Plaintiffs S147/2013 v Minister for Immigration and Citizenship and Anor
[2013] HCATrans 302
[2013] HCATrans 302
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S147 of 2013
B e t w e e n -
PLAINTIFFS S147/2013
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
K. WATSON
Second Defendant
Application for order to show cause
BELL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 11 DECEMBER 2013, AT 2.15 AM
Copyright in the High Court of Australia
MR P.E. KING: If the Court pleases, for the plaintiffs. (instructed by Adrian Joel & Co)
MR T. REILLY: For the first defendant, your Honour. (instructed by Sparke Helmore Lawyers)
HER HONOUR: Yes, Mr King.
MR KING: Your Honour, prior to commencing, can I indicate that we served a summons seeking to amend the application filed on 4 December supported by an affidavit of Mr Joel sworn 3 December. I can indicate, as set out in that affidavit, that the substance, indeed almost word for word with respect to that amendment, was before the Court as an annexure to an affidavit of Mr Joel on the last occasion. I am seeking to regularise the record in that regard.
HER HONOUR: Yes, thank you, Mr King. Mr Reilly, what is your attitude to the amendment?
MR REILLY: Well, we do not consent to it, your Honour, and the short point is that the matter was fully prepared for hearing with submissions by both parties before that attempted amendment was made and in the circumstances it appears my friend has just had a new idea that your Honour and we are both deprived of submissions from my friend and your Honour does not have submissions in reply from the Minister. So, in those circumstances, it seems – as I said it is not because of any new circumstance but just a new thought has come to my friend.
HER HONOUR: Mr Reilly, the matter was foreshadowed ‑ ‑ ‑
MR REILLY: It was.
HER HONOUR: ‑ ‑ ‑ and the form of the amendment was before the Court on the last occasion. In the circumstances, my inclination would be to allow the amendments so that Mr King can advance a point which was in view on the last occasion.
MR REILLY: If your Honour pleases.
HER HONOUR: Yes, very well. Mr King, you may take it you have leave to file an amended application for an order to show cause conformably with annexure A to the affidavit of Adrian Phillip Joel filed on 4 December 2013.
MR KING: If the Court pleases, I table the originals of those which Mr Joel will file in the Registry.
HER HONOUR: Yes, very well.
MR KING: If the Court pleases. Your Honour, I have prepared a skeleton argument to assist the Court just setting out where I am going. It is only short but I hope brief and to the point. There is a copy for the Court record.
HER HONOUR: Thank you. Yes, perhaps if you just give me a moment, Mr King.
MR KING: Yes, if the Court pleases.
HER HONOUR: Mr King, there are references to a document described as “blue”. Can you identify for me ‑ ‑ ‑
MR KING: Yes, it is the attachment - exhibit APJ‑1 to Mr Joel’s affidavit which is the blue book, the application book.
HER HONOUR: I do not have that blue book. What I have is an affidavit that was affirmed by Mr Joel and filed on 7 November 2013 to which is exhibited a number of documents, including exhibit APJ‑1, being a copy of the application book. So I take it that is the – I will find the references in your submission in that exhibit.
MR KING: That is correct, your Honour, and I have here a filed copy, working copy for your Honour.
HER HONOUR: Yes, all right, thank you for that, Mr King.
MR KING: With that skeleton in mind, can I take your Honour to the evidence in relation to ‑ ‑ ‑
HER HONOUR: Just before you do that, can we just establish what it is that I have before me on this application. I should indicate, Mr King, my understanding of the position, based on the exchange on the last occasion when the matter was before me, is that your application for an extension of time under the Migration Act is opposed by the Minister, and so that is the matter that requires determination today. Naturally, the grounds of opposition include contentions respecting the merits of your client’s claim. Now, in that respect, do I understand that you seek to rely on the affidavit of Mr Joel filed on 7 November 2013 and the documents that were exhibited to it?
MR KING: I do.
HER HONOUR: Is there any other material that is before me on this application?
MR KING: I stand to be corrected but I think not, your Honour, because the substance of it is contained in the blue book and of course there is material that has been prepared in the form of the defendant’s bundle of material. We have no objection to that and we have provided a supplementary bundle insofar as there may be material not in that that we seek to rely upon.
HER HONOUR: Yes.
MR KING: There is a chronology in the front of that as well.
HER HONOUR: Yes, thank you for that. I will just inquire, Mr Reilly, do you have any objection to the affidavit of Mr Joel or the annexure or the exhibits?
MR REILLY: No, your Honour.
HER HONOUR: Yes, and am I right, Mr Reilly, in understanding there is no evidence upon which you seek to rely? You have filed some submissions, but is that the position?
MR REILLY: Yes, it is.
HER HONOUR: Yes, thank you, Mr Reilly. Yes, Mr King, you may take it that the affidavit of Mr Joel of 7 November 2013 is read.
MR KING: If the Court pleases. Your Honour, it may be convenient, in order to demonstrate to the Court on the application which, perhaps to come back to a question your Honour asked of me, is our understanding of the focus today, namely the issue of extension, this Court having exclusive jurisdiction in that regard. Can I foreshadow, your Honour, that if the extension is granted one of three things may happen? The Court would have power, it seems to us, to remit the matter; secondly, the Court would have power if it thought that one or more of the three questions that we have identified as being both important and one respectively is urgent to refer such questions to a Full Court. Alternatively, the Court could decide the matter itself but on another occasion. That would be my appreciation as to the issues today.
HER HONOUR: Yes.
MR KING: Turning then to the question as to whether there is utility and merit in the matter, can I ask your Honour to go directly to the decision of the delegate of the Minister which is found in the blue book at page 10, and in particular starting at 17. Can I ask your Honour to observe that the delegate dealt with two issues: one was the Convention - or persecution grounds under the Convention. In that regard, at page 26 the delegate said that she was satisfied – at the top of the page:
the harm feared is serious harm and systematic and discriminatory conduct . . . I am satisfied the harm amounts to persecution.
Thereafter at page 27, line 12, the delegate addressed the question whether there was a real chance of persecution; again, the conventional test. Then at 31, lines 9 through to 30, the delegate held there was not that real chance because having regard to S152, a decision of this Court, and evidence that the government was at least willing to protect victims of domestic violence, then a conclusion was justified that there was not a real chance of that persecution to which I have earlier referred.
Just to take your Honour back to page 20, at line 28 your Honour will see that one of the materials before the delegate was that decision, that is S152. That is conventional reasoning and we do not take issue with that, your Honour, of course. But then by parallel of reasoning, the delegate turned to complementary protection.
Now, if your Honour has a brief look at our chronology, your Honour will see that complementary protection commenced as a new law and an additional ground of protection two days before the decision of the delegate - that is on 24 March. I have specified the statute at note 1, the amending statute at note 1 of our skeleton argument. So then the delegate did give consideration to complementary protection and at line 40 at page 33 the reference is made to the applicant fearing:
harm of the nature of bizarre sexual acts, beating with fists and implements, imprisonment and threats. These types of harm constitute torture, cruel or inhuman treatment or punishment and degrading treatment or punishment -
Those characterisations fall within section 36(2A), the new provision that had commenced. Then at line 50:
I am satisfied the harm claimed to be feared by the applicant is significant harm for the purposes of subsection 36(2A) -
that is there referred to. Then there is a heading: “Are there substantial grounds for believing that there is a real risk of significant harm?” We say – and I will come back to that in a moment. Then in somewhat obscure language the delegate then, and in perfunctory reasoning, says:
If the applicant remains married to her husband there is a real risk that the applicant will suffer significant harm. The applicant may or may not leave her husband when she returns to Korea.
Whatever she chooses to do, as discussed above, there is evidence that the Korean authorities are willing to protect the applicant if she is subjected to domestic violence by her husband and have effective measures in place for the protection of victims of domestic violence.
Now, the words “as discussed above”, as we would concede it, are referring back to the discussion about willingness of the Korean Government generally to protect victims of domestic violence referred to at page 31.
HER HONOUR: Yes.
MR KING: Indeed, that seems to be confirmed in line 20 at page 34 where there is a general finding about “Korean authorities”, then a conclusion which is simply a transcript of 36(2)(aa). Now, can I just foreshadow our case on both error - excessive jurisdiction and failure to exercise jurisdiction. These are really the second and third points in our skeleton argument.
HER HONOUR: Can I just get your assistance, by reference to the grounds on which the relief is claimed in the amended application, I understand much of what you have just been putting to me relates to your sixth ground which is the new ground.
MR KING: Part of it does, but it also relates to ground (iii), ground (iv) and ground (v), although I acknowledge that (iii), (iv) and (v) are related. In short it is this: that the first point is that the delegate failed to address the evidentiary test to either adopt or disclose by a course of reasoning how she reached the conclusion in the finding at 30. The second ‑ ‑ ‑
HER HONOUR: If we can take these one at a turn. Now, as to a failure to address the evidentiary test, what test do you say the delegate should have addressed?
MR KING: The real chance test, as in Chan.
HER HONOUR: Yes, and is that the test favoured by the Full Federal Court in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505?
MR KING: That is correct.
HER HONOUR: Yes, all right. Now, can I just direct your attention to the bottom of page 33 of the blue book ‑ ‑ ‑
MR KING: If the Court pleases.
