SZWAU v Minister for Immigration and Border Protection
[2015] HCATrans 2
[2015] HCATrans 002
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S19 of 2015
B e t w e e n -
SZWAU
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
REFUGEE REVIEW TRIBUNAL
Second Defendant
FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Defendant
Application for an injunction
HAYNE J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO SYDNEY
ON THURSDAY, 29 JANUARY 2015, AT 1.00 PM
Copyright in the High Court of Australia
____________________
MR S.E.J. PRINCE: I appear for the plaintiff. (instructed by the plaintiff)
MS R.S. FRANCOIS: I appear for the respondent Minister, your Honour. (instructed by Australian Government Solicitor)
HIS HONOUR: Mr Prince, you move, do you, on the summons issued this morning? I take it you read the affidavit of Ian Rintoul, affirmed on 29 January 2015. Is that right?
MR PRINCE: That is correct, your Honour, yes.
HIS HONOUR: Is there any objection to my receiving the affidavit, Ms Francois?
MS FRANCOIS: No, your Honour. I have just been provided with a copy, but I would have no objection to your Honour reading it.
HIS HONOUR: Thank you. Mr Prince, so that counsel on both sides know what I have looked at it might be useful if you take a seat and I just indicate what I have read so far. I have looked at the application for an order to show cause. I have, of course, read the summons for directions. I have read the body of the affidavit of Ian Rintoul. I have looked at what might best be described as the operative parts, or what seemed to me to be the operative parts, of the RRT decision. I have looked at the statutory declaration of the plaintiff, which is the handwritten document appearing last in the bundle.
In addition, I have looked at the decision of Justice North in WZAPN v Minister [2014] FCA 947. As counsel will be aware, that is the subject of the Minister’s application for special leave. I have looked at, relatively shortly, the outlines of submission that have been filed in that application. In addition to those documents counsel should also be aware of the fact that I have looked at the decision of Judge Street in the Federal Circuit Court in a matter of MZAPO [2015] FCCA 96. I looked at that on the footing that I was told that Judge Street had referred to that decision in the course of dealing with the application which the present plaintiff made for an extension of time. Those are the materials that I have so far looked at and I have some understanding of the matter thus far. Now, Mr Prince.
MR PRINCE: Yes, your Honour. I am grateful to your Honour for having looked at so much material in such a short period of time. Can I take your Honour to the Tribunal decision in particular? There are two elements, as your Honour will appreciate, to 91R in the relevant sense. The first is whether there is serious harm of a type listed in subsection (3), I believe, or subsection (2). The other is whether or not, relevant to this case, the persecution involves systematic and discriminatory conduct. That is taken from (b) and (c) of 91R(1).
So the way that the matter was dealt with below was that there were two requirements. One is a threat to a person’s liberty and, secondly, if that threat did not involve systematic or discriminatory conduct, i.e. it was by reason of a law of general application, then it would not amount to serious harm for the purposes of 91R. So there are two limbs to the applicant’s contention of jurisdictional error. The first is ‑ ‑ ‑
HIS HONOUR: Forgive me for interrupting. Jurisdictional error by whom?
MR PRINCE: By the Tribunal, and I will come to the Federal Circuit Court judge in turn. Obviously ‑ ‑ ‑
HIS HONOUR: Now, again, forgive me for interrupting, but I do recognise there are some time limits. At the moment the order to show cause is directed only to the RRT. It seeks certiorari. That application is within time, is it not, I think, that is, it is within the time prescribed by rule 25.06.1 of the Rules, or is there some other relevant time limit?
MR PRINCE: There is, your Honour. The Migration Act purports to impose a time limit on applications in this Court relating to migration decisions which mirrors the section in relation to the Federal Circuit Court. I believe from memory it is 483, but I might be wrong – 486, your Honour.
HIS HONOUR: Just give me a moment. Do you say it is within or without the time that the Act prescribes?
MR PRINCE: It would be without because although the applicant did not actually receive a copy of the decision until January, which would mean it would be within time, but the Act starts time from the date of the decision on 21 August, so if 486 ‑ ‑ ‑
HIS HONOUR: But 486A(2) permits the Court to extend the 35‑day period if an application is made conforming with certain requirements and satisfied necessary in the interests of administration of justice. Am I right?
MR PRINCE: Yes, that is correct, your Honour. The same power was given to the Federal Circuit Court and that was the subject of the application this morning there.
HIS HONOUR: Yes.
MR PRINCE: His Honour below found that he would not extend time for allowing the application because his Honour found that there was no jurisdictional error and so no prima facie case or reasonably arguable case.
HIS HONOUR: It was doomed to fail is, in essence, the basis?
MR PRINCE: Yes, his Honour really proceeded as if the matter was at a final hearing, just conducted very quickly, and then reached a view that there was no jurisdictional error, and then found there was no prima facie case, although to be fair to his Honour below he did, in fact, say that there was no prima facie case.
HIS HONOUR: Yes.
MR PRINCE: It was on that basis that his Honour refused to extend time. Once his Honour refused to extend time that was the end of the matter. There was no substantive determination of the application for injunctive relief on an interim basis.
HIS HONOUR: Yes.
MR PRINCE: There is no right of appeal to the Federal Court from that decision because the refusal to extend time under the Migration Act is specifically excluded from the power of the Federal Court to entertain an appeal from a decision of the Federal Circuit Court by the Migration Act.
HIS HONOUR: Now, let us at least initially assume that there is no difficulty presented by your having once engaged the judicial power of the Commonwealth to seek an order of the kind which you now afresh seek from this Court. Can we walk past that for the moment? There may be issues there, but let us walk past them.
MR PRINCE: Yes, your Honour.
HIS HONOUR: Yes. So what is the jurisdictional error to which you would seek to point?
MR PRINCE: So in respect of the finding – or if I can start with the first part first, which is at paragraph 150 of the reasons of the Tribunal.
HIS HONOUR: Yes, I have that. I have read that and underlined it. Yes.
MR PRINCE: Thank you, your Honour. The penultimate two lines of that paragraph indicate that the Tribunal took the view that deprivation of liberty on remand does not automatically involve serious harm, or harm at all. Section 91R(2)(a) sets out a list of examples ‑ sorry, 91R(2) sets out a list of examples, (a) is a subset of that, in which serious harm for the purposes of the Migration Act is said to include instances and one of the instances is “a threat to the person’s life or liberty”, so that, inevitably, incarceration on remand must mean a threat to a person’s liberty.
By the Tribunal saying that there is no such automatic serious harm that must necessarily involve the introduction of some qualitative assessment as to the nature of the deprivation of liberty and, in my submission, that is contrary to the approach taken by his Honour Justice North which until overturned by this Court remains binding on the judge below. So just as a matter of normal statutory construction, in my submission, there is no qualitative element in 91R(2)(a), unlike some of the other aspects of 91(2)(b), (c), (d) and, indeed, (e) and (f). So (a) is clearly in a special category.
HIS HONOUR: Well, again, forgive me if I interrupt you. Can I direct your attention particularly to 91R(1)?
MR PRINCE: Yes, your Honour.
HIS HONOUR: Would you accept that 91R(1) establishes that the premise for consideration of 91R is that there is a finding of persecution for Convention reason and what 91R is then seeking to do is to, some would say narrow, others would say identify, the quality of the harm that is necessary to be shown but, step one, identify persecution for a Convention reason.
MR PRINCE: In my submission, your Honour, it does not have that effect because what it does is to create an integer, or describe an integer of the test by which one reaches the ultimate conclusion about whether or not there is a well‑founded fear of persecution for the purposes of Article 1A(2) of the Convention for the purposes of section 36 of the Migration Act, so that otherwise it would lead to two‑stage decision‑making.
HIS HONOUR: Do I not read the Tribunal as finding that the applicant, the plaintiff, did not have a well‑founded fear of persecution for a Convention reason, and further finding that the harm which he feared on his return was not serious harm of the kind identified in 91R? But do I read the Tribunal aright?
MR PRINCE: In my submission, that is not the way the Tribunal decided it because your Honour cannot unbundle, in my submission, the basis of the reasons by which it reached the ultimate conclusion that he did not have a well‑founded fear of persecution for a Convention reason. So that this is an element – this finding about no serious harm on return because of the nature of the incarceration is an essential step for finding that there is no well‑founded fear of persecution for a Convention reason on the basis of his fear of being incarcerated on return. So there are a number of claims, one of which is his fear of incarceration on return to Sri Lanka and this consideration of the meaning of “serious harm” by the Tribunal is an essential ingredient in the rejection of that claim and it cannot be disaggregated.
HIS HONOUR: Yes.
MR PRINCE: In terms of the other aspect of 91R, which is whether or not somehow the definition in 91R would not apply, even if there was going to be as a matter of fact a threat to a person’s liberty where that threat did not arise by systematic of discriminatory conduct or, in substance, because it arose by reason of a law of general application, the judge below in a sense – and as your Honour will see from MZAPO – conflated that question into the question of whether or not there was a threat to liberty but, in my submission, the distinct point – and in my submission, if your Honour goes to paragraph 125 of the Tribunal’s reasons, this is where the Tribunal deals with the law of general application point.
HIS HONOUR: Yes.
MR PRINCE: The Tribunal looked at whether the law was one which was discriminatory or selectively enforced ‑ and I suppose the first component is a structural one about the law and the second one is a point of application – but, in my submission, the Tribunal did not apply the correct test which was for answering this question, which was described by his Honour Justice North after having reviewed the authorities in WZAPN, and for ease of reference I gave the Court I think a reference to paragraph 51 of that decision, and that is the nature of the inquiry in determining whether or not for the purposes of the Migration Act one can be satisfied that a law is a law of general application requires a different and more substantive process of testing and analysis than that which was undertaken by the Tribunal.
For example, there needs to be regard to the object of the law which is said to be general application and whether the detention was proportionate to that object, and there has been no analysis of that by the Tribunal. His Honour was trying ‑ ‑ ‑
HIS HONOUR: Again, forgive me interrupting, but can I just dwell a moment on this question of detention?
MR PRINCE: Yes.
HIS HONOUR: Let it be assumed – and I think the Tribunal has assumed – that there is a real chance that this man will be detained on his return to Sri Lanka. Is it relevant to ask whether he will be detained for a Convention reason?
MR PRINCE: It would be at another stage of the inquiry, or in another part of the inquiry.
HIS HONOUR: Is there anything to suggest that this man – that the chance of detention which confronts this man is detention for a Convention reason? Is that not the point of this discussion and law of general application?
MR PRINCE: In my submission, they obviously overlap, but here the basis of the fear to tie into the Convention reason was for two matters: first of all, that he is a Tamil, and second of all that he is a failed returned asylum seeker, so he is in a particular social group. But the way in which the Tribunal dealt with it, one does not get to that point because it found that the detention, or the incarceration for a period of time on remand, was not serious harm. So once it makes that finding then even if it may have said something else that would materially affect the result of its exercise of jurisdiction because if there is no serious harm there is no reason to inquire as to the reasons for that serious – or for that action which has been found to not be serious harm.
Whether or not the law is a law of general application may be one integer in answering that question of whether or not the serious harm, if it were accepted, would be for a Convention reason. It may also be relevant at an anterior stage in determining whether 91R – and this is the way it was viewed – that is, if it is a law of general application by which the person is deprived of their liberty then it is said that it is not serious harm for the purposes of 91R because it is not systematic and discriminatory conduct, so that it is relevant, or potentially relevant, at two stages of the inquiry.
In ascertaining whether or not a law is a law of general application, unfortunately the tag that has been applied to the concept is a little bit too straightforward and it really has been applied simply to ask whether or not is it a law that applies to everybody or is it a law that is selectively enforced? That is not the correct approach, in my submission, to determining whether or not the law falls into that category because of the number of other matters identified by Justice North at paragraph 51 of WZAPN, which in turn spring from the authorities – or the decisions of this Court, reasons of this Court, which are discussed and set out by his Honour in 48 and 49 of WZAPN.
HIS HONOUR: What do you say about my understanding of WZAPN as being influenced, perhaps critically, by the factual circumstance that the detention which that applicant feared was extralegal detention by the – forgive the pronunciation – the Basij, or whatever the proper pronunciation, of the Iranian para religious police is? Here what this man fears is detention in accordance with law to meet a charge under a law of general application which the Tribunal says is not selectively enforced against only some persons.
MR PRINCE: Can I deal with the last part of your Honour’s proposition first, and that is I would not accept that it is a law of general application or that the Tribunal has applied the right test in applying that label to it? Secondly, in terms of Justice North’s decision, his Honour did look at that component of whether or not it was a law of general application. His Honour dealt with that ultimately in that case on the basis that there had been a denial of procedural fairness on that aspect of the claim. Indeed, the judge below seemed to be of the view that Justice North had by finding some inviolable right to liberty had then avoided questions about whether or not it was a law of general application.
In my submission, that is not correct because his Honour did go on to deal with that issue. Indeed, the Basij derives its – there is a reference in WZAPN at page 21 to a report in which it was ‑ his Honour underlined the passage indicating that the Basij derives its legitimatisation from Article 151 of the Iranian Constitution which calls upon the government to fulfil its duty according to the Koran.
So, in my submission, his Honour was considering whether or not there had been some error in respect of the finding by the Tribunal ‑ some jurisdictional error in relation to the finding by the Tribunal about law of general application, to short phrase it, but ultimately his Honour found that that process of analysis too was affected by jurisdictional error in the form of denial of procedural fairness.
So contrary to what his Honour Judge Street said in MYPO, his Honour Justice North does not create some general immutable principle above the rule of law about immutable rights to liberty derived from international instruments. To the contrary, his Honour at paragraph 30 engages in an orthodox process of statutory construction of 91R(2)(a), which at the end of the day simply says that serious harm is a threat to a person’s liberty.
There is a harmony between that and the common law in which the fact of the deprivation of liberty remains – if it is unlawful, of course – actionable no longer how short the interference with the liberty is. Contrary to Judge Street’s submissions about the Constitution and the rule of law, in my submission, the rule of law has always had a primary objective and consideration and concern for the deprivation of liberty of people.
HIS HONOUR: Yes.
MR PRINCE: So, in my submission, his Honour was wrong to find that there was no seriously arguable case in this matter. His Honour obviously takes a different view to the view taken by his Honour Justice North, but that does not make it an unarguable case. In my submission, it is a strongly arguable case which involves very complex issues that need to be explored, and by refusing my client an extension of time his Honour has precluded my client from having the benefit of the ultimate careful consideration of all of those matters, whether it is in this Court or whether it is in the Full Court of the Federal Court in February.
HIS HONOUR: Now, Mr Prince, recognising that because of the urgency of the matter your argument has necessarily been abbreviated, can I understand whether you consider that you have at least identified the main threads of the argument that you would wish to advance?
MR PRINCE: Yes, I think I have, your Honour.
HIS HONOUR: That is, let there be no doubt about it, Mr Prince, what I want to be sure of is that you feel that you have been able to point me towards all of the available kinds of argument that you would wish to advance, recognising that in the short time you may not have been able to amplify those arguments as fully as you would wish.
MR PRINCE: Yes, I think that is fair, your Honour.
HIS HONOUR: Yes. Is there anything else you wish to add, Mr Prince?
MR PRINCE: No, your Honour, there is not.
HIS HONOUR: Thank you, Mr Prince. Yes, Ms Francois.
MS FRANCOIS: Your Honour, the starting point for the analysis, in the Minister’s respectful submission, as to why there is no arguable case comes from the text of section 91R(1) which states that:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless –
and then your Honour has already noted there are three criteria that are cumulative. The first is that the –
reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution –
So the first step in any analysis for the Tribunal is identifying why the impugned conduct is occurring. The second step is the one that has been identified in the decision of his Honour Justice North, which is whether –
the persecution involves serious harm –
and the third is whether or not –
the persecution involves systematic and discriminatory conduct.
The Minister says that no arguable case for relief arises because this Tribunal’s decision clearly dealt with (a) and (c) of 91R(1) and in no way made a finding with respect to 91R(b). So your Honour will have seen in the judgment of his Honour Justice North that the impugned passage of the IMR assessment in that case, which is set out in paragraph 15 in the unreported case on page 5, which in the reviewer’s reasons is paragraph 81, and it is bolded by his Honour Justice North, this is the impugned paragraph:
I accept there is a real chance that the claimant will be questioned periodically, and probably detained for short periods when he fails to produce identification, in the reasonably foreseeable future . . . but having regard to the guidance provided by s.91R(2)(a), (b) and/or (c), I do not accept that the frequency or length of detention, or the treatment he will receive whilst in detention will involve serious harm within the meaning of the Act.
So there the reviewer specifically deals with the question of serious harm. In this case, your Honour, the relevant passage in which the Tribunal addressed the question of persecution under the Refugees Convention rather than complementary protection, which is what is addressed at paragraph 50, if one comes to page 16, paragraph 111, that is where the Tribunal commences its relevant analysis, and I will skip past 111, your Honour, which is just a setting out of the background, and come to paragraph 124. Your Honour, if I just invite your Honour to read 124, and your Honour has read 125, but your Honour will see there is no analysis as to whether or not any period of detention or punishment will not amount to serious harm.
HIS HONOUR: Yes, I have read that, but do we find in the RRT decision a finding one way or the other about whether the applicant fears persecution for a Convention reason?
MS FRANCOIS: Your Honour, 130 is the conclusion.
HIS HONOUR: Yes.
MS FRANCOIS: And, your Honour, 126 in relation to his race.
HIS HONOUR: Yes.
MS FRANCOIS: Your Honour, this Tribunal in no way attempted to address this person’s fears on the basis of any period of detention being short so there was no qualitative assessment arising. So the ground that is pleaded in the application before this Court, which pleads a WZAPN error, simply does not arise. Rather, in oral submissions Mr Prince referred to the fact that what he says is required and what he has identified orally as a separate error is that this Tribunal’s analysis as to whether or not this was a law of general application and whether or not it was one that was discriminatory was not sufficient and he does so on the basis of an obiter discussion by his Honour Justice North in WZAPN.
Your Honour, having regard to the time, I have provided all of the cases that were analysed by his Honour Justice North but they reach probably their zenith in Applicant S v Minister 217 CLR 387.
HIS HONOUR: Yes, I have that.
MS FRANCOIS: Sorry, I am just pointing Mr Prince to where there are copies. The plurality in that case at paragraphs 42 and 43 – and this is the proposition that we put ‑ is that one does not need to analyse whether or not a law of general application is suitable and appropriate unless the court is satisfied that it is being implemented in a discriminatory fashion so one only needs to take a further step in the analysis as to the composition of the law and its impact on a society if the decision‑maker has found that the law has a discriminatory impact or approach.
So, for example, one might postulate that the drug laws in the US have a greater impact on the African/American population than the white population so one might say that is a discriminatory impact. At that point there would then be the analysis as to whether or not those drug laws were suitable and adapted to their purpose, but one does not need to take that step
unless the law is being applied in a discriminatory way or has a discriminatory impact.
At that point, that is when the analysis is required, and there is nothing in any of the cases that his Honour has examined that requires a different view. Here, the Tribunal’s finding that the law was one of general application and not discriminatory disposes entirely of the application, and that is because having made those findings section 91R(1)(a), whether or not it is for a Convention reason, and section 91R(1)(c), whether or not it is systematic and discriminatory, cannot be satisfied. So whatever might be said about serious harm, once section 91R(1)(a) and (c) cannot be satisfied, that is the end of any application for a protection visa.
HIS HONOUR: Yes.
MS FRANCOIS: Your Honour, I did not propose to take your Honour to Judge Street’s reasons in his case that has been published because his reasons in this case are not published and so we understand that the applicant’s case is that there is error on the face of the record simply by reason of there being a jurisdictional error that was not identified by the primary judge, and so on that basis I do not propose to address what has been said about his Honour’s reasons. There are things I could say, but I think this case ultimately turns upon this Court’s consideration of the reasons for the RRT and whether or not this Court considers that there is an obvious error that meant that leave ought be granted for this applicant to make his application out of time.
HIS HONOUR: Yes.
MS FRANCOIS: Your Honour, unless I can be of further assistance I did not propose to take your Honour through those cases on laws of general application, but I think I provided to your Honour’s associate the references to the critical passages that your Honour could trace.
HIS HONOUR: Yes, thank you. Yes, Mr Prince.
MR PRINCE: Yes, thank you, your Honour. Can I just briefly deal with a couple of points? First of all, in paragraphs 125 and 126 to which my friend referred when answering your Honour’s question about – I am sorry, my friend referred to 126 and 130 in answering your Honour’s question about whether the Tribunal had dealt with whether it would be for a Convention reason.
Paragraph 126 does involve a rejection of the proposition that my client would be incarcerated because of his race as a Tamil, but what is not dealt with in the Tribunal’s reasons is the prospect that he will be incarcerated because he belongs to a particular social group, namely, failed asylum seekers returning to Sri Lanka.
HIS HONOUR: Is that not dealt with in paragraph 130?
MR PRINCE: No, your Honour, in my submission, it is ‑ ‑ ‑
HIS HONOUR: That is, do I not find – just a moment, Mr Prince – do I not need to take account of, first, paragraph 65, which is rejection of the political opinion claim?
MR PRINCE: Yes.
HIS HONOUR: Second, paragraph 93, perhaps a reiteration of the political opinion claim founded on membership of LTTE, the earlier one founded on race – on ethnicity, and 130, no persecution for Convention reason of membership of a particular social group. Is that not the structure?
MR PRINCE: Yes, in my submission, but that structure just highlights the omission of any dealing with whether or not he would be persecuted for membership of a particular social group, namely, failed asylum seekers, a matter about which his credit could have no relevance because there could be no question that he will be a failed asylum seeker on return to Sri Lanka; it does not depend on his credit.
HIS HONOUR: Yes.
MR PRINCE: So 130 does not really take the matter any further. It is merely a generalised rejection. It does not indicate that the Tribunal in fact dealt with the particular social group foundation for the claim of fear of incarceration on return. Indeed, in the first line of paragraph 125 the point is that it was accepted that he faces punishment for breaking Sri Lankan law by leaving illegally, so there is no, in my submission, separate and independent basis for rejecting the claim that he would face a well‑founded fear of persecution on the basis of his membership of that particular social group.
HIS HONOUR: Yes.
MR PRINCE: In terms of my friend’s submissions about Applicant S, in my submission the question of the considerations identified by Justice North in WZAPN ‑ although they may be obiter they were carefully expressed obiter and, with respect, his Honour is right ‑ involve a consideration both of the law and the nature of the law which this Tribunal did not engage in and also a consideration of the application.
Both are relevant in this case given the nature of the law which makes it illegal for people to leave Sri Lanka without the permission of the Sri Lankan Government, a matter which by its very nature necessarily and likely impugns the right of people to flee to seek asylum under the International Covenant on Civil and Political Rights, and the very nature of the law is targeted to people who seek to escape Sri Lanka, or leave Sri Lanka, but are not in a position to be given permission to do so by the Sri Lankan Government.
So this is not simply a law of application by reason of acts which could be committed by the general community at large. In my submission, this is a particular type of law which has a particular type of cohort to which it is addressed.
In relation to the issue of whether it is applied discriminately, in my submission, the Tribunal did make a finding that it was not applied discriminately against Tamils, or they did not do so in the framework set out by Justice North in paragraph 51, but more importantly the Tribunal did not consider whether it is applied discriminatorily in relation to failed asylum seekers who return from Australia, which is the particular social group. It is just a matter upon which the Tribunal did not give any reasons.
HIS HONOUR: Yes.
MR PRINCE: So that there is an arguable case, in my submission. It does not have to be, in my submission, an obvious and unarguable error. In my submission, it is seriously arguable.
HIS HONOUR: Well, it is application for injunction. It must be only a case for investigation, in effect. It is not a particularly high bar that you have to surmount, I understand that.
MR PRINCE: Thank you, your Honour.
HIS HONOUR: The plaintiff, a Sri Lankan of Tamil ethnicity, is to be removed from Australia by aircraft departing at 3.30 pm today. He applies for an order of this Court restraining his removal from Australia.
The plaintiff arrived in Australia by boat in July 2012. In November 2012 he sought a protection visa but a delegate of the Minister refused that application in September 2013. The plaintiff sought review by the Refugee Review Tribunal of the refusal to grant him a protection visa. On 20 August 2014, the Tribunal affirmed the decision not to grant the plaintiff the visa which he sought.
For reasons and in circumstances which it is not necessary to explore the plaintiff says that he did not obtain any copy of the reasons of the Tribunal until January 2015. He applied to the Federal Circuit Court for an extension of time within which he might apply to that court for judicial review of the decision of the Tribunal. Judge Street of the Federal Circuit Court this morning refused the application for extension of time on the basis, I am told, that the plaintiff’s application for review enjoyed no substantial prospect of success.
The plaintiff at once commenced a proceeding in this Court by application for an order to show cause naming the Minister, the Refugee Review Tribunal and the Federal Circuit Court of Australia as defendants. The relief which the plaintiff sought was, first, to the extent necessary, an order that time to institute the proceedings be extended; second, an order that all of the defendants, which is to say the Minister, the Tribunal and the Federal Circuit Court, show cause why a writ of certiorari should not issue to quash the decision of the Tribunal made on 21 August 2014; third, an order that the defendants show cause why a writ of mandamus should not go directed to the second defendant, which is to say the Tribunal, to hear and determine the application for review made by the plaintiff according to law; and, fourth, prohibition or injunction, in effect, restraining the Minister from removing the plaintiff from Australia until the determination of the proceedings in this Court.
The application for the substantive relief claimed by the plaintiff is made within the time prescribed by rule 25.06.1 of the High Court Rules 2004 (Cth) but is made beyond the time prescribed for such applications by section 486A of the Migration Act 1958 (Cth). This Court has power under that provision to extend the time within which proceedings of the kind to which it is directed may be instituted if the interests of justice require that extension to be made.
The injunction which the plaintiff seeks is an injunction to preserve the subject matter of the litigation which he has instituted in this Court. The immediate question which I must decide is therefore whether there is a sufficient case to be investigated to warrant the issue of injunction preserving that subject matter pending hearing and determination of the proceedings in this Court in the ordinary way. On the face of it, that would suggest that the plaintiff faces only a very low barrier to his succeeding in the application which he makes.
It is nonetheless important to bear in mind that the application instituted in this Court is instituted beyond the time fixed by the Act for its commencement and that accordingly the plaintiff requires an extension of time within which the proceeding may be instituted. It is also necessary to give due weight to the fact that this is the second application which the plaintiff makes for relief in respect of the decision of the Refugee Review Tribunal. He first applied to the Federal Circuit Court seeking relief of the kind which he would seek in this Court but again, facing the expiration of the time limit for commencement of proceedings in that court, he failed in his application for extension of time on the ground, as I have already noted, that the application enjoyed no significant prospect of success.
I need not consider in this case whether the earlier application made by the plaintiff to the Federal Circuit Court presents any difficulty in the way of his moving this Court for the relief which he would seek by the application he has filed. Nothing that I say in these reasons should be understood as expressing any concluded opinion on questions of that kind.
The central point which the plaintiff seeks to agitate in this Court is that the Refugee Review Tribunal committed a jurisdictional error by failing properly to apply the provisions of section 91R of the Act. The plaintiff amplified that submission by submitting that the decision of the Refugee Review Tribunal did not accord with the understanding of section 91R expressed by Justice North in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. As it happens the Minister has filed an application for special leave to appeal to this Court in the matter of WZAPN. That application for special leave has not yet been decided.
For the purposes of determining this application I will proceed on the footing that the Tribunal was bound to act in accordance with the law as it may be understood to have been stated by Justice North in the decision in WZAPN. That assumption should not be understood as expressing any concluded view at all about the correctness of his Honour’s exposition of the law. Those are matters which await consideration in the application for special leave brought by the Minister.
The Tribunal gave extended reasons for determining that the decision of the delegate should be affirmed and that the applicant should not have the protection visa which he sought. The plaintiff made a number of claims before the Tribunal, including claims that he feared persecution, if he were to go back to Sri Lanka, on grounds of his race as a Tamil or his imputed political opinion as a Tamil, or single male Tamil, on the further basis that he would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future for reason of real or imputed political opinion as a supporter or sympathiser of the Liberation Tigers of Tamil Eelam and that he would face persecution on account of his membership of a particular social group which could variously be identified as being returned failed asylum seekers, returned Tamil failed asylum seekers or failed Tamil asylum seekers returned to Sri Lanka.
In the course of its reasons the Tribunal concluded, amongst other things, first, that it found:
on the evidence before [the Tribunal] in this case, that there is not a real chance that the applicant will be persecuted now or in the reasonably foreseeable future for reason of his race as a Tamil or his imputed political opinion, as a Tamil, or as a single male Tamil, and that his fear of persecution in Sri Lanka is not well‑founded.
See the Tribunal reasons at paragraph 65. The Tribunal further found that on the basis of the evidence before it:
including the available country information, [the Tribunal found] there is not a real chance that the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future for reason of real or imputed political opinion as a supporter or sympathiser of the LTTE, and that his fear of persecution is not well founded.
See paragraph 93. Finally, so far as presently relevant, the Tribunal further found that on the evidence before it:
there is not a real chance that the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future for reason of his membership of the particular social groups ‘returned failed asylum seekers’ or ‘returned Tamil failed asylum seekers’ or ‘failed Tamil asylum seekers returned to Sri Lanka’ or any similar formulation, and that his fear of persecution is not well‑founded.
See paragraph 130.
The Tribunal accepted that there was at least a real chance that on his return to Sri Lanka the applicant would face punishment for breaking Sri Lankan law by having left Sri Lanka without permission. To do so was, the Tribunal found, an offence under the Immigration and Emigration Act of 1948 of Sri Lanka and in particular sections 45 and 45A to G of that Act. The Tribunal further found that there was a real chance that the applicant might be remanded in custody after being charged under that law if he were to be returned to Sri Lanka.
The plaintiff would seek to submit in this Court that it follows from the decision of Justice North in WZAPN that a person will suffer serious harm of a kind identified in section 91R of the Act if that person suffers deprivation of liberty, no matter what may be the circumstances that lead to that deprivation of liberty.
The plaintiff would seek to amplify that submission by saying that it is therefore enough for him to have shown to the Tribunal, as he did, that there is a real chance that if charged with leaving Sri Lanka unlawfully he would be remanded in custody pending trial or, I would add, presumably if having been charged with that offence he were convicted of it and sentenced to any term of imprisonment. The plaintiff would seek to submit in this Court that he should not now be deprived of the opportunity to advance arguments that the Tribunal committed a jurisdictional error on the bases which I have identified.
Section 91R(1) of the Act provides that:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
It will be observed that the premise for the engagement of section 91R(1) is that Article 1A(2) of the Refugees Convention as amended by the Protocol is otherwise satisfied, there being persecution – I interpolate a real risk of persecution – for one or more of the reasons mentioned in that Article.
The question of whether the persecution involves serious harm to the applicant arises if, and only if, it is first demonstrated that the applicant fears a real risk of harm for a Convention reason. It is, in my opinion, unarguable in the face of the Tribunal’s conclusions about fear of persecution on account of race or political opinion that any question arises under section 91R in respect of those claims. No doubt for this reason counsel for the plaintiff placed particular weight in his argument upon that branch of the plaintiff’s claims alleging fear of persecution on account of his membership of a particular social group identified, in effect, as failed asylum seekers.
The Tribunal’s reference to the Immigration and Emigration Act of Sri Lanka being a law of general application and the Tribunal’s inquiry into whether there was material showing that that Act was applied in any discriminatory fashion must be understood in the light of the inquiry which it had to make in response to the plaintiff’s claim of persecution on account of his membership of a particular social group, identified in the fashion I have indicated.
In my opinion it is not arguable that the Tribunal committed any jurisdictional error in deciding that the plaintiff did not fear persecution on account of his membership of the particular social group identified in the fashion indicated. To hold to the contrary would entail that any and every person who claims to fear persecution, but is unsuccessful in showing that the claim is well‑founded, would nonetheless be a refugee if liable to detention for leaving the country of origin unlawfully. Because that is so no question would arise in this matter about how section 91R should apply. No question of that kind would arise because the premise for the application of section 91R was not made good before the Tribunal and the Tribunal’s conclusion in that regard is not open to challenge.
In these circumstances it is not shown to be arguable that it would be in the interests of justice that the time limit prescribed by the Act be extended to permit the plaintiff now to make a claim in this Court for relief of the kind sought in the application for an order to show cause. That being so, the application for injunction should stand dismissed.
MR PRINCE: If the Court pleases.
MS FRANCOIS: Your Honour, the Minister would seek his costs.
HIS HONOUR: Yes, what can you say, Mr Prince?
MR PRINCE: I cannot say anything against that, your Honour.
HIS HONOUR: Yes. The application stands dismissed with costs. Adjourn the Court.
AT 2.08 PM THE MATTER WAS CONCLUDED
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