SZTVL v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 10

[2014] HCATrans 010

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S31 of 2014

B e t w e e n -

SZTVL

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 FEBRUARY 2013, AT 4.32 PM

Copyright in the High Court of Australia

MR S.E.J. PRINCE:   If the Court pleases, your Honour, I continue my appearance with my friend, MR P.W. BODISCO, for the plaintiff.  (instructed by Stanford Lawyers)

MR A. MARKUS:   May it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes.  Gentlemen, in the interim, I am pleased to say that a legible copy of the Tribunal’s reasons has been made available to the Court.  Moreover, an affidavit sworn by Mr Charles Frederick Stanford on 6 February 2014 has been sent to my chambers, Mr Prince.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Do I understand that you read that affidavit?

MR PRINCE:   I do, your Honour.

HER HONOUR:   Yes.  Mr Markus, is there any objection to that affidavit?

MR MARKUS:   No, your Honour.

HER HONOUR:   Yes, very well.  The affidavit is read, yes.

MR PRINCE:   Thank you, your Honour.

HER HONOUR:   Mr Prince, can I take up a couple of matters with you before inviting you to make further submissions?  The first, it is just a question of the form of the orders sought in the summons.  The restraint is sought against both the first and second defendant.  That seems ‑ ‑ ‑

MR PRINCE:   Unnecessary.

HER HONOUR:   ‑ ‑ ‑ unnecessary.  Do I take it that the application is for orders 1 and 2 against the first defendant?

MR PRINCE:   Yes, your Honour, I am sorry about that.  That was an error.

HER HONOUR:   Not at all.  The second matter I raise with the parties is I have before me the summons for interim injunctive relief, and it does seem to me that the test for that requires you to establish a prima facie case for the relief claimed in the application to show cause, albeit, in the sense that is explained in ABC v O’Neill (2006) 227 CLR 57, in the joint reasons of Justices Gummow and Hayne at 81 and 82, paragraph 65, where their Honours explain that the requirement to show a prima facie case will be satisfied by showing:

a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.

Is that accepted?

MR PRINCE:   Yes, your Honour, it is.

HER HONOUR:   Am I right in understanding as to the second of the conditions, namely balance of convenience, the Minister accepts that in the event the plaintiff establishes that likelihood to which I have referred, the balance of convenience clearly is in the plaintiff’s favour?

MR MARKUS:   That is correct, your Honour.

HER HONOUR:   Yes, thank you.  A further point - as I understood the submissions made on the last occasion, you accept, Mr Prince, that the Tribunal’s statement of the principles to be applied in considering relocation, set out at paragraphs 13 and 14 of its reasons, are a correct statement.

MR PRINCE:   Yes.

HER HONOUR:   Your complaint is with the application of those principles?

MR PRINCE:   That is right.

HER HONOUR:   Yes, very well.

MR PRINCE:   Thank you, your Honour, and indeed in terms of the application of those principles, the complaint is not one of whether, on the facts, the decision ought to have been made on those principles, but rather in applying the principles to the matters which were before the Tribunal, the Tribunal failed to deal with a matter which was raised by the material and which was relevant and ought to have been dealt with in applying that test.  That is, it is not a complaint about the merit of the outcome, but rather the process by which that outcome was reached by omitting a particular matter for consideration.

HER HONOUR:   Do I understand that the matters that you identify in your written submissions in paragraphs 8, 9 and 10 are said to be mandatory relevant considerations such that the failure to take them into account amounted to jurisdictional error?

MR PRINCE:   They are not mandatory considerations in an abstract sense, but because of the material and matters which were before the Tribunal, they were matters that needed to be taken into account in determining the ultimate mandatory question which was whether or not it would be reasonable in the circumstances for the plaintiff to move to Kabul.  That is the NABE‑type ground where there has been a failure to consider a matter in the review, as it were.

HER HONOUR:   Yes.  The ‑ ‑ ‑

MR PRINCE:   So - I am sorry, your Honour, I did not mean to cut across your Honour.

HER HONOUR:   No, not at all.  The requirement in considering relocation in terms of its reasonableness and practicability is a requirement to look at the circumstances of the individual refugee ‑ ‑ ‑

MR PRINCE:   Yes.

HER HONOUR:   ‑ ‑ ‑ and the impact on that individual of relocation.

MR PRINCE:   Precisely, your Honour, yes.

HER HONOUR:   One can contemplate many things might bear on that.
Your contention is that the matters addressed in paragraphs 8 to 10 were of such evident relevance to that consideration that the Tribunal could not determine the matter according to law absent taking those matters into account.  Is that right?

MR PRINCE:   Quite so, your Honour.  It may be that taking those matters into account, had it explained those matters and given reasons for dealing with those matters, it might have ultimately found against the plaintiff, but it is the absence of that process that is the problem.

HER HONOUR:   Can I take up with you the matters that I think were put in opposition on this issue on the last occasion and which, in the absence of a legible copy of the Tribunal’s reasons, I am not sure that I fully appreciated and it is this, that you assert in your submissions that the deficiency in reasons was the failure to consider the effect of relocation on the prospective reunion with the plaintiff’s wife, children and dependent nephew and you say ‑ ‑ ‑

MR PRINCE:   That is right.

HER HONOUR:   ‑ ‑ ‑ that is a consideration that must naturally have arisen in considering the question of relocation.

MR PRINCE:   Quite so, your Honour.

HER HONOUR:   But when one turns to the Tribunal’s reasons, it is not clear that the plaintiff’s case was put in that way.  Indeed, it would seem, at least on one view of it, that the matters agitated on the plaintiff’s behalf by his lawyer concerned the reasonableness of the plaintiff and his family relocating in Kabul, given that they were without broader family or community support and I am, in raising this with you, just directing your attention to paragraphs 109 and 110.

MR PRINCE:   Your Honour, I do not know that 109 and 110 go as high or, indeed, clearly or, indeed, at all contemplate that the plaintiff would have been living in Kabul reunited with his family.  Indeed, there is a reference in 109 to the generalised statements by the UNHCR about the circumstances of nuclear family units subsisting without family and community support, but there does not seem to be any indication that the Tribunal has taken the next step and said, “Well, your family are going to manage somehow to get from Quetta in Pakistan to Kabul.  You will all be reunited, you will be a nuclear family and therefore you will be safe”.  It would take a lot of inferential steps to read 109 in that way.  

An alternative is that the Tribunal has just there referred to material from the UNHCR which is not entirely apposite to my client’s case.  In 110, again there is a reference to the UNHCR guidelines and advice of the Australian Department of Foreign Affairs and Trade in the most broad general terms about the situation for new arrivals settling in the city, acceptance that there would not be family or social networks in Kabul for the plaintiff, but rather falls back on this generalised notion that it is relatively easy for people to move into Kabul.  Again, that ‑ ‑ ‑

HER HONOUR:   The matter that I am raising with you, Mr Prince, in the context of the submission made by Mr Markus on the last occasion, namely that the Tribunal’s reasons may be expected to reflect the case that was advanced before it, is that one sees in paragraph 109 the Tribunal raising with the plaintiff’s lawyer evidence in the sense of a report or document produced by the UNHCR that says that:

nuclear family units can subsist without [broader] family and community support in urban areas in Afghanistan [that are under] effective government control –

In response to that a submission from the plaintiff’s lawyer that despite that statement in the UNHCR document, the lawyer in written submissions has referred to apparently a deal of other material suggesting:

that it was extremely difficult for returning Afghans to resettle, particularly family groups –

without support groups.  Now, the position may not be clear but it does seem difficult on this application to make good a proposition that the Tribunal committed jurisdictional error by its failure to take into account that relocation might prevent the plaintiff from reuniting with his family when it is by no means clear that that is the case that was being advanced before it.

MR PRINCE:   Can I answer that by taking your Honour to the decision in NABE v Minister for Immigration 144 FCR – a decision of the Full Court of the Federal Court which I hope was conveyed to your Honour.  Does your Honour have that?

HER HONOUR:   No, it was not.  I was told that it was intended to refer the Court to some additional authorities, but no list was sent.  What I do have annexed ‑ ‑ ‑

MR PRINCE:   I doubt that the proposition will be controversial ‑ ‑ ‑

HER HONOUR:   Yes, perhaps you could tell me.