HER HONOUR: ‑ ‑ ‑ where the delegate commences this part of her reasons by asking the question “Are there substantial grounds for believing that there is a real risk of significant harm?” Now, as I understand it, you accept that that is the right test? The complaint is that it is not repeated in the body of the reasons. Is that so?
MR KING: I think, if we are talking about the terms of the statute, that is found disclosed at 34, lines 25 to 30, seems to be a transcript from section 36(2)(aa).
HER HONOUR: Yes, but ‑ ‑ ‑
MR KING: Whereas the heading at line 60 at page 33 is not. It seems to be more a summary and a statement of the topic that the delegate is addressing. I do not think much can be taken from the heading at line 60.
HER HONOUR: Why not, Mr King? Is that not a correct statement of the task confronting the delegate? Was not the delegate required to consider whether there was a real risk of significant harm for the purpose of the protection obligations engaged under the complementary protection regime?
MR KING: No. We submit that what the delegate was required to do, having regard to the need to identify as a necessary and foreseeable consequence of removal, as to whether or not there was a real chance that significant harm would follow, because otherwise by simply restating the statutory formula the delegate failed to address any process of reasoning by reference to either the evidence or the relevant legal test.
HER HONOUR: Now, before we move to the process of reasoning, let us stay for a moment with the test. Are you submitting there is a distinction between the test expressed as a real chance and the test expressed as a real risk?
MR KING: Yes.
HER HONOUR: Now, can you just take me to the passage in SZQRB where you say the test is correctly stated.
MR KING: If your Honour goes to my friend’s materials, case 7 is SZQRB at page 257, looking at the numbering at the bottom of the page. Then if your Honour goes across to page 551 in the Federal Court Report in the judgment of Justices Lander and Gordon, at paragraph 242 through to 248 is the topic to which I have just referred.
Now, can I immediately acknowledge, your Honour, that, as your Honour quite correctly put to me, SZQRB contended – as indeed we contend here – that the proper test is whether there is a real risk that if returned the plaintiffs would be arbitrarily harmed in the manner described in subsection (2A). But their Honours then turned to – of course having referred to Chan, then turned to MZYYL, which I think is helpful in explaining how it was that their Honours reached the conclusion at 246, which is the evidentiary test to which I referred.
If I can just take your Honour to our bundle which sets out MZYYL and which their Honours were applying, at 31 their Honours referred to the test – that is at page 217, paragraph 31:
The Tribunal held, and the Minister does not now challenge, that in assessing “real risk . . . of significant harm” to the non‑citizen under s 36(2)(aa) of the Act, that question may be resolved by asking whether there is a “real chance” that the non‑citizen will suffer significant harm if he is removed from Australia to the receiving country . . . That element of the construction of s 36(2)(aa) is important because of the express terms, and role, of s 36(2B) of the Act.
Now, I will not take your Honour into it now because it arises in respect of the second argument that I have, but in short what the Full Court held was that in identifying and applying the complementary protection provided for by section 36(2)(aa), one must have regard to the words which qualify it in (2B), that is:
there is taken not to be a real risk that a non‑citizen will suffer significant harm . . . if the Minister is satisfied that –
and relevantly for present purposes (b):
the non‑citizen could obtain, from an authority of the country, protection –
As we understand MZYYL and the way in which the matter was put in that case by the Commonwealth and as found ultimately by the Full Court, the proper way or the correct way to apply to the facts of the case the question – and reach a conclusion within 36(2)(aa) is to adopt or apply the real chance test. In this case that did not happen, or is certainly not disclosed as happening on the face of the record.
HER HONOUR: Well, they are two different things. Let us firstly deal with the test.
MR KING: Yes.
HER HONOUR: Earlier you indicated that the test for which you contend is correctly stated by the Full Federal Court in SZQRB ‑ ‑ ‑
MR KING: That is correct.
HER HONOUR: ‑ ‑ ‑ and in that decision at page 521 ‑ ‑ ‑
MR KING: Page 551, your Honour?
HER HONOUR: I am sorry, 551, at paragraph 244 in the reasons of Justices Lander and Gordon - which were adopted, on my recollection, by the other members of the court - the appropriate test is said to be “whether there was a real risk” that the applicant in that case “would be subject to torture”.
MR KING: With the qualification in 245, your Honour.
HER HONOUR: What qualification do you say that is, Mr King?
MR KING: That in applying the criterion in 36(2)(aa), one asks, is there a real chance that the applicant would suffer significant harm if returned to ‑ ‑ ‑
HER HONOUR: Mr King, the difficulty I am having is discerning the distinction between the test expressed as one of real risk and the test expressed as one of real chance. Neither requires likelihood. What, if any, distinction do you propose the court in SZQRB was drawing between paragraphs 24 and 25 insofar as the words “real chance” occur in 245 and “real risk” in 244?
MR KING: We would submit that the difference is this, that looking at 36(2)(aa) or 36 as a whole, the question is whether the conclusion can be drawn that the Minister has substantial grounds for believing as a necessary and foreseeable consequence of removal that there is a real risk the citizen will suffer significant harm. Then, having regard to the three circumstances where there is taken not to be such a risk, one then asks, nonetheless, is there a real chance that if removed the citizen will suffer significant harm. So that the role that the real chance test plays at the evidentiary level is a practical role but it leads to a conclusion that there is no real risk that a non‑citizen will suffer significant harm if removed.
HER HONOUR: The distinction between a real risk and a real chance, for which you contend, is what?
MR KING: Leaving aside the difference between the statutory language and the words themselves, real chance focuses on the circumstances of the applicant with respect to the country of removal, whereas real risk focuses on an assessment as at the time of the making of the decision which is a conclusion from a consideration of the real chance. That seems to be the way in which the Full Court addressed it in both MZYYL and SZQRB.
HER HONOUR: Now, looking at the approach adopted by the delegate here, the delegate asked are there substantial grounds for believing that there is a real risk of significant harm. That you accept is a correct statement of the inquiry to which section 36(2)(aa) is directed?
MR KING: It is a sufficient summary, your Honour, I would accept that, yes.
HER HONOUR: All right. So your complaint in substance is that in the balance of the discussion of that topic which appears on page 34 above the subheading “Assessment finding under the complementary protection provisions”, the delegate’s reasons do not disclose that she has addressed the consideration of whether, in the circumstances of this applicant, there exists that real risk of significant harm? Is that the substance of it?
MR KING: Yes, what we would say a real chance of significant harm if returned to the country of origin.
HER HONOUR: Mr King, for my own part I should tell you I have difficulty discerning the difference between a real risk and a real chance, understanding that neither poses a test of likelihood. If you are able to enlighten me on that difference, so be it, but otherwise I am not sure that it assists in the development of your argument. The point is the absence of reasoning, is it not?
MR KING: Absence of reasoning and it is a textual criticism, your Honour, I acknowledge that. I cannot put it any higher than that.
HER HONOUR: I am not sure that a textual criticism when we are looking at the reasons of an administrative decision‑maker will take you far. Turning to the question of the absence of a process of reasoning, if one goes to page 34 of the blue book and the reference in the second paragraph to material that has been discussed above, you accept that that is to incorporate in the decision about complementary protection findings that had been made earlier relating to the claim under the Refugee Convention.
MR KING: Yes, and what is apparent is that the delegate has applied, by parity of reasoning, the general country protection regime point at page 31, lines 10 to 30, under the complementary protection approach at lines 10 to 30 at page 34. Now, we say that that is both legally in error and a constructive failure to exercise jurisdiction because ‑ ‑ ‑
HER HONOUR: Let us take them one at a time. The delegate has incorporated by reference findings made on the same body of material that was before the delegate concerning whether the plaintiff could obtain from an authority of Korea protection such that there would not be a real risk that she would suffer significant harm, has she not?
MR KING: That is correct.
HER HONOUR: What is the legal error in approaching the matter in that way?
MR KING: There are two errors. The first is that, as evidenced or as demonstrated by the Full Court in MZYYL at passages which I need to take your Honour back to, there is no consideration of the particular circumstances of the plaintiff. Rather, what there is is there is a process of reasoning endorsed by S152 that in the country of removal there is a protection regime and the courts of this country will not examine the circumstances any further than that, that is to say, if there is a protection regime, that is sufficient to give rise - to eliminate the real chance persecution test.
But our point is this, and this was the point of the Full Court in MZYYL: that is not sufficient for the harm test, complementary protection, because it adds a new ground, focused on harm, and the finding that if she remains with her husband, which was a real possibility if she returns to Korea, that she will suffer harm.
The fact that there is in place in Korea a general regime for protection of persons from domestic violence is not an answer to a harm case because one needs to examine the particular circumstances of the person involved, and in this case where there was bizarre conduct, an AVO order made by the local courts of this State, it was not sufficient for the delegate to adopt a parity of reasoning and not to inquire separately with respect to complementary protection whether or not in the case of the plaintiffs – the mother and the three children, but the mother in particular – on the basis of findings made, that is systematic discriminatory and properly based fear of harm, that she herself would not be harmed or damaged if returned under the regime and then in conflict with the regime.
So, in other words, what we are saying is that it is not good enough with respect to complementary protection to simply say the foreign country has its own regime. One needs to make a further inquiry as to the particular circumstances of the individual and that did not happen here.
