. Can I ask your Honour to turn first to page 91. Does your Honour have that?
HER HONOUR: Yes, I do.
MR HOCHROTH: That is the equivalent interpreter’s declaration page. It has the same answer to question 14:
Were your statement and other information read back to you in your own language?
It lists the language as Turkish. It now has the plaintiff’s signature in place of where the signature of the interpreter is, and no interpreter’s details, no name or anything like that, but it nonetheless seems tolerably clear that exactly the same statement was used and exactly the same interpreter was used. At pages 111 to 113, your Honour will see the protection claims set out in short in the form, and they are the same as in the previous version. At page 135, your Honour will see the same statement, minus the interpreter’s stamp but still with the notation at the top of the page, “Translated from Turkish”.
HER HONOUR: What are the differences then? I must say I did not pick them up.
MR HOCHROTH: There are no differences at all in the content of the statement. They are the only ‑ ‑ ‑
HER HONOUR: I meant generally between the two applications.
MR HOCHROTH: Aside from the interpreter declaration page being different, as far as I am aware there are none.
HER HONOUR: Thank you.
MR HOCHROTH: That application was lodged on 3 August, and it was accepted as valid on 17 November. Your Honour sees that from exhibit P8, and at page 160 of exhibit P8, your Honour will see that the applicant attended for an identification verification on 9 December 2016, page 160. There is then very little correspondence between the plaintiff and the Department between ‑ ‑ ‑
HER HONOUR: Can I just run you through that to make sure that I have it right. It would seem to me that there was nothing heard about her application from between about April 2017 and August 2019. Am I right about that?
MR HOCHROTH: Your Honour is correct.
HER HONOUR: Thank you.
MR HOCHROTH: So the communications your Honour has just referred to are in exhibit P9. The chronology there is that on 21 April the plaintiff wrote to the Department, and your Honour sees that at the bottom of page 166, asking when her interview was, and saying that she had:
moved from melbourne to alice spring.
She was asked to fill in a change of address form in the email on the same page. On 28 April, and your Honour sees this at the bottom of page 165, she explained that she had lost her passport. What she appears to be saying in this email is that she wants a photocopy of her passport from the Department, because she was applying for a job and needed something to verify her identity. The Department says:
contact Freedom of Information –
That is also on page 165, and then at the bottom of page 163 she does contact Freedom of Information, but unfortunately the Freedom of Information body she contacts is that belonging to the Melbourne City Council, and so they, of course, cannot help her. After this, there is then nothing until August of 2019.
What happens in the meantime is that – and this is all reported in the plaintiff’s affidavit, in July of 2017 she finds out that her father had died in Turkey - that is paragraph 35. This triggered a period of mental health issues, drug dependency and homelessness for the plaintiff. She stopped working - that is at paragraph 36. She started thinking about suicide – paragraph 37. She moved to Sydney – which is recorded in paragraph 38, but had difficulty working because of her mental health issues.
She attempted suicide in about October or November of 2018 and was taken to hospital - that is in paragraph 40. At about this time, she became homeless - that is in paragraph 42. She started hearing voices, which is recorded in paragraph 44. She started using the drug ice, which is in paragraph 45, and she was hospitalised on a number of occasions, which is reported in paragraph 47.
Now, the next step in the chronology is filled in a bit by the affidavit of Ms Blaker which was sworn, or affirmed, yesterday. Could I ask your Honour to take that up and turn first to exhibit S12, which is page 17, remembering this is one of the ones which was not on the file at the time, but ‑ ‑ ‑
HER HONOUR: Does that help me? Why would I look at that - if that is right and we are looking, as I understand your first ground about irrationality and unreasonableness, why would one look at it?
MR HOCHROTH: Your Honour cannot have regard to it for that purpose.
HER HONOUR: So why take me to it? I do not understand how it can even be relevant.
MR HOCHROTH: Your Honour is quite correct. I will not take your Honour to it – well, the only reason to take your Honour to it is that it explains what happened next in the chronology. But I have to accept that ‑ ‑ ‑
HER HONOUR: I do not think it helps.
MR HOCHROTH: Yes. Yes, I understand, your Honour. In that case, your Honour, the first document to take your Honour to is S11, which is on page 13. This is an email from [Ms H], who later becomes the plaintiff’s status resolution officer to the Police Liaison Unit in the Department, and your Honour sees from the attachment that she is seeking a criminal history check. So that is on 19 August 2019. We know from the next document, S12, that the reason [Ms H] has sent this email is that there has been a call from a social worker at the hospital and that is what has motivated this email, but, of course, I accept that email, recording that, would not have been in the file, was not in the file at the time. So [Ms H] seeks the criminal history check. If your Honour then turns to the previous exhibit, S10, she is told – this is on page 10, that:
There is no record of charges/convictions in the NSWPF system –
but that:
There is information indicating that POI –
which I take it is “person of interest”:
has Serious Mental Health Issue; user of ICE –
If your Honour then goes to exhibit S13, page 19, this is an email from the social worker in question. Your Honour sees that the email starts:
As discussed yesterday –
So your Honour can take it from that email that there was a discussion yesterday. It says that the plaintiff:
is happy to receive support from the Government to return to Turkey. She has been homeless and unable to receive Centrelink on her current bridging visa . . . during the time that she was homeless, she has had her belongings stolen –
and [Ms H] responds that a referral has been made to IOM, the International Organization for Migration. The email from the social worker is then forwarded to IOM, and your Honour will see that in S14, page 22. This email describes the plaintiff as being:
currently accommodated at [Hospital] due to homelessness, violence and drug dependency, and is now ready for discharge and fit for travel -
and appears to contemplate that she would remain in hospital until departing Australia. That, however, does not happen. If your Honour then goes to page 30, which is exhibit – part of exhibit S16, starting at the bottom of the email chain on page 30, there is an email from IOM to Home Affairs stating that the plaintiff had been:
discharged from the [Hospital] MH –
I take it MH stands for mental health. It says:
until on –
but it appears that she was discharged on 20 August 2019, and then:
did not show for her scheduled appointment this morning at the hospital.
The response comes back, thanks for the update, and then on the previous page, this is on 26 August 2019, [Ms H] responds to everyone concerned saying that she just spoke to the social worker, and when the plaintiff:
was discharged she went to stay with a friend as she was no longer eligible to remain in hospital under the Mental Health Act.
