SZTVLv Minister for Immigration and Border Protection and Anor
[2014] HCATrans 7
[2014] HCATrans 007
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
FROM CANBERRA BY VIDEO LINK TO SYDNEY
ON TUESDAY, 4 FEBRUARY 2013, AT 5.00 PM
Copyright in the High Court of Australia
MR S.E.J. PRINCE: If the Court pleases, your Honour, I appear in that matter with my learned friend, MR P. BODISCO, for the plaintiff. (instructed by Stanford Lawyers)
MR A. MARKUS: If the Court pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)
HER HONOUR: Yes, Mr Prince.
MR PRINCE: Thank you, your Honour. I hope that your Honour has received an application for an order to show cause, a summons for interlocutory relief, an affidavit of James Supple with two annexures, and submissions in support of a summons.
HER HONOUR: I believe I have received copies of all of that material. I should say to you, Mr Prince, that the annexure to Mr Supple’s affidavit consisting of the copy of the reasons of the delegate – I am sorry, I think it is the reasons of the second respondent – is frankly largely illegible.
MR PRINCE: I am sorry, your Honour.
HER HONOUR: I appreciate the difficulties ‑ ‑ ‑
MR PRINCE: Our copy is not so good either.
HER HONOUR: Right, yes. Well, I just draw that to your attention.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Yes.
MR PRINCE: If I am going to refer to any aspect of that decision, I will read it to your Honour, and I think my friend will be able to read along so that if there are any problems, he can draw that to your Honour’s attention.
HER HONOUR: I would be grateful for that, Mr Prince. Yes.
MR PRINCE: Thank you, your Honour. I should then read the affidavit of James Halley Supple, affirmed today.
HER HONOUR: Yes, thank you. Mr Markus, is there any objection to any part of Mr Supple’s affidavit?
MR MARKUS: Not for the purposes of today’s hearing, your Honour.
HER HONOUR: Thank you. Yes, very well.
MR PRINCE: Thank you, your Honour, and I move on the summons dated today’s date. Your Honour will have seen from the submissions that the plaintiff seeks judicial review, really, on three grounds at this stage. The first is in respect of the – really, two grounds with sub‑grounds in the first. The first deals with the way in which the Tribunal dealt with the claims for relocation, or the issue about relocation to Kabul. The plaintiff is a 65‑year‑old Hazara Shia man who has been living for many years in Quetta in Pakistan before coming to the country and claiming protection here.
HER HONOUR: Yes.
MR PRINCE: There was -before the Tribunal, it appeared to be the only issue on the 36(2)(a) claim that it would be practicable for him to relocate to Kabul.
HER HONOUR: Yes.
MR PRINCE: As your Honour knows, the test for practicability of relocation was considered by this Court in SZATV and the reviewer, the Tribunal member, did refer to the existence of that decision at the beginning of the case in paragraph 14, and correctly. However, when it came time to application of those principles to the case, it appears that the way in which the Tribunal applied those principles indicates that it had not actually understood them, because it focused on whether or not the plaintiff would be able to obtain employment or an income that he would be able to remit to his family in Quetta in Pakistan where they remain, rather than social, political issues which were said to be relevant to that test in SZATV.
HER HONOUR: Yes.
MR PRINCE: In particular, a matter which stands out is that there is no consideration given by the Tribunal in its reasons to the impact on the plaintiff of being relocated in Kabul in a country where, at least in parts of it, he has a well‑founded fear of persecution and whether or not he would then ever be able to see his family who are in Quetta in Pakistan, and whether he would be permanently or temporarily separated from them, what circumstances in which he could see them again and whether or not that was reasonably practicable. The separation of the family, in my submission, is the type of circumstance for the purposes of reasonability that one would expect to have seen addressed in accordance with normal principles, and it has not been addressed.
HER HONOUR: When you speak of the normal principles, are you directing attention to the decision in SZATV (2007) 233 CLR 18 at 27, paragraphs 24 and following in the joint reasons of Justices Gummow, Hayne and Crennan?
MR PRINCE: Yes, your Honour, I am.