HER HONOUR: Now, you said you would have to take me back to MZYYL. You have not as yet taken me to any particular passage in that case. Is there something that you rely on in the decision?
MR KING: There is. I can take your Honour to it. It is in our bundle.
HER HONOUR: Yes, I have it.
MR KING: Thank you. The reasoning is relevantly between 29 and 40 but for present purposes – perhaps the focus can be found at 35 and 36 at page 218:
contrary to the submissions of the Minister, s 36(2B)(b) does not, in its terms or in its operation, require either the conclusion that it is inevitable that the non‑citizen will suffer significant harm or the conclusion that it is certain that he or she will not. The express terms of the section require the Minister to be satisfied that, given the protection available to MZYYL in the receiving country, there would not be a real risk that he will suffer significant harm. There is nothing to suggest or warrant the imposition of some kind of guarantee of one or other outcome. And, indeed, such a guarantee is practically impossible . . .
The Minister submitted that the prescribed standard of protection in s 36(2B)(b) is satisfied (as required by international standards) if the State authority in question operates an effective legal system –
So that is the general system point –
prosecution and punishment of acts constituting serious harm and the non‑citizen has access to such protection. That construction is rejected. It is contrary to the express words of the section. To construe the provision in that way would have the Court ignore or read out of s 36(2B)(b) (and, indeed, other sections in the Complementary Protection Regime) the phrase “real risk” and the reference to the non‑citizen. The Minister’s construction seeks to have the Court focus on the system rather than the individual. That is not the question posed by the section. At least part of the problem with the Minister’s construction of s 36(2B)(b) arises because the Minister seeks to treat s 36(2B)(b) as a “carve‑out” to be considered after the enquiry provided for in s 36(2)(aa). That approach should be rejected.
Two other problems are then identified at 37. Now, we submit, your Honour, there are two indications in the material before the Court here that that is exactly – three indications really – that is what the Minister has done here. Firstly ‑ ‑ ‑
HER HONOUR: Can I just stop you for a moment? The submission that was rejected was that it was sufficient that the State authority operates an effective legal system.
MR KING: Yes, to which the applicant has access.
HER HONOUR: And at 37, the submission was rejected for the reasons, apart from anything else, that if the approach that the Minister contended for was adopted there would not be criteria:
for assessing whether [or not] “international standards” had been met.
MR KING: Yes.
HER HONOUR: I see. All right. Well, now, turning then to the findings that the delegate made in this case ‑ ‑ ‑
MR KING: I have already drawn attention to the reference to S152 and we think that is ‑ ‑ ‑
HER HONOUR: Well, S152, the point being made there of relevance for present purposes was that one cannot guarantee a person’s safety in any country. Is that right?
MR KING: Well, the relevance for the purposes of the present argument is this, that S152 is an answer based upon the existence of a general protection regime in the country of removal. One can then conclude that there was not a sufficient evidentiary basis for real chance of persecution, even if persecution, as in this case, had been found. The reason that it is relevant here is because all that the delegate has done, having applied S152 at 31, which is solely a persecution ground case – S152 did not consider complementary protection – is to simply by parity of reasoning bring it across and apply it to complementary protection. That is the significance of the words “As discussed above” and at line 20 at page 34:
the Korean authorities are willing and have effective measures in place to protect victims of domestic violence.
That, in our respectful submission, is not what the – is in conflict with the Full Court’s decision. It is an indication – sorry, your Honour.
HER HONOUR: I am just not sure whether it is or it is not. If one goes back to the findings that were made and which are incorporated by reference in the decision on complementary protection, the starting point for the process of reasoning is not simply that Korea is a country with a settled effective legal system, since the delegate seems to accept that in the period when the plaintiff was living in Korea up to 2003, the police response to complaints of domestic violence was inadequate and the delegate takes into account country information ‑ ‑ ‑
MR KING: At 30, yes.
HER HONOUR: ‑ ‑ ‑ in coming to a conclusion that in this respect, that is in the response by the proper authorities in Korea to domestic violence, there has been a notable improvement.
MR KING: Yes, but the conclusion at line 21 is quite harrowing. At page 31, line 21:
I find that although the applicant may continue to need protection from her husband if she returns to Korea, the Korean authorities are willing and able to provide protection to the applicant.
Now, the willingness and ability, we say, is not – it may be sufficient for persecution grounds but not sufficient for complementary grounds and, indeed, is not relevant to complementary grounds ultimately, but that is a slightly different point. MZYYL shows that there must be an inquiry as to the particular circumstances and the accessibility of the regime to the applicant herself and her children so as to ensure that no harm – that there is no real risk of harm, whereas on the contrary the findings here are to suggest that such a real risk will continue to exist. So it is not enough to wave a magic wand over a claim for complementary protection by saying that a foreign country has a protection regime which it voluntarily has put in place and is effective. It must go further than that and that did not occur in this case.
The constructive failure to exercise jurisdiction point which is set out in the last paragraph sub‑particular of our summons, amended application, puts it in a slightly different way, namely that the willingness and effectiveness of a foreign regime to adopt protection is not the relevant inquiry and to simply say that a regime is willing and effective is not an answer to an application for complementary protection. That is why there has been a constructive failure to exercise jurisdiction because the heart of the matter in 36(2A) and 36(2B)(b) has never been examined by the delegate.
HER HONOUR: Well, now, can I just stop you there. You accept that in making a determination under 36(2)(aa) the delegate is required to take into account subsection (2B)?
MR KING: Yes, it must be read as a whole.
HER HONOUR: Yes. Well, when it is read as a whole, why is consideration of the availability of protection by an authority of the receiving country not a relevant matter to take into account?
MR KING: For the reasons that are referred to in MZYYL. The protection regime itself I acknowledge would have relevance but it must be applied with respect to the particular circumstances. Perhaps that is just another way of putting the same point that I have already made. So the non‑citizen could obtain from an authority – an authority – so it is identifying particular authorities not general authorities, protection such there would not be a real risk to the actual non‑citizen in relation to significant harm, and I think that is what the Full Court was focusing on. Indeed, when one looks at both the transcript and the terms of the reasoning, one sees that the matter was never approached in that way by the delegate.
HER HONOUR: Well, you say that, Mr King. The delegate identified as the authority the Korean police and made particular findings about the protection offered by the Korean police to victims of domestic violence in the period since 2003.
MR KING: There is some useful country information too from which the delegate appears to have been working at page 147 of the blue book dealing with suspension of protection and the attitude of both the police – it seems, your Honour, that whatever complaints are made, if they are withdrawn merely by force, in other words if someone’s will is overborne or if they are some ‑ ‑ ‑
HER HONOUR: Mr King, I am not in a position to be making factual findings. What I am concerned to do is to understand the point that you make by way of criticism of the delegate’s factual findings which at least descend to this level of detail a consideration based on country information of the response of the police of Korea to complaints of domestic violence and the adequacy of that response in light of information respecting changes in the period since 2003.
MR KING: That is correct, and we say, your Honour, that – we submit respectfully that the delegate has done no more than make a general observation that there is a willing and effective regime to protect victims of domestic violence in general, but do not descend to consider the particular circumstances of the plaintiff or her children. For that reason there is a jurisdictional error in relation to the reasoning at 33, 34 and/or a failure to exercise jurisdiction to consider the point because, as we have set out in our submissions independently of the skeleton because that is just referring to the summary of it, there is some quite ample evidence of disastrous consequences for particular individuals, notwithstanding some improvement in the regime in Korea with respect to harm.
HER HONOUR: Yes, all right.
MR KING: Now, your Honour, the third point which is really in a sense the main point is procedural injustice, breach of natural justice. Can I take your Honour to page 45 of the blue book?
HER HONOUR: Yes.
MR KING: That was the notice that was given to the plaintiffs. Attached to that at page 48, 49 was a document entitled, “Important information about your interview”. Now, the letter was sent to a solicitor, Mr Levingston, who did not attend the interview. The first plaintiff gives evidence about that. She turned up believing that – she read the document at page 48, 49 carefully believing that this was what she was to address, that is the 1951 Convention grounds. If your Honour looks at that there is no reference anywhere whatsoever to complementary protection.
HER HONOUR: Now, of course, at the date this document was sent, the complementary protection provisions had not commenced.
MR KING: Well, my learned friend, Mr Reilly, makes a point along those lines in his submissions but we respectfully submit that is a frightening submission in circumstances where the delegate fixed a date after the new law came into effect as the date for the hearing. One would have expected, both as a matter of natural justice and, indeed, we say as a matter of the proper construction of section 57, to have identified the grounds upon which the matter was to be considered.
That would have been the very least that natural justice required because, in other words, as the first plaintiff says in her affidavit, she did not have any opportunity to prepare. She says that had she known of the true position she would have sought an opportunity to speak with her solicitor and obtain further information on the issues and she said she did have such further information. So like ‑ ‑ ‑
HER HONOUR: Can I just stop you there for a moment. When the plaintiff went to the interview she understood, based on the information sheet that had been sent under cover of the letter of 23 February ‑ ‑ ‑
MR KING: Yes, that I have just pointed to, yes.
HER HONOUR: ‑ ‑ ‑ that her claims for Australia’s protection would be determined pursuant to the Refugees Convention. The claim that she advanced in that respect was that she was a member of a social group, namely Korean women, and her well‑founded fear was of persecution by way of domestic violence at the hands of her husband. Is that right?
