Saravanapavan & Ors v Minister for Immigration and Citizenship

[2012] HCATrans 308

[2012] HCATrans 308

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S337 of 2012

B e t w e e n -

RAJANATHAN SARAVANAPAVAN AND 55 OTHERS AS LISTED IN THE SCHEDULE

Plaintiffs

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Writ of summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 4.38 PM

Copyright in the High Court of Australia

MR M.T. JONES:   May it please the Court, I appear for the applicant.  (instructed by Parish Patience Immigration Lawyers)

MS D.J. WATSON:   I appear for the respondent, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, Mr Jones, what do you want by way of orders?

MR JONES:   Well, it may indeed be that I do not want anything, your Honour.  I believe the respondent is prepared to make some undertakings.

HIS HONOUR:   Yes.

MS WATSON:   Your Honour, we have just received instructions that the respondent is prepared to cancel the flight which otherwise was going to occur at 9 o’clock tomorrow morning, and I have been instructed that we are prepared to indicate that we will give 24 hours’ notice should the people who are mentioned in the summons and – and people mentioned in the summons if they are going to be removed we will give 24 hours’ notice of that intention to the solicitors for them. 

HIS HONOUR:   Now, of course, proceedings have started and I may say this perhaps.  There is simply no evidence to support the present relief sought.  Your offering of undertakings of course is something that in a sense removes the extreme urgency.  In the first place, why is this in the High Court rather than in any other court, do you know?

MR JONES:   Well, your Honour, I could only answer that by saying that the jurisdiction of the Federal Magistrates Court and the Federal Court have been very limited in these matters, and given the extremely short amount of time it was simply for, I suppose, caution that we chose to bring it under the original jurisdiction of the High Court, well, simply to protect the possibility that we may have had a jurisdictional problem in another court.  The other possible court might have been the Federal Magistrates Court but I must admit I just did not have time to assure myself that the jurisdiction was there.

HIS HONOUR:   What is your plan, as it were, for the future of the proceedings, assuming they remain in this Court?

MR JONES:   Your Honour, on the basis of the undertakings that the respondent is prepared to make, I would certainly consider that it may be appropriate to even withdraw the whole matter from this Court.  But I would have to say that I would need to get further instructions and probably refer the matter to counsel to get further advice as to the appropriate course of action there.

HIS HONOUR:   Is it proposed to file more evidence in the next day ‑ ‑ ‑

MR JONES:   Certainly if the matter is to go ahead we would, your Honour, we would have to.  I accept that there is no real evidence and that would require getting further instructions from the people and of course there are difficulties there with communication.  I am in your hands, your Honour, with what sort of timetable you might want for us to determine our course of action.

HIS HONOUR:   The Minister is not making any particularly loud noises but your proceeding does interfere with a presumably considered course of action by the Executive Government.  I think the Executive Government is entitled to know where it stands and to either be, as it were, prevented from acting further in relation to the plaintiffs or to be permitted to act as it wishes in relation to the plaintiffs.  The communication that was faxed by Mr Florentine to Mr Rintoul, which is annexed to Mr Rintoul’s affidavit, simply does not seem to me to reveal that anything has been done or threatened which is remotely arguable as being unlawful.

MR JONES:   Well, the argument there that I would foreshadow, your Honour, is that the plaintiffs are claiming that they have requested consideration of refugee status claims and they state that the dates have not been considered.

HIS HONOUR:   Where do they state that?

MR JONES:   Well, they say, your Honour, in the third line:

we requested to regonise us as a refugee; but Australia government forcibly without our willing trying to send us to Sri Lanka without any proper inquiry & without any cause -

HIS HONOUR:   “Proper” is a loaded word.

MR JONES:   It is obviously by people who do not speak very good English, your Honour. 

HIS HONOUR:   Justice Hayne is available on Thursday and Friday of this week to sit in Melbourne and if necessary to hear the matter by video link from Sydney, but I am reluctant to cast it into his hands unless it is assuming a more concrete shape than it presently has.

MR JONES:   Yes, your Honour.

HIS HONOUR:   Have these people been interviewed?  Have they been asked to produce documents?  How long have they been in Australia?  What has been happening to them while they have been in some part or other of Australia, whether it is inside or outside the migration zone?

MR JONES:   Well, I could probably give evidence from the Bar table.  All I know is that they are offshore entry persons.  They are not entitled to directly lodge an application for protection visas.  That is what I am informed but I do not have any evidence I can file on that at the moment.

HIS HONOUR:   Yes.  Ms Watson, what is your attitude to the matter being referred to Justice Hayne on Thursday or Friday?