MR PRINCE:    ‑ ‑ ‑so, perhaps, I can read it to your Honour.  In that case, the Full Court was dealing with a failure to deal with material and it was said that the applicant did not put it before the Tribunal – or did not put the claim in those terms before the Tribunal.  The Court adopted the approach by Justice Selway in SGBB to say that the application is not to be treated as a – or this does not mean the application is to be treated as an exercise in pleading – 19th century pleading – and then went on to say that the Tribunal is – the position in Dranichnikov:

does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant.  It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

That is at page 19, paragraph 60.  Your Honour, here, separation from the family plainly arises from the material before the Tribunal because it is undoubted that the Tribunal knew that the plaintiff had been living with his family in Quetta, away from Afghanistan, for decades before he left for Australia.  If he is being returned to Kabul, then necessarily he is not being returned to Quetta in Pakistan.  He made claims that he would need to support his family, including the need to work, and I will come back to that in a moment. 

All of the essential facts which give rise to the obvious question which is this man is going to be separated from his family in Kabul, they are in another country, begs the question which the Tribunal should have dealt with which is how will he be separated from the family?  Can they reunite?  Is there a mechanism for that to happen, and the like?  It arises, obviously, on the material just as a matter of logic and proximity.  That material was before the Tribunal and, indeed, my friend ‑ ‑ ‑

HER HONOUR:   When you say that material was before the Tribunal, what are you referring to there?

MR PRINCE:   The fact that in Kabul he would be in a different place to his family who would be in Quetta in Pakistan.  There is no issue about that.

HER HONOUR:   I understand.  Yes, I understand. 

MR PRINCE:   Indeed, in paragraph 108 of the Tribunal’s reasons:

the applicant’s representatives submitted that it would be unreasonable to expect the applicant to relocate because he was 63 years old and responsible for his wife and children (including a dependent nephew), he had no family connections in Kabul –

That gets dealt with ultimately in a finding at paragraph 111 of the decision where the Tribunal says, in the third line:

I consider it reasonable to expect that he would be able to obtain similar employment –

That is, in Kabul -

and to support his family financially in the same way in Kabul.

That means – sorry, I should withdraw that.  What the Tribunal has done is look at his capacity to financially support his family, whereas paragraph 108 is a concern about his responsibilities towards his family.  So that by the time one gets to 111, the responsibilities towards his wife and children and dependent nephew have really been honed into whether he can work and make sufficient money to support the family whilst he is living in Kabul – whether he could find work in Kabul.

HER HONOUR:   That, on a view, reflects the submissions that were being advanced in paragraph 108 of the unreasonableness of expecting a 63‑year‑old man with the responsibilities that he had for a wife, I think six dependent children and a nephew, who had no education, to re‑establish himself in Kabul and support his family.

MR PRINCE:   Financially.  What it does is it reduces responsibility of the father to financial responsibility, and there is more to familial responsibility than money, so that the ‑ ‑ ‑

HER HONOUR:   Mr Prince, that may be taken to be accepted, but ‑ ‑ ‑

MR PRINCE:   It is just not dealt with and this is the complaint, that the impact on the father of separation from the wife and children and nephew is just not addressed by the fact that he will be in Kabul and they will be in another country in another place and he will not have – or sorry, he is not a citizen of Pakistan and there is nothing to suggest that there was any consideration given as to whether he could go to Quetta or his family could come to Kabul, and that is the missing link.

HER HONOUR:   Well, Mr Prince, is there any basis for the conclusion, contrary to an inference in paragraph 110, that it was suggested that his circumstances relevantly included that the family could not travel from Quetta to Kabul?

MR PRINCE:   First of all, that would be entering into a question of the merits of what might be the final outcome.

HER HONOUR:   No, Mr Prince, it is not.  What it is addressing is a consideration of whether it is apt to say that the Tribunal erred in the exercise of its jurisdiction because it failed to take into account the possible inability of the plaintiff to be reunited with his family in circumstances where one reads that the Tribunal - it has correctly put a submission advanced on his behalf at the hearing, looked at the reasonableness of family groups relocating in circumstances where they were without community support.

MR PRINCE:   I do not think there is any suggestion in the decision about whether the Tribunal assumed that the family members would stay in Pakistan or whether they would join him in Afghanistan, and my learned friend correctly accepted that proposition in the hearing on Tuesday which is recorded in the transcript at page 12 at line 465, that is:

it is not entirely clear from the reasons whether the Tribunal assumed that the family members will stay in Pakistan or whether they will join him in Afghanistan.  That is just unclear.

HER HONOUR:   Yes.

MR PRINCE:   The reasons that the – in those circumstances where the Tribunal has not clearly given reasons to explain or to indicate or to provide some evidence that those matters were addressed and dealt with by it, in my submission, particularly at this stage of the proceedings before the material before the Tribunal has been provided and discovered - and we do not have any transcript of what happened at the Tribunal – there is at least a reasonably arguable case that the absence of clarity in the Tribunal’s reasons and the absence of any express dealing with those matters rather suggests that it just was not dealt with. 

So, in my submission, that is sufficient to indicate that there is a reasonably arguable case on that point that requires a hearing and for the proceedings to be allowed to continue. I think that deals with the issue about what I might call the first ground and the family reunion point. Can I deal briefly with the complementary protection point and the section 36(2)(aa) point. Now that your Honour has a legible copy of the reasons could I ask your Honour to go to paragraph 7?

HER HONOUR:   Yes.

MR PRINCE:   Your Honour will see that the Tribunal correctly, in considering persecution for the purposes of section 36(2)(a) of the Act, applied the qualification in section 91R(1) - that is to define persecution as containing two conjunctive elements:  first, serious harm; second and conjunctively, systematic and discriminatory conduct.  So that when one sees reference to the concept of persecution or fear of persecution in the reasons of the Tribunal it is clear that that amalgam, that test, is what is being applied.

Then, when your Honour goes to paragraph 9, your Honour will see that “systematic conduct” is explained.  It is really a term of art and that then gets brought into the findings as to whether there would be a well‑founded fear of persecution in Kabul for the plaintiff.  Your Honour might see it best exposed at paragraph 102 of the reasons for decision, that the US Embassy in Kabul has told the Department of Foreign Affairs and Trade:

that discrimination against Hazaras is not a major systemic concern and that there is no credible evidence that Hazaras are being persecuted on a consistent basis ‑ ‑ ‑

HER HONOUR:   Yes.

MR PRINCE:   Then at the end of the paragraph your Honour will see the finding:

I do not accept on the evidence before me that there is a real chance that the applicant will be discriminated against for reasons of his race or his religion in such a way or to such an extent as to amount to persecution for the purposes of the Refugees Convention –

Pausing there, that must mean under 91R(1).

HER HONOUR:   Indeed.

MR PRINCE:  

if he settles in Kabul now or in the reasonably foreseeable future.

There are other example that I will not trouble your Honour with where the findings that he will not be persecuted are rolled up with reasons concerning whether there is a Convention reason for the fear or whether there is some discriminatory element to it and the like. 

Those matters, in my submission, cannot be disaggregated for the purposes of endeavouring to free paragraph 114 from the influence being drawn into it of the reference to 91R(1) which obviously does not apply to the test in 36(2)(aa) or to the reasons under the Convention, which again do not apply for the purposes of 36(2)(aa).

Your Honour, there was one other decision which I hoped that your Honour had, but I assume your Honour will not have it, but there is a decision of SZSFK v Minister, a decision ‑ ‑ ‑

HER HONOUR:   This, I think, was annexed, perhaps intentionally or otherwise, to the affidavit.  Is this the decision of the Federal Circuit Court in SZSFK v The Minister?

MR PRINCE:   That is the one, your Honour, and it provides quite a good example of this type of issue arising elsewhere ‑ ‑ ‑

HER HONOUR:   Yes.

MR PRINCE:   ‑ ‑ ‑ and if your Honour briefly goes to paragraph 89 of the reasons of his Honour Judge Driver, your Honour will see – although this was a reviewer, the same principles apply, in my submission:

The reasoning of the Reviewer in relation to complementary protection appears at [72]-[75] 118, in particular at [75], and the claim for complementary protection was rejected because “such claims are based on the same evidence as his refugee protection claims” and that “on the basis of the evidence provided by the claimant, country information as discussed above and the findings set out above” the complementary protection claim was not made good.

That is the same type of rolled‑up finding that one finds in paragraph 114 of the decision before your Honour.

HER HONOUR:   Yes.