MR KING: Social impact I think was the primary focus of her application.
HER HONOUR: I am sorry, what does that mean?
MR KING: Well, the ground that your Honour has articulated, yes.
HER HONOUR: Yes. Now, bearing in mind that was the ground by which it was sought to engage Australia’s protection obligations under the Refugees Convention, what, at an evidentiary level, are you suggesting is the different case that might have been made had she had notice of the complementary protection regime?
MR KING: She does describe that in her affidavit and it is probably best to take your Honour to that. She says at the top of ‑ ‑ ‑
HER HONOUR: Page?
MR KING: Page 41 through to 43, she says she read the brochure carefully – that is the brochure I have taken your Honour to. Then in paragraph 3 at page 41 she spoke to her solicitor:
the solicitor did not make any reference to the meaning or operation of Complementary Protection to –
her and then at 4:
As at the time of the commencement of the interview with the Delegate I had never heard of the term “Complementary Protection” ‑ ‑ ‑
HER HONOUR: I understand all these things, Mr King. The matter I am directing your attention to is that procedural fairness has classically been described as a matter involving practical justice. Now, as a practical matter, when one is advancing a claim to engage Australia’s protection obligations because if return to one’s country of origin one is at risk of being violently assaulted and mistreated by one’s husband ‑ ‑ ‑
MR KING: Whether or not married, yes.
HER HONOUR: In this case the claim is as a married person. So we need not concern ourselves with facts that are outside the compass of this case. Looking at this case and looking at the practical difficulty that you assert your client was faced with in advancing a claim for complementary protection based on the substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Korea, there is a real risk that she would suffer significant harm, the significant harm being the violence assaults upon her by her husband, the very material relied on under the Refugees Convention as engaging the protection obligation. What was it that she did not bring to the interview in support of her claim under the Refugee Convention that she might have brought had she understood that a new regime, in some respects overlapping, was about to commence?
MR KING: I think there are, with respect, three answers to that.
HER HONOUR: Yes.
MR KING: Firstly, she would have sought an adjournment and consulted with her solicitor to discuss how and what she would do about it. That is a procedural point. Secondly, though, to address the practicality issue that your Honour - she says at line 10 at page 42 that she could have:
given evidence and tried to provide material that may establish the Korean police were and remain ineffective in preventing significant harm to my children and me.
In other words, she would have given evidence about her particular circumstances in relation to the particular police where it was proposed that she reside, or in the country of removal. So there would have been a focused inquiry, the very issue that the Full Court referred to in MZYYL, about her particular circumstances.
HER HONOUR: This is material that would not have been relevant to support the claim under the Refugees Convention?
MR KING: No, that is correct.
HER HONOUR: Surely one would seek to show the ineffectiveness of state protection?
MR KING: Well, no, because S152 at paragraphs 26 and 29, as we have pointed out, does not require descending into that sort of detail or focusing on the sort of harm that the complementary protections provide for.
HER HONOUR: Paragraphs 26 ‑ ‑ ‑
MR KING: And 29 of S152.
HER HONOUR: Just bear with me a moment. Let me turn those up.
MR KING: It is in my friend’s bundle, your Honour.
HER HONOUR: Yes, I have it.
MR KING: It is at page 4.
HER HONOUR: Yes, 26 and what was the other paragraph?
MR KING: Paragraph 29.
HER HONOUR: Well, it is really, I think, you are relying on the last sentence in paragraph 29, are you not? Speaking of the applicant in that case:
He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality.
MR KING: Yes.
HER HONOUR: You say, well, those considerations are not apt to the complementary protection regime.
MR KING: That is correct.
HER HONOUR: It is still unclear to me why one would not, in seeking to lay a foundation for one’s claim under the Refugees Convention, lead such evidence as was available to show that the police in Korea, despite the country information, do not respond well to instances of domestic violence.
MR KING: Well, I think it goes a little bit further than “do not respond well”, your Honour, but I will leave that issue to one side. But the short answer to the point properly made by your Honour to me is found in Stead’s Case and in Ex Parte Aala, particularly the observations of Chief Justice Gleeson in Aala at paragraph 4.
HER HONOUR: Just wait a moment. It does always help to give me a chance to refer to the matters.
MR KING: I am sorry, that is in our bundle.
HER HONOUR: Yes, at 4.
MR KING: At 4 and Justices Gaudron and Gummow at 78 and 79, I think it is ‑ “the practical content”, 77 and 78. Now ‑ ‑ ‑
HER HONOUR: One moment, please, Mr King, just give me a chance to absorb this.
MR KING: I apologise.
HER HONOUR: Yes, it seems to me there may be some distinctions between the two but, in any event, I understand ‑ ‑ ‑
MR KING: What we are really saying, your Honour, is the practical content becomes, we say respectfully, a different inquiry. It really behoves my learned friend to put on some evidence to show that it would not have made any difference. That is the point of Stead v GIO, that is the point in Aala, but he has not done that and does not seek to do that.
HER HONOUR: Do you not have the first hurdle of establishing relevant error?
MR KING: That is correct.
HER HONOUR: Now, you should not assume, Mr King, you are over that first hurdle.
MR KING: No, of course I do not.
HER HONOUR: All right.
MR KING: But I am addressing your Honour’s point about the practicality of the content of the natural justice hearing rule. Our submission about that is, firstly, on the plaintiff’s own evidence she would have (a) sought an adjournment, (b) made inquiries and (c) brought forward more detailed and focused evidence on the actual difficulties in the particular circumstances of her situation in Korea, and having regard to the country information, that must be considered to be real and, indeed, the findings of the learned delegate.
But turning back to the hurdle, the first hurdle that your Honour mentioned, that really is a question of principle and we respectfully submit that having regard to the case referred to by my learned friend at point 6 in his bundle ‑ ‑ ‑
HER HONOUR: I am sorry, what case is that?
MR KING: Saeed v The Minister.
HER HONOUR: Yes.
MR KING: Section 57 which sets out the content of the natural justice hearing rule in this case.
HER HONOUR: Well, now, just wait a moment. Now, what passage in Saeed v The Minister are you directing my attention to?
MR KING: At page 261, in particular. It is the passage in the judgment of the plurality led by the Chief Justice, starting at 16 and going through to 23, but in particular at 20. Your Honour will observe that their Honours are focused on the content of the natural justice hearing rule in the context of section 57 where relevant information, such as happened in our case here, was given to the plaintiffs. We would respectfully submit, if one goes to paragraph 20 that three things did not happen here which could have and should have happened had a natural justice been afforded the plaintiffs.
Firstly, sufficient particulars of the proposed ground of protection were not given; secondly, the importance of the information and its potential impact were not identified; and, thirdly, the means by which the particulars and that information were provided were not suitable for the purpose.
HER HONOUR: But those remarks in Saeed are concerned, are they not, with supplying the applicant, who in that case was not in the migration zone, with information that answered the description of being either a reason or part of the reason for refusing to grant the visa or being specifically about the applicant or another person and not merely a class of persons of which the applicant is a member, is that so?
MR KING: Yes.
HER HONOUR: Well, now, how do you bring your complaint that the plaintiff was not informed under cover of the letter of 23 February of the pendency of a regime of complementary protection applicable to all persons seeking to engage Australia’s protection obligations?
MR KING: If one looks at the letter, it sets out – or to put it more correctly – it fails to set out the relevant information as specified in section 57(1)(a) and 57(2)(b).
HER HONOUR: Is there any authority that you can point to that identifies as falling within 57(1)(a) material of, as it were, a generic nature concerning the basis upon which Australia’s protection obligations might be the subject of a claim?
MR KING: No, but Saeed at the passages to which I have referred does address that point.
HER HONOUR: Well, you will have to take me precisely to a passage that you say supports that contention which, at first blush, seems to me to have difficulties attending it.
MR KING: At page 260 in Saeed their Honours set out section 57.
HER HONOUR: Yes.
MR KING: Then at paragraph 19 their Honours refer to the well‑known judgment of Justice Brennan in Kioa v West:
in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is “credible, relevant and significant”.
HER HONOUR: Well, that is an entirely different point, Mr King. What I am concerned with here is an assertion that your client was denied procedural fairness because the Department of Immigration and Citizenship omitted to advise her of an alternative basis upon which she might claim Australia’s protection obligations in the event that basis became law as it might be inferred it was expected to do.
MR KING: It was the sin of omission in circumstances where – not that it might become law but it was going to become law; it had already been passed by the Parliament the previous year. It was due to become law within a specified time after the letter was sent, two days after the – it was quite misleading, in our respectful submission, to say to somebody, come in and we will do an interview about topic A, we will not mention topic B, you cannot prepare topic B, and that is not a subject of consideration when the evidence is that had topic B been prepared not only was there a practical likelihood of that being addressed but it has not been shown that it would not have made any difference. So it is misleading, in our respectful submission, to invite the plaintiffs to a hearing, a statutory hearing, involving mandatory obligations and not to mention the relevant grounds.
HER HONOUR: The source of the obligation upon which you rely is section 57(1) of the Migration Act, is that right?
MR KING: And (2).
HER HONOUR: Right, sections 57(1) ‑ ‑ ‑
MR KING: Section 57(2)(b):
ensure, as far as is reasonably practicable, that the applicant understands [what] it is relevant to consideration of the application ‑ ‑ ‑
HER HONOUR: “Why it is relevant to consideration of the application”.
