Tahiri v Minister for Immigration and Citizenship
[2012] HCATrans 336
[2012] HCATrans 336
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M77 of 2012
B e t w e e n -
JAVED HUSSAIN TAHIRI
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Defendant
FRENCH CJ
BELL J
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 7 DECEMBER 2012, AT 10.01 AM
Copyright in the High Court of Australia
MS L.G. DE FERRARI: If the Court pleases, I appear with MS K.E. GRINBERG for the plaintiff. (instructed by Victoria Legal Aid)
MR S.B. LLOYD, SC: I appear with MR C.J. HORAN for the Minister. (instructed by Australian Government Solicitor)
FRENCH CJ: Yes, Ms De Ferrari.
MS DE FERRARI: Your Honours, the case involves judicial review of a decision of a delegate of the Minister to refuse the grant of a subclass 202 (Global Special Humanitarian) visa to the mother of the plaintiff. The mother is an Afghan citizen of Hazara ethnicity who has been living for many years in Pakistan. Now, the refusal was because in respect of each of four children who were included as secondary applicants in the visa application, the delegate was not satisfied that public interest criterion 4015, or PIC 4015, was satisfied.
Now, subclass 202 is a visa that can only be granted to a person who is offshore, and the Act does not require the giving of reasons and excludes merits review, and it is for those reasons that there are more documents than is usual to look at in terms of considering the grounds of judicial review. Can I go to the special case book and indicate the important ones? First of all, your Honours, as part of the special case that was stated, paragraph 20 refers to the fact that all:
Relevant events that occurred in the course of consideration of the application for a visa . . . were recorded . . . in a computerised records system of the Department –
and that attachment J consists of “a printout of all the entries” from those records. The important entries have been reproduced as facts in the special case because as your Honours will see when your Honours go to attachment J, which starts at page 124, first, it is not easy to read, and secondly the print is far from excellent.
FRENCH CJ: I think that is a familiar experience for some of us.
MS DE FERRARI: Yes. At paragraph 26, the special case facts include there one of the important entries from attachment J, and can I, in particular, refer to the lines at about point 9. This is an entry made by the delegate, and the fact that entries made by the delegate or not is recorded in a computer system. I will show your Honours in a minute how that is:
I accept that the applicant is a single female whose husband is missing, and that the drivers –
for her leaving Afghanistan –
were both the general situation and economic.
On the next page, your Honours, paragraphs 28 and 29 deal with a letter of 6 September 2011 which was requested by the delegate be given to afford the mother natural justice in respect of the custody requirements. That letter is at special case book, pages 168 and 169. It might be convenient to go to that letter now, your Honours. It is headed:
Invitation to comment on information for class XB (Refugee and Humanitarian) visa application –
Then, the important paragraph, the second paragraph:
There is no evidence to hand that you are able to satisfy the public interest criterion with regard to child custody in relation to the included minor children. There is no evidence that
· The law of Afghanistan permits the removal of the children
·Each person who can determine where the children will live has given their consent or
· There is an Australian child order –
The letter then sets out public interest criteria 4015 at the bottom of that page and your Honours will see that it reproduces a correct text and paragraph (a) corresponding to bullet point 1 is:
the law of the additional applicant’s home country –
So, the delegate had already decided by that point that the home country of each of the children was Afghanistan. Then, on the next page, after “Timeframe for response” -
You are entitled to comment on this information –
Now, this information is the absence of information –
which will be considered in making a decision on your application.
In response to that letter the plaintiff’s mother provided to the Department a document which is entitled “Aram High Court, Kabul Afghanistan” written in English and attachment M, which is at page 172, is a copy of that document. There is later correspondence about asking for the original and in the event the Department is told fairly ‑ ‑ ‑
FRENCH CJ: This was presented as a document issued by the court?
MS DE FERRARI: Yes.
FRENCH CJ: Nobody contends now that it was?
MS DE FERRARI: Nobody contends that – the plaintiff certainly does not contend that there is something to be made of that document. The plaintiff refers to the finding of the delegate that there are a lot of documents that are produced in Afghanistan which might not seem what they are and does not give it weight one way or the other. It is an attempt to respond to the law of Afghanistan, your Honour, plainly, and it is more of a – just reading it on its face in the ungrammatical English version, it appears to be almost like the taking down of a statutory declaration by the mother as to who the children are and the fact that they are living without any guardian, she says, and that the husband is missing and that the plaintiff, who is the older child, is the person upon whom they are depending.
Now, the plaintiff informed the Department pretty soon after that there was no diary original and the document had been obtained by the Afghan consul in Quetta, but as your Honour the Chief Justice pointed out, I draw your attention to that document but, in my submission, it goes nowhere for the purposes of this case given the way that the delegate dealt with it.
Then on page 16, paragraph 38 is an important entry. Again, this is an entry by the delegate. That is after he reviews again the documents in the application and the file consisting of the application, and considers in particular the Aram High Court documents - I call them that way but – in English and Dari. The important point, your Honours, is what the delegate says at the bottom:
There [is] no compelling evidence with respect to the missing status of the husband.
Now, that links to the next entry which is on 2 January, but before that, the delegate says that there should be a further affording of natural justice to the mother in respect of whether these documents are genuine or not and the notes that are included at attachment S reveal that, in fact, that effectively ‑ ‑ ‑
FRENCH CJ: Sorry, you have just been referring us to page 16 of attachment J. Is that right?
MS DE FERRARI: Sorry, attachment S is a copy of the notes that are made when there is a brief telephone interview with the mother in terms of natural justice as to the status of the documents, whether they are genuine or not. The notes from the interview are also recorded in the computerised entry. Everything is recorded in the computerised entry, but if your Honours go to page 208, those are the contemporaneous interview notes from the telephone conversation.
FRENCH CJ: That is attachment S, yes?
MS DE FERRARI: Yes, attachment S, page 208. The relevance of that, your Honours, is that apart from that and apart from the letter of 6 September 2011, there is nothing else about affording the mother natural justice and that is relevant to the grounds of breach of the laws of natural justice I will come to. Then, the final entry is on 2 January 2012 and that is when the delegate makes a decision. Now, can I pass that entry a little bit, your Honours? The first point at about line 4 ‑ ‑ ‑
BELL J: I am sorry, where are you now?
MS DE FERRARI: Page 17, paragraph 40 of the special case.
BELL J: Thank you.
MS DE FERRARI: At about line 4 of that entry the delegate says:
however in this case, there are concerns as to the child custody provision, namely as to the right –
of the mother –
to determine where the minor children will live.