HER HONOUR: Yes, I understand.
MR PRINCE: So that clearly his separation from his family is a matter which would fit within those considerations and it has not been dealt with and so the Tribunal has not discharged its duty to consider the claims. The second point, which is related to the first, is that in considering the question of relocation by focusing on the ability to earn an income, the Tribunal member has, in fact, embarked on a process of assessing a more broad notion of practicability rather than the type of practicability that was addressed in SZATV so that the focus has been wrongly placed on the ability to earn a livelihood. In terms of ‑ ‑ ‑
HER HONOUR: Mr Prince, I am sorry to interrupt you, but just so I understand the argument, it is unclear to me at this stage how the second point is really distinct from the first. The complaint is that the Tribunal failed to take into account the impact on the plaintiff of relocation taking into account his personal circumstances and consideration that the whole of his family are living in Quetta and the background, including that he lived there for a number of years. Is that right?
MR PRINCE: Yes, that is right. I accept that it is simply a different way of expressing the same point, your Honour.
HER HONOUR: All right, well, I think I understand the point, yes.
MR PRINCE: The next issue, which is discrete, is the question of the way in which section 36(2)(aa) of the Act has been dealt with by the Tribunal.
HER HONOUR: Is this the complementary protection ‑ ‑ ‑
MR PRINCE: It is, your Honour. That is dealt with by the Tribunal at paragraph 114 of the decision, which is the last page of the attachments to the affidavit, I expect, your Honour.
HER HONOUR: Yes, I have that. It would assist if you could read that – parts of it are illegible.
MR PRINCE: I will, your Honour:
Having regard to my findings of fact above, I am satisfied that it would be reasonable for the applicant to relocate to Kabul where I consider that there would not be a real risk that he will suffer significant harm. Having regard to my findings of fact above, I do not accept that there are substantial grounds for believing 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, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhumane treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
HER HONOUR: Yes.
MR PRINCE: My submission, your Honour, is that that is a statement of conclusion. It is not a statement of reasons. To the extent that it includes reference to his reasons, or the Tribunal member’s reasons above, those reasons conflate and include aspects peculiar to the question of whether or not protection is owed under the Refugee Convention, for the purposes of section 36(2)(a), which impermissibly conflates the test in 36(2)(a) with 36(2)(aa). As your Honour knows, the test in 36(2)(aa) is a true alternative to 36(2)(a) and a precondition for that statutory criteria is that the person is not entitled to be a refugee under 36(2)(a).
So in those circumstances, by having regard to the reasons, without any disaggregation of those reasons, in the conclusion in paragraph 114, the reviewer simply has not provided reasons in accordance with section 430 of the Act by explaining, in a way that could be understood, what is the basis or what are the reasons for finding that the statutory test in 36(2)(aa) has not been made out and your Honour ‑ ‑ ‑
HER HONOUR: Can I ‑ ‑ ‑
MR PRINCE: Sorry, your Honour.
HER HONOUR: I just want to take this up with you, Mr Prince, and again I emphasise it is against a background that I have not been able to absorb the Tribunal’s reasons, having regard to the quality of the copy, but as I understand it, the Tribunal accepted that the plaintiff does have a well‑founded fear of persecution for Convention reasons were he to return to the part of Afghanistan in which he was born and raised. Is that right?
MR PRINCE: That is right, your Honour. That finding appears at paragraph 86. Would it help your Honour if I read that out?
HER HONOUR: Just for the present, if we can accept that is the position does it follow that the Tribunal member went on to reason that there was not a concern respecting persecution were he to relocate to Kabul in light of findings that the Tribunal made about the current and foreseeable situation in Kabul for a Hazara? Is that roughly right?
MR PRINCE: That is roughly right, your Honour, but subject to this important qualification. Those findings were made on the basis that there would no persecution for a Convention reason in Kabul.
HER HONOUR: I understand that, but I am having a little difficulty understanding that that finding is consistent with not giving, as it were, some reasons for the conclusion that in Kabul there would not a fear of significant harm as that is defined for the purpose of complementary protection under 36(2A).