So that clearly establishes that she had been in hospital under the Mental Health Act. Then, at the top of the page, [Ms H] notes that no contact details had been provided, so this is 26 August 2019, and then the next day is the first contact between [Ms H] and the plaintiff. So your Honour can now put this affidavit down - I am sorry, there will be a little bit of switching between affidavits at this point. If your Honour then takes up the plaintiff’s affidavit again and goes to exhibit P10, that is the first contact between [Ms H] and the plaintiff, and we now understand what motivated it - it was this hospital stay. [Ms H] recorded that she had been:
assigned as your Status Resolution Officer –
This is on page 170, I should have said. The response comes in, which is on page 171, and your Honours sees it at the bottom of the page:
I was working on my passport, it is done just need to go and take, anytime I am ready for new appointment goi back turkey –
and [Ms H] responds at the top of the page to contact IOM. Turning to page 172, this is a few days later, two days later, she has not attended, and so she is asked to confirm her intentions. Then, turning over two pages ‑ ‑ ‑
HER HONOUR: Sorry, where was that? I missed that bit, could you just take me to that bit again?
MR HOCHROTH: Yes, I am sorry, it is page 172:
[N] at International Organisation for Migration has advised you are yet to attend.
Could you please contact me as soon as possible to confirm your intentions ‑ ‑ ‑
HER HONOUR: Thank you.
MR HOCHROTH: Then two pages over ‑ ‑ ‑
HER HONOUR: That is only two days later, though, is it not?
MR HOCHROTH: It is, that is correct.
HER HONOUR: Yes.
MR HOCHROTH: Two pages later, page 174, so this is – now a few weeks have gone past, and it appears that she still has not attended, because the email comes in:
Hello again [plaintiff]
Please contact me with your living address and phone number.
Do you still wish to depart Australia or continue with your application?
There is a response to this email, the best copy of it – there is a version of it in P12, but the date is a bit confused because it is in Turkish, so the best copy of the response your Honour will find in the affidavit of Mr Pasas, which I understand my learned friend wishes to rely upon – I am sorry ‑ ‑ ‑
HER HONOUR: Is that not the one at 188? Is that not the response?
MR HOCHROTH: It is, it is the same document. The only difficulty is that the date in the response is given in Turkish.
HER HONOUR: What is the date? There cannot be any dispute about that, surely.
MR HOCHROTH: The correct date is 17 September 2019.
HER HONOUR: That is my understanding of it. So – anyway, let us just stay at 188.
MR HOCHROTH: We can stay at 188. If it assists your Honour, your Honour will find the same email with the date in English at exhibit GPP‑1 of Mr Pasas’ affidavit.
HER HONOUR: Thank you.
MR HOCHROTH: But on this page, the response is given:
yes i am willing to go back turkey, i dont have adress at the moment –
So she is homeless, we know that:
and dont have phone.. i am living outside anywhere safe.. please give me som time appointment for talk face to face..
HER HONOUR: Yes.
MR HOCHROTH: The response comes back, and I have ‑ ‑ ‑
HER HONOUR: In between that, I think - I think you took this to me before when you were taking me through the affidavit, as I understand it, she says in her affidavit that she was hearing voices telling her to go back to Turkey at this time.
MR HOCHROTH: Yes, I was going to refer your Honour to that. That is at paragraph 53 of the plaintiff’s affidavit.
HER HONOUR: Thank you.
MR HOCHROTH: Now, there is a response to this email. We did not have it for the affidavit, but it is in Mr Pasas’ affidavit. Your Honour probably does not need to go to it, but it is exhibit GPP‑2. It is a response on the same day from the officer at the International Office of Migration, which says:
Hello [plaintiff],
You are welcome to the IOM Sydney office anytime tomorrow -
and gives the address, but we know, of course, she does not attend. If we turn back ‑ ‑ ‑
HER HONOUR: Well, she does not attend and she does not respond to the follow‑up email sent on 21 October.
MR HOCHROTH: Correct, and that email is at page 176. That is all I wished to take your Honour to.
HER HONOUR: Then the next bit in the chronology is paragraph 57 of her affidavit.
MR HOCHROTH: Well, one final bit of the chronology is that on 22 October 2019 ‑ ‑ ‑
HER HONOUR: Sorry, I thought when I read it that it was – and it may be that 57 is relevant to both dates, but I had understood that this time she says she does not have a mobile telephone, limited access to email.
MR HOCHROTH: Correct, your Honour. She does not have a mobile telephone, she has limited access to email, she is hearing voices, she is living on the streets. She was checking emails at the State Library, et cetera.
HER HONOUR: Yes.
MR HOCHROTH: She was very unwell at the time, on her evidence. The one final piece of the puzzle is that in exhibit S17, at the very end of the affidavit of yesterday, the case management service is closed on 22 October 2019.
HER HONOUR: Can I just understand what that case management service is and where it is from?
MR HOCHROTH: My understanding, your Honour, is that this is simply the service whereby [Ms H] was contacting and seeking to make contact with [the plaintiff]. I might just take some instructions on your Honour’s question.
HER HONOUR: Thank you.
MR HOCHROTH: So we understand this, your Honour, I do not think there is any direct evidence about this, but we understand that the case management service is essentially the status resolution service internally within the Department of Home Affairs which provides support to people who are visa holders or visa applicants who may need it for whatever reason. So, they have made various attempts to contact her and at this point they – it does not actually say they closed the service, it says disengaged case management service, is what is said on page 33 of the Blaker ‑ ‑ ‑
HER HONOUR: I am sorry, just so I understand the chronology, and these are the facts only – is that on 17 September she responds to an email and then does not turn up and does not respond to a follow‑up email sent on 21 October.
MR HOCHROTH: Yes.
HER HONOUR: Then the next day they disengage the service.
MR HOCHROTH: Correct.
HER HONOUR: Thank you. Then does the next bit in the chronology jump to 6 January?
MR HOCHROTH: It does. So, your Honour, that is at exhibit P13. It is the interview request. So the 6 January letter is at page 191 in exhibit P13. Your Honour will see on page 192 that an interview has been scheduled on 31 January at the Department of Home Affairs office in Melbourne. Now, at this point the Department knows she is not in Melbourne so it is unclear why she was directed there for an interview. Presumably, whoever actually sent this letter did not know that. At paragraph 59 of her affidavit the plaintiff says that she does not recall seeing this letter and cannot now find it in her email inbox. So, there is perhaps some uncertainty as to whether this letter ever reached her but certainly it purports to have been sent to her email address. Nonetheless, it invites her to attend an interview in Melbourne.
We then jump to 14 February and the two letters sent under sections 56 and 57 of the Act. Your Honour is no doubt familiar with the two sections. Section 56 is a general discretion to seek information and provides – provides a discretion to seek information and an obligation to consider the information, or have regard to the information, if the information is obtained. The request for information starts at page 201 of the exhibits and it seeks further information on four topics.