MS WATSON:   Well, your Honour, part of the reason of giving the indications I did at the beginning was really to take out the immediate urgency of the application.  Obviously we had not even seen the documents that were intending to be filed until I came into Court just now.  So we were not quite sure what the nature of the application was, what the allegations were that were being made. 

We, I think, are in a position where there are some difficulties with the matter the way it currently is because it is purporting to be in a sense a representative action on behalf of 56 people and there are issues in relation to that under section 486B of the Migration Act as to having a representative proceeding.

Presumably these are decisions to remove people that are taken against each of the people named in the schedule on an individual basis rather than being some one decision which affects all of them, so therefore there would appear to be issues in relation to the way that that matter is commenced to begin with.  I am not proposing to take that issue at the moment but ‑ ‑ ‑

HIS HONOUR:   Would that not be cured if there were 56 actions, each raising its own individual ‑ ‑ ‑

MS WATSON:   That is correct.

HIS HONOUR:   Although there might be one big common problem, who knows?

MS WATSON:   Well, there might, although there is nothing suggested in the document as to what that possibly is.

HIS HONOUR:   I think that, bearing in mind the need for some urgency, I think it is going to be incumbent – I regret to say this – on the Minister to, as it were, acquaint Mr Jones with what has actually happened to each of these 57 people or at least to some of them, in other words, what is known about when they came, where did they arrive, have they, for example, been considered for the grant of temporary safe haven visas, bridging visas?  Has there been a refugee status assessment or an independent merits review?

MS WATSON:   My understanding in relation to these people, your Honour, is that there has been an interview process which has been carried out in relation to all of them and that consideration has been given as to whether or not Australia would be in breach of its international obligations if they were returned to Sri Lanka, hence the process of arranging for a charter plane tomorrow morning to take them back.

HIS HONOUR:   I do not want to bind you at all, but on your instructions is it the case that some officials have formed the view that they have no well‑founded fear of persecution in Sri Lanka?

MS WATSON:   There has been a process which has been undertaken in which the issue as to whether or not there is any non‑refoulement obligation has been considered, yes.

HIS HONOUR:   Do you oppose offering perhaps an undertaking or agreeing to endeavour to reduce into writing the history of each of these people since their arrival in some part of Australia so that some sort of test can be made of the claim that the Minister has not duly considered their claims that Australia owes them protection obligations?

MS WATSON:   We can do that, your Honour.  The concern I have is if your Honour is suggesting that it could be listed before Justice Hayne at the end of the week; there would be different and variable factors in relation to each of the 56.

HIS HONOUR:   Yes, and there is quite a lot of work in relation to – it is actually 57 – but I am just thinking in terms of Justice Hayne being able to get a better picture.  I mean, if there is some fundamental point of law involved the matter might as well stay in this Court, even if it could go to some other court, but it is hard to be sure about that until one sees what the history of at least some of them is.  I think it is desirable that the matter be looked at by Justice Hayne in the light of whatever material it is possible to assemble in the next day or two, even if that may be incomplete.

MS WATSON:   Is your Honour suggesting that we try to put on some material which perhaps just deals with a representative sample?  I am just

concerned that having to deal with each of the 56 may take quite a significant period of time.

HIS HONOUR:   You could do it alphabetically or one could just, for example ‑ ‑ ‑

MS WATSON:   I am not sure, for example, whether all of them have arrived on – some of them – I can tell from this there are certainly a number who have arrived on various boats so they will have arrived at different times.  I can see from the boat IDs that there are some that are from a particular boat.  There seems to be quite a significant cohort from a particular boat.  Then there is another boat that is referred to, then another one, one more, so there are about five or six boats by the looks of it.  So just in relation to date of arrival it will be different; possibly date of experience as to where they have been detained.  Obviously, date of interview will be different for probably all of them.

HIS HONOUR:   Yes, I think it is undesirable to make a direction about this because of the unforeseeable perhaps problems that might be involved, but if there could be some effort put in just to - perhaps working down the list?  I mean, even if a group of people came on UMI075, for example, it would not follow that all their experiences were relevantly comparable.  This is a very unsatisfactory state of affairs.  The plaintiffs come here without any evidence at all and are virtually forcing you to make a case for them.  This is an extreme case of fishing; however, here they are.  In view of your undertakings, as you say the immediate heat has gone out of it.  While the heat is dying down it seems desirable to try and investigate what the facts actually are.  That is the basis of my thinking.

I am just wondering whether it will be a direction or an undertaking or understanding.  Whether, for example, the fruits of your researches, so far as they had been carried out by two o’clock on Wednesday, if they could be communicated to Mr Jones by letter.  That might give Mr Jones something to chew on and something for Justice Hayne to look at.  Well, can we take this any further this afternoon?

MS WATSON:   I do not think so, your Honour.  