MR PRINCE: No doubt, your Honour, there would be overlap between the two matters ‑ ‑ ‑
HER HONOUR: Substantial overlap, one would think.
MR PRINCE: Well, yes, except not complete overlap because one cannot disaggregate from the finding about not having a fear of persecution in Kabul for a Convention reason which part of a finding is related to the Convention nexus and which part is related to the concern about persecution per se or serious harm per se, so that because those matters are rolled up in the findings above which are what he draws on in a shorthand way in paragraph 114, those considerations infect the finding in 114 so that he has not really addressed section 36(2)(aa), he has addressed section 36(2)(a) and then he has used that finding to make the finding in section 36(2)(aa). So that is the objection.
HER HONOUR: It might be that your stronger point is your first point in any ‑ ‑ ‑
MR PRINCE: That may be right.
HER HONOUR: Yes.
MR PRINCE: But, in any event, these matters are, in my submissions, sufficiently arguable to give rise to a proper matter before the Court, one which would benefit from consideration without this sort of hurry and in the usual way with all of the documents being made available and the like and that if my client is removed, in light of grounds which were arguable for jurisdictional error, then his entitlement or potential entitlement to relief will be defeated and the proceedings will be otiose.
HER HONOUR: Yes, all right.
MR PRINCE: So the balance of convenience is in favour of the granting of the injunction, your Honour.
HER HONOUR: I will come back to you, but I will hear from Mr Markus.
MR PRINCE: Thank you, your Honour.
MR MARKUS: Thank you, your Honour. Your Honour, I am not sure whether certain documents that I have emailed to the Registry have reached your Honour.
HER HONOUR: Let me tell you what I have, Mr Markus. I understand that you or those assisting you transmitted to the Registry firstly, a document directed to the New South Wales Ministerial Intervention Unit that appears to have been received on 21 June 2013, to which is attached an advice by a migration agent providing immigration assistance; a further letter addressed to a Mr Chaudhry of Auzasia Lawyers dated 13 September 2009, to which is attached a copy of a notification of the determination of a ministerial intervention request and what appear to be some submissions addressed to the current Minister dated 1 February 2014; a copy of a document dated 4 February 2014 from the Department to the plaintiff notifying of the ministerial intervention request outcome and an email message sent on 2 February 2014 directed to a person named Manju from a Mr Swincer.
MR MARKUS: Yes, thank you, your Honour. Those were the documents that I forwarded to the Registry and can I just very briefly ‑ ‑ ‑
HER HONOUR: Yes, do.
MR MARKUS: Sorry, your Honour. Can I just assist in this way, if I could just describe those documents briefly and what they are?
HER HONOUR: Yes, thank you, Mr Markus.
MR MARKUS: If your Honour looks at the first document that was received on 21 June, that is in substance a request for ministerial intervention.
HER HONOUR: Yes.
MR MARKUS: The document that was the second document your Honour referred to, which is the 13 September document, is the notification of the outcome of that request. Then, your Honour, the email dated 2 February is a covering email attaching the submission that is dated 1 February.
HER HONOUR: I understand.
MR MARKUS: That is a second intervention request and the last document dated today is a notification of the outcome of the second intervention request.
HER HONOUR: Yes, I see.
MR MARKUS: Just to put these documents in context, your Honour, I understand that we are here today to deal with an application for an urgent interlocutory injunction but it is not entirely relevant, in my respectful submission, in that context, that this is an application that is significantly out of time.
HER HONOUR: Yes.
MR MARKUS: Your Honour may have noted that the decision that is the subject of the application was made in January last year.
HER HONOUR: Yes.
MR MARKUS: Your Honour would be familiar with section 486A of the Migration Act which prescribes a time limit.
HER HONOUR: Yes.
MR MARKUS: Your Honour, we accept, as we must, that the principal issue for the purposes of today’s hearing is whether a serious issue has been raised. Having said that, your Honour, there is this overlapping issue about the delay and, your Honour, in that context we rely on the fact that the applicant has made requests, or had requests made on his behalf, for ministerial intervention by persons who were both lawyers and migration agents.