The first is the “Failure to attend the scheduled protection visa interview” in Victoria. The second is the delay in lodging the protection visa application. That is the delay following her initial arrival in Australia. The third is what is said to have been a lack of detail in the claims on four particular topics, the first being:
apprehension by police for 24 hours after being caught kissing [S] –
There is a slight issue with that. Her statement says that she was apprehended by police for two days after kissing [S] but the 24‑hour apprehension was actually after kissing [D]. I am not suggesting anything turns on that, but there appears to have been a slight misapprehension perhaps, or lack of appreciation of what the claim was in this letter. Second is “Harm from [K]”, who was the person who raped the plaintiff. The third is “Harm from [T]”, the person who attacked her and the fourth is the park protest experience. So those are the four aspects in which further detail is sought about her claims. No further details sought, I might add, about any of the other aspects of her claims.
Then the final topic on which information is sought is about the obtaining of a passport to return to Turkey, and your Honour sees the line towards the bottom of page 201:
Information before the Department indicates that as recently as August 2019, you obtained a new Turkish passport and intended to return to Turkey.
What that must have meant is that someone had reviewed the file and had seen the various communications between the Hospital and [Ms H] about the obtaining of the Turkish passport and an intention to return to Turkey. It must mean the delegate is taken to be aware of information that the plaintiff was living in Sydney at the time and had been admitted to [Hospital] under the Mental Health Act due to homelessness, violence and drug dependency. None of that is said in this letter but that must be the inference that your Honour could draw.
So that is the section 56 letter. Immediately behind it is the section 57 letter starting at page 203. Section 57, of course, is different in nature to section 56. It is the familiar form of provision that your Honour will have seen in the Act in many places wherein the Minister, in this case, or other decision‑maker, is obliged to give particulars of information that:
would be the reason, or part of the reason, for refusing to grant a visa –
That letter at page 203 gives only one topic as being the reason, or part of the reason, for refusing to grant a visa, which is the obtaining of the passport to return to Turkey and it is the same paragraph as in the section 56 letter, stated on page 203.
The plaintiff responded to the section 57 letter. Your Honour sees that on page 207 towards the bottom of the page. So this is on the Monday after receiving it on Friday, 14 February. On Monday the 17th, she responds. Your Honour can see from the subject line that it is a response to the email containing the section 57 letter, it has the words “s57 Natural Justice” in it.
What she says – well, your Honour can see what she says, I will not read it all out. It is clearly written by a person who is quite desperate. The delegate reading this letter and knowing of the plaintiff’s previous hospital admission under the Mental Health Act and homelessness issues, in my respectful submission, could only conclude that those issues were once again affecting the plaintiff at the time she sent this email. In any event, it says ‑ ‑ ‑
HER HONOUR: Sorry, I missed what you just said then, Mr Hochroth, the line broke up.
MR HOCHROTH: I am sorry, your Honour. My submission was that the delegate reading this email and knowing of the plaintiff’s previous hospital admission in August of 2019 under the Mental Health Act and in relation to homelessness and drug dependency issues, could only conclude, reading this email at the bottom of page 207, in my submission, that those issues were once again affecting the plaintiff. It is the natural and obvious inference that anyone would draw from reading this email and having that knowledge. The delegate – the response that comes back here is from the delegate who in fact makes the decision. We can see that from the name. The delegate responds by saying that:
We are prepared to re‑schedule this interview to be held in Sydney in the week commencing 9 March 2020 –
On the same date there is also an email from the Status Resolution Officer. That email I do not think is in these exhibits. It is in Mr Pasas’ affidavit at GPP‑3, page 10, using the page numbers at the top of the page. About an hour after this email is sent [Ms H] also emails [the plaintiff] and tells her that the assessment of her protection visa application is continuing and she needs to be interviewed.
HER HONOUR: Sorry, I am a bit lost on this. So I understood that they wrote recirculating it and at the same time also she was encouraged to contact her previous case manager should she require assistance, on the document we saw at page 207.
MR HOCHROTH: Yes.
HER HONOUR: I must say I missed this bit of the chronology. Is she then also contacted about her visa application continuing?
MR HOCHROTH: Yes. So, if your Honour goes to Mr Pasas’ affidavit and turns to page 10 at the top of the page, there is a separate email - it is a different email chain – a separate email from [Ms H], the Status Resolution Officer, to [the plaintiff] on 17 February 2020 at 3.22 pm.
HER HONOUR: Thank you.
MR HOCHROTH: [The plaintiff] responded to the delegate’s email on 20 February 2020. Your Honour sees that email in exhibit P17 at page 213.
HER HONOUR: Yes, I have that. Thank you.
MR HOCHROTH: Your Honour can see at the bottom of the page the email – the start of the email, at least, from the delegate, and the response that comes in three days later about two‑thirds of the way down the page:
to protection visa assessment
i am on the street without money how can i make it to come melbourne, i really in bad situation, i came here for good life live my identitiy but here what I am living is like iam relegionous person from turkey, my life is worse then being death.
Aside from the fact that the syntax and grammar of the email makes it clear that the plaintiff is struggling to communicate in English at this time, what is obvious from this email and what would have been obvious to any reasonable decision‑maker, in my respectful submission, is that the plaintiff had not understood the invitation to reschedule because ‑ ‑ ‑
HER HONOUR: Not understood the invitation to reschedule or not understood that she was being offered one in Sydney rather than in Melbourne?
MR HOCHROTH: Not understanding that she had been offered an interview in Sydney rather than Melbourne; exactly, your Honour. Yes, it is clear that she has perhaps understood that there is an opportunity to reschedule but she has not understood that it is Sydney rather than Melbourne. Because she has been told we will do it in Sydney and she responds…..Melbourne. So she has not understood at least that aspect. Now, there is no response at all to this email. There is no response ‑ ‑ ‑
HER HONOUR: Is there not a response on 3 March at page 217?
MR HOCHROTH: There is, and I was going to take your Honour to it, but at least to this email from the delegate there is no response to say, in English at least, or in Turkish, but not even in English, a response saying you seem to have misunderstood, we will interview in Sydney. Not sent. Of course, your Honour can see that this email was in fact forwarded directly to the delegate. That is the top email on this page.
Your Honour is quite correct that at P18, page 217 there is another email from [Ms H], the Status Resolution Officer, and as I…..your Honour before, [Ms H] had previously made contact with [the plaintiff] again after a significant hiatus on 17 February. So [Ms H] sends a fresh email, again no email chain on this one, it is just a fresh blank email, so to speak, saying please contact and saying:
Dear [plaintiff],
I refer to my previous email correspondence with you, and your emails to the Protection Visa Assessment Team.