MR PRINCE:   Then at paragraph 97, his Honour Judge Driver accepted that:

It was open to the Reviewer to deal with the complementary protection criterion in a self contained way in part of his report.  He chose, at [72] to emphasise what he saw as the “non systematic or targeted” threat to the applicant.

Again, I have taken your Honour to paragraph 102 in this case –

This could have been a reference to s.91R(1)(c) of the Migration Act . . . or it could have been a general reference . . . Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not.  The use of language drawn from an irrelevant provision of the Migration Act at least creates confusion and may point to reviewable legal error.  Further, the reliance by the Reviewer at [75] on unspecified “findings set out above” is particularly problematic.  On its face, it appears to be a reference to all of the Reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion (such as a finding of a lack of Refugees Convention nexus with harm suffered by the applicant).

In my submission, the same issue arises in this case and it is at least reasonably arguable that that ground of review is open to the plaintiff and applying the test that in the circumstances, particularly the nature of the circumstances of my client who has no other option for judicial review, it would be appropriate on that standard to find there are reasonable prospects of success or that there is a sufficient prima facie case to warrant the granting of relief.  Can I just finally deal, your Honour, with the question of ‑ ‑ ‑

HER HONOUR:   Just before you do, Mr Prince, the finding that the plaintiff would not be – that there was not a real chance that the plaintiff would be seriously physically abused or killed are findings which one might think are relevant both to the consideration of the Convention claim and the complementary protection claim in taking into account the meaning of the phrase “significant harm” in 36(2)(a). 

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Now, you have rightly pointed out that considerations of the discrimination against Hazaras in Kabul might not be thought relevant to a consideration of the complementary protection claim.  Can you just take me to where that claim is identified?

MR PRINCE:   The complementary protection claim, your Honour?

HER HONOUR:   Yes.

MR PRINCE:   I do not know that it is disaggregated in that way in the reasons, your Honour.  Can I give your Honour an example of where there is a particular poignancy to this point?  If your Honour goes to paragraph 105, for example, there is reference to material put before the Tribunal that research by the Edmund Rice Centre had found that:

11 failed asylum‑seekers who had returned voluntarily to Afghanistan in the past seven years had been killed, including some Hazaras, and that he suspected that the true figure was higher.  I accept that some failed asylum‑seekers who have returned to Afghanistan, voluntarily or involuntarily, have been killed.  However the news report which the applicant’s representatives quoted does not establish that the failed asylum‑seekers in question were killed for reasons of their membership of the particular social group of failed asylum‑seekers or for reasons of any political opinion imputed to them as a result of their having sought asylum. 

Clearly, for the purposes of complementary protection, that qualification is irrelevant. 

HER HONOUR:   Yes, is irrelevant and you say when one comes to paragraph 113, the conclusion that there is not a real chance that the applicant would be seriously physically abused or killed is, in the context, a consideration purely of the Refugee Convention claim?

MR PRINCE:   Yes.  It is all rolled up.

HER HONOUR:   Yes, I understand that, all right.

MR PRINCE:   If I could just turn briefly to the issue of time and mark the decision in Re Commonwealth; Ex parte Marks which your Honour asked about at the last hearing.  My learned friend took your Honour to Plaintiff M90 of 2009 on the last occasion, which is in medium neutral citation [2009] HCATrans 279. Ex parte Marks, your Honour, is dealt with at page 29. 

The factors are – well, are unsurprising factors to be taken into account in dealing with an extension of time in the interests of justice.  They include reference to the length of – not only the length of delay and the reasons for delay but also the strength or weakness of the case sought to be advanced and the utility of advancing that case.  Then, your Honour will see immediately after that, adjacent to line 1270:

The plaintiff has given two reasons for his delay in bringing these proceedings.  The first is that the plaintiff decided to seek ministerial intervention and only came to this Court after the Minister refused to intervene in the plaintiff’s case and after he had made an application to the Federal Magistrates Court.

There is nothing to indicate that that was analogous to the situation here where proceedings were commenced on the same day, withdrawn and then these proceedings were commenced, but I pass over that.

The second is that the plaintiff claims not to have had sufficient funds to commence judicial review proceedings.

Those reasons feed into – if your Honour travels back to page 16, the authorities that were before the Court, including Vu and DAS, on the extension of time point, which your Honour will see extracted at line 670, Justice Sundberg in DAS emphasised that:

Accordingly, the applicant had made a considered decision to elect in favour of the s 417 course.  That is not just an “indication” that he was prepared to accept the correctness of the Tribunal’s decision.  It is a positive election no longer to challenge it.

In my submission, the affidavit of my instruction solicitor makes it plain that my client did not consciously exercise any such election, that he was unaware that he could apply to the court to seek judicial review, but he had simply been told that the person he had approached would look after it for him and then we know that a 417 application was made and that ultimately the plaintiff was simply told after four months that nothing could be done.

So, this is not the same situation as Plaintiff M90 where a conscious decision has been made to take one course rather than another.  That is

relevant to the justice of the circumstances in preventing the plaintiff from running a case which he would have as a matter of course been able to run had he filed the application within time, which raises matters within the ambit of judicial review allowed by the Act and ought to be heard, in my submission.

HER HONOUR:   It remains that the plaintiff was legally represented, I think, by Craddock Murray Neumann, Solicitors, before the Tribunal, that being, as I understand it, a firm different to the firm with which Mr Chaudhry is associated.

MR PRINCE:   Yes.  Nonetheless, I cannot speculate.

HER HONOUR:   There is an absence of explanation for how and when that firm ceased acting for him.

MR PRINCE:   Quite so.  The question was asked in an open way, that is, “Did anyone explain to you that you could apply to the court?”  It is not limited to the particular solicitor mentioned at the bottom of the page.

HER HONOUR:   All right, Mr Prince.

MR PRINCE:   Thank you, your Honour.

HER HONOUR:   Thank you.  Yes, Mr Markus.

MR MARKUS:   Thank you, your Honour.  Just very briefly dealing with the last point addressed by my friend, that is, the extension of time point, your Honour has already pointed out that the plaintiff was represented at the time of the RRT proceedings by legal practitioners and may I say a very well‑known and respected firm.  He also had the assistance subsequently of a solicitor a migration agent and, your Honour, nevertheless the delay in commencing these proceedings is close to a year. 

I do not wish to take your Honour’s time up unnecessarily with references to Ex parte Marks, but your Honour will recall that Justice McHugh in that case said words to the effect that it is in all but very exceptional cases that the rules of court should be applied to extend time in circumstances where more than one year had elapsed between the decision and the commencement of proceedings.  There is no clear blue line ‑ ‑ ‑

HER HONOUR:   No.

MR MARKUS:   ‑ ‑ ‑ but, your Honour, we simply say that this is very extensive delay.  The plaintiff, despite his personal understanding, has had the assistance of lawyers at various stages of the proceedings.

HER HONOUR:   Yes, just in that connection, Mr Markus, can I take this up with you?  Justice McHugh in Marks went on to make the observation that the inability of an applicant to obtain favourable advice within the time limits under the Rules in all but an exceptional case is a strong indicator that the applicant does not have an arguable case for the relief that is claimed.  His Honour went on to say in the event that the advice that had been given to the applicant was negligent, the applicant would have recourse against the legal adviser.  That latter aspect of his Honour’s reasoning does not seem to me particularly apt to a case such as the present.

MR MARKUS:   I accept that, your Honour.  Your Honour, I accept in general terms that in the category of cases such as the present, the Court may take a more beneficial view of matters.

HER HONOUR:   Yes.

MR MARKUS:   I do not seek to shy away from that.  Nevertheless, your Honour, I have made the submissions I have made ‑ ‑ ‑

HER HONOUR:   Yes.

MR MARKUS:   ‑ ‑ ‑ and this is a very significant delay. 

HER HONOUR:   I accept that.

MR MARKUS:    The applicant did have representation.  I would find it very surprising if Craddock Murray Neumann gave no advice whatsoever, but what can we say; at this stage there is an affidavit before your Honour.  It is a hearsay affidavit but nevertheless it says what it says.

HER HONOUR:   Yes.  Can I invite you to assist me with the submissions that Mr Prince has just outlined concerning the asserted merits of the case?

MR MARKUS:   Yes, your Honour.  Can I turn first to what Mr Prince referred to as the first ground?

HER HONOUR:   Yes.