Having accepted that statements may be made on affidavit on a hearsay basis, as happened in this case, and I draw your Honour’s attention in particular to what is said at paragraph 4f of the affidavit of Mr Supple - we do know that that affidavit is provided on a hearsay basis and your Honour does have evidence, in my respectful submission, to the effect that this person has been supported at certain stages, or had received some assistance at certain stages from solicitors which gives that issue some context - we say that this matters because there is a line of authority which establishes that an explanation for a delay which is in part justified by reference to the fact that the plaintiff has made requests for ministerial intervention do not comprise as sufficient explanation.
I refer in particular to the judgment of his Honour Justice Hayne in the matter of ReMinister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 which is an ex tempore judgment and a similar judgment of her Honour Justice Crennan in Plaintiff M90 of 2009 v the Minister for Immigrationand Citizenship [2009] HCATrans 279. Her Honour there dealt with these issues at around line 1245 and following.
HER HONOUR: Thank you.
MR MARKUS: I should also make brief reference to the judgment of the Full Federal Court in M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520. That particular judgment collects the authorities dealing with this particular issue, in particular from paragraph 21 and following.
HER HONOUR: Thank you.
MR MARKUS: Your Honour, having said all that, I will now turn to the issue of the grounds that are sought to be raised in this application. Your Honour, what is submitted on behalf of the plaintiff – what was first submitted – is that the Tribunal dealt with the relocation issue on an inadequate basis. Your Honour, what we say about that is as follows. First, what the Tribunal dealt with, not entirely surprisingly, was the submissions that were made to it. It is not surprising that the Tribunal in attempting to deal with issues of any controversy focuses on what is being said on behalf of a particular person on that issue.
If I can draw your Honour’s attention to page 23, paragraph 108 of the decision of the Tribunal – and I appreciate that your Honour has difficulties reading what appears there. I have some difficulty reading what appears there but I think your Honour may have more difficulty. I will attempt to read it out.
HER HONOUR: Thank you.
MR MARKUS: It is said here:
In their written and oral submissions 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, he had no education and his employment history had been limited to low‑skilled jobs which would make it extremely difficult for him to compete for employment in Afghanistan. They referred to the importance of family networks and the difficulties which Afghanistan faces in absorbing returnees. They also submitted that internally displaced Afghans face significant subsistence‑based threats, particularly if they were forced to relocate to refugee camps in Kabul. They also quoted selectively from a response prepared by the Austrian Centre for Country of Origin & Asylum Research and Documentation (ACCORD) in April 2010 which they suggested said that a quarter of young Afghan returnees from Pakistan and Iran spoke of being socially ostracised by Afghans on the basis of having returned from other countries. However as referred to above they omitted the immediately following sentence which stated that the respondents who spoke of these incidents were primarily single, educated and female.
This was a summary, your Honour, of what the submissions were and what follows is a response to those issues that have been raised. Now, my understanding is that what is being submitted on behalf of the plaintiff is that the issue of whether the applicant or the plaintiff would be able to reunite with his family was a mandatory relevant consideration in this context.
Your Honour, I know that the issue here is whether relocation within Afghanistan is reasonably practicable. The plaintiff has left his family in Pakistan to come to Australia. I accept that the fact that he is separated from his family is part of the total picture, your Honour, but the issue nevertheless remains whether it is reasonable for the plaintiff to relocate within Afghanistan, not whether it is reasonable to send him back to Afghanistan from Australia.
HER HONOUR: As I understand the contention, it is that in considering what is reasonable in the context of relocation within a country, it is necessary to look at the particular circumstances of the applicant for refugee status and the impact upon that person of relocation within the country. That, as I think it is put in SZATV, is an inquiry that has regard, if I have apprehended the reasoning correctly, to considerations of the quality of life in the place of relocation in the context of basic norms of civil, political and socioeconomic human rights. Am I right, Mr Prince and Mr Markus, in understanding that their Honours approved statements made by Lord Hope in this context?
MR PRINCE: Yes, your Honour.
MR MARKUS: That is my understanding, your Honour, and we do not dispute that proposition.