If you are continuing to experience difficulty, we may be able to provide some support for you.
Please contact me by email or phone –
But the email does not say the last email you sent suggests you think you are supposed to be interviewed in Melbourne, that is wrong, we will interview you in Sydney. That does not say that. I accept that it does offer support, and I accept it is not responded to. Your Honour has seen the plaintiff’s evidence about the state of mind she was in at the time, but there is no clear response to the plaintiff’s email indicating she thinks that she has to go to Melbourne for an interview, saying, no, no, we will interview you in Sydney. The plaintiff’s evidence, I should add, your Honour, is that she did not read this email at the time; that is at paragraph 60. This interview of [Ms H] said she did not read it; that is paragraph 64 of her affidavit.
Can I then turn to the decision itself, which is in exhibit P19. The decision record starts on page 223, top of the page.
HER HONOUR: I am sorry, could you just say that again?
MR HOCHROTH: The decision record setting out the reasons starts at ‑ ‑ ‑
HER HONOUR: I see. So 18 March the visa protection is refused and then we are now going to deal with the reasons. Is that the deal?
MR HOCHROTH: Yes, your Honour.
HER HONOUR: Thank you.
MR HOCHROTH: The refusal your Honour can see in the second paragraph under “Part 2”, is on the basis that the plaintiff:
is not a person in respect of whom Australia has protection obligations as outlined in s36 ‑ ‑ ‑
HER HONOUR: Yes.
MR HOCHROTH: There is a summary of the applicant’s protection claims in Part 4, that starts on page 224 and continues over to page 226.
HER HONOUR: Yes.
MR HOCHROTH: I do not suggest there is anything inaccurate about the summary of the protection claims.
HER HONOUR: Is it a fair summary of these reasons that they rely upon the plaintiff’s failure to respond to both of the 56 and 57 letters and her failure to attend an interview?
MR HOCHROTH: Yes.
HER HONOUR: Thank you. As the basis for a finding that the plaintiff’s claims were not credible in relation to her being a lesbian?
MR HOCHROTH: Yes.
HER HONOUR: Thank you.
MR HOCHROTH: That is my submission about these reasons. That is really exclusively the basis for the ‑ ‑ ‑
HER HONOUR: Do you make any point about the fact that in the 57 letter their complaint was about the passport?
MR HOCHROTH: I am sorry, I am not sure if I understand your Honour’s question.
HER HONOUR: In the section 57 letter when they give notice of things that might be put against them as a reason for finding against them there is reliance upon the application for obtaining the passport as the matter.
MR HOCHROTH: Yes.
HER HONOUR: Do you rely upon that as part of the 57 analysis?
MR HOCHROTH: I do, your Honour, and I should have said ‑ ‑ ‑
HER HONOUR: I should not take you out of order, I just want to make sure I understand what the playing field is here.
MR HOCHROTH: No, no, I appreciate your Honour’s question. I should have made one more point when I was addressing your Honour on the response to that. I might do that now. If your Honour can turn back to page 207, and this is relevant to – I cannot remember if it is ground 2 or 3, I think it is ground 3 – but your Honour sees the start of that email:
i am [the plaintiff] is waiting for my case, i havent go back turkey with getting passport, I am in sydeny without money and home –
That first line of the response is part of the response which actually addresses the section 57 query and it too demonstrates that the section 57 query has not been understood by the plaintiff because what it says is – and remembering that the plaintiff had previously been contacted by the Status Resolution Officer, effectively being asked, or being asked: you have applied for a passport, you say you want to go back to Turkey, you have not attended IOM, do you still want to go back to Turkey or are you still progressing with your application?
It appears that the plaintiff has understood the section 57 letter in much the same way, that she is being asked: do you still want to progress the application or having obtained a passport do you want to go back to Turkey? In fact, it looks like she might even have understood it as being asked: have you actually already gone back to Turkey, because what she says is I am:
waiting for my case, i havent go back turkey with getting passport –
Unclear whether that means she has not actually got the passport, at the very least she has not used it to go back to Turkey and she is in Sydney.
HER HONOUR: Yes.
MR HOCHROTH: So she has not understood the point of the question, which is, of course, an alleged inconsistency between the obtaining of the passport and the communications with the Department in August of 2019 and her protection claims. She clearly has not understood and her response, in my respectful submission, makes that clear as well. I am sorry to have missed that the first time around, your Honour. I did intend to take your Honour to it.
If I can turn back to the decision, the decision on page 226 just above the heading refers to the failure to attend the interview. It then goes through the section 56 and 57 letters and sets out the content of each. It sets out the content of the plaintiff’s response to the section 57 letter at the bottom of page 227. Over on page 228 there is a reference to the email which we saw on page 207 in exhibit P15. So that is the delegate’s response to the plaintiff’s 17 February letter. At the end of that paragraph it says:
The applicant did not respond to this email.
That is obviously wrong. I am not sure why the delegate says that because the delegate then refers to the response only two paragraphs later but, nonetheless, the comment that there was no response to the email is incorrect. The response itself is then referred to two paragraphs down after a paragraph referring to the fact that the Status Resolution Officer had also contacted the plaintiff. The response of 20 February is set out in full in the third paragraph on page 228. There is then reference also to the 3 March response.
Then in the paragraph above the heading “Part 5”, just above that heading, this is all that we can see in this decision in terms of reasoning as to why the delegate has decided to progress to making a decision, notwithstanding the absence of responses and lack of engagement by the plaintiff where it said:
The Department has received no further contact from the applicant and the 28 day periods for the applicant to respond to the section 56 and 57 requests respectively, have now passed.
They had only just passed the 28 days, so as soon as they passed the delegate decides to make the decision:
I note that the applicant has not provided substantive responses to my requests for further information or the concern that was raised about her obtaining a new Turkish passport relatively recently, despite being given multiple opportunities to do so and invitations to contact her most recent Status Resolution Officer for support. Accordingly, I am proceeding to make a decision on the information already before the Department.
So that last sentence “Accordingly”, that is, in my submission, a decision under section 62 of the Act to proceed to make a decision, in this case to refuse the visa, notwithstanding the information not having been provided and the applicant not having taken up the invitation to comment. There is no real reason given for it other than that, well, she has been given an opportunity and the opportunity has passed.
There is then Part 5, “Findings of Fact”, and your Honour has clearly, with respect, appreciated the point that we make about it. All of the adverse credibility findings are based upon a lack of engagement and a lack of response to the Department’s communications and your Honour can see that in the last sentence in particular on page 228. Interestingly, what that sentence says is:
That the applicant did not engage with my offer to schedule another interview in New South Wales at a later date in March is further reason for concern about the credibility of her protection visa claims.