MR MARKUS:   Your Honour, there are two fundamental difficulties with that ground, in my respectful submission.  The first is that, if your Honour goes to the ground – I do not know whether we have done that, but if your Honour goes to the application itself ‑ ‑ ‑

HER HONOUR:   Yes.

MR MARKUS:   ‑ ‑ ‑ it appears that the first ground is covered by paragraphs 4 to 6.

HER HONOUR:   Yes.

MR MARKUS:   In particular, paragraph 4 asserts that the Tribunal failed to apply the correct test as explained by the Court in SZATV v Minister for Immigration and Citizenship.  Paragraphs 5 and 6 I think seek to elaborate on what that correct test is and there is – I withdraw that – and both in paragraphs 5 and 6 there are references to the applicant being denied civil, political and socioeconomic rights.  Now, can I take your Honour to SZATV?

HER HONOUR:   Yes, as I understand it, the joint reasons in that case endorsed the reasoning of Lords Bingham and Hope in Januzi [2006] 2 AC 426, relevantly rejecting the contention that the circumstance that in the country of nationality the civil, political and socioeconomic rights might be inferior to those in the country considering the application, was not to be taken into account. I put it generally, but is that point you seek to make?

MR MARKUS:   Well, yes.  Yes, your Honour.  In substance, the grounds appear to assert that the correct test is to approach it by looking at the question whether the quality of life in the place of relocation meets the basic norms of civil, political and socioeconomic human rights ‑ ‑ ‑

HER HONOUR:   Yes.

MR MARKUS:   ‑ ‑ ‑ and that is exactly to the contrary of what Lord Bingham and Lord Hope held and the position adopted by Justices Gummow, Hayne and Crennan at paragraphs 25 and 26.

HER HONOUR:   I understand that, Mr Markus.  I think Mr Prince has accepted that the Tribunal correctly stated the test in paragraphs 13 and 14 of its reasons.  As I understand the way he seeks to put the first point, it is that the requirement to have regard to the personal circumstances of the refugee required in this case consideration of whether or not he would be separated from his family.  So pertinent was that to the assessment of reasonableness and practicability on the argument that the failure to advert to it must be taken to amount to jurisdictional error.  I think that is the way it is put.  I do not express a view about the merits of it but I think that is how it is being developed as distinct from the way it is pleaded.

MR MARKUS:   Thank you, your Honour.  In that case, I note your Honour has already made references to paragraphs 109 and 110 of the decision.  Could I take your Honour to paragraphs 74 and 75?

HER HONOUR:   Yes.

MR MARKUS:   Your Honour, before I go directly to those paragraphs, I have made a submission on the last occasion that not entirely surprisingly, the Tribunal’s reasons deal with the arguments that are being put to it.

HER HONOUR:   Yes.

MR MARKUS:   Mr Prince asserts that on the totality of the material, there were obvious issues raised in relation to the capacity of the applicant and his family to reunite.  In my respectful submission, that submission cannot succeed.

HER HONOUR:   Yes.

MR MARKUS:   If your Honour looks at paragraphs 74 and 75, and I will read them out, 74 is in the following terms:

The applicant’s representative submitted that internal relocation to Kabul could not be considered reasonable because, as the applicant had indicated, he was getting older which would limit his ability to engage in certain kinds of employment.  She noted that he was in his early sixties and that he had never had any education.  She noted also that he had been absent from Afghanistan for over 25 years.  She referred to the fact that the applicant’s oldest daughter was married and that he had two adult sons but she submitted that he still had at least six dependent children as well as a dependent nephew as well as financial obligations to provide for his wife.  She submitted that the applicant would require significant financial resources to support his entire family in Kabul –

and I stop here, your Honour, because this is the submission coming from the applicant’s representative.

HER HONOUR:   I understand.

MR MARKUS:   I read on:

and his employment prospects were somewhat limited by his education and his advanced age.

Paragraph 75 similarly, if I do not read the first sentence, go to the second sentence:

She submitted that despite the UNHCR’s comment that it was sometimes reasonable for family groups to relocate to urban areas without community support, multiple independent sources cited in their written submissions stated that it was extremely difficult for returning Afghans to resettle, particularly family groups, in the absence of these support networks.

With the greatest respect to my friend’s submissions, it is my client’s position that the case was presented in a particular way and to say that it could have been possible to raise an issue about these matters is not the same as to assert that there was ‑ ‑ ‑

HER HONOUR:   Mr Markus, I do not need to hear you further on the first ground.

MR MARKUS:   Thank you.

HER HONOUR:   Mr Markus, can I direct your attention to the second ground and in particular to the submission that Mr Prince makes concerning the acceptance in paragraph 105 of the circumstance that some failed asylum seekers who have returned to Afghanistan have been killed and the treatment of the complementary protection claim.

MR MARKUS:   Yes, your Honour.  Your Honour, can I go back to the beginning of the decision and, without reading it out, just draw attention to the fact that the relevant principles have been summarised – the relevant law has been summarised by the Tribunal from paragraphs 3 to 15.  The provisions dealing with complementary protection are summarised and correctly summarised at paragraph 15.  There is a reference there to the definition of “significant harm” and so on.

HER HONOUR:   Yes.

MR MARKUS:   If your Honour goes to the paragraph where the Tribunal ultimately deals with the complementary protection findings, your Honour will see that here the Tribunal refers to factual findings above and then goes on to cite – maybe not cite but refer to all of the essential criteria that relate to complementary protection.  That is, what we say about the approach of the Tribunal is that the Tribunal made certain factual findings and then applied the law to those factual findings. 

It has done so in a very detailed way in relation to the issue of the application of the Refugee Convention and has done so, ostensibly, because that was the principal way in which the matter was put before it.  It then turned its mind to the complementary protection provisions, referred to the factual findings made by him earlier and then has made findings applying the relevant legal principles that arise under the complementary protection provisions and reached a conclusion, as your Honour will see, in the last sentence of paragraph 114.

HER HONOUR:   I see the conclusion.  I accept that the principles have been stated correctly earlier but the issue that Mr Prince raises is this.  There is an acceptance by the Tribunal member that some failed asylum seekers who have returned to Afghanistan have been killed.  In dealing with the Convention‑based claims, understandably the Tribunal goes on to consider whether that circumstance, namely, the risk of being killed in Afghanistan as a returnee is a risk of persecution for Convention reasons and the Tribunal is satisfied that it is not.  When one comes to the finding at 113 of the absence of:

a real chance that the [plaintiff] will be seriously physically abused, killed, subjected to a level of discrimination which will threaten his capacity to subsist –

That, again, is all, as I would read it, in the context of the protection claim.  Ordinarily, one might say a finding that a person is not at risk of being killed in Kabul is a finding that may obviously be applicable to the complementary protection claim in the same way that it is applicable to the Convention‑based claim.  But where that finding of the absence of risk of death seems to be qualified by the contents of paragraph 105 ‑ ‑ ‑

MR MARKUS:   Your Honour, I understand the point.  Can I address it in this way?

HER HONOUR:   Yes.

MR MARKUS:   One has to look at paragraph 105 and understand – or look at beyond the reference to membership of a particular social group and understand what follows from this particular finding  The question was that these people may have been killed because they were returnees, having applied unsuccessfully for asylum.

HER HONOUR:   Yes.

MR MARKUS:   The group of failed asylum seekers was the particular social group in issue.  What this finding means is that they may have been killed but they were not killed because they were failed asylum seekers and what follows is that they may have been killed for all sorts of different reasons and if one applies that particular finding to the complementary protection provisions, then what follows from it is that the fact that people are killed does not allow for a conclusion – or the belief, for that matter – that as a necessary and foreseeable consequence of the applicant being

removed from Australia to Afghanistan there is a real risk that he will be arbitrarily deprived of his life.

HER HONOUR:   Yes.

MR MARKUS:   So, whilst I understand the point, your Honour, the nature of the finding here is applicable, in my respectful submission, to the complementary protection provisions.

HER HONOUR:   Yes.  Yes, I understand that submission.

MR MARKUS:   Your Honour, unless your Honour has any questions, those are my submissions.

HER HONOUR:   Yes, thank you.  Yes, Mr Prince.

MR PRINCE:   Thank you, your Honour.  Dealing with the last point first, the finding was that those people were not killed because they were returnees who were failed asylum seekers.  That conflation of those two characteristics cannot be disaggregated and nor is there a basis for suggesting speculation that there might be other reasons unrelated to the fact that they were returnees.