Now, when your Honours look at the language of PIC 4015, which is reproduced at special case book 104, that is a reference to paragraph (b), that is, who are the persons:
who can lawfully determine where –
they will live and do they consent. Then about four lines later, after again recording the claim, never disbelieved that the husband has been missing since he went to Kandahar province in Afghanistan for work and never returned – that was in about 2003 – the delegate says:
The applicant did not present any evidence to suggest that the husband is deceased –
and that links back to the previous interview I took your Honours to of 23 November 2012 when he was asking for compelling evidence.
FRENCH CJ: Now, what is the sort of general framework within which you are taking us to these materials? You are asserting jurisdictional error on the part of the delegate.
MS DE FERRARI: Yes.
FRENCH CJ: That presumably is not an invitation to second guess the delegate’s findings of fact?
MS DE FERRARI: No.
FRENCH CJ: So how would you formulate that in a broad way?
MS DE FERRARI: Your Honours, this entry on 2 January 2012 is the reasons, or part of the reasons, or it is other findings, including the findings that the children were – their home country was Afghanistan – and the Aram High Court documents were not genuine. These are the reasons for the decision. Now, the cases are clear, that even if there is no obligation to give reasons there might be documents that show what the reasons are ‑ ‑ ‑
FRENCH CJ: I understand that. So you are inferring reasons from what has appeared?
MS DE FERRARI: Yes, and I am passing this ‑ ‑ ‑
FRENCH CJ: Mr Lloyd does a similar exercise, I think.
MS DE FERRARI: Yes. I do not think there is really any dispute about what are the reasons.
FRENCH CJ: No.
MS DE FERRARI: I am passing this entry with some care because here the delegate does purport to deal with, in particular, paragraphs (a) and (b) of PIC 4015. Now, all of the three paragraphs of that public interest criterion are disjunctive; that is, the applicant only has to satisfy one of them, so he needs to deal with all of them, and there is no issue here that there is no Australian child order so paragraph (c) is not relevant. These entries I am passing them with some care to show how he jumps in a sense from consideration of paragraph (a) and paragraph (b) to then say why there was error in respect of – why there is jurisdictional error.
FRENCH CJ: Do you assert error by way of misconstruction or do you assert that jurisdictional error can be found in the application of these paragraphs?
MS DE FERRARI: Your Honours, in respect of paragraph (a), that is, the law of the applicant home country, I assert it by way of misconstruction, in particular misconstruction of the definition that is imported into there, that is, the home country. I assert it by reference of the facts, that is, on no view of the facts was it open to find that the children were usually resident in Afghanistan. Both your Honour the Chief Justice, when he was part of the Full Federal Court in the decision of Scargill, and his Honour Justice Gummow in Gauthiez, do consider the possibilities on the facts, it is just not open to find that the person is usually resident in the country that the decision‑maker has found them to be.
So, I assert them on those two bases in respect of paragraph (a). In respect of paragraph (b) is an error of law and the error of law is that the paragraph, unlike paragraph (a), does not call for a choice of law question. That is clear because the drafting is quite distinct and when the drafter wanted that there be a choice of law, the drafter had done so specifically in paragraph (a), asking for the law of the applicant’s own country and had done not on paragraph (b). So the delegate, as this entry will show on 2 January, really mixes up the two and finds that, even for paragraph (b), the applicable law is the law of Afghanistan.
GAGELER J: So what law applies in paragraph (b)?
MS DE FERRARI: The law of Australia, your Honour.
GAGELER J: Does that include Australian choice of law rules?
MS DE FERRARI: No, your Honour, it does not include Australian choice of law rules. So the migration law of Australia – this is a decision about looking about whether someone can consent to a visa allowing the person to come to Australia. It is a pure migration law issue to be determined according to pure Australian law.
GAGELER J: What does pure Australian law say about guardianship rights in Pakistan or Afghanistan?
MS DE FERRARI: Well, Australian law would construe that regulation by saying who are the people who can consent to that child coming to Australia? Under Australian law, those people are the parents. It would not look at the law of Afghanistan. That is why I say it is Australian law without a choice of law issue.
GAGELER J: Well, you hypothesised that all relevant people are living in Australia?
MS DE FERRARI: No, your Honour. They might be living elsewhere but who they are is to be determined according to Australian law and the Australian notions of parental responsibility, guardianship – those notions - not by reference to, if the delegate is correct, the law of Afghanistan which says that custody, in its extended meaning, or guardianship, falls on the father’s side and that is the end of the matter.
Now, if I am wrong about that, your Honour, and it is not just strict Australian law that looks at parental responsibilities but it asks for a choice of law question, then the delegate erred, in any event, because the relevant law would be the law of the place of habitual residence of the children and that is Pakistan. There is no consideration, whatsoever, to the law of Pakistan.
But, my primary position – and I should be upfront about this – the plaintiff wants to win on paragraph (b) first and foremost on the construction that it is Australian law because, in that case, the plaintiff says, I submit, that the only person who is selected as the person who can consent is the mother and there is no doubt that the mother consents to the children coming to Australia. Now, if we win on that, obviously, then it short‑circuits a lot on what will happen on a remitter and it would not take another year or more to go and consider the law of Pakistan, or any other law.
So I am urging the Court to find that there is error in respect of all the grounds that I am making out but, for obvious reasons, we would prefer to win on paragraph (b) on the basis that the mother is the sole person who can consent and she does consent. Now, I was going through the entry on 2 January 2012. I think I read the part at about line 10 or so when the delegate, linking back to the earlier entry, says:
The applicant did not present any evidence to suggest that the husband is deceased and from what we know about the movement and migration for work and asylum seeking purposes, there are several possible scenarios with regard to his current location.
That is obviously relevant for the natural justice point I will come to later, because none of this information or the fact that it was in issue was disclosed to the mother –
The client was given the opportunity to present documents or evidence with regard to her ability under the law of Afghanistan to remove the minor children –
clearly, because the letter said “law of Afghanistan”. Again, that is a reference to paragraph (a) of PIC 4015. Then about seven lines from the bottom –
On balance I am not satisfied that the law of Afghanistan would permit the removal of the children –
That is again a reference to paragraph (a), and then –
we do not have any evidence as to the consent of persons who have the right to determine where the child will live –
Now moving back to paragraph (b). Finally –
In both Afghan law and custom, the custody of the minor children would fall to the father’s side if there were credible and substantial evidence of the death of the father.
I will come later to the significance of that, given that the delegate finds that the father is not dead, but that is the passing of those reasons for decision and I have indicated the important references to paragraphs (a) and (b) in paragraph 3 of my outline of oral submissions, your Honours.