The odd word in that sentence is “further” because there had not been any reason for concern about the credibility of the protection visa claims referred to by the delegate up to this point. Then over on page 229:
did not respond [to the] concerns in the s56 letter ‑
This raises about “delay”:
This raises further concerns that the applicant’s claims may not be credible.
In the next paragraph, the “failure to respond” to other concerns. Again, in the last sentence of that paragraph:
This raises concerns that her claims are not credible.
There is some reference in that paragraph, to be fair to the delegate, to the claims lacking substantiating details about dates and locations in relation to material incidents, but it is all cast in the context of “she has failed to respond” and it is the failure to respond which is what has given rise to the delegate’s credibility concerns, in my respectful submission.
In the next paragraph, “did not respond” to the concern about obtaining the new Turkish passport in the 56 or 57 letter, and the next sentence says, “This raises concerns”. Well, what is the “this”? The “this” is the failure to respond; that the claims may not be genuine. Then in the last paragraph above the dot points:
Given I have not been able to interview the applicant in relation to her claims and having considered the information before me including the applicant’s limited responses to my requests for further information –
Again, it is put on the basis that the limited responses has been a material factor affecting the credibility and, therefore, the claims are rejected in their entirety. So everything in the reasoning is predicated on the failure to respond and the failure to engage as bearing adversely on the applicant’s credibility.
Now, what is not in this reasoning at all is any discussion of the plaintiff’s homelessness, other than to the extent homelessness is alluded to in the two emails from the plaintiff of 17 and 20 February, which are verbatim recorded in the decision without any comment on them ‑ any discussion of the plaintiff’s mental health issues and any discussion of the plaintiff’s ability to communicate in English – to communicate and understand communication in English. None of that in the decision record at all.
Can I just turn to page 231 which records the “Material before the decision maker” just to refer your Honour to the fact that it records that the departmental file relating to the applicant was material before the decision‑maker, so all of those emails that I referred your Honour to, having taken your Honour’s indication and not referred to the ones that were not in there at the time, were before the delegate. Then two paragraphs down:
Country information as footnoted throughout the decision record including any relevant country information assessment prepared by the Department of Foreign Affairs and Trade specifically for the purpose of assessing protection obligations.
The slightly odd thing about that sentence is there is no country information footnoted throughout the decision record. There is no country information footnoted in the decision record at all. So it appears to be an acknowledgment that the decision‑maker is required to take relevant country information prepared by DFAT into account but, nonetheless, none has been referred to.
HER HONOUR: Can I just ask you about the departmental file number there? I just want to make sure I am clear about this. When I read the affidavit of Ms Blaker served last night, which I received last night, that number CLF2016/20284 was not produced by the defendant on the grounds, as I understood, it was privileged, and that is recorded on page 7 of the emails which are attached to it. It contains copies of emails exchanged between me and departmental officers. Those emails have not been…..as their contents are legally privileged. Do you understand that the file was bigger than that aspect and included the other materials?
MR HOCHROTH: Yes. So my reading of that email – it is not ‑ ‑ ‑
HER HONOUR: That is okay, as long as I am clear.
MR HOCHROTH: I am sorry, your Honour. Can your Honour hear me?
HER HONOUR: I just wanted to make sure I was clear about that. That is, that part of the file was bigger than just the privileged material.
MR HOCHROTH: Well, that is true, but it is not clear if the file at the time the delegate made her decision was bigger because your Honour sees that what is said on page 7, departmental file and that number, “contains copies of emails exchanged between me and departmental officers this year, i.e. 2022, and internal department correspondence following my emails”. So it looks like the only privileged material on the file is material from this year.
HER HONOUR: I understand. Thank you.
MR HOCHROTH: So as we understand it, what has been produced to us contained the file as it was before the delegate plus additional information which had been added to the file since the decision but minus some privileged stuff from this year.
HER HONOUR: Thank you.
MR HOCHROTH: Can I now turn to the grounds of review, and first to ground 1, that the decision to reject the plaintiff’s claims to be a lesbian and to have suffered past harm in Turkey was illogical, irrational or unreasonable. It seems to be common ground that the formation of the state of satisfaction or non‑satisfaction which is required by section 65 of the Act is conditioned by a requirement to proceed reasonably. The authority for that is the decision in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at paragraph 34 in the decision of the Chief Justice and Justices Gageler and Keane. I accept that the threshold is high and it is not enough for the Court to simply disagree with the decision‑maker.
The Minister in her submissions has placed considerable reliance on the statement of Justices Crennan and Bell in SZMDS (2010) 240 CLR 611 at paragraph 130 that, to be set aside for irrationality, the decision must be:
one at which no rational or logical decision maker could arrive on the same evidence.
In my respectful submission, that statement from the judgment needs to be read with some care and in the context of other statements made in that same judgment of their Honours as well as in the case law generally. In my submission, coming to the conclusion that a decision is irrational, illogical or unreasonable is not done only by looking at the outcome of the decision and asking whether a rational decision‑maker could have arrived at the same outcome.
HER HONOUR: I think it is clear, is it not, from SZVFW which quotes Li that one looks at both the outcome and the process.
MR HOCHROTH: Exactly, your Honour. That is the distinction I was seeking to draw. So, one can look at the outcome or one can look at the process, or I suppose one can look at both.
HER HONOUR: Sometimes both is more compelling than one.
MR HOCHROTH: That may well be the case. Your Honour has referred to Li. The reference in Li is paragraph 72 in the decision of Justices Hayne, Kiefel and Bell which referred to a decision‑maker having committed a particular error in reasoning, giving disproportionate weight to some factor or reasoned illogically or irrationally. Then the final conclusion will in each case be that the decision‑maker has been unreasonable in a legal sense.
HER HONOUR: To be fair to the Minister here, Mr Hochroth, I had understood from paragraphs 28 to 32 of her submissions that she accepted that adverse credibility findings were susceptible to jurisdictional error on the basis of unreasonableness.
MR HOCHROTH: She does. The difficulty is – the key question found in the Minister’s response at paragraph 30 is could a reasonable decision‑maker have reached the same decision and it appears that what is being said there is, well, if a rational decision‑maker could have reached the same outcome, then this decision cannot be unreasonable, irrational, illogical. If that is what is being said, and perhaps it is not entirely clear, then that, in my submission, is not the test. It is one way of showing jurisdictional error, but not the only way.