It may be that they were killed because they were returnees but the fact that they had failed in asylum claims in Australia was irrelevant to the murders but that is a factor that might lend to a 36(2)(aa) protection claim but that just has not been dealt with by the Tribunal.  The problem is it has not been disaggregated or dealt with in that way.  It might have been open for them to do so but they have not done it.

In terms of the first ground, can I just say this?  Paragraphs 74 and 75 do not limit the matters before the Tribunal in the sort of way that my friend is suggesting.  First of all, it clearly does make the point that the applicant did not have family in Afghanistan.  That clearly leads to the inference that the children, the wife – it was accepted that the children, the wife and the nephew were still in Quetta in Pakistan, or at least they were not in Afghanistan.

Then the next finding is that he would require significant financial resources to support the next claim.  He would require significant financial resources to support his entire family in Kabul.  My friend stopped there but that can be read in two ways.  That could be read as if his family were in Kabul he would require significant financial resources to support them or it can be read as if he is in Kabul he will need to access or obtain significant financial resources to support his family wherever they may be, but what it does not do is grapple with issues such as whether or not the family would be able to safely move, for example, across the type of route that they might take to go from Quetta to Kabul.

There is just no consideration of those types of matters at all which one would expect if the Tribunal had actually turned its mind to whether or not separation could be ameliorated if he was in Kabul.  There is just no express or explicit reasoning and to infer it in order to discharge the point at such a preliminary stage of proceedings is unsafe.

HER HONOUR:   I think, Mr Prince, to speak of the unsafeness of drawing inferences at what you describe as a preliminary stage invites a number of observations.  One is it is preliminary in the sense that any challenge to the correctness of the Tribunal’s decision has not been brought within the time limited under the Rules.  That is a hurdle that continues to be a hurdle in this application.  Secondly, to obtain the relief that you claim in your summons it is necessary for you to discharge the obligation of demonstrating the likelihood that you would be entitled to the relief that you claim.

When one then looks at not only paragraph 74, but 75, with its reference to “family groups”, and one looks at the case that was presented before the Tribunal based on the only materials that are before me on this application, it might be thought no small stretch to argue a prima facie case of jurisdictional error based on the failure to consider separation, notwithstanding the inference that the case that was put was a case that did not advance separation, but rather the difficulties for a man of his age supporting his nuclear family in Kabul absent other family and social support networks.

MR PRINCE:   Your Honour, first of all, that approach that my friend is inviting your Honour to take creates difficulties and, in my submission, is not consistent with the approach in Dranichnikov and NABE, that is, that the Tribunal is not only required to deal with claims expressly articulated by the applicant, it is only not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

HER HONOUR:   You are here speaking, Mr Prince, of the obligation respecting claims for protection, are you not?

MR PRINCE:   Yes.

HER HONOUR:   Your argument concerns asserted jurisdictional error in failing to adequately consider the personal circumstances of the plaintiff in relation to the reasonableness and practicability of relocation.

MR PRINCE:   In particular – I am sorry, your Honour.

HER HONOUR:   That might invite attention to the material that is advanced as relevant to the determination of those particular circumstances.

MR PRINCE:   I accept all of that, your Honour, but the claim is also made particularly with regard to the fact that the issue of the impact on him of being separated by his family in Kabul when they are in Quetta and the question of whether they could reunite has not been addressed, and it simply has not been addressed. 

It would require quite a lot of inferential reading into 74 and 75 to suggest that that is what is being addressed there in not explicit terms in circumstances where he – and the express finding later on in paragraph 111 where the Tribunal is talking about whether he can get employment in Kabul and support his family financially.  That does not necessarily assume that his family will be in Kabul.  That could mean, and probably does mean that he could get sufficient employment in Kabul to be able to remit money to support his family in Quetta in Pakistan.  At the very least, the absence of any express dealing with such an important issue, in my submission, demonstrates the presence of a prima facie case.

HER HONOUR:   Yes, thank you.  Mr Prince, can I just take up with you the basis of the complementary protection claim?

MR PRINCE:   Yes, your Honour.

HER HONOUR:   As I understand it, it was put that there was, as a necessary and foreseeable consequence of the plaintiff being removed to Kabul, there is a risk that he would suffer significant harm in that there was a risk that he might be killed, and I think it was put, and I have in mind paragraph 39, apart from the risk of physical harm or death from the Taliban or Pashtuns who were hostile to him, there was a submission of “‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’”.  That appears to have been based on a submission that to return the plaintiff, an Afghan man, to Kabul after his absence, he would face significant subsistence‑based threats.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   These were the matters that formed the substance of the complementary protection claim?

MR PRINCE:   Yes, your Honour.  That is an instance where it has been articulated in that way.  The reason I say that is because clearly there was material before the Tribunal, in particular Mr Glendenning’s material, that indicated that returnees had been killed upon return.  But the claim for

complementary protection extended, in the way in paragraph 39 as well, to issues about cruel and inhumane treatment or punishment.

HER HONOUR:   Yes, but one needs to look at what the claim was in order to assess whether or not the factual findings to which reference is made in paragraph 114 are addressed to those claims. 

MR PRINCE:   Well, in my submission, your Honour, on the authority of NABE, one looks to whether or not in assessing those matters the Tribunal has assessed matters which clearly arise from the materials before it.  It is not a question of pleading.  So the articulation of the claim is one thing, but here it is clear that there is material that was before the Tribunal that went to the very issue about whether or not returnees were at risk of being killed.

HER HONOUR:   I understand that, Mr Prince.  I am taking up with you the allegation of a risk of cruel or inhuman treatment or punishment or degrading treatment or punishment and, as I understand it, that is based on material respecting internally displaced Afghans facing significant subsistence‑based threats, particularly if forced to relocate to refugee camps in Kabul.

MR PRINCE:   Yes.

HER HONOUR:   Now, on a view, the finding that this plaintiff, if relocated in Kabul, would be able to support himself by working as a shoemaker would be a factual finding relevant to the conclusion that those criteria of significant harm for the purpose of complementary protection were not established.

MR PRINCE:   It is conceivable but that finding does not necessarily exclude the possibility that he would be ultimately an internally displaced person because he would not be at his home and it does not discount the possibility that he could require accommodation in a refugee camp in Kabul.

HER HONOUR:   Yes.  Thank you.

MR PRINCE:   Thank you, your Honour. 

HER HONOUR:   Mr Markus, can I trouble you again?  In relation to paragraph 105 ‑ ‑ ‑

MR MARKUS:   Yes, your Honour.

HER HONOUR:   ‑ ‑ ‑ as I read it, there was evidence before the Tribunal that 11 failed asylum seekers who had returned voluntarily to Afghanistan in the past seven years had been killed, some of those persons were Hazaras, and the author of that report opined that the true figure was a higher one.

MR MARKUS:   I understand that he suspected that the true figure was higher.

HER HONOUR:   Well, that is a distinction of a fine nature in the context, Mr Markus.  Mr Glendenning ‑ ‑ ‑

MR MARKUS:   Your Honour, all I am saying is that he was able to establish a fact and he suspected that there were others that he has not been able to identify.

HER HONOUR:   All right.  Now, the Tribunal accepts that some failed asylum seekers who have returned to Afghanistan have been killed.  It does not find that the deaths of those persons were occasioned by reason of their membership of the social group described as “failed asylum‑seekers” or for any imputed political opinion.  The finding then is that there is not a real chance that the plaintiff would be persecuted because he is a failed asylum seeker who has been returned.

MR MARKUS:   Yes, your Honour.

HER HONOUR:   But when one looks at complementary protection, one is concerned with the real risk as a necessary and foreseeable consequence of the non‑citizen being returned from Australia to a receiving country that the person will suffer significant harm.  Is your submission no more than people get murdered in Kabul every day?

MR MARKUS:   Well, your Honour, I am not saying in Kabul.  We are talking about Afghanistan ‑ ‑ ‑

HER HONOUR:   All right, I am sorry ‑ ‑ ‑

MR MARKUS:   ‑ ‑ ‑ and what we are talking about is 11 people over seven years.  That is the number who have been identified by the author of the report as having been killed.  There may have been more, your Honour - that is what the author suspects – but he has been able to identify 11 persons who, having returned to Afghanistan, have been killed over a period of seven years.  What the Tribunal has found is that the particular circumstances or the reasons why they were killed was not because they were failed asylum seekers who returned.