HER HONOUR: Well, if that is so, do you say, Mr Markus, that one can see in the reasons of the Tribunal consideration of the particular circumstances of this plaintiff in that context?
MR MARKUS: Well, your Honour, it is clear that the Tribunal was aware of these matters because they are expressly referred to in the decision. What is also clear, that the focus of the Tribunal’s reasoning on the issue is on the specific submissions that were made on behalf of this plaintiff, and the specific arguments that were advanced on his behalf. Your Honour, in my respectful submission, it cannot be said that the Tribunal failed to have regard to these matters because they are expressly mentioned in the decision.
HER HONOUR: Just so I understand, Mr Markus, when you say that they are expressly mentioned, are you referring to the reference to the principles in SZATV towards the commencement of the Tribunal’s reasons where the test, as it were, is stated, or are you referring to its application in the reasoning in that part of the Tribunal’s decision that explains the application of the principles?
MR MARKUS: No, your Honour, what I meant, and I am sorry if this was unclear ‑ ‑ ‑
HER HONOUR: Mr Markus, not at all. I think a difficulty in dealing with this application is plainly some consideration must be given to whether there is a serious issue to be tried raised by the submissions advanced by Mr Prince, very difficult to determine that when one cannot read the reasons. What I need to understand is whether you accept that in that part of the Tribunal’s decision where it records its application of the relevant principles to this case and to its findings on the evidence, do you accept that the Tribunal does not in terms address the question – let me put it more specifically – of whether, as a consequence of relocation, the plaintiff would be denied civil, political and socioeconomic rights by reason of separation from and denial of access to his family, wife, child and dependant nephew?
MR MARKUS: Your Honour, no. I accept that in that particular part those issues are not addressed in those terms. What I was suggesting was that the fact that the family members were in Pakistan, were known and recorded in the decision of the Tribunal and the fact that no specific reference was made to that fact is explained, in my respectful submission, by the submissions that were made on behalf of the applicant and that necessarily directed the Tribunal’s attention to certain matters.
I also accept, or it seems to me in any event, and your Honour may not be in a position to confirm if your Honour cannot read the reasons, but 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. The findings that are expressly made are findings about the plaintiff being able to support members of his family as he was before. Your Honour, I will move on, if your Honour pleases, to the other issue and I can be relatively brief about that, your Honour.
HER HONOUR: Thank you.
MR MARKUS: In my respectful submission, the reference to the findings “above” is a reference to findings of fact. The actual test is properly set out in the paragraph that Mr Prince has read out to your Honour and while it may not be the most desirable way of dealing with these issues, in my respectful submission, it is tolerably clear that the right test and the right context is being considered at paragraph 114 by the Tribunal, but it does not repeat the factual findings it previously made in relation to relocation in Kabul.
HER HONOUR: But is it your submission that the factual findings are consistent with a conclusion that the plaintiff would not suffer “significant harm” as defined for the purposes of the complementary protection provisions. Is that the point you are making?
MR MARKUS: Yes, your Honour.
HER HONOUR: Yes, all right.
MR MARKUS: Your Honour, the only additional matter I wanted to mention was that we do not dispute that the balance of convenience, if your Honour gets to that point, would favour the grant of relief.
HER HONOUR: Yes, thank you, Mr Markus.
MR MARKUS: Thank you, your Honour.
HER HONOUR: Mr Markus, I should say I now have obtained copies of the transcripts of the decisions both of Justice Hayne and Justice Crennan to which you referred me. Can you direct me in relation to the decision of
Justice Hayne to the particular passages where his Honour states the principles? I think I see reference as I just turn it up to Justice McHugh in Ex parte Marks and I think that might be ‑ ‑ ‑
MR MARKUS: Marks, yes. Your Honour, if your Honour goes to the other transcript ‑ ‑ ‑
HER HONOUR: Yes.
MR MARKUS: I think I identified the line number there – 1245.
HER HONOUR: Yes, I think you gave me that previously. That is in Justice Crennan’s judgment. Yes, I have that. Again, her Honour refers to Justice McHugh’s frequently cited reasons in ‑ ‑ ‑
MR MARKUS: Ex parte Marks.