HER HONOUR: Let me put propositions to you, so I understand your case. Parliament has been taken to intend that a statutory power will be exercised reasonably by a decision‑maker?
MR HOCHROTH: Yes.
HER HONOUR: Second, the question with which the legal standard of reasonableness is concerned is whether in relation to the particular decision in issue, the power properly construed in effect is being abused by the decision‑maker – that is sort of the flipside of the argument.
MR HOCHROTH: I accept that.
HER HONOUR: The conclusion will be open where the decision is so unreasonable that no reasonable person could have arrived at it is one way to consider it, although it is not limited to such a case and we know that from SZVFW and Li, which we have just talked about, and SZMDS, because you are concerned both with outcome and process.
MR HOCHROTH: Yes.
HER HONOUR: Therefore, on the basis of those propositions, as the Minister seems to accept, I see in his submissions, adverse credibility findings are susceptible to jurisdictional error on the basis of unreasonableness.
MR HOCHROTH: Yes, and unreasonableness in the process by which those findings were reached.
HER HONOUR: I said that to you – both outcome and process.
MR HOCHROTH: Yes, your Honour, yes.
HER HONOUR: Right. Have I missed anything?
MR HOCHROTH: No, I do not think your Honour has. Can I give your Honour a few references just ‑ ‑ ‑
HER HONOUR: About what?
MR HOCHROTH: About process being one way to do it.
HER HONOUR: Yes.
MR HOCHROTH: So, SZMDS at paragraphs 23 and 24 in the decision of Acting Chief Justice Gummow and Justice Kiefel.
HER HONOUR: Yes.
MR HOCHROTH: Also in SZMDS in the decision of Justices Crennan and Bell, paragraph 102, referring to the decision of Justices Gummow and Hayne in SGLB and paragraph 132 referring not only to the conclusion but the findings along the way and also paragraph 135 describing a number of different ways that the decision might be illogical or irrational, including where there is no logical connection between the evidence and inferences or conclusions drawn.
In relation to a credit finding being…..on this basis, I am not sure if there is an authority of this Court directly establishing that. There is a significant line of Full Federal Court authority to that effect, which is summarised in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at paragraph 30.
In my submission, this is a case where there is no logical connection between the evidence and conclusions drawn so as to amount to jurisdictional error, i.e., the abuse of power which your Honour was speaking about. The reason for that, in my submission, is that the only real logic which the delegate applied in making the decision was “This visa applicant failed to respond to my request for information and to attend an interview and therefore I will not believe her”. That is the essence of all of those paragraphs of reasoning which lead up to the conclusion on page 228 of exhibit P19.
The reason why that is illogical is that there was an obvious explanation in the evidence before the delegate as to why [the plaintiff] had failed to engage with or respond to the communications. That obvious explanation, apparent to the delegate from the materials before the delegate, was that she was homeless, living on the streets, she was mentally ill, and perhaps most crucially, she had not understood that there was an invitation to attend an interview in Sydney.
Those matters, in my respectful submission, were obvious from the two emails which the plaintiff sent on 17 and 20 February, set out in the delegate’s own decision on pages 227 and 228, and especially if those emails are read in the context of the delegate’s knowledge from documents which are on the departmental file at the time that the plaintiff had been hospitalised under the Mental Health Act and recorded as having suffered homelessness, violence and drug dependency as recently as the preceding August.
Despite that knowledge, at no point in Part 5 of the decision, or anywhere in the decision at all, does the delegate even advert to the possibility that the plaintiff’s lack of engagement and lack of response had been caused by these factors. That is why, in my submission, this is not impermissible merits review. If the delegate had given any indication that she appreciated those matters and weighed them…..but still came to the conclusion that the plaintiff’s claims were not credible, that would be a much more difficult decision to challenge on this basis. But that is not what the delegate did.
HER HONOUR: Do I understand that one takes those two matters and says that in addition, the combination of those two also gives rise to difficulties for the findings about lack of credibility?
MR HOCHROTH: Yes, precisely, your Honour. That is the essence of the argument on ground 1. Ground 2 also alleges a legally unreasonable decision, but here the decision that is challenged is the decision of the delegate to proceed to make a decision without taking any action or further action to obtain relevant information or to obtain the plaintiff’s views. I have identified for your Honour where ‑ ‑ ‑
HER HONOUR: This is taking the section 62 decision?
MR HOCHROTH: This is the section 62 decision which is apparent from the decision record at page 228 of exhibit P19, just above the heading. There is nothing in the statement of reasons to indicate why the delegate decided to proceed without taking any further steps other than what is in that paragraph on page 228. We asked in the draft request for a subpoena for all documents recording – or evidence in any consideration of whether to get further information from the plaintiff before deciding to refuse her protection visa application and nothing was produced - and your Honour will see that in paragraph 6 of Ms Blaker’s affidavit of yesterday.
Section 62 of the Act, your Honour, has two different limbs. The first applies where an applicant is invited to give additional information and does not do so before the time for doing so has passed and the second is where a visa applicant is invited to comment on information and does not do so before the time for doing so has passed. Both of those two limbs apply here.
It seems to be common ground that such a power – the section 62 power must be exercised reasonably. That is apparent from SZBFW at paragraph 4 in the decision of Chief Justice Kiefel and paragraphs 89 and 90 in the decision of Justice Nettle and your Honour considering section 426A of the Act, which is a similar power.
MR HUGHES: I mean, about the merits. The things that the delegate is concerned about the non‑response to are all themselves, and of themselves, in my submission, clearly reasons, rationally, not to form the state of satisfaction. If that is right, my submission is that ground 1 on its own must fail, but in addition to that I say that a rational decision‑maker, particularly having made the section 62 decision in a lawful way, can look at the failures to respond and could see in those failures to respond a little further reason to doubt, rationally.
That is most of what I want to say about ground 2. I rely on what I have said in writing at page 6. I refer at paragraph 34 to the Court’s decision in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541. I would also emphasise what your Honour and Justice Nettle said at paragraphs 88 to 98 of that decision. That is a decision about the section 62 discretion.
Your Honour and Justice Nettle point out in those paragraphs that the statutory context is very relevant, and your Honours there set out the statutory scheme that the, I think the then Refugee Review Tribunal had to – worked within in order to construe the metes and bounds of the reasonableness condition, insofar as it applied to the equivalent of section 62 in the Tribunal.
The point I want to make from it is the point that is in paragraph 37, which is that the – I mean, what is criticised is that, I think the invitations were not sent out in Turkish, and the point that I wish to make in paragraphs 36 and 37 is that, in considering the reasonableness of the communications, one looks at the whole Act and in particular the relevant Subdivision AB of Division 3 and the exhaustive statement of the requirements of natural justice. The Act is quite prescriptive about what communications you have to send, and how you send them, and how and when they are taken to be received.