MR KING: Yes:
why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
HER HONOUR: That is with respect to particulars of the relevant information, “relevant information” being defined for the purposes of the provision in subsection (1).
MR KING: Yes, well, the issue was, of course, whether she was entitled to protection. Now, of course, from a practical point of view, as your Honour rightly points out, when the notice was sent out two weeks beforehand the new Act had not come into force. Of course, if the interview had happened before the new Act had come into force the complaint could not possibly have been made, for the reasons your Honour had said, but that was not this circumstance.
HER HONOUR: I understand that. At the present time I am dealing with the basis of your contention that the omission to advise of the likely commencement of the complementary protection regime in advance of the interview occasioned a denial of procedural fairness and that is grounded in the provisions of section 57(1) and (2). Is that right?
MR KING: That is correct, and one can put it two different ways. One can say the letter was erroneous because the Act had been passed, it just had not commenced, or alternatively, on 24 March when it did commence an
amending notice should have been sent specifying the true position and giving the plaintiffs an opportunity to put a real case based on harm‑based grounds.
HER HONOUR: Yes, all right. I understand the point, I think.
MR KING: Yes. So we respectfully submit that – and what their Honours say in that case about the complementary – the common law supplying the omission of the legislature, we say is also relevant, but having regard to their Honour’s observations in Saeed and what Chief Justice Gleeson said in Aala, we respectfully submit that the legislature has sufficiently identified the relevant opportunity and that has not been given.
HER HONOUR: Yes.
MR KING: So, your Honour, those are the primary submissions in relation to the substantive merits of the matter, which we respectfully submit ground a proper basis for an extension. In relation to the delay issues, it is not, with the greatest respect to my friend, a circumstance where through some negligence of Mr Levingston the proceedings were not commenced in time. Here, there was, as the plaintiff points out in her affidavit, an effective misrepresentation. She was told ‑ she had understood that they had been commenced and informed that her position had been protected, whereas that was not the position at all. If your Honour pleases.
HER HONOUR: Yes, thank you. Yes, Mr Reilly.
MR REILLY: Thank you, your Honour. Well, in relation to delay, just before I get to the merits of the proposed grounds ‑ I think I said this on the last occasion ‑ that while there may be an explanation for the delay up till December 2012 in that it seems Mr Levingston was at fault, thereafter the delay is solely attributable to the applicant or the applicant’s lawyers and it is completely inexplicable that it took until July this year to bring properly constituted proceedings in this Court; they did bring separate removal proceedings, but we say that those proceedings are plainly not appropriate.
HER HONOUR: What is the distinction between the failure of Mr Levingston and the failure of the present solicitors?
MR REILLY: Well, the distinction is that the ‑ Mr Levingston seems to have simply just forgot to do something. The present solicitors, when they took the matter, first brought proceedings in the Federal Circuit Court. Now, perhaps if ‑ ‑ ‑
HER HONOUR: I think I understand the history, Mr Reilly. The matter I am taking up with you is default on the part of one’s representative is a matter more readily excused than default occasioned by the act of an applicant. I am not sure why one draws the distinction that the Minister draws.
MR REILLY: Well, I suppose it is just because the applicant’s lawyers were informed after they brought those proceedings by the Minister’s response that the Federal Circuit Court did not have jurisdiction in the circumstances.
HER HONOUR: Yes.
MR REILLY: Despite that another seven months elapsed, including in that time the bringing of the removal proceeding, so it goes beyond just negligence, it seems to be a wilful form of choice not to accept the advice proffered to them at the time, the correct advice, that the only course was to bring proceedings in the original jurisdiction of this Court.
HER HONOUR: Did Justice McHugh touch on this at all in his discussion of the principles in Marks?
MR REILLY: He did. Your Honour, if I just go to Marks, it is page 65 of our bundle.
HER HONOUR: Yes.
MR REILLY: In my written submissions I have referred to paragraph [16], and his Honour’s view in the last sentence there that:
In all but very exceptional cases, [the rules of court] should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings –
Well, that is this case. Then his Honour deals with the – it is not quite the same point but at paragraph [17] his Honour deals with the explanation for the delay there, which was that the applicant had not been able to “obtain favourable legal advice” to bring the proceedings, and his Honour says that “is not a ground for extending the time”.
HER HONOUR: Yes.
MR REILLY: Can I just note the last sentence:
If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.
HER HONOUR: That in the context of a matter of this character seems to me to be a somewhat illusory right.
MR REILLY: Well, it may be, your Honour, but what seems to have happened here certainly goes beyond just the initial oversight. As I said, I have submitted to your Honour that it is really just quite inexplicable, the conduct of the applicant’s lawyers in this case since December, and nothing said by my friend has explained why it took until 25 July this year to bring the proceedings that should have been brought at least back in December when they first got the case. So that is what we say about the explanation, that there is no explanation, it is well over a year and the comments of Justice McHugh in Marks are directly in point, we would submit.
Now, I will turn to the grounds. Perhaps if I just go through the grounds in the amended application, your Honour. The first ground claims, as I understand it, that there is a breach of section 57 of the Act. Now, the short answer to that is that section 57 only applies to information which is, amongst other things, in (1)(b):
specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member –
In Saeed at paragraph 21, I think, that was construed – does your Honour have – it is page 232 of my bundle, your Honour – the passage, that is.
HER HONOUR: Yes.
MR REILLY:
Not all information adverse to a visa applicant, and which may be influential to a decision to refuse to grant a visa, qualifies as “relevant information”, particulars of which must be provided by the Minister. Section 57(1)(b) limits the information to that which is specific to the visa applicant or another person, rather than a class of persons. More general information, such as country information, is unlikely to fall within this description.
HER HONOUR: Yes, what seems to be the assertion here is that section 57 imposes an obligation on the Minister to draw attention to the legal grounds upon which a claim may be propounded.
MR REILLY: Well, unless one can say that those grounds are themselves information that is specifically about the applicant then that assertion must fail. Plainly, information about the complementary protection provisions is not specifically about the applicant. What section 57 envisages is if there is negative information about the applicant themselves which is held and that is the qualification of the requirements of procedural fairness.
Now, your Honour, I made the point in my written submissions that in Saeed the Court accepted that section 57 is an exhaustive statement of a natural justice hearing rule in relation to the matters it deals with within section 51A, so strictly the delegate was not required to say anything about complementary protection to comply with the Act but, of course, it is good practice to tell an applicant essentially what the case is about before the hearing commences and that is exactly what happened. If your Honour turns to page 78 of – I think it is both Mr Joel’s affidavit and of the blue book, whichever – which is your Honour using?
HER HONOUR: At the moment, the blue book.
MR REILLY: The blue book. I will just check they are the same.
HER HONOUR: Yes, I think it is. I have page 78.
MR REILLY: First at page 77, the delegate describes from about line 52 the Refugees Convention, and then at the top of page 58 she says:
Now complimentary protection is a new part of the Migration Act.
Could you explain complimentary?
Complementary I think it means, it is not compli as in giving a compliment, it is complementary with an E meaning additional and adding to so adding to the protection provisions. I will now explain to you the complementary provisions of the Migration Act. The decision maker must be satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of a person being removed from Australia to a receiving country there is a real risk the person will suffer significant harm, a person will suffer significant harm if she or he will be arbitrarily deprived of his or her life or have a death penalty carried out on him or her or be subjected to torture or be subjected to cruel or inhuman treatment or punishment or be subjected to degrading treatment or punishment. Do you understand the Complementary Protections?
Yes –
And did your lawyer explain these to you as well?
I was given about the description but I think today’s explanation was more detailed than before.
So there is no basis there to suggest that the applicant had any misunderstanding. And at the end of the hearing, contrary to what my friend has submitted today, at page 99 the delegate asks:
OK so have you put forward all your claims for protection, these are standard forms?
The interpreter says –
Have you claimed everything you wish to?
Yes
Yes
I have not asked for any further submissions however please note that any further submissions or information about your application that I receive prior to making my decision will be taken into account.
No further submissions were provided. And contrary to what my friend said, the decision of the delegate was made on 18 April, so that is about three weeks after the interview; it was the interview on 26 March which was two days after the commencement of the complementary protection provisions, not the date of the decision.
So that is why we say ground 1 fails. Ground 2 fails for the same reason. Firstly, natural justice technically does not apply beyond section 57 but, in any event, it was, in my submission, adequately complied with by the delegate. Ground 3, we agree that the particular circumstances of the plaintiff need to be considered under both the refugees test and the complementary protection provisions, and we agree with what the Full Court said in MZYYL to that effect.
HER HONOUR: Yes.
MR REILLY: But we say that on a fair reading – and your Honour has, I think, put this to my friend already – if one reads what is put by the delegate at page 34, “As discussed above”, which relates back to what is said at page 31, the delegate plainly is going beyond just saying, well, there is in the abstract a system of state protection in Korea and saying that is a system that is effective and “the Korean authorities are willing and able to provide protection” and concludes that as a result the applicant’s fear of persecution from her husband “is not well‑founded” because there is not a real chance of it occurring.