Can I go briefly to some of the other documents? At page 36 of the special case book, there is the application by the mother for the offshore humanitarian visa and on the first page, page 36, there is her name, then on the left‑hand side under “Current country of residence Pakistan”, “Date you arrived in the country”- it says “03/04”, “Status in this country I”, which is a code for “Illegal resident”. She then states that she is married legally, and this occurred in Afghanistan.
On the next pages she gives the details of the children included in the application. On page 40, in response to question 5, she gives a current address in Pakistan. On page 43 in answer to question 11, “Do you have a husband, wife, de facto partner” and so on, she gives the name and then says he is the husband, and “The husband is missing”. On page 46 in response to question 17, she gives the details of the plaintiff as the proposer for her migration to Australia.
On the next page, page 47, in answer to question 18, when did the proposer and the applicant last live together - “Feb/Mar 09” in Pakistan. On page 51, in answer to question 23, “For each person included in this application list every address where they have lived during the last 10 years” and there is an address in Pakistan since March 2003 for all the people in the application. On page 52 – Part G is the humanitarian claims – now, in answer to question 25 “What is the name of the country you have a rear of returning to? Afghanistan”, but your Honours will see in answer to the following questions, 27, 28 and so on, there is a notation, “Immediate family application”.
This is because subclass 202 has two streams and one is a stream that looks at the circumstances of a person who fears substantial discrimination amounting to gross violation of human rights and the other stream is the so‑called split family stream where there is no need to show substantial discrimination, so the applicant is indicating she is relying on that and that is in accordance with this Court’s decision in Shahi. On page 55 in answer to question 36 it asks for her employment and she says she is not employed. That is all for that document.
I mentioned attachment J and the relevant entries having been extracted in paragraphs of the special case. Attachment J starts at page 124. For present purposes I just wish to indicate to the Court at page 131 at about point 5 there is a heading that says “Case Notes - Notes from Melbourne IRIS”. So these which follow are initial consideration of the visa application in Melbourne. Then on page 133 at about point 6 there is a heading that says “Notes from Dubai”.
Everything that follows is consideration of the visa application once it was moved to Dubai after a brief initial consideration in Australia. The entries are in reverse chronological order so your Honours will see that the first entry is entry 69 which is a refusal letter sent to an email address. Your Honours will see that under the entry there are details of a name and a date and that indicates who it is and on what date they made the entry. So entry 68 is the reasons for decision of 12 January of this year and your Honours will see on the next page, page 134, where the entry finishes that it indicates the entry was made by the delegate on 2 January of this year.
I should briefly mention the interview notes starting on page 163. These are notes that the Minister relies upon. These are notes of an interview that was conducted as far back as 6 May 2010 and I will come back to those. It is an interview that was conducted by an officer of the Department and she interviewed the mother and the two older children, Abbas Ali and Masuma, and records what they say. My submission is that their notes are very unclear and nothing really can be drawn about whether or when they travelled to Afghanistan, but I will come to that later.
BELL J: But they are consistent with a trip back to Afghanistan, is that it?
MS DE FERRARI: Well, possibly a trip, but not necessarily to obtain the passports because her evidence – and I am coming to that – is that the passports were actually issued in Pakistan and the passport documents, which have not been included in the special case book but were part of the affidavit in support of the application for an order to show cause, show them issued by the Afghan consul in Pakistan. So that is why I am saying the notes are ambivalent and really they do not form a basis for making any findings about when or for what purpose she travelled back to Afghanistan.
GAGELER J: This goes to your point in paragraph 2 of your outline of oral submissions?
MS DE FERRARI: Yes.
GAGELER J: Which is really responding to an argument put by the respondent?
MS DE FERRARI: Yes, I am going a bit on a front foot, your Honour. But in any event, it is such a matter of so little weight that when I take your Honours to the factors that point to unequivocally, unchallengeably to Pakistan as the country of usual residence, it really does not detract from that conclusion if she travelled back to Afghanistan on one occasion for whatever purpose.
GAGELER J: I do not think you can find an express finding one way or the other by the delegate.
MS DE FERRARI: No, I am not. No, absolutely. All I am saying is that the Minister does not have the basis for saying that a finding should be made that that is the purpose for which she travelled back to Afghanistan.
GAGELER J: Yes.
MS DE FERRARI: I was finally wanting to take your Honours to what are called Form 80s. They start at page 176. They are personal particulars for character assessment. They are usually requested by the Department just prior to a visa being granted. That is just practice; it does not indicate anything. But they were completed by the mother and by the two older children. Now, the first one is the one by the mother and your Honours will see on page 177 in answer to question 13, “Details of all passports ever issued to you”, she gives the passport number and says the country of issue is Pakistan. Now, in my submission, she misunderstood the place of issue rather than the country of issue. There is no doubt the passports were Afghani passports but they were issued, we say, in the Afghan consulate in Pakistan.
In answer to question 17 again she gives the same residential address. At the bottom again the husband is missing. On page 181 the Form 80 asks for at question 21 all previous addresses. Now, they are not in chronological order, but the first one is the middle one. It is Afghanistan up to 2003. Then the second one is the one that appears first on that list, in Pakistan, and then the third one, again an address in Pakistan. In answer to question 22, her present occupation is a housewife and she gives – so she does not have an employment history - that is question 23 – nor does she have an education history – question 24.
More interesting, the Form 80 is perhaps for the two older children. The one for the child Abbas Ali starts at page 185, and again in answer to question 13 on page 186 it gives the details of the passport. Page 189, again, question 21, the same residential addresses. Question 23, “Give details of your employment” - 2004 to 2010, self‑employed in Pakistan as a street trader. Question 24, “Give details of your education history” - 2004 to 2011, English courses and basic computer courses.
Now, it does not say what country but given that he was living in Pakistan they were done in Pakistan, and the same for the older female child, Masuma. Her Form 80 starts at page 193. In answer to question 13 she gives the details of the passport. That is page 194. Page 197, in answer to the residential addresses, the same answers, and then “What is your present occupation” – “Giving a hand to mother and part‑time studying”. “Give details of your employment history” – she does not set out any. “Give details of your education history” – it is the same as the other child, courses in Pakistan.
So in summary, the basic facts on which the plaintiff relies, your Honours, are these: that by the time of the decision which was January 2012, the mother had had the sole parental responsibility for the four children for nearly nine years. That is because the father had gone missing in Afghanistan in 2003 and the evidence is that neither the mother nor the plaintiff, who is older than the four children for whom a visa has applied, had heard of him since and there is nothing in the evidence to suggest that the relationship between the father and his family was one other than if he was not dead he would try to contact them.