The Court in EFX17 – and the reference is in the bottom of paragraph 36 – concludes based on the Full Federal Court’s decision in Nguyen v Refugee Review Tribunal that references to having to send notices and so forth are to be construed implicitly as being notices in English because English is the language of Australia and judgments and laws are drafted in that language.
The point that comes out of all of that is that when one thinks about the implied condition of reasonableness that is imposed by the Parliament on section 52, where the Parliament has been quite particular about the notifications that you have to give, then notifications sent in accordance with those particulars would not ordinarily violate the implied condition of rationality. That is just reading it as a whole – just as when one interprets any written instrument – be it a statute or a contract where the parties or the Parliament has been quite particular about how something is to be done, one does not then imply a term or a condition that goes beyond the issue to which particular attention has been made by the drafter – be it the drafter of a contract or of a statute. So, in my respectful submission, it could never be a breach of section 62 not to send notice of the interview in the tongue of the applicant.
That is explained quite well by Justice Sundberg, if I can respectfully say so, at pages – I beg your pardon – by Justice Tamberlin at page 319 of Nguyen v Refugee Review Tribunal (1997) 74 FCR 311. At 319, Justice Tamberlin says that, ordinarily, formal documentations – be they emails from departmental officers – but, even more particularly, invitations to attend interviews bearing the coat of arms and having the character of official correspondence – that that is sufficient to put a person on notice that this is an important document and if you cannot read it you need to get some help.
For those reasons, it is obviously a matter of some importance to the administration of government generally. In my submission, you would never find that the rationality condition is breached by a failure to write a letter in a language other than English…..
HER HONOUR: Are you moving to ground 3?
MR HUGHES: I am moving to ground 3, your Honour.
HER HONOUR: Is there anything else you wish to add to your written submissions?
MR HUGHES: There is not. I rely on what is in my written submissions and I re‑emphasise what is in the Full Court of the Federal Court’s decision in Nguyen which is that it is implicit in the statute that notices such as section 57 are to be written in English. To the extent that my learned friend says that sufficient steps were not taken to draw the information to his client’s attention because it was written in English, that one would not construe section 57 as requiring the delegate to attempt to draft correspondence in a foreign language.
HER HONOUR: …..around…..?
MR HUGHES: I think that I have said all that I want to say about ground 4, save for this. I addressed, as I was going through the decision, the factual issue of did the delegate consider – actually consider it – which your Honour will have to decide as a matter of fact – and I have spoken about onus and the inferences that one can draw from Yusuf.
The second point that I make is what I say in paragraph 46 of the response, which is that there is also a materiality issue. If the delegate lawfully or rationally came to the view to the state of non‑satisfaction that she expresses in the decision but in violation of section 499, failed to look at the country information, my submission is that there is not a real possibility – having found essentially that there is just not enough detail to believe the plaintiff that she is a lesbian or really does fear her parents or has been through the things in Turkey that she says – there is no realistic possibility that the delegate would have picked up the country information report and come to a different view based on material about the general situation of all lesbians in Turkey, having already come to a view that she was not persuaded that particularly the plaintiff was a lesbian in Turkey. So, there is also that materiality issue that I make in paragraph 46. That is all I wish to say about ground 4, your Honour.
I then come to the extension of time and discretionary factors and what is said here is applicable both to the extension of time and also to the discretion that attaches to the…..of certiorari that is sought in the sense that it is always a discretionary remedy. The first point that I put in paragraph 48 is that this Court is slow to entertain applications that invoke its original constitutionally‑conferred jurisdiction where there exists an adequate statutory path of review.
The Parliament has set a strict time limit on applications for review by delegates to the Tribunal with no possible limit of extension. My submission is that the Court would not simply exercise its constitutional jurisdiction whenever there were circumstances that warranted an extension of time in the Tribunal if such a power existed. I have referred to a judgment of Justice Gageler sitting alone in Plaintiff S71 of 2014 v Minister for Immigration and Border Protection [2015] HCATrans 039.
The second point is about delay. I do not wish to say too much about it except that the time limit – I do not wish to say anything at all about the plaintiff’s delay prior to her obtaining a grant of legal aid and the advice of counsel. That had all happened by the end of March 2021. The application is not then filed until 4 November. If I could just give your Honour some ‑ ‑ ‑
HER HONOUR: Mr Hughes, I have read it. In a nutshell, why is there not an explanation for the delay between March 2021 and November 2021? Is that the period you seek to challenge?
MR HUGHES: That is the period that I seek to challenge.
HER HONOUR: Yes. I will take it - you had better give me your high point because I do not find that very satisfactory, I must say, in the circumstances.
MR HUGHES: I will give your Honour my high points.
HER HONOUR: No, one. Give me your best point.
MR HUGHES: Best point. By 25 March, there is a draft affidavit. There is, in my respectful submission – and I do not wish to be too critical of my learned friends – but ‑ ‑ ‑
HER HONOUR: You are. That is the point.
MR HUGHES: I accept I have to be but what I do say is that when one is faced with an application that is already out of time, one ought still proceed on the basis that the time limit in the legislation is the time limit that one should work to – I think for this application it is 35 days – and one does not see an adequate explanation for why an attempt was not made to work to that timetable. I say no more than that, your Honour.
HER HONOUR: Thank you. Anything else?
MR HUGHES: Unless your Honour has any questions, those are my submissions.
HER HONOUR: Thank you. Mr Hochroth, anything to say in reply?
MR HOCHROTH: Very briefly, your Honour. Firstly, in relation to the question which your Honour raised with me about whether the applicant is from a conservative rural area, the answer appears to be there is no evidence that she is from a rural area. In her statement she refers to being born in…..and that is on page 53 of exhibit P1 and on page 42 of exhibit P1 where she records where she lives that is said to be in a town called [E] in….. I do not think, having looked at it, we would not say that either of those are rural – perhaps a moderately sized town, from the looks of things.
In terms of a conservative area, there is evidence in the applicant’s – in the plaintiff’s statement on page 53 about having a family that was religious. She refers to her grandfather and her grandmother forcing her to go to a particular course on the Koran, and the behaviours of the family that she describes there, and of other people for that matter, are emblematic of certain types of conservative values – but there is no explicit evidence that she is from a particularly conservative area, in that sense. So, I cannot make the submission that she is from a rural conservative area, but, in my respectful submission, it does not matter ‑ ‑ ‑
HER HONOUR: Thank you.