Now, that is having regard to the applicant’s circumstances, we say, and certainly on a fair reading as required by Wu Shan Liang one would not read the discussion about complementary protection as embracing the proposition which was put by the Minister in MZYYL that it was enough for there simply to be a system of state protection in the country concerned.
Your Honour, MZYYL was a case where the Tribunal had found that there was not state protection available in the country such that the applicant there would not have a real risk of significant harm under the complementary protection provisions, and the Full Court said there was no error in that conclusion. This is a case where the Tribunal has expressly found the reverse, that there is such a system available in Korea and, in my submission, that the applicant can access.
Now, my friend at times also said, I thought, that the applicant was deprived of the possibility to say anything about the availability of state protection in Korea, but that was a matter that was raised with her during the interview. If your Honour looks first at page 24, the penultimate paragraph, this is the delegate’s account of the interview:
Independent country information was put to the applicant which indicates that since she left Korea the Korean government has instituted many changes in the manner in which they provide protection to victims of domestic violence. Extracts of information (quoted below) were read to her. The applicant responded that Korea is different to Australia. What it says on paper is different. It is hard to bring all these issues to court and Korea does not respect women’s rights. Women have to reveal private matters to have protection from the authorities in Korea. It is a different system in Korea and they do not resolve cases as quickly as they do in Australia.
HER HONOUR: I understand, yes.
MR REILLY: Now, it is hard to see how my friend can seriously suggest that the applicant did not put whatever she wished in light of the fact that the issue was raised with her, she responded. She said at the end of the hearing that she had said everything she wished. She was told she could put in further submissions and she did not. All her affidavit says at present is that she – this is page 42 in paragraph 5, she says:
Had I known about these issues regarding harm I would have said additional things and I or my solicitor could and would have provided further documents ‑
but with no specificity at all that assertion cannot really take the applicant anywhere, in my submission. In my submission, the delegate was conspicuously fair in this case and sympathetic. In any event, we say there has not been a failure to address the circumstances of the applicant. Now, my friend noted the mention at page 31 of the quote from S152 that:
No country can guarantee that its citizens will at all times . . . be safe from violence –
and he seemed to suggest that that might not have any application, or at least that case might have no application to the issue of complementary protection. Well, the case, of course, does not concern complementary protection but in MZYYL itself, which is in my friend’s bundle, your Honour, if I just go back to MZYYL ‑ ‑ ‑
HER HONOUR: Yes, indeed.
MR REILLY: ‑ ‑ ‑ paragraph 35, my friend read this paragraph to you but, in my submission, it is consistent with the delegate’s decision. Their Honours there say:
s 36(2B)(b) does not, in its terms or in its operation, require either the conclusion that it is inevitable that the non‑citizen will suffer significant harm or the conclusion that it is certain that he or she will not. The express terms of the section require the Minister to be satisfied that, given the protection available to MZYYL in the receiving country, there would not be a real risk that he will suffer significant harm. There is nothing to suggest or warrant the imposition of some kind of guarantee of one or other outcome. And, indeed, such a guarantee is practically impossible: cf S152/2003 at [28].
So at least according to the Full Court of the Federal Court, that principle is applicable when considering complementary protection, as indeed it must be because the question is, is there a real risk, not is there a certainty or a guarantee. So we say ground (iii) fails for that reason.
Ground (iv) “the Plaintiffs did not fully understand the proceedings” it is alleged. Well, that is contrary to the passages of the transcript that I have taken your Honour to but, in any event, by itself it would not establish any jurisdictional error on the part of the delegate. It is an objective test. Ground (v), “the Delegate incorrectly concluded without any evidence that there was sufficient state protection”. Well, the evidence was the country information that the delegate refers to and put to the applicant so it cannot be said that there was no evidence, as that ground asserts.
Then the final ground, it is not entirely clear what the ground means as worded but I understand from what my friend has said that the complaint is that, in fact, the delegate did not apply a real chance test when considering complementary protection and he referred your Honour to SZQRB.
HER HONOUR: Yes.
MR REILLY: Can I just remind your Honour that the error found in SZQRB, which I think the special leave application is being heard on Friday ‑ ‑ ‑
HER HONOUR: On Friday, yes.
MR REILLY: If your Honour turns to page 302 of our bundle, in paragraph 240 of SZQRB ‑ does your Honour have that?
HER HONOUR: Yes, I do.
MR REILLY: Your Honour will see in the quote there, the second paragraph, this is a quote from the delegate’s determination there – I will quote the first bit. The delegate refers to real risk and so on, which is complementary protection, then says:
Departmental policy is that this should be interpreted as meaning that the necessary chance of the harm occurring is balance of probabilities ‑ ‑ ‑
HER HONOUR: Yes.
MR REILLY: That was the error that was found in SZQRB. Now, the short answer in this case, we say, is that there is nothing to suggest that the delegate here was applying any balance of probabilities test.
HER HONOUR: As I understood it in the way Mr King developed the challenge, it was really to the sufficiency of the reasoning process to reveal the application of that test.
MR REILLY: Well, all of these cases were decided after the delegate’s decision, so she could not be blamed for not knowing about them because they have all come afterwards.
HER HONOUR: Yes. Well, I think in a sense, Mr Reilly, you have already addressed it by pointing to the passages that you have in the consideration of the Refugees Convention claim.
MR REILLY: Yes, thank you, your Honour. The final point I would make is that contrary to what the ground seems to suggest it is, of course, part of the complementary protection provisions and dealt with in MZYYL in section 36(2B)(b) that there is taken not to be “a real risk that the non‑citizen will suffer significant harm”:
if the Minister is satisfied that . . .
(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm –
Now, we say that on any fair reading is precisely what the delegate has found.
HER HONOUR: Yes, thank you, Mr Reilly.
MR REILLY: Thank you, your Honour.
MR KING: Just briefly, your Honour.
HER HONOUR: Yes. Mr King, can I just direct your attention to a couple of matters raised by Mr Reilly ‑ and not wishing to cut you off, Mr King ‑ but Mr Reilly took me to page 99 of the application book and to the statement by the delegate that the delegate was willing to receive further submissions. Now, this was in an interview conducted on 26 March. The decision was not made until 18 April. The regime for complementary protection had been explained to your client and your client had said she understood it. Even accepting the difficulty of absorbing information as it is conveyed to a person, Mr King, there can be no doubt that your client had the opportunity to consult her advisers after the interview and to raise the matter of complementary protection and put in such further submission as she may care – may have cared to.
MR KING: We would respectfully submit not a relevant or just opportunity, your Honour. My friend is not correct in suggesting – in submitting that the evidence at page 78, lines 1 to 30, is evidence of a disclosure of something which had previously remained hidden from the plaintiffs, but there are a couple of reasons for that, both on the face of the record and in the affidavit of the first plaintiff about that.
Firstly, what is apparent is that the delegate read two portions of section 36. She read (2)(aa) and (2A), no reference to (2B) which is the critical ground upon which she found against my clients in her reasoning, no reference at all to (2B)(b). The second issue is this; she says that she did not appreciate that this ground was for consideration and she would have done certain things had that then occurred. She has not been cross‑examined on that. It has not been suggested that her evidence should be not accepted. When one looks at the transcript one can see that there is some basis, even in the transcript itself, for her evidence because at lines 9 and 10 the delegate starts ‑ ‑ ‑
HER HONOUR: What page?
MR KING: This is at 78 – the delegate starts talking about complementary meaning – not meaning compli, compliment as in a favour or a gracious observation, but complementary as in meaning additional, but then reverts straight to the language of the statute and, as I say, does not read out from the statute the critical provision which was the ground upon she rejected my client’s application. Then it is true, as my friend says, she was asked:
Do you understand the Complementary Protections?
Yes
And did your lawyer explain these –
Well, the evidence is that he did not, but she said –
I was given about the description but I think today’s explanation was more detailed than before.
So the clear inference from that is, in our respectful submission, that she confused in the circumstances that she was in the basis upon which the matter was to proceed and the ‑ ‑ ‑
HER HONOUR: I would not draw that conclusion.
MR KING: Well, it is a reasonable conclusion where my friend does not cross‑examine her and where she says, look, I was given notice on basis A but it was decided on basis B, and then basis B ‑ ‑ ‑
HER HONOUR: I am sorry, Mr King, you say that it is the inference to draw given the absence of cross‑examination; where is the material in the affidavit that you rely on to gainsay ‑ ‑ ‑
MR KING: It is found in her affidavit at page 41 at paragraph 3. She says in the second sentence:
the solicitor did not make any reference to . . . Complementary Protection –
so that is consistent with the observation at 78, lines 36 to 37, that she had thought that what the delegate was now saying to her was consistent with protection, not complementary protection. Now, that is persecution protection or Convention protection. Then at 4 she says she had “never heard of the term ‘Complementary Protection’”.
HER HONOUR: Yes.
MR KING: Then 5:
I was not aware I had the opportunity to establish –
that and she said then she would have done certain things. My friend criticised ‑ ‑ ‑
HER HONOUR: I am sorry, we may be at cross‑purposes. The delegate explained the provisions broadly of the Refugees Convention engaged by this claim – this is at 77 – and then at 78 she explained the new regime for complementary protection, and then she asked:
And did your lawyer explain these to you as well?
I was given about the description but I think today’s explanation was more detailed than before.
Well, now, none of that is inconsistent with anything that is put in the affidavit.