HIS HONOUR:   Very well.  Thank you very much, Ms Watson.

The 57 plaintiffs have filed a writ of summons in which they seek an order that the defendant, who is the Minister for Immigration and Citizenship, and his agents and officers, not remove the plaintiffs from Australia until their claims that Australia owes them protection obligations under the Refugees Convention and Protocol have been duly considered by the Minister.  That is supported by an affidavit which annexes a fax emailed to the deponent which comes from a Mr Florentine, who is said to be a representative of the Tamil community in Australia.  The primary document is signed by the plaintiffs.  In that document they contend that a request was made by them to be recognised as refugees, but that the defendant is trying to send them back to Sri Lanka without any proper inquiry or without any cause.  The plaintiffs also move on a summons for an order that no action be taken to remove the plaintiffs from Australia until a further order of the Court.

Ms Watson, when you said the Minister was offering undertakings, are they to the Court or inter partes, or what?

MS WATSON:   I am not sure my instructions were that clear, your Honour.

HIS HONOUR:   If they are not that clear then it is not an undertaking to the Court.

MS WATSON:   I have been advised that the plane which was scheduled to remove the plaintiffs tomorrow is being cancelled.

HIS HONOUR:   Is being?

MS WATSON:   Yes.  That will not occur tomorrow.  I have been advised that it is not envisaged that the plaintiffs will be removed in the foreseeable future, presumably because it is a requirement that there be a charter flight and I have been also instructed to provide an undertaking that we would give 24 hours’ notice to the solicitors prior to any further removal action.

HIS HONOUR:   I think if your instructions are unclear as to the precise nature of the undertaking we had better treat it as an undertaking inter partes.  For my part, of course, an undertaking inter partes by the Minister, if broken, would be an extremely serious matter and it would be quite surprising if it were.  It is of considerable significance, I think, to the plaintiffs that even that type of undertaking has been given.  But I see you have just received some more instructions.

MS WATSON:   Just clarifying, because I did not take the phone call – Ms Buchanan actually took the phone call – the instructions were specifically that they will not be removed to Sri Lanka in the reasonably foreseeable future because obviously these people are involved in the detention process and it may be that there could be some movements within which there will still be some ‑ ‑ ‑

HIS HONOUR:   To some place other than Sri Lanka.

MS WATSON:   They will not be removed to Sri Lanka in the foreseeable future.

HIS HONOUR:   When you said that the Minister was prepared to undertake to give 24 hours’ notice should he wish to remove the plaintiffs, does that undertaking mean remove them to Sri Lanka?

MS WATSON:   To Sri Lanka as that is the essential complaint in this case.

HIS HONOUR:   Yes, thank you.

At different times this afternoon, the solicitor representing the Minister has indicated the following:  a flight plan for 9 o’clock tomorrow morning to remove the plaintiffs to Sri Lanka is in the process of being cancelled.  Implicit in that proposition is, I think, an undertaking to the plaintiffs that they will not be removed on that flight.  The Minister also is prepared to give an undertaking to give 24 hours’ notice to the solicitor for the plaintiff should the Minister wish to remove the plaintiffs to Sri Lanka.  Then it was said – and this is perhaps not a particularly material matter in view of what I have just said – that the plaintiffs will not be removed to Sri Lanka in the foreseeable future.

Justice Hayne is available to deal further with this matter on Thursday or Friday sitting in Melbourne and, if necessary, to deal with it by video link.  I have indicated that there are extremely unsatisfactory aspects to the plaintiffs’ application in that it moves on evidence which, if any relief were contested, would render it highly unlikely that that relief would be granted, but in view of the Minister’s undertaking about giving 24 hours’ notice should the Minister desire to remove the plaintiffs to Sri Lanka the strength of the evidence does not immediately matter.

The plaintiffs have come here, and whether this was their purpose or not, the effect of their journey here is to attempt to force the Minister to make their case.  The solicitor for the Minister has indicated that efforts will be made to endeavour to compile the history in relation to at least some of the plaintiffs which would explain when and how they came to Australia and what inquiries have been made into the prospects for them if they were to be returned to Sri Lanka.  It is only once inquiries of that kind are made that it will be possible to work out whether the plaintiffs have any case and, if so, whether some court other than this Court has jurisdiction to hear it or whether, on general grounds, it is desirable that this Court hear it. 

Now, is that sufficient?  Need anything more be done today?

MS WATSON:   I do not think so.

MR JONES:   No, your Honour.

HIS HONOUR:   Is it to be Thursday or Friday?

MR JONES:   Thursday.

HIS HONOUR:   I adjourn the matter to 9.30 am on Thursday before Justice Hayne.

AT 5.03 PM THE MATTER WAS ADJOURNED