HER HONOUR: ‑ ‑ ‑ Ex parte Marks respecting the extension of time in a case where the issue of constitutional or prerogative writs is sought.
MR MARKUS: Yes, your Honour.
HER HONOUR: Yes, all right. Mr Prince.
MR PRINCE: Yes, thank you, your Honour. Can I deal with the last point first, your Honour?
HER HONOUR: Yes.
MR PRINCE: My friend has just handed me the transcript of M90 which I did not have but suffice it to say, in my submission, questions of disentitlement to relief in the discretion of the Court are matters which really should await the outcome of a hearing on the merits of the case because of the comments of Justice Gaudron in Aala about the nature of the way in which the writs issue.
HER HONOUR: Yes.
MR PRINCE: To the extent that 486A is enlivened, your Honour will see that there is an issue drawn in the application for an order to show cause about the validity of that section so far as it applies, or purports to apply, to purported decisions. So that is not a matter that should be determined at this stage.
HER HONOUR: Yes.
MR PRINCE: Then, finally, on this point, the submission that applications have already been made under sections 417 and 48B of the Act to the Minister, the authorities that my friend relied on predate the way in which this Court construed the nature of that power in Plaintiff S10 in which it became clear that the nature of that power, and the right to be considered under that power, is quite ethereal, with respect. That is, there is no obligation to a court procedural fairness in relation to it. There is no obligation for the Minister to consider it. It is a far, far inferior avenue to issues of judicial review.
I have seen the material that my friend handed up to your Honour with the applications and the fact that one of those applications – I think the earliest one – was on the letterhead of somebody who is a solicitor and migration agent, my friend seemed to suggest that that may leave it open to your Honour to infer that, in fact, the plaintiff may well have received advice about the ability to seek judicial review. But that inference at this stage in this sort of procedure would be unsafe, your Honour, to draw in light of the unchallenged evidence in the affidavit. Even though it is hearsay, hearsay obviously is admissible in interlocutory matters if the source is identified.
But that material is before your Honour and it provides a basis for an explanation. It may well be that the lawyer did not draw to the plaintiff’s attention the existence of the judicial review right or that the plaintiff did not understand advice that was provided in that way, given that he is illiterate. So, in my submission, there would be an arguable case that an extension of time would be granted and, given the urgency of the matter and the nature of the proceedings, that is not, in my submission, a safe basis for refusing interlocutory relief at this stage prior to those matters being properly ventilated in a trial. Can I now address the substantive issue of ‑ ‑ ‑
HER HONOUR: Yes.
MR PRINCE: ‑ ‑ ‑ the grounds, and dealing with the first issue first? My friend accepts that it was known and recorded that there was an issue about the applicant – sorry, the plaintiff having to support his wife and children and nephew. The difficulty is that that was known, but it simply was not dealt with or explained in terms of the impact on the plaintiff of separation from the family. It would be pure speculation to suggest that there was some implicit finding in the Tribunal’s reasons that the family was no longer in Quetta and in fact in Kabul and there was not a separation.
That is the type of analysis one would expect to see if the Tribunal had actually dealt with this issue, but it has not. Where the Tribunal in paragraph 111, to which my friend referred, deals with the claims, which I will come back to, by saying – and I am reading from the third line, your Honour:
I consider it reasonable to expect that he –
the plaintiff –
would be able to obtain similar employment and to support his family financially in the same way in Kabul.
That limits the nature of the consideration to whether financial support could be provided to the family, whereas the claim which my friend referred to in paragraph 108 talks about it being unreasonable to expect – and I am reading from the second line:
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) –
There is no limitation in that submission that the responsibility is purely financial, and there are obvious other responsibilities that a father has to his children and to his wife and to his dependent nephew and they simply have not been addressed even though they were before the Tribunal and it would be – one would have to read that extraordinarily narrowly to suggest that there was no need for the Tribunal to consider the impact of separation from the family on the plaintiff in circumstances where it was a clearly necessary foreseeable consequence of him being returned to Kabul, and at the very least, it is a seriously arguable point in light of my friend’s concession.