MR KING: No, what I am saying is that the affidavit gives her understanding, which is the critical point from ‑ which is what their Honours had talked about in Stead, Aala and ‑ ‑ ‑
HER HONOUR: Sorry, you keep referring to Stead and Aala. Are you suggesting that, notwithstanding an explanation to a person, if the person happens not to fully understand the import of it they have been denied procedural fairness?
MR KING: If they are misled or a complete ‑ ‑ ‑
HER HONOUR: Can you take me to the passage in Aala or Stead that you rely on for that proposition, Mr King?
MR KING: Or if a complete explanation has not been given. I rely, your Honour, on the analysis that I have previously referred to in Saeed, which is really a compilation of what we respectfully submit ‑ ‑ ‑
HER HONOUR: Well, just take me to the passage, Mr King.
MR KING: At 19 and 20.
HER HONOUR: Paragraphs 19 and 20 in Saeed.
MR KING: Yes, at page 261. Last sentence in 19 – second‑last sentence, I beg your pardon:
Mason J in Kioa v West went further. In his Honour’s view the common law would require the decision‑maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J’s approach would not deny that this may be necessary in a particular case.
HER HONOUR: Just to bring a matter to a person’s attention, it is in the context of bringing to the attention of a person who is to be affected by one’s administrative decision matters potentially adverse to that person to afford them an opportunity to comment on it, is it not?
MR KING: But it is also – where we have a statutory tribunal and the obligation of the tribunal is to stand in the shoes of the Minister and give consideration to the operation of the statute which confers grounds of protection is not to mislead the person by saying, well, ground A is available then does not mention ground B at all.
HER HONOUR: Yes, all right. Well, now ‑ ‑ ‑
MR KING: Then paragraph 20 to the same effect, your Honour. But could I just take your Honour back to ‑ ‑ ‑
HER HONOUR: Can I take you to one other matter? This is just by way of the matters that have been raised by the Minister, which it seems to me it would be helpful for you to deal with, and that is on page 24 of the application book, the last bullet point, one sees some consideration of the question of the particular circumstances of the plaintiff in the context of the conditions in Korea in light of the independent country information. Now, I raise that with you because, as I understand it, the Minister points to material of that character as answering the suggestion that all the delegate did was to decide that generically protection was available to women in Korea.
MR KING: Well, one only needs to turn the following page, your Honour:
I am satisfied the harm feared is serious harm and systematic and discriminatory conduct –
and similar findings were made at 34 at the top of the page. Now, what we respectfully submit is in those circumstances the relevant inquiry was not made. It would be different if one was dealing – well, different cases have different issues but we say that is the critical context that my friend never addressed either as to discretion or as to delay.
Your Honour, just before I pass from the last question your Honour asked me can I also draw attention to paragraphs 17 and 18 of the first plaintiff’s affidavit at page 43 where she explains what she understood at the time, and I have already drawn attention to the fact that the critical part of section 36 on which the delegate relied in her decision was not even read out or explained to her; that is, to the plaintiff.
HER HONOUR: I am sorry, what paragraph are you pointing to at this stage?
MR KING: I refer to paragraphs 17 and 18 at page 43. So it was not until December that she understood the term for the first time.
HER HONOUR: One comes back to the difficulty, Mr King; the emphasis in terms of a consideration of your procedural fairness challenge can hardly be the subjective understanding of your client, can it?
MR KING: No, of course governments have to deal with different cases in different circumstances, but on the other hand governments are not monolithic organisations and they have to look at the particular circumstances of the case. Now, in a circumstance where there is evidence of serious harm and of persecution it was not good enough, in our respectful submission, to not refer to the critical ground, which was, we say, the true basis for her obtaining protection in this country for her and her family.
HER HONOUR: Yes.
MR KING: Your Honour, can I just deal briefly – was there anything else that your Honour wanted to draw ‑ ‑ ‑
HER HONOUR: No, no, those were the matters.
MR KING: Yes, just deal briefly with delay. Your Honour, in our written submissions filed on 6 November, at paragraphs 4 and 5 we deal precisely with the issues raised by my friend by reference to current cases in the Federal Circuit Court, which deals with delay where this Court is not required to – that is, within the relevant period. Also my friend said there was no explanation for the delay since December; there is. What happened on the return of the Federal Circuit Court matter was that there were – as Mr Joel has pointed out – there were discussions between the solicitors for the parties. They said, you have to go to the High Court and we will not take the point about delay from the time that you do that until now, but Mr Joel did not get an iron cast guarantee so what he did was he commenced a removal application immediately and the reason for that was this, your Honour.
My friend says that is misconceived but, in our respectful submission, it is not misconceived because Bienstein, which was the case he relies upon, deals only with the circumstance that where there is jurisdiction in the lower courts, there is no jurisdiction in the lower courts, there was only one place that this could have been done, and section 40 of the Judiciary Act confers power upon your Honour to grant the extension back to the time of the commencement of the – in the Federal Circuit Court proceedings where they removed back to the time of the ‑ ‑ ‑
HER HONOUR: If it is in the interests of the administration of justice, there is an undoubted power, but the point that is being taken against you is that at least from 7 January 2013 the circumstance that the proceedings commenced in the Federal Magistrates Court were misconceived and that that court had no jurisdiction was drawn to the attention of the plaintiff’s advisers, and the proceedings in this Court, the only court that has jurisdiction, were not commenced until mid‑July.
MR KING: Well, that is not correct either. They were commenced in, I think it was May, but they were commenced in circumstances where ‑ ‑ ‑
HER HONOUR: I am sorry, can you just bear with me a moment? I am dealing with proceedings ‑ ‑ ‑
MR KING: If your Honour has a look at the chronology.
HER HONOUR: Well, just one moment. What I am having a look at are the proceedings that are before me today, Plaintiffs S147/2013. The process which commenced those proceedings was filed on 25 July.
MR KING: Yes, that is correct.
HER HONOUR: All right.
MR KING: But the point I am making is that it is not an accurate reflection of the substance of what Mr Joel did, and that is on the return of the Federal Circuit Court matter the solicitors immediately addressed the question. Attempts to resolve the delay issue were not able to be resolved and so a removal application was made on the basis that the court would have power under section 40(3), itself in the Federal Circuit Court matter, which had been started on 17 December, to make the extension. So it is not correct for my friend to say that no explanation has been given. There is an explanation as to both circumstances of delay.
HER HONOUR: All right.
MR KING: Finally, your Honour, we do respectfully submit my friend has really failed to focus on the issues of persecution and harm and obligation under the complementary protection provisions which, in our respectful submission, override the – underpin the submissions that are before the Court. If your Honour please.
HER HONOUR: Yes, thank you.
The first plaintiff is a citizen of the Republic of Korea. The second and third plaintiffs are her children, who are presently residing in Australia. On 17 November 2011, the first plaintiff applied for a Protection (Class XA) visa for herself and her two children, as members of her family unit.[1] The substantive protection claims were those made by the first plaintiff. In the balance of these reasons references to “the plaintiff” are references to the first plaintiff.
[1] Migration Act 1958 (Cth), s 36(2)(b) and (c).
The first defendant is the Minister for Immigration and Citizenship. The second defendant is an officer in the employ of the Department of Immigration and Citizenship. She is a delegate of the Minister for the purposes of s 65 of the Migration Act 1958 (Cth). The delegate has filed a submitting appearance.
On 18 April 2012, the delegate refused the plaintiffs’ protection visa application.
By amended application for an order to show cause, the plaintiffs claim declarations that the delegate’s decision was made in excess of jurisdiction and was not made according to law. The plaintiffs seek certiorari and mandamus, the former to quash and the latter to require the reconsideration of the application according to law.
The delegate’s decision is a “migration decision” under the Act. An application for a remedy in the exercise of the Court’s original jurisdiction in relation to a migration decision must be made within 35 days of the date of the decision.[2] The Court may, by order, extend that period if it is necessary in the interests of the administration of justice to do so.[3] An application for an order to show cause why a writ of certiorari should not issue is subject to a six month time limit under the High Court Rules 2004.[4] An application for an order to show cause why a writ of mandamus should not issue is subject to a two month limit under the Rules.[5] Any period of time fixed by the Rules may be enlarged by order of the court.[6]
[2] Migration Act 1958 (Cth), s 486A(1).
[3] Migration Act 1958 (Cth), s 486A(2).
[4] r 25.06.1.
[5] r 25.07.2.
[6] r 4.02.
The plaintiffs apply for an order extending time.
The Minister opposes the extension of time contending that the lengthy delay has been inadequately explained and, more prominently, that none of the grounds for the relief claimed enjoy arguable prospects of success.
It is convenient to consider the last‑mentioned submission first. This requires some reference to the factual background. In an interview with the delegate conducted on 26 March 2012 (“the interview”) the plaintiff explained her claim to engage Australia’s protection obligations by reference to a history of having been subject to serious domestic violence by her husband in Korea and in Australia. She had obtained an apprehended violence order from the Burwood Local Court in January 2007, which was in force for three years. Her husband breached the terms of that order and was sentenced to a term of imprisonment.
The domestic violence was associated with the husband’s drinking binges. Following the husband’s release from prison his drinking binges and bad behaviour resumed. The violence was of a serious character involving the use of weapons. The plaintiff again sought the assistance of the police who offered to either arrest the husband or to apply on her behalf for another apprehended violence order. In the event, the husband disappeared and the police were unable to serve him with a further order.