What it ultimately means, in my respectful submission, is that in each individual case there may have been a specific reason or no specific reason – they may have been killed simply because people die in Afghanistan and nobody doubts that, but also there may have been some other specific reasons such as a family dispute, such as a land dispute.  There is no particular finding in that regard, but what is rejected is that the reason for why these people were killed had anything to do with them being a failed asylum seeker who returned to Afghanistan ‑ ‑ ‑

HER HONOUR:   I understand that ‑ ‑ ‑

MR MARKUS:   ‑ ‑ ‑ and that – I am sorry, your Honour.

HER HONOUR:   I understand that and that, of course, is relevant to the rejection of the Convention claim but we are looking here at a real risk of significant harm as a consequence simply of returning this man to Afghanistan.  Now, whether failed asylum seekers are being sought out to be killed in Afghanistan or whether the level of murder in Afghanistan is very high, explaining why in a period of seven years, 11 and, in Mr Glendenning’s suspicion, rather more than 11 asylum seekers have been killed. 

MR MARKUS: Your Honour, I think I understand your Honour’s point. Can I refer your Honour to section 36(2B)(c) of the Migration Act.  What it requires is that the risk be one that is faced by the person personally.  That is, the real risk cannot be one that is faced by the population of the country generally.  That is, I think, the answer to your Honour’s question.

HER HONOUR:   Yes, that is the answer to that question.

MR PRINCE:   Could I be heard on that, your Honour?

HER HONOUR:   Yes, indeed, Mr Prince.

MR PRINCE:   Thank you, your Honour.  In my submission, that is not the answer to the question because whether or not a large number of people in Afghanistan are killed is not the issue that is being addressed by reference to Mr Glendenning’s material.  What Mr Glendenning is dealing with is the numbers of asylum seekers who have been returned to Afghanistan from Australia who have been killed. 

There are two elements.  First of all, we do not know what the total number of asylum seekers returned to Afghanistan are but there are two elements to that class of people that Mr Glendenning is dealing with.  He is not dealing with the population of Afghanistan as a whole.  He is dealing with people who have returned.  Whether or not they are failed asylum seekers may be relevant to one part of that equation but the fact that they have been returned from Australia is also a matter which is relevant and it cannot be disaggregated.

HER HONOUR:   Yes, I hear what you say.  Mr Markus, I think there is force to that.  Is it accepted that the material before the Tribunal was of the number of murdered failed asylum seekers returned by Australia?

MR MARKUS:   Your Honour, I am looking for it.  I am not aware that that is the case but I am not disputing it because I have not turned my mind specifically to that question. 

HER HONOUR:   Yes, well, Mr Prince ‑ ‑ ‑

MR MARKUS:   I am trying to find a reference to the report.

HER HONOUR:   Perhaps I might just clarify – Mr Prince, you are aware of this material, are you?

MR PRINCE:   Yes, I have seen it before, your Honour.  My belief is that it was focused – Mr Glendenning’s report was focused on the activities of Australia in returning people to Afghanistan but I will try to find a reference and I do not have a green book, unfortunately, so – that is my understanding, your Honour.

HER HONOUR:   Yes, very well.

MR MARKUS:   Your Honour, can I just very briefly respond in this way and I will try to be brief.  In my respectful submission, the fact that these are persons returned from Australia, if that is indeed the fact, does not alter the submission or the effect of the submission made by me earlier.  The point is that they are not – or they have been found not to be persons who have been killed because they were returned as failed asylum seekers.  That was all I wanted to add, your Honour.

HER HONOUR:   Yes, yes.  I am sorry, Mr Markus.

MR MARKUS:   Your Honour, all I can say is that in paragraph 104 it seems that the Tribunal notes that submissions were received by it from the applicant’s representatives which refer to three news reports.  So what you have is a news report which then makes reference or quotes from Phil Glendenning of the Edmund Rice Centre and the statement that is there does not appear to be limited to returnees from Australia but I am not in a position to assist you and my friend has expressed a view about it but, your Honour, I just do not know.

HER HONOUR:   Well ‑ ‑ ‑

MR PRINCE:   The reports, your Honour ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ I am just looking at paragraph 104 ‑ ‑ ‑

MR PRINCE:   Yes.

HER HONOUR:   ‑ ‑ ‑ the first of the two news reports does appear to have been referring to the safety of failed asylum seekers returned from Australia.

MR PRINCE:   Yes, quite so, and indeed, your Honour will see the context at paragraphs 50 and 51 where the particular news reports are referred to, all of which in the context of deportations from Australia to Afghanistan including Father Carty of the Marist Asylum Seeker Refugee Centre, dealing with the safety of Hazara men, women and children, if they are returned to Afghanistan.

HER HONOUR:   Yes, thank you.  Mr Markus, the Tribunal’s acceptance in paragraph 105 that some failed asylum seekers who have been returned to Afghanistan have been killed, combined with its unwillingness to draw the conclusion that they were killed for membership of the social group, in the circumstances in which there is a complementary protection claim and there is no further analysis of the rejection of the existence of the real risk, is troubling. 

You say it is answered by the fact that the Tribunal’s lack of satisfaction that there was a Convention reason, is to be understood as amounting to an acceptance that people falling into that class, the 11 failed asylum seekers killed in Afghanistan, who for present purposes I might accept to have been asylum seekers returned from Australia, were facing no more than a risk that the population of the country generally faces.

MR MARKUS:   My submission is to that effect but the point I think is that the Tribunal’s lack of satisfaction, as your Honour has put it, in establishing a connection between these persons being failed asylum seekers returned, say from Australia, and their deaths means that the Tribunal is not satisfied that these people have died in other than random circumstances, and that is more of the point, and then people can die, obviously, in all sorts of circumstances and it is rather difficult for the Tribunal to make findings of fact about it beyond accepting or rejecting the assertion that they faced harm and they suffered harm because of what they had done and where they were returned from.

HER HONOUR:   Taking into account the seriousness of the issue, on one view, is it not, as Mr Prince contends, arguable that the Tribunal failed to adequately address the separate considerations that complementary protection raises?

MR MARKUS:   Well, your Honour is inviting me to make a concession I am not going to make but ‑ ‑ ‑

HER HONOUR:   Yes, I understand you are not going to.  It is the matter that troubles me, Mr Markus.

MR MARKUS:   I understand, your Honour.  In my respectful submission, the position is this.  The complementary protection issues have been dealt with briefly.  They may have been dealt with better but what my friend needs to establish is jurisdictional error and, in my respectful submission, if your Honour reads the whole of the decision – this is a very careful, reasoned decision – the Tribunal in dealing with the complementary protection issues at all stages correctly identified the relevant legal test.

It applied factual findings made in the context of findings made earlier in relation to the Refugee Convention claims but, in my respectful submission, those factual findings were sufficient to justify the conclusions that the Tribunal reached at paragraph 114 and paragraph 105, if your Honour follows through what actually is the consequence of these findings, is able to be directly applied to the complementary protection provisions because the effect of that finding is that we do not know why these people were killed.  That is the effect of it.

The fact that they were killed, therefore, is not able to be pointed in any direction which would give a reasonable basis for a decision‑maker to believe that – or to give substantial grounds, as it were, for the belief that as a necessary and foreseeable consequence of the applicant being removed from Australia there is a real risk that he will suffer significant harm.  Your Honour, I have said this a few times so I am repeating myself, but that is our position in relation to that.

HER HONOUR:   Yes, I understand.  Thank you, Mr Markus.  Mr Markus, my inclination is to think that Mr Prince has established a prima facie case in the sense of the likelihood of succeeding in relation to his challenge to the adequacy of the reasons of the Tribunal respecting the disposition of the complementary protection claim; alternatively, its disposition of the claim by reference to factual findings addressing the Refugees Convention claim. 

In saying that, I am referring to the test for the purposes of the grant of the interim relief that is sought, and for obvious reasons it is preferable that I do not address in further detail the merits or otherwise of the claim.  It is sufficient, having regard to the gravity of the issues, that, in my view, Mr Prince has made good his case for the grant of the interim relief, having regard to the principles to which I earlier referred.  What is the submission, Mr Markus and Mr Prince, respecting the future conduct of the matter?

MR MARKUS:   I will let my friend address it.  I am not sure whether your Honour is aware there has been – or there were proceedings commenced in the Federal Circuit Court originally and I am not even sure that they have been discontinued at this stage.