As to the final point, section 36(2)(aa), my friend suggested to your Honour that the reference in 114 to “my findings above” can be read as my factual findings above. The difficulty with that is that the findings concerning 36(2)(a) roll up within them two elements. For example, at the end of paragraph 104 at the bottom of the page:
The issue is whether there is a real chance that failed asylum‑seekers will be persecuted as members of the particular social group of failed asylum‑seekers in Afghanistan or whether there is a real chance that they will be persecuted for reasons of a political opinion imputed to them as a result of their having sought asylum in Australia.
Then at the bottom of 105, from the third line from the end –
I do not accept on the evidence before me that there is a real chance that the applicant will be persecuted because he has applied unsuccessfully for protection in Australia if he settles in Kabul now or in the reasonably foreseeable future.
That is replete in other parts of the decision where the question of persecution on return to Kabul is wrapped up with the reasons for that persecution. So ultimately, the findings above are not disaggregated and there is nothing in paragraph 114 to suggest or to enable that disaggregation to take place.
HER HONOUR: Was there any material to suggest that in Kabul the plaintiff would be at risk of significant harm in the way that phrase is defined for the purpose of complementary protection?
MR PRINCE: Yes. There were findings, I think, that – for example, at paragraph 99, your Honour, there is a finding that:
I accept that the Taliban and other insurgent groups are able to carry out attacks in Kabul but I do not accept on the basis of the independent evidence that the security situation in Kabul is degenerating nor that an increase in sectarian violence and insurgent attacks can be expected in the reasonably foreseeable future, even taking into account the withdrawal of the international forces from Afghanistan.
What your Honour sees is a reasoning which says Kabul is relatively safer than other parts of the country, but not a finding that Kabul is safe. But those are matters for a hearing. Those are nuance issues which ‑ ‑ ‑
HER HONOUR: Well, Mr Prince, there is a preliminary stage, and that is satisfaction that there is a serious issue here, and there are components in that that require some consideration of the excessive delay in the bringing of these proceedings. Now, I understand that you say that is largely explained by Mr Supple’s affidavit. Equally, I am mindful of the statements in Re Marks respecting a delay of this length.
Now, I say all of that simply to draw to your attention the difficulty that I am labouring under. I simply cannot read the better part of the Tribunal’s reasons. That makes it hard for me to form a view about the submissions that are being made. I raise this because – perhaps it is better that I take this up with Mr Markus, but it occurs to me that perhaps instead of granting the, what I might describe as somewhat open‑ended relief that you seek in your summons, it might be appropriate to make an order granting you the relief that you claim in the summons for a relatively brief period with a view of you being in a position to obtain a legible copy of the Tribunal’s reasons so that the arguments can be better assessed. Is there a submission that you would wish to make in response to that?
MR PRINCE: Well, your Honour, given the predicament of my client, any relief would be welcome and that would be a sensible course, at the very least, because it would be unsafe to preclude him from the matter in these circumstances but can I say my primary submission would be that there is a sufficiently arguable case, at the very least, on the acceptance by my friend that the issue was formulated in the application for an order to show cause has not been addressed in terms by the Tribunal.
HER HONOUR: You are referring to first issue?
MR PRINCE: Yes.
HER HONOUR: Yes.
MR PRINCE: So there would not be a need to bifurcate – for the purposes of the relief that is being sought now if the plaintiff is entitled to relief to allow him to have that matter dealt with then the other matter would just follow in course so there would be ‑ ‑ ‑
HER HONOUR: I confess, Mr Prince, it was not entirely clear to me that a concession of the character that you describe was made but I will take these matters up with Mr Markus, I think.
MR PRINCE: Yes, but my recollection is that – my friend can speak for himself, of course, but my recollection is that when your Honour put it directly to my friend whether that matter – and your Honour read from the application for an order to show cause – had been ‑ ‑ ‑
HER HONOUR: I think Mr Markus accepted that those very words did not appear but I did not understand, necessarily, an acceptance that the consideration did not. I am not sure. I will take that up with Mr Markus.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Mr Markus, first things first. Is there an acceptance that the Tribunal did not, in the application of the test to its findings, give consideration to the matters raised in what I will describe as Mr Prince’s first point?
MR MARKUS: Your Honour, I think your Honour’s understanding of my position – or previous understanding is correct.
HER HONOUR: I see, very well. Well then, in that case, Mr Markus, can I raise with you the intermediate position that I have just canvassed with Mr Prince? Having regard to the serious consequences to the plaintiff and the difficulty that I have adverted to on a number of occasions in this hearing, what is the first defendant’s attitude to the matter being stood over for a short period to enable me to be supplied with a copy of the Tribunal’s reasons so that the matter can be properly considered?
MR MARKUS: Your Honour, I do not have instructions and, of course, it depends on exactly what is meant by “short period”. Can I just say this, your Honour?
HER HONOUR: Yes.
MR MARKUS: I have anticipated your Honour’s difficulty and I have requested a copy of the RRT decision for my own sake, and I have received it after the hearing commenced.
HER HONOUR: I see.
MR MARKUS: So I could email it from my mobile phone to the Registry and it could be printed out if that would assist but, your Honour, otherwise I would probably have to seek instructions following a brief adjournment.
HER HONOUR: I am happy to grant a brief adjournment. It seems to me at this stage, Mr Markus, very difficult to determine this matter on the material that I have in front of me. Whether the emailed copy sent in the way you suggest is going to resolve the situation I am not sure. I had in mind a relatively short adjournment of the proceedings to enable a copy to be sent and for me to have an opportunity to read it. Now, by relatively short, I did not know how long it was going to take to make a legible copy of the decision available to me. I had in mind either later this week after Court, resuming the hearing perhaps on Thursday of this week. Does that cause particular difficulty?
MR MARKUS: Well, for me personally it does, your Honour.
HER HONOUR: Well, in that case ‑ ‑ ‑
MR MARKUS: I have other commitments, but that should not be a great difficulty, your Honour. I am sure that there are other lawyers who are able to step in my place. As I said, your Honour, I cannot consent to it because I do not have those instructions and the removal is scheduled for later today, but if your Honour is minded to make those orders then that is what will happen.
HER HONOUR: Yes, thank you, Mr Markus, I understand. I think in the circumstances the appropriate course would be to make those orders. You can appreciate, Mr Markus, it is a most unsatisfactory situation. The parties
are at odds about whether Mr Prince has identified an arguable case in relation to, in particular, his first point but he maintains it equally with respect to the second.
Given the seriousness of the consequences to the plaintiff and your very fair submission respecting balance of convenience, I would think the appropriate course would be to grant relief of the character claimed in the summons but for a limited period so that the application can be properly assessed and to that end, Mr Prince, if the matter were to be stood over to 4.30 pm on Thursday, 6 February, do you expect that you would be in a position to supply a legible copy of the reasons?
MR PRINCE: Yes, your Honour, particularly given what my friend has said about having received a copy from the Department.
HER HONOUR: Yes. Now, does that proposal for Thursday afternoon cause you difficulty, Mr Prince?
MR PRINCE: It does not, your Honour, no.
HER HONOUR: Mr Markus, do you require me to give reasons in light of our discussion for making orders of the kind that I have foreshadowed?
MR MARKUS: No, your Honour.
HER HONOUR: Yes, very well. In this proceeding I will stand the proceedings over to 4.30 pm on Thursday, 6 February next. I make the following orders: that the defendants, their servants, officers and agents be prohibited from acting upon or giving effect to the decision or purported decision made by the second defendant on 24 January 2013 in respect of the plaintiff, pending further order; and I make an order that the defendants, their servants, officers and agents be prohibited from removing the plaintiff from Australia until - until further order would attend to it, would it not, Mr Markus, bearing in mind that the matter is coming back before me at 4.30?
MR MARKUS: Yes, your Honour, I am content with that. Thank you.
HER HONOUR: Yes, very well, until further order. Yes, thank you both. The Court will adjourn.
AT 6.07 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 6 FEBRUARY 2014
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