Before the plaintiff and her children came to Australia in October 2003, there had been serious episodes of domestic violence in Korea. When the plaintiff sought help from the Korean police, she had been told to avoid her husband.
The delegate found that the plaintiff has been subjected to domestic violence throughout the marriage. The delegate accepted that the plaintiff exhibits features consistent with “battered wife syndrome”.
In dealing with the claim under the Refugees Convention, the delegate was satisfied that the harm feared by the plaintiff is serious harm and systematic and discriminatory conduct within s 91R(1)(b) and (c) of the Act. By reference to country information the delegate found that significant changes have occurred in policing practice respecting domestic violence in Korea since 2003. The delegate noted, inter alia, a report of the UN Committee on the Elimination of Discrimination against Women published in July 2011 which spoke of the “remarkable progress” made in recent years in dealing with violence against women.
The delegate found that the Korean Government has instituted effective measures to protect victims of domestic violence. She concluded that the plaintiff may continue to need protection from her husband if she returns to Korea and that the Korean authorities are willing and able to provide that protection. The delegate concluded that the plaintiff does not have a real chance of being persecuted for a Convention reason.
The delegate moved to consider the complementary protection criterion in s 36(2)(aa) of the Act. This provision commenced on 24 March 2012. It provides that a criterion for a protection visa is that the applicant is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
Section 36(2B) should also be noted. It provides that there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that, relevantly, the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm.
The delegate was satisfied that the harm feared by the plaintiff is significant harm. The delegate noted that the plaintiff may or may not leave her husband when she returns to Korea. Whatever the plaintiff chooses to do, the delegate found the Korean authorities are willing to protect the plaintiff if she is subjected to domestic violence and have effective measures in place for the protection of victims of domestic violence.
The grounds on which the plaintiff claims relief in her amended application are six in number. In developing those grounds in oral submissions, Mr King, who appears on her behalf, distilled the substance of them to three arguments. I will endeavour to deal, albeit briefly, with the six grounds, giving particular emphasis to the matters the subject of Mr King’s submissions.
The first ground contends legal error in the failure to comply with the requirements of s 57 of the Act which makes provision respecting certain information to be given to an applicant. The complaint is developed in this way. By letter dated 23 February 2012, the Department invited the plaintiff to attend an interview and attached an information sheet containing information about the interview for a protection visa. The information sheet was silent on the topic of the complementary protection provisions. The plaintiff complains that the information sheet provided incomplete and insufficient information by reason of that omission.
As the Minister notes, the complementary protection regime had not commenced at the date of the letter. Moreover, the provisions respecting the extension of Australia’s protection obligations on grounds of complementary protection do not come within the relevant information with which s 57 is concerned. Advice that an additional ground to engage Australia’s protection obligations was expected to become law on and from 24 March 2011 was not information “specifically about the applicant or another person” within the meaning of s 57(1)(b). It was not information within s 57(1)(e), namely information that the Minister considered would be the reason or part of the reason for refusing to grant a visa.[7]
[7] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 261 [21] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
The plaintiff’s second ground contends a denial of procedural fairness. It is linked to the first ground. The plaintiff complains that in the absence of advance notice of the complementary protection regime she was denied an opportunity to fully present her claims at the interview. A transcript of the interview is in evidence. Relevantly, this discloses that at an early stage in the interview the delegate explained the basis for a claim to protection under both the Refugees Convention and the complementary protection provisions. In relation to the latter, the delegate explained the reference to complementary protection in terms of the criterion in s 36(2)(aa). Mr King notes that the delegate did not draw attention to the provisions of s 36(2B) in that advice.
At the conclusion of the interview the delegate informed the plaintiff that any further submissions or information about her claim received prior to making the decision would be taken into account. The decision was made on 18 April 2012. No further submissions were received in the interim.
The question of whether procedural fairness required that the delegate give the plaintiff information respecting the complementary protection regime may be put to one side. On the evidence it is clear that the protection provisions were explained to the plaintiff at the interview and the plaintiff stated that she understood them.
The third ground complains that the delegate erred in the application of the test for determining a complementary protection claim. The plaintiff submitted that the test is that stated by the Full Federal Court in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at 551 [246] per Lander and Gordon JJ.
The delegate identified as a question to be answered in determining the complementary protection claim “Are there substantial grounds for believing that there is a real risk of significant harm?” In the way Mr King developed this aspect of his challenge, the challenge was not to the statement of the test but to the sufficiency of the delegate’s reasons for concluding that the test was satisfied. The submission was developed by reference to the decision of the Full Federal Court in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 at 218.
In short, Mr King submitted that the delegate approached the determination by reasoning, on the basis of her findings in dealing with the claim under the Refugees Convention, that Korea was a country with an effective legal system for the detection, prosecution and punishment of criminal offences. In Mr King’s submission, in light of the discussion in MZYYL, approaching the matter in that way involved legal error. It was necessary, he submits, to take into account the particular circumstances of the plaintiff in determining whether she could obtain from an authority of the country protection such that there would not be a real risk that she would suffer significant harm.
There is no dispute between the parties respecting the approach that is required. The Minister accepts that it was necessary for the delegate to give consideration to the circumstances of the plaintiff. He submits that the delegate’s reasons, when read as a whole, disclose a consideration going well beyond a conclusion that Korea has an effective legal system for the detection, prosecution and punishment of criminal offences. In this respect, the Minister draws attention to the delegate’s findings concerning the improvement in the response of the Korean police to dealing with this particular form of criminal conduct, to the circumstance that the independent country information on this topic was put to the plaintiff and the delegate took into account the plaintiff’s response and the plaintiff’s circumstances, including consideration of her capacity to live with her parents or her sister should she return to Korea.
In summary, the delegate’s reasons portray consideration of the circumstances of the plaintiff and of the policing of domestic violence reports such as to undercut a challenge based on absence of reasons for the conclusion that the delegate was not satisfied that Australia has protection obligations to the plaintiff by reason that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her removal from Australia to Korea there is a real risk that she will suffer significant harm.
The plaintiff’s fourth ground, which was not developed in oral argument, complains that she did not fully understand the proceedings and that she believed the determinative evidentiary issue was restricted to her claims under the Refugees Convention. Putting to one side the plaintiff’s response to the delegate acknowledging her understanding of the concept of complementary protection, jurisdictional error would not be established by demonstration that she did not understand the advice she was given.
The plaintiff’s fifth ground contends that the delegate’s finding of sufficient state protection was made without evidence. This ground, too, was not developed on the hearing. The finding was based on country information it was open to the delegate to take into account information of that description.
I turn now to the delay in bringing the application. The plaintiff relies on the affidavit of her solicitor, Adrian Phillip Joel, affirmed on 7 November 2013 and the documents that are exhibited thereto. She submits that the delay is adequately explained in this material. The time limit under the Act for bringing the proceedings expired on 22 May 2012. Between that date and 17 December 2012, the plaintiff ascribes the delay to the fault of her former solicitor. In a letter dated 23 July 2013, the solicitor acknowledges the complete failure of his office to note the determination made by the delegate and to meet the deadline for “an appeal”.
The plaintiff’s present solicitors took over the conduct of the matter in early December 2012. On 17 December 2012, proceedings were commenced on the plaintiff’s behalf in the Federal Magistrates Court seeking judicial review of the delegate’s decision. The proceedings were misconceived. The Federal Magistrates Court was without jurisdiction. On 26 April 2013, the plaintiff filed an application under s 40 of the Judiciary Act 1903 (Cth) for an order removing the whole of the cause pending in the Federal Magistrates Court into this Court. The removal application has not been determined.
On 25 July 2013, the present proceedings were commenced.
The plaintiff relies on the circumstance that these lengthy delays were not occasioned by fault on her part.
The Minister submits that even if the original delay was due to the negligence of the plaintiff’s former lawyer, her current lawyers are solely to blame for the delay since 17 December 2012. The Minister notes that on 7 January 2013 he drew attention to the jurisdictional obstacle to the proceedings in the Federal Magistrates Court and that the present proceedings were not commenced until more than six months after that circumstance was known.
The Minister submits that the time limit in s 486A serves an important public purpose. That purpose was identified by McHugh J in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495 [15] in this way:
Those [constitutional or prerogative writs] are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
In Marks his Honour observed that in all but very exceptional cases the time limits should be applied rigidly when, as in Marks, more than one year had elapsed between the decision and the commencement of the proceedings in the Court.
The plaintiff submits that her interest and the interests of her children in the lawful determination of her claims to Australia’s protection are to be accorded primacy, given that the delay is not of her making. Prominent in my determination of the application is the conclusion that none of the plaintiff’s grounds of challenge has arguable prospects of success. In these circumstances, the important public interest identified in Marks is to be given weight. It is not in the interests of the administration of justice to make an order extending time under s 486A(2) of the Act, nor to dispense with the time limit under the Rules.
The application is dismissed.
MR REILLY: Thank you, your Honour. We seek costs.
HER HONOUR: Yes, can you resist that?
MR KING: No, your Honour.
HER HONOUR: With costs.
MR REILLY: If the Court pleases.
MR KING: If the Court pleases.
AT 4.48 PM THE MATTER WAS CONCLUDED
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Standing
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