HER HONOUR:   Sorry, this is something of which I was unaware.  What proceedings were commenced in ‑ ‑ ‑

MR MARKUS:   I am sorry, I will let my friend address it.

MR PRINCE:   Your Honour, initially in the flurry of activity on Tuesday, my client made an application unrepresented - by himself to the Federal Circuit Court.  That matter had been listed before Judge Cameron at 5.00 pm on Tuesday.  Your Honour will recall my client was due to be removed at 9.55.

HER HONOUR:   Yes.

MR PRINCE:   There was an issue about the logistics of the circumstances in that there is no right of appeal from the question of an extension of time and an extension of time is a precondition to jurisdiction in the Federal Magistrates Court ‑ ‑ ‑

HER HONOUR:   Indeed.

MR PRINCE:   ‑ ‑ ‑ and had we proceeded before the federal magistrate and my client had have taken the view that there was an error in that decision, given the time he would have been unable to approach any other court.  Those matters were disclosed to the Registry of this Court.  When this matter was listed, Justice Cameron’s associate was advised that we would not be proceeding at 5 o’clock before his Honour and we indicated that a notice of discontinuance would be filed in those proceedings because of these proceedings.  That has not yet been done because of the timing and concentrating on other things but it will be done very shortly, so that there is really only one set of proceedings.  In terms of a disposition of these proceedings, this type of matter, in my submission, would be suitable for remitter by this Court.

HER HONOUR:   Yes.

MR PRINCE:   It may be best, for regularity purposes, if we finalise the discontinuance of the Federal Circuit Court proceedings and then seek an

order from this Court that it remit the matter to the Federal Circuit Court in any event.

HER HONOUR:   Yes, that would seem an appropriate course.  Mr Markus, do you agree with that?

MR MARKUS:   I agree, your Honour, that the matter is capable and appropriate to be remitted.

HER HONOUR:   Yes.  It is, I think, on a view, necessary – it may be necessary for this Court to make an order under section 486A extending time.

MR PRINCE:   Yes, your Honour.  Since the amendments after Bodrudazza that is certainly the way that people seem to have proceeded, and your Honour will see the two alternative first matters in the order to show cause.

HER HONOUR:   Yes.

MR MARKUS:   Your Honour, I am not entirely sure that that is correct, but I am in your Honour’s hands.

HER HONOUR:   It may not be, but on a view it is necessary, and to that extent it would be appropriate to do so.  I should give some reasons for my determination and I will then attend – perhaps, gentlemen, you might give some consideration to the form of the orders for the future conduct of the matter.

The plaintiff is a 65 year old Afghan national. He is a Hazara who was raised in Uruzgan Province. The plaintiff arrived in Australia in December 2011 and applied for a protection visa in April 2012. His claim to engage Australia’s protection obligations was based upon his ethnicity and his religion. The plaintiff is a Shia Muslim. A delegate of the Minister for Immigration and Citizenship refused the application. On 24 January 2013, the second defendant, the Refugee Review Tribunal, affirmed the delegate’s decision. Before the Tribunal, in addition to the protection claims under the Refugees Convention, the plaintiff made complementary protection claims under section 36(2) of the Migration Act 1958 (Cth).

On 4 February 2014, the plaintiff filed an application to show cause why certiorari should not issue to quash the Tribunal’s decision, and mandamus to direct the Tribunal to complete its review of the decision refusing to grant him a protection visa according to law.  By summons filed on 4 February 2014, the plaintiff claims interim injunctive relief, restraining the first defendant, the Minister for Immigration and Border Protection, from removing him from Australia pending the determination of the proceedings.

The grant of interlocutory injunctive relief requires the Court to address two inquiries:  first, whether the plaintiff has made out a prima facie case in the sense of demonstrating that there is a sufficient likelihood of establishing entitlement to the relief sought as to justify preservation of the status quo pending the hearing[1]; secondly, that the balance of convenience favours the grant.  The Minister accepts that in the event the plaintiff establishes the relevant likelihood, the balance of convenience favours the grant.

[1] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 81-82 [65] per Gummow and Hayne JJ; [2006] HCA 46

The Tribunal accepted that the plaintiff is at risk of persecution were he to return to Uruzgan Province.  It identified as the central issue on review the question of whether it is reasonable in the sense of practicable for the plaintiff to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.  The Tribunal concluded that it would be reasonable for the plaintiff to relocate to Kabul.

There was evidence before the Tribunal in the form of a news report of research said to be carried out by a Mr Glendenning of the Edmund Rice Centre respecting the numbers of failed asylum seekers who had returned voluntarily to Afghanistan in the past seven years and who had been killed and to Mr Glendenning’s reported suspicion that the true figure was higher. 

The Tribunal accepted that some failed asylum seekers returning to Afghanistan have been killed.  In dealing with the Refugees Convention claim, the Tribunal went on to conclude that the evidence did not establish that the failed asylum seekers had been killed for reasons of their membership of the particular social group, namely, failed asylum seekers, or for reasons of any political opinion imputed to them by reason of having sought asylum.

In dealing with the complementary protection claim the Tribunal referred globally to its findings of fact and recorded its conclusion of the absence of grounds for the requisite belief that, as a necessary and foreseeable consequence of the plaintiff’s removal from Australia to Afghanistan, there exists the real risk that he would suffer significant harm, as that phrase is defined.

In his application for orders to show cause, the plaintiff contends that the Tribunal failed to discharge its duty under section 430 of the Act by failing to give reasons, or by giving inadequate reasons, for its rejection of the plaintiff’s complementary protection claims and, in the alternative, that the Tribunal misconstrued its function under section 36(2)(aa) by including in its consideration matters relevant only to the determination of protection obligations under the Refugees Convention.

The plaintiff also claims constitutional and prerogative writ relief arising out of the asserted failure of the Tribunal to apply the correct test at law respecting relocation.  It is sufficient to record my conclusion for the purpose of the interim relief claimed in the summons, that the plaintiff has demonstrated a sufficient likelihood of establishing entitlement to the relief sought with respect to the challenge addressing the complementary protection claim, to justify preservation of the status quo pending the hearing of the application.

I should note that the application is significantly out of time.  It is brought approximately six months out of time for certiorari and approximately 10 months out of time for mandamus.  I am mindful of the statements in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495, 496, paragraphs [13] to [17] of McHugh J. In summary, his Honour observed that the periods applying for certiorari and mandamus provide ample time in which to commence proceedings in the court and that in all but very exceptional cases those time limits are to be rigidly applied.

His Honour went on to observe that in all but exceptional cases the inability of an applicant to obtain favourable advice within the periods limited is a strong indicator that the applicant has no case for relief, and should it turn out by reason of negligent advice that an applicant has been deprived of the right to quash a decision or to have the decision made or to have some duty carried out, the applicant will have his remedy against the lawyer or lawyers concerned.  As the Minister very fairly observes, the latter consideration is not apt to the circumstances of an application to extend time in a case such as the present.

The plaintiff relies on the affidavit of his solicitor, Charles Frederick Stanford, who deposes to telephone conversations with the plaintiff in which Mr Stanford asked if anyone had explained to the plaintiff that he could apply to the court to seek judicial review of an unfavourable decision of the Tribunal, and to the plaintiff’s response, “I didn’t know.  No one told me”.  He further deposes to the plaintiff stating of a legal adviser who prepared a section 417 application for ministerial intervention, and that representative had not given him the “option” of going to court or applying to the Minister.  The solicitor clarified with the plaintiff, “So no one told you that you could apply for judicial review of the decision?”  Answer, “No.  No one told me”.

Mindful as I am of the circumstance that the plaintiff was legally represented by a different firm of solicitors before the Tribunal, and of the absence of evidence concerning the circumstances in which those solicitors ceased to act for him, in light of the gravity of the subject matter of the application and the contents of Mr Stanford’s affidavit, I am persuaded that the delay should not preclude the grant of the relief claimed.

Gentlemen, in terms of the orders, in addition to the orders in the summons in paragraphs 1 and 2, amended in the way that I earlier indicated, what are the proposed further orders for the disposition of the proceedings?

MR MARKUS:   Your Honour, I think now that we are here we might as well deal with the remittal issue.

HER HONOUR:   That would seem sensible.

MR MARKUS:   Yes, we were just discussing whether it was necessary for my friend to discontinue the Federal Circuit Court proceedings but on the understanding that he will do so within the very near future, I would not oppose orders pursuant to section 44(1) of the Judiciary Act to the effect that the proceedings – or the proceeding be remitted to the Federal Circuit Court, Sydney registry; that steps taken in the proceedings to date be steps taken in the remittal proceeding; that the registrar be directed to transfer documents filed in the proceeding to date to the Federal Circuit Court and that costs of the proceeding to date be costs in the remitted proceeding.

HER HONOUR:   Yes.

MR MARKUS:   I am sorry.  My friend wants to say something about the last order.

HER HONOUR:   Yes.

MR PRINCE:   Yes, thank you, your Honour.  The costs of the summons should be the plaintiff’s costs.  It has been fully contested at every stage and the plaintiff has been successful. 

HER HONOUR:   Yes.  What do you say to that?

MR MARKUS:   That is opposed, your Honour.  I am sorry, your Honour.  That is opposed.  The usual course ‑ ‑ ‑

HER HONOUR:   Yes.

MR MARKUS:   ‑ ‑ ‑ is for these interlocutory matters to be costs in the cause.

HER HONOUR:   Indeed, there has been some indulgence here, has there not, Mr Prince, in the sense that although the orders claimed in the summons are limited to the interim injunctive relief, it has been necessary for you to demonstrate, apart from other matters, circumstances justifying an extension since otherwise there would have been no utility.

MR PRINCE:   That is true, your Honour, and of course my client is grateful for the orders that your Honour has made, but nonetheless my client has been put to considerable – I will put that another way.  The matter has taken quite a considerable amount of resources.  The Minister could have, of course, stopped the removal and allowed the matter to take its course, even allowing the question of extension of time to be dealt with in due course.  The reason that we came to the Court was because the Minister opposed the application, as he is entitled to do, but he was unsuccessful, and this application has been self‑contained and, in my submission, costs should follow the event.

HER HONOUR:   Yes, well, I hear the submission, but I am against you on that.  Now, just coming back to this question, what I have before me is the summons, but since it is accepted that remitter is an appropriate course and since there may be an issue respecting the power of the Federal Circuit Court to make an order addressing the 486A of the Migration Act 1958 (Cth) time limit, is there – as I understand it, Mr Prince, you would ask me to make the order extending time?

MR PRINCE:   Yes.

HER HONOUR:   Mr Markus, do you oppose that?

MR MARKUS:   Your Honour puts me in a difficult position because I do not have specific instructions about it.  The matter that concerns me, your Honour, with respect, and I do not really want to over‑litigate these interlocutory issues, but potentially – I did not oppose or object to the affidavit that was filed because I understood it to be filed in the summons.

HER HONOUR:   Yes.

MR MARKUS:   If there is a question of extension of time we may have wanted to cross‑examine somebody on the affidavit in relation to these issues.  Your Honour, that is a forensic disadvantage for my client.  Having said that, your Honour, my principal difficulty is that I do not have instructions, so if your Honour is minded to make the order, I will grin and bear it but, your Honour, I cannot consent to it.

HER HONOUR:   I understand.  What is the power of the Federal Circuit Court in relation to an extension were it minded to grant it for the purposes of the prohibition in 486A?

MR MARKUS:   Your Honour, my understanding differs from my friends so I will make some very brief submissions about that and then Mr Prince will address your Honour.  My, perhaps simplistic understanding of the jurisdiction of the Federal Circuit Court on remittal is that it, in substance, exercises this Court’s jurisdiction and therefore it would have the powers that your Honour has under section 486A.

HER HONOUR:   The matter that I have in mind is – and I cannot bring the particular case to mind – some suggestion by Justice Gummow, I think, doubting that a court other than this Court could extend the time under 486A(2).  Now, I may be wrong in that, Mr Prince ‑ ‑ ‑

MR MARKUS:   I do not recall.  Your Honour, one of the issues is that if a matter is remitted, let us say, to the Federal Circuit Court, following remittal the Rules of that Court would apply to the proceeding.

HER HONOUR:   Yes.

MR MARKUS:   So, insofar as your Honour referred, for example, to the time limits imposed by the High Court Rules they would not apply, but section 486A would and, as I understand the position, and I stand to be corrected, the Federal Circuit Court would have power to exercise that jurisdiction, but I am not familiar with Justice Gummow’s ruling.

HER HONOUR:   Well, Mr Markus, I may be in error in my recollection.  I am just turning now to section 477 and that does not ‑ ‑ ‑

MR MARKUS:   Yes, your Honour, but that is - the jurisdiction that the Federal Circuit Court has and I think that the point my friend was referring to earlier about the limitations of the Federal Circuit Court I think the Federal Circuit Court can extend time but if it makes a decision in relation to an extension of time issue that is not subject to a competent appeal.  That is you cannot appeal from those judgments to the Federal Court and I think that was my friend’s concern.  I think here we are not talking about the application of rules, we are talking about the application of jurisdiction or power to exercise jurisdiction, but I will let my friend address you.

HER HONOUR:   Yes.

MR PRINCE:   Your Honour, in my submission, given that the issue about extension of time has really been fully ventilated before your Honour and was a matter upon which my friend objected to the orders in the summons, it would be appropriate to avoid any issues that might arise down the track to make an order to the extent that one is required under section 486A extending time for initiating the application, which would then mean that there could be no doubt the matter was fully before the court before the court is fully seized of it and what is being remitted is a matter in its entirety.

HER HONOUR:   Yes, but Mr Markus makes the fair point that he was content for your affidavit to be read without requiring Mr Stanford for cross‑examination or, for that matter, any other evidence being placed before the Court on the question of extension because this was an “all I had before me was the summons” matter. 

It was necessary to give some consideration to whether you possessed a sufficient likelihood to justify the grant of the relief you claim, including taking into account the considerable delay in bringing the proceeding. 

Mr Markus, my inclination is to think that given the remitter the appropriate course is to make the order, unless there is something further you wish to put to me, having regard to the issues that have been ventilated on this hearing.

MR MARKUS:   There is nothing further I wish to say, your Honour.

HER HONOUR:   In that case, I will make the order.   Very well, I make the following orders: 

1.Pursuant to section 486A(2) of the Migration Act 1958 (Cth), upon satisfaction that it is necessary in the interests of the administration of justice to make the order I extend the 35 day period respecting the migration decision of 24 January 2013 to 4 February 2014.

2.Pursuant to section 44(1) of the Judiciary Act 1903 (Cth) the proceedings be remitted to the Federal Circuit Court, Sydney Registry.

3.Steps in the proceeding taken to date be steps in the remitted proceeding.

4.The Registrar be directed to transmit the documents filed in the proceeding to the Registry of the Federal Circuit Court.

Mr Prince, it is sufficient to make an order that the first defendant be prohibited from removing the plaintiff, that is the order in terms of paragraph 2 of the summons, is it not?

MR PRINCE:   I think that is right, your Honour.  That was the main concern.  The first order may have an impact on whether he remains in immigration detention, I do not know, but certainly the order preventing him from being removed was our main concern.

MR MARKUS:   Your Honour, if I may be heard about that?

HER HONOUR:   Yes, thank you, Mr Markus.

MR MARKUS:   My concern with the first order is exactly that.  I do not think it necessarily would have any effect on the applicant being or not being in detention, but it may be argued that it has that effect, and I think it is unnecessary.

HER HONOUR:   Yes, very well:

5.The first defendant, his servants, officers and agents be prohibited from removing the plaintiff from Australia until the determination of the proceedings before the Federal Circuit Court and the finalisation of any relief granted by that Court, or until further order.

MR PRINCE:   Can I just ask your Honour to add the word “remitted” before “proceedings before the Federal Circuit Court” because there are other proceedings that will be discontinued.

HER HONOUR:   Yes.  I make that amendment by the inclusion of the word “remitted” before the word “proceedings”. 

6.Costs to date be costs in the remitted proceedings.

Does that attend to all matters?

MR PRINCE:   I think so, your Honour.  I do not know if your Honour needs to certify for counsel.

MR MARKUS:   It is no longer necessary, your Honour.

HER HONOUR:   Very well.

MR MARKUS:   Under the new Rules, it is no longer necessary.

HER HONOUR:   Yes, very well.  The Court will adjourn.

AT 6.58 PM THE MATTER WAS CONCLUDED