MR HOCHROTH: The information in the report is enough. Just briefly on the reasoning in the delegate’s decision on pages 228 and 229, the essence of my learned friend’s submission appears to be that it is not purely a lack of response that motivates the delegate to find that the plaintiff’s claims are not credible.
I would have two responses to that submission. First of all, by far the predominant theme in those four paragraphs of reasoning is the lack of response. It is what is featured at the front of each paragraph as well as at the end, and although there is reference to a lack of detail and so forth, it is more in the nature of recounting the narrative of what the lack of response relates to than actually as an independent reason not to accept the plaintiff’s claims as credible.
My second submission, however, is that if your Honour is persuaded that part of the delegate’s reasoning involved the delegate saying to herself there is a lack of detail in these claims and, in the absence of further information I cannot accept them, that does not matter, in my respectful submission, if the lack of response played any part in the delegate’s decision on credibility – and plainly it did.
If the delegate reasoned from lack of response to credibility in any part and your Honour finds that that was irrational as, in my submission, it was, then there is a process error and the decision is affected by jurisdictional error. My learned friend has not made any submission in this respect about materiality. He has not submitted that even if the delegate had not impermissibly reasoned from a lack of response to a lack of credibility, the decision would have been the same in any event. In my respectful submission that kind of decision could not possibly be made.
My learned friend did say in address to your Honour, that the doubts alone, as recorded by the delegate in these four paragraphs of reasoning, would justify the state of non‑satisfaction and, if so, ground 1 must fail. In my respectful submission, your Honour would not accept that submission. The predominant weight that is placed in these reasons on the lack of responsiveness is such that your Honour could not conclude that the mere lack of detail in the claims would have been enough for this delegate to disbelieve the plaintiff’s claims.
In relation to that I also rely upon, in the last paragraph above the dot points on page 229, I also rely upon the fact that the only piece of information the delegate refers to in that paragraph are the applicant’s limited responses to her requests for further information. That also supports the point that it is lack of responsiveness or limited responsiveness.
That is certainly the predominant if not the only concern of the delegate that has led to a negative credibility finding. In my submission the delegate could not have had regard to the limited responsiveness of the plaintiff – could not rationally have had regard to the limited responsiveness of the plaintiff – without also having regard to the material which, on the file, indicated the likely reason for the plaintiff’s lack of responsiveness, namely, mental health, homelessness and the other issues that your Honour has raised.
My learned friend also I think made the submission that although couched in the language of credibility, really this is simply just defining, well, I do not have enough information before me, so I cannot be satisfied. That, in my respectful submission, your Honour also should not accept. The language in the paragraph that starts “Given I have not been able to interview” does use the words “I cannot be satisfied”, but what the delegate cannot be satisfied of is a credibility matter and cannot be satisfied that the claims are credible.
In the two dot points again that language is used – “I do not accept as credible”, “I do not accept as credible”. So, it is all about credibility. It is not simply a decision where the delegate says I do not have enough detail, so I simply do not have the requisite state of satisfaction.
The other submission I would make about this as well, is that if your Honour is persuaded by my learned friend’s submission that there is more to the delegate’s reasoning than the mere lack of responsiveness and lack of engagement of the plaintiff, i.e., that your Honour is persuaded that lack of detail did play some part in the delegate’s reasoning towards a state of non‑satisfaction, that, in my submission, supports ground 4, because in my submission the lack of detail is a matter which could rationally have been ameliorated to some extent by the country information and the correspondence between the country information and the detail that was contained in the claims. So that, in my respectful submission, would only support ground 4 if that is the reading of the reasons which your Honour accepts.
My learned friend in relation to the DFAT report referred to the decision in Yusuf. I accept that the mere absence of a reference to something in reasons means that – does not of itself mean that the court can infer that the relevant thing was not considered. However, my learned friend I think fairly conceded that where one would expect to see a reference to a thing and it is not there, that that is where such an inference can be drawn.
I have referred already to page 231 of the decision, and in my respectful submission my learned friend’s reasoning of the paragraph about country information there should not be accepted. But when it says:
Country information as footnoted . . . including any relevant country information assessment –
what that means is if it is not footnoted it has not been considered. So, in my respectful submission, your Honour would find, affirmatively, that the country information was not considered and, if it is relevant, as I say, it was required to have been considered. My learned friend made a submission about the decision of Justices Crennan and Kiefel in SZMDS and suggested there that what ‑ ‑ ‑
HER HONOUR: I think it is Gummow and Kiefel, is it not?
MR HOCHROTH: I am sorry, your Honour.
HER HONOUR: Do I have the wrong one?
MR HOCHROTH: I am sure I do.
MR HUGHES: Your Honour is correct.
HER HONOUR: It is Acting Chief Justice Gummow and Kiefel, I think.
MR HOCHROTH: Yes, I am sorry, I meant to refer to Justices Crennan and Bell.
HER HONOUR: Thank you.
MR HOCHROTH: I am sorry, your Honour. My learned friend made the submission that the words in paragraph 130 of the decision of Justices Crennan and Bell – and the decision – by the decision my learned friend meant the state of satisfaction or non‑satisfaction, must be one which no rational or logical decision‑maker could arrive on at the same evidence, that that was the test when it comes to a state of satisfaction decision and he submitted that process is less important. In my submission, that cannot be accepted having regard to the remainder of the reasons of their Honours Justices Crennan and Bell in SZMDS itself.
SZMDS of course, as your Honours knows, was itself a section 65 case, and I rely in particular on paragraph 133, where their Honours said:
the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.
That clearly directs attention to the reasoning process that the Tribunal engaged in to reach the state of non‑satisfaction under section 65, and also paragraph 135, third sentence:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
So, it can be process, it can be outcome, it can be both, but it is not limited simply to asking, could a rational decision‑maker have reached a state of non‑satisfaction in this case. Process is still important and can still give rise to jurisdictional error.
The last point I wished to make was just briefly in relation to ground 4, my learned friend referred to paragraph 46 of the response and said there is a materiality issue. In my submission, the real point on ground 4 is does your Honour accept that the country information was relevant to whether or not the applicant’s claims would be believed by a rational decision‑maker. If your Honour comes to the conclusion that they were relevant, in my respectful submission, your Honour would find that that jurisdictional error must be material. If your Honour finds they were not relevant there is no error in the first place. So, your Honour should not and would not reach materiality on that basis. If it please the Court.
HER HONOUR: Thank you. Can I thank both of you for not only your written submissions but also your oral submissions. The Court will reserve its decision and you will be informed when the decision will be handed down.
Adjourn the Court.
AT 12.51 PM THE MATTER WAS ADJOURNED
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