FRENCH CJ: When you speak of evidence, what you are really talking about here is the material for the delegate?
MS DE FERRARI: Yes, your Honour.
FRENCH CJ: Presented by the mother.
MS DE FERRARI: Presented by the mother and in no way on the findings of the delegate challenged. I should say probably at this point that in fact when your Honours go through the material, nowhere except for the Aram High Country documents, which I have dealt with, nowhere does the delegate doubt the veracity of the mother’s evidence. In fact, there is an early entry where he is recorded as saying something to the effect of “I think that they are not very well versed with migration law to Australia and they have basically been quite straightforward and innocent in the answer they have given”.
BELL J: We have to establish that it was not open to the delegate to conclude that the additional applicant’s home country was not Afghanistan. In circumstances in which she produces the High Court document purporting to demonstrate that Afghanistan permits the removal of the children, that is one piece of information upon which the delegate might have determined that Afghanistan was the country for the purposes of PIC (a).
MS DE FERRARI: In my submission, no, your Honour. The document was given in direct response to a request about evidence about the law of Afghanistan permitting the removal but the cases are clear that that is not a factor that goes to usual residence. Usual residence is where the person lives and their intention. Those are the main factors about finding where the place of usual residence is.
FRENCH CJ: You accept that while it is a legal criterion, the judgment ends up being an evaluative matter and a matter of characterisation for the delegate determining whether it is established that the place of usual residence is Pakistan.
MS DE FERRARI: Only if there is no misconception about what the expression requires, your Honour. It is clear when one goes to the cases – I may as well go to the cases now, your Honour. For example, can I go to the decision of the Full Federal Court in Scargill v Minister forImmigration and Multicultural and Indigenous Affairs (2003) 129 FCR 259?
Now, your Honour the Chief Justice was part of that court. In that case, there was no doubt that the Tribunal had correctly stated the test but, even though the Tribunal had correctly identified the test, the court found that it had not properly construed it because it had not properly regard to the factors – the evaluative factors by which that test is to be applied. Your Honours will see at paragraph 21 which is on page 265, “Was a wrong test of ‘usually resides’ applied?” and the court starts by saying:
We have already observed that the Tribunal did not apply the test –
that, otherwise, correctly identified -
It applied a test that made decisive the combination of three matters, namely that the appellant was born in the UK, that he remained a citizen of the UK, and that by reason of him having a maternal grandparent and an uncle in the UK he had greater ties with that country than the USA. In our opinion, in so deciding, the Tribunal failed to consider the factors of physical residency and intention which are essential elements in the notion of “usually resides” -
and referring to Gauthiez. Now, what that decision shows, your Honour, even when you give reasons and even when you purport to state correctly the test, consideration of what the Tribunal, or what the decision‑maker, actually has done, may show that you have, in fact, misconstrued the test. You have not really dealt with the factors that must be considered for that test. So while, yes, it is a matter of, generally, facts and circumstances to be evaluated by the decision‑maker, that is so would not reveal legal error that is judicially reviewable if the correct factors that are to be evaluated are, in fact, evaluated.
Now, this paucity of reasons, in this case, your Honour, obviously – and I rely on Avon Downs for the inferences that can be drawn about failure to deal with a particular matter, but here, when one looks at particularly the entry on 2 January 2012 – and the fact that as far back as 6 September 2011 – the delegate had already decided that the country of usual residence was Afghanistan – there is clear error, there is clear legal error. There is no evaluation whatsoever about physical residence and intention.
If there had been, it would have been impossible, and that is the other limb of the argument. If there had been, it would have been impossible to conclude that Afghanistan was a place of usual residence and that, your Honours will see, is the other basis upon which his Honour Justice Gummow referred to this possibility in Gauthiez. I will not take your Honours to the decision in Gauthiez. It is actually sufficiently analysed in the paragraphs that follow of Scargill, paragraphs 22 to 26, and at paragraph 24 there is an extract from what his Honour Justice Gummow said in Gauthiez, and in particular I rely on the words halfway through the paragraph:
Nevertheless, in my view, and as a matter of law, the mere circumstance that the applicant retained his French citizenship could not, without more, indicate that he was a resident in France.
So there are questions of law here, not just questions of fact. Then at paragraph 25 the court follows effectively the reasoning of his Honour Justice Gummow in Gauthiez and finds that the matters upon which the tribunal rely, matters of fact, were historical ties that just could not “without more” bring about the conclusion that the usual residence was the United Kingdom. Paragraph 26, again consideration of the decision of Justice Gummow, and it starts by stating the principle that your Honour the Chief Justice has put to me, namely, they:
depend largely upon matters of fact and degree –
but that is only if there is –
no misapprehension of the meaning of the provision in question . . . and no misconception appears as to what may amount to “residence” or “usual residence” ‑ ‑ ‑
FRENCH CJ: What do you say about the approach propounded in paragraph 38 of the defendant’s submissions? In other words, it is not enough to be living outside the country of citizenship – that does not make you usually resident in the place where you are, even if you are living there for a significant period.
MS DE FERRARI: Well, I must say, your Honour, the point that is sought to be made in that paragraph, it rather appeared to me to be directed at the construction which the Minister is advancing about how you should rewrite the definition of “home country”, and I will come to that definition in a moment, and that is a rewrite that is really directed – making clause 202.211(1)(a) work, and that is evident by the reference to that clause there. When your Honours look at the clause in question it is an extremely badly drafted clause, there is no doubt about it. It says:
(1) The applicant:
(a)is subject to substantial discrimination, amounting to gross violation of human rights, in the applicant’s home country and is living in a country other than the applicant’s home country –
Now, clearly, when you then plug into the definition of “home country” it creates great difficulties, but the thing is, your Honours, that that clause does not apply to this particular type of visa, this is under the split family stream of those visas, and as the Court has said in Shahi that clause simply does not apply, is not a criterion, either at the time of application or time of decision.
The further point, your Honour, is that the definition of “home country”, as the Minister himself acknowledges, appears in a variety of places in the regulation and in a variety of contexts, and the Minister fails to show that the redrafted version of the definition would work harmoniously in all the places.
In fact, in my submission, there are at least a couple where it would create other problems. So I accept that clause 211 is difficult, but it is not relevant in this case and in this case therefore one looks at the fact that, yes, the person has fled a particular country, she entered Pakistan illegally, but after that, your Honours, she has lived in this country for nine years. Now, that is not the case of someone fleeing disturbances in a country temporarily and then moving back. As we know the situation, Afghanistan is not a situation that resolved itself or has yet resolved itself very quickly. Her intention at some point within those nine years and, in my submission, fairly soon after she moved to Pakistan, was to stay in Pakistan.
BELL J: Can I just inquire, Ms De Ferrari, in addition to the application made by the mother in November which commences I think at page 36 of the special case, at the time the delegate wrote the letter inviting her to supply further information, did the delegate have material before him or her tending to establish for how long she had been resident in Pakistan? I think in the application she states that she is a citizen of Afghanistan and that her current country of residence is Pakistan.
MS DE FERRARI: Yes, I have taken your Honour to the entries in the various forms, both in the application and the Form 80, where she says that she has been residing in Pakistan since 2003.
BELL J: I am sorry, I just did not pick that up in the application. That is somewhere in the initial application, is it?
MS DE FERRARI: In the application at page 36 in the first column, so it is a composite answer to question 2. She gives the country of citizenship, “Afghanistan”.
BELL J: Yes, I am sorry, I see.
MS DE FERRARI: The delegate never – I will move away from usual residence or residence, but the delegate never doubted that she has been living in Pakistan since the father went missing and she fled Afghanistan and went to Pakistan. Your Honours, I think it was in the last paragraph of the decision in Scargill where, the last paragraph I want to take your Honours to, paragraph 26 where again their Honours pick up the decision of Justice Gummow. That is a question largely of facts and matters of degree if there is no misapprehension as to the meaning of “residence” or “usual residence”. Then his Honour concludes by saying:
This will be so unless the facts before the Tribunal were incapable of the legal complexion placed upon them –
So, on that basis as well, as I indicated before, I say there is an error of law because the delegate misconstrued the definition in a sense that he just read it as if it required the country of citizenship. If that is not plain because the reasons are what they are and he does not say what test he is applying, then it is a case where the facts are such that they are incapable of being given the legal complexion that the mother was residing in – usually resident in Afghanistan.
BELL J: But as to your first point, in light of the contents of the application, you say the letter of September supports the inference of the misconception?
MS DE FERRARI: That is so, your Honour.
BELL J: Yes, all right.
MS DE FERRARI: I said I wanted to take your Honours to the decision in Gauthiez (1994) 53 FCR 512. I will briefly refer to the decision of this Court in LK v Director‑General, Department ofCommunity Services (2009) 237 CLR 582 and, in particular, at paragraph 22. That is a decision that involves the Hague Convention on Child Abduction and, in particular, in this decision the Court considered at length the meaning of “habitual residence” under that Convention and under all the Hague Conventions relating to children and private international law.
GAGELER J: As I understand the position of the parties, neither you nor your opponent draws any distinction between “usual residence” and “habitual residence”.
MS DE FERRARI: I do not, save for the reservation that the High Court made about whether it is possible not to have a place of habitual residence for the purpose of the Convention. It just raises the question ‑ ‑ ‑
GAGELER J: You say you need to find usual residence in one country or another, do you?
MS DE FERRARI: The High Court suggests that one might need to.
FRENCH CJ: One might fall between two stalls.
MS DE FERRARI: Yes. But, in terms of the decision on usual residence in Australian law, it is clear that a person may not have usual residence and/or might have usual residence in more than one place – at least for certain purposes of certain statutes. But I think the case is, your Honours, that really the terms “usual residence” and “habitual residence” are now converging and there is no relevant distinction to be made between them.
It is clear that in both cases, both at common law in Australia and England in terms of usual residence and under the Convention in terms of habitual residence, as the High Court discusses in LK, what is intended is a move away from the concept of domicile. It is a move away that looks at the matrix of factors, amongst them, the primary ones being where the person actually lives and what are their intentions for the time being, if not forever, in terms of where they want to live. Those are the usual primary factors both for habitual residence and usual residence, but both in terms of usual residence and habitual residence one can look at a matrix of factors as may be relevant to the particular case.
BELL J: In that matrix, is it significant if the person is living in a place illegally, notwithstanding that they may have been there for some time?
MS DE FERRARI: Your Honour, it can be depending on the statute, so it was in the case of Gauthiez referring to other decisions of the House of Lords. When one is trying to get an advantage from that illegal residence, then usually the statute would not make that possible, and arguably it is not possible even at common law. But in the case of these subclasses of visas – and I do not think the Minister actually contends really that one is disqualified from usual residence in the cases of these visas ‑ ‑ ‑
BELL J: I was not suggesting disqualification, just in terms of when one looks at the matrix of factors, that circumstance might be against the sort of notions of permanency or ‑ ‑ ‑
MS DE FERRARI: In my submission, no, for these classes of visas, because class XB contains five subclasses – that is 200, 201, 202, 203 and 204 – and the difference between the various subclasses is really embodied in all of them in the clause that is numbered 211 in the relevant part. When one looks at, for example, subclass 200, it is directed to the situation of a person who is subject to persecution in an applicant’s home country and is living in another country, so on its face contemplates fleeing persecution.
GAGELER J: If you are applying the definition of “home country”, which has application in a number of different criteria set out in the regulations, does the content of the definition change depending on the criteria to which it is to be applied?
MS DE FERRARI: Your Honours, the definition of “home country” appears in each of the five subclasses, but it appears more widely in the regulations. For example, it appears – I think it is regulation 2.07AK, which deals with the circumstances in which a person who has been trafficked to Australia may lawfully make an application.
In that circumstance, that was one of the points of the regulation where they are suggesting that really when you look at it – and I will not take the Court to it at the moment – it is probably a case of applying unless the context otherwise requires to home country, and what is really intended is the country from which the person has been trafficked, and it does not really matter whether it is the country of citizenship or the country of usual residence or anything because what it is looking at is the Minister’s satisfaction that the person should not be returned to the country that they have been trafficked to, and so they can make a lawful application in Australia, even though they have arrived illegally.
That is part of the answer to your Honour Justice Gageler, but in those – I already acknowledged it in the non‑split family part of each of the subclasses, the definition of “home country” does not work very well if you straight plug it in. So whether it is a matter of applying the fact that it is a definition and so it is whether the context otherwise requires, or whether in those cases you do the redraft that the Minister just suggested, the redraft is purely directed to those subclasses, to that part of the regulation. But that clause 211 does not apply to the case where the visa is applied on the split family stream.
But returning to whether the statute intends that a period of illegal residence might disqualify, your Honour, I would say no, because 202 even though it is looking at the split family is still looking at a split family where the proposer is someone who has been granted a visa in Australia as a refugee and is then proposing his immediate family. So the proposer by definition is someone who has fled the country of persecution, as found by Australia to whom Australia owes protection obligation, and his family if not in every occasion but almost invariably would also have moved somewhere else as experience no doubt shows in these cases about third countries in South‑East Asia being a place where a lot of people who then seek to make it to Australia first go to.
FRENCH CJ: The term “illegal residence” that you use in this case ‑ ‑ ‑
MS DE FERRARI: In the form.
FRENCH CJ: ‑ ‑ ‑ which is, I think, put into the forms with the designation “I”.
MS DE FERRARI: It is.
FRENCH CJ: Is it accepted that that means that the plaintiff and the children have no authority to remain in Pakistan, no legal right to remain in Pakistan?
MS DE FERRARI: Your Honours, as a matter of law I do not know whether that is the position or not. I do not know anything about the law of Pakistan. As a matter of fact, that is how the mother described herself and her children as being ‑ ‑ ‑
FRENCH CJ: We do not know precisely what that means?
MS DE FERRARI: No, but the form only gives you certain codes that you can put in.
FRENCH CJ: Yes, I appreciate that. It might or might not mean that they are subject at law to summary expulsion, but then there may be questions of administrative practices in relation to Hazaras moving across the border, but none of that was before the delegate in this case.
MS DE FERRARI: No. It might or might not mean that, at the risk of giving evidence from the Bar table as they say, I think it must count the United Nations for Refugees thinks there is still something like in the vicinity of one million people from Afghanistan who are living in Pakistan.
FRENCH CJ: Mainly Hazaras, I think.
MS DE FERRARI: Mainly Hazaras, so the practicalities of forcing them back might not be straightforward.
BELL J: If one does not have a legal entitlement to remain in a country to which one has fled, what would be the purpose of public interest criterion 4015(a) directing attention to the law of that country in terms of its provision permitting one to remove children?
MS DE FERRARI: Well, your Honour, it is quite possible that even in a country where you are an illegal resident, and I use that expression generically, it is quite possible even in Australia, for example, that the Family Court might make a child order in respect of someone who is in Australia as an illegal child resident. Now, the Family Court clearly has jurisdiction just because of the presence of a child independent of citizenship or anything else. Again, I do not know about the law of Pakistan but it might be the same is in Pakistan.
I think I have - as part of saying the facts are overwhelming that the mother was resident in Pakistan at the time of the decision - I think I have dealt with the status as illegal resident point. The other matters to which the Minister points to in paragraph 40 of the submissions are the circumstances that led to the moving to Pakistan. Now, in my submission, that supports the plaintiff’s case. They fled Afghanistan. That shows that they did not have an intention to go back to Afghanistan. The extent of the ties with Pakistan, well, I think I have taken the Court to that in the materials, and, in particular, the children – one of the children was even working in Pakistan for something like six years and two of the children were studying.
The intention in relation to future migration decisions – again this is something that supports the plaintiff’s case. It is clear on materials, in my submission, that the mother does wish to terminate her residence in Pakistan and be reunited with the plaintiff in Australia but until that is able to happen it is also the clear inference from the materials that she intends to stay in Pakistan.
I dealt before with the delegate’s reasons on 2 January of this year indicating how he moves and mixes the consideration of the two paragraphs. What comes out of the consideration of those reasons is that the delegate accepted that the father had been missing since 2003 in the circumstances as had been claimed by the mother and I think the Minister accepts that this finding was made by the delegate. Further, as I indicated before, nothing shows that the delegate disbelieved the mother about her not having heard from him since. There is nothing at all about this in any part of her evidence.
FRENCH CJ: Well, is it more than this that the delegate is not persuaded on the material put before him or her that an inference can be drawn, or should be drawn, that the father is dead?
MS DE FERRARI: Clearly, the delegate is asking for compelling evidence that the father is dead. Now, there is no indication what compelling evidence is. In the circumstances of modern day life in Australia one might think that would be a death certificate but in the circumstances of Afghanistan and Pakistan it is not clear but, really, in a sense, by bringing up that evidence point the delegate himself brings into play the question of whether the evidence that there was and which was accepted by him brings to bear the fact that the father should be presumed to be dead. So if it is really a matter of, like, there is no evidence then it brings into question the evidential point.
But it is true, the reasons of the delegate do indicate that he finds that – well, the inference to be drawn is that he finds that the father is not dead and he does so, it appears, on the basis of undisclosed information, undisclosed to the mother, about information known about movement and migration for work and asylum seeking purposes. But, having found that the father was missing but not being prepared to find that he was dead, he nevertheless just deals with the position that pertains under Afghan law and custom if the father is dead and does not give any consideration to the position of when the father is missing, or missing for an extended period of time – under nine years. The only reasonable inference about that, your Honours, in my view, is that he concludes that if he is just missing – I say just missing after nine years – then his consent is required, and there is no evidence of his consent, and the mother’s consent is either not necessary or not sufficient.
Can I go now briefly to the definition of “home country”? That is reproduced at page 87 of the special case book. That, in my submission, is a definition – as I say, the definition is used in many, many places in the regulations, not just these classes of visa, PIC 4015 or PIC 4016. But it is a definition that is based on an assumption that every person has a country of citizenship and every person has one country of usual residence and usually they coincide, but not always. It is a binary world that that definition envisages. Now, as we know, that is easily falsified because a person may not have any citizenship or may have more than one, and the same for usual residence. The redraft by the Minister I have set out in paragraph 6 of my outline of oral submissions what it amounts to. It amounts to putting paragraph (b) first and then having both needing to be satisfied and, if both are not satisfied, then the default position is that you give the person the country of citizenship on the assumption that the person will have a country of citizenship.
Now, having said that it is a redraft that is not warranted, certainly not warranted everywhere in the regulations, and that the Minister has not shown that that redraft on the Cooper Brookes principles would work harmoniously wherever the expression is used. Can I say this? None of it matters because, even as redrafted, in my submission, the ties with Afghanistan were historical only and the mother and the four children were usually resident in Pakistan.
That brings me to the construction of public interest criterion 4015. That is reproduced at page 104. It has three alternatives and only one of those has to be satisfied for the person then satisfying clause 228 in subclause 202, and that is reproduced on page 67. As I already indicated, properly construed, in my submission, it shows that when the drafter intended a choice of law question the drafter specified so expressly as in paragraph (a), and as to paragraph (b) and (c), it is the law of Australia shorn of its private international choice of law rules that is to be applied. In terms of paragraph (b) ‑ ‑ ‑
FRENCH CJ: If the law of the home country requires the consent of a parent, then that is picked up in (a), is it not?
MS DE FERRARI: It would be, yes, precisely, your Honour. If there is anything in this criterion where applied to subclass 202 criteria intends to reflect the principles of the Hague Convention on child abduction, it is paragraph (a). Now, of course, the policy document of the department which is really the only document that indicates at all what this criterion might be intended to be directed do not bind the construction of the regulations, the secondary materials on the introduction of that regulation just say that it was intended to insert more objective criteria without any specification of any of the Hague Conventions.
Paragraph (b), in my submission, requires a determination of two separate issues. The first one is identification of the set of persons who can lawfully determine where the child shall live and, then, once you have identified all of those, that there is consent by each one of those persons. Because, in my submission, paragraph (b) just reflects Australian migration law and Australian concepts of guardianship, the principle of Wanganui is not relevant.
GAGELER J: Are those statutory concepts or common law concepts? What are the Australian concepts?
MS DE FERRARI: It does not matter, in my submission, your Honour, whether one looks at it as a matter of Australian common law, in the case of a child of the marriage – if I can simplify a situation that these days is very complicated – is a simple situation of children born to a couple, male and female, or were legally married. In the case of a child born to a marriage at common law, each parent is a guardian and they have joint custody.
There is a lot of confusion over many, many years and in the authorities about the meaning of “custody” in particular and sometimes “custody” is given the extended wide meaning of legal custody which is effectively the same as guardianship, but at common law in Australia each person is a guardian. That is the extended definition of “custody” and the parents have joint custody in the strict sense of day‑to‑day care.
That, in my submission, is borne out by the reasons of each of the Justices in Marion’s Case. When your Honours go to the passages that I extracted at paragraph 13 of the outline of oral submission, what each of those Justices say is consistent with saying that at common law in Australia after more than 100 years of course of statutory intervention, going back to the Guardianship of Children Act in the UK, adopted in Australia, and then the Family Law Act, but at common law the parents are each a guardian and they have joint custody.
Now, at the time of Marion’s Case, in fact the exact same distinction and meaning of “guardian” and “custody” was in section 63E of the Family Law Act 1975. So in fact the definitions of “guardianship” and “custody” that are in the regulations owe their origin to section 63E of the Family Law Act 1975 as was in force at the time of Marion’s Case.
FRENCH CJ: Now, for (b) to work for you on this approach, that is applying what you call Australian law, the father has to be deceased?
MS DE FERRARI: Or missing for a long period of time such as he has not been exercising for a long period of time any parental responsibility.
FRENCH CJ: Where does that principle come from?
MS DE FERRARI: Your Honours, it comes from the simple fact that if that were not the case, that every parent in those circumstances would be forced to go to the Family Court and ask for a direction as to whether they could make any decision in respect of their child.
FRENCH CJ: The other question is the advantage to you of the application of the Australian law is that you do not get tangled up with extended family permissions required in Afghanistan.
MS DE FERRARI: Well, Afghanistan would be the wrong law in any event, for the reasons I will come to, but Pakistan – I do not know anything about the law of Pakistan but one might surmise that it is not very dissimilar to the law of Afghanistan. It might have similar notions ‑ ‑ ‑
FRENCH CJ: In any event you get out of the extended family problem.
MS DE FERRARI: Yes I do, and the plaintiff gets out of the problem that on remitter there will be another long delay in terms of dealing with the issue of what does the law of Pakistan provide or not provide. So, in my submission, paragraph (b), the answer to the first issue is that it is only the mother that can determine where each of the children is to live and the evidence is unequivocal that she consents to them coming to Australia.
Now, if paragraph (b) does present a choice of law question contrary to my principal submission, then the relevant rule of private international law is that that relates to the welfare of the children and parental responsibilities, not any rule relating to choice of a forum to select the authorities that will determine rights of custody when there has been a wrongful removal.
The two types of jurisdiction are clearly different and I rely on the decision in MW v Director-General for that proposition - that is MW v Director‑General, Department of Community Services (2008) 244 ALR 205, in particular the reasons of Justices Gummow, Kirby, Heydon and Crennan. If your Honours go to page 218, their Honours start under the heading “The policy of the Convention”, with consideration of the Hague Child Abduction Convention.
Then there is reference to the provisions under the Family Law Act, and in paragraph [57] there is reference to section 69E of the Family Law Act, which I mentioned before, which has the factors that give jurisdiction to the family law in respect of a child, and the factors include usual residence in Australia, even if the child is not present at the time, or presence of the child in Australia irrespective of nationality or usual residence. Those under the Family Law Act jurisdiction invoked by section 69E:
the paramount consideration . . . would have been the best interests of the child in the particular circumstances of the case.
Paragraph [58], their Honours say –
However, a different policy with respect to the best interests of the child has prevailed with return applications under the Regulations. There the focus is upon the appropriate forum.
There is a discussion then at paragraph [59] of the provenance and mixed objectives of the Convention. So under the Child Abduction Convention, even though there is a presumption that the best interests of the child will be served by having the issue adjudicated in the forum from which there was a wrongful abduction – and “wrongful abduction” is defined in the Convention as I will take your Honours to in a moment – it is not the best interests of the children at large that is the paramount consideration.
So the point is the welfare jurisdiction, which in the Family Court Act is embodied in section 69E, and the jurisdiction in respect of wrongful abduction are different and in this case, if paragraph (b) does invoke a choice of law rule it is looking at the rule of, under private international law, welfare of the children, not considerations of what will be the forum that should adjudicate about custody rights in a wrongful removal case. That is why I said before that if there is anything in PIC 4015 that really is intended to mirror the objectives of the Hague Child Abduction Convention it is paragraph (a) and paragraph (a) only.
GAGELER J: How would you state the Australian choice of law rule that you rely upon?
MS DE FERRARI: Your Honour, that is contrary to the – why do I say that is a different rule?
GAGELER J: No, I am just asking you to state the rule.
MS DE FERRARI: The rule, your Honour, would be that the best interests of the child is the paramount consideration. In terms of ‑ ‑ ‑
GAGELER J: Well, what you are seeking to do is to find the system of law ‑ ‑ ‑
MS DE FERRARI: Yes, your Honour.
GAGELER J: ‑ ‑ ‑ that governs the relationship between the child and another person.
MS DE FERRARI: Under the welfare jurisdiction.
GAGELER J: What is the Australian choice of law rule that points you to the system of law?
MS DE FERRARI: Yes. For that, your Honour, I would say that under Australian law, Australian law would now look at a Convention that deals with that aspect and that is another of the Hague Conventions; it is the Hague:
Convention on jurisdiction, applicable law, recognition, enforcement and co‑operation in respect of parental responsibility and measures for the protection of children ‑
It is a 1996 Convention. Now, we have given the Court some bound materials which contain the three important Conventions, Hague Conventions, that deal with children. The first in time is the Child Abduction Convention of 1980, and then there is, as your Honours would know, the Intercountry Adoption Convention of 1993, and then the Convention on, as they call it, the Welfare and Parental Responsibility of Children, is the last in time and that is 1996.
Can I go to that Convention, your Honour? That is the Convention that deals with both orders by the court or other authorities for the protection of children in international situations and with parental responsibilities. Your Honours will see, for example from Article 1, the objects, and in paragraph a) of subsection (1):
to determine the State whose authorities have jurisdiction to take measures directed to the protection –
and then in paragraph c) –
to determine the law applicable to parental responsibility –
Under Article 1, subsection (2) there is a definition of parental responsibility.
FRENCH CJ: You are using this to inform a choice of law rule, is that right?
MS DE FERRARI: Yes, your Honour.
FRENCH CJ: Because you are not saying it informs 4015; you expressly abjure that proposition in your written submissions.
My learned friend said the letter of 6 September fairly invited comment on the view that it is the law of Afghanistan that is the home country. I ask rhetorically what in the letter of that day invites comment as to the selection of the law of the home country? It asks about the fact that there is no evidence about certain matters and invites comment about the evidence about certain matters, having chosen the law of Afghanistan as the law that satisfies the definition of “home country”.
My learned friend then said that, in my submission, that the difficulties with the definition of “home country” – and I make the point again, it is a definition so it is subject to context requiring otherwise which it might in various places in the regulations, does not affect split families, not necessarily correct. He referred to the criterion about the degree of discrimination, part of the matters that the Minister can be satisfied as leading to a conclusion that there are compelling reasons.
Now, as it happens in this case, and I think, your Honour Justice Gageler referred to this in terms of the evidence in the protection visa application of the plaintiff, the family is also suffering discrimination as Hazaras in Pakistan. So, on the facts of this case, that criterion as well be someone that could be open to be considered by the Minister and, in any event, I adopt what the Chief Justice said and that is that it is one criterion amongst many and there has never been a rule of law that all the criterion that are possibly relevant have to be necessarily relevant in every circumstance.
My learned friend makes a great distinction between the phrases “usually resident in” and “a country of which the person is usually a resident of”. Now, all of the decisions of which I am aware that have considered these phrases in the normal context in which they arise, generally under statute in Australia, say that these phrases are used interchangeably. There is an example of this discussion about the phrases being used interchangeably in In re Taylor; Ex parte Natwest Australia Bank Limited that is cited at footnote 55 of my written submissions.
FRENCH CJ: The citation for that is?
MS DE FERRARI: At (1992) 37 FCR 194, a decision of Justice Lockhart. Similarly, Justice Gummow in Guthiez, I think, refers to the fact that there are multiple ways of expressing the same point. The construction is all for the point of deriving the fact that somehow in the second expression there is not just the factual question but there is also a status question which makes it a difficult and more different test to be satisfied. There is simply no reason at all, in my submission, for reading the plain words of the definition in the way that it is advanced by the Minister.
Then something is made of the fact that a definition of “guardian” encompasses notions of by law or custom. I think I mentioned briefly in my submissions the fact that the law of guardianship, parenthood, custody in its wide meaning and in its narrow meaning, and one can go back to the decision of Hewer v Bryant, which is referred to in my submissions, has been very, very confused historically. But the definition of “law” or “custom” is exactly the same, as I mentioned, as well as in section 63E of the Family Law Act, at the time of Marion’s decision. So in the context of the Family Law Act, dealing with family law matters in Australia, Parliament enacted a provision that said a person who is a guardian of a child under this Act:
(a)has responsibility for the long‑term welfare of the child; and
(b)has, in relation to the child, all the powers, rights and duties that are –
apart from this Act –
vested by law or custom in the guardian of a child -
It is simply a reflection of the fact that parenthood is a notion that, in a sense, derives from customary ideas about parenthood that then evolved into what we now understand is a law of parenthood, that is you do not have rights, you have responsibilities and duties and accompanying those are the rights to discharge them.
The construction advanced by the Minister in terms of what “lawfully determined” requires would basically require consideration by the delegate of all possible systems of law. That is what my learned friend has said. Whether somebody can lawfully determine it can depend upon any system of law. That is simply a construction that should not be adopted. There is no reason for it, and it would make resolution of the issues near impossible. But if it were correct, then one goes back to the question, why was the law of Pakistan not the law that was reasonably invoked in this case?
The other submission was that the entirety of public interest criterion 4015 only has a role to play when a child is out of Australia. That construction, if it were adopted, would make meaningless paragraph (c) because that is directed to Australian orders that can only be given in Australia. Then it was said that the presumption of death should not have been applied in this case because the matter was under the law of Afghanistan in any event. Under principles of private international law there is a distinction, as your Honours will know, between substantive and procedural rules, and there is clear authority that rules of evidence are procedural rules that are to be determined by the law of the forum. So in this case, there was a proper basis for the delegate to look at the presumption of law as a matter of Australian law.
Your Honour Justice Gageler indicated that there was some possible evidence that they were living with a relative of the father’s side in Pakistan. In my submission, page 163 is equally open to be read and, in fact, it is better reading that what the mother is saying is that after the husband disappeared she was living with her husband’s brother, but could not get a job and came to Pakistan. The children could not go out and could not get a job, so she came to Pakistan. So the living with the husband’s brother was in Afghanistan, that is consistent with the details about where they are. None of it matters, in my submission, about paragraph (b), in any event.
The people who have, well, little or no English, in the case of the mother no education, living in Pakistan should raise with the delegate that, well, I think he is dead. In fact, I think you should apply the presumption of death is really quite a logical one, once one says it. Then they said that in terms of the presumption of death there was no evidence as to whether the brothers were contacted and there was a failure to make due inquiries.
I have referred in our list of authorities to a note published in (1956) 18 Modern Law Review 194 and that analysis of the cases upon which my learned friend relies, namely Bradshaw v Bradshaw and Chard v Chard, the author advances quite persuasive analysis as to why the requirement of the due inquiries which comes from those authorities is, in fact, a wrong requirement and it is not borne out when one goes back to look at the authorities upon which those are based. In any event, it is clear that is not a requirement under the law of Australia as stated in Axon v Axon.
But even without taking judicial notice about where Hazaras displaced from Afghanistan might go, then if the father was not dead, one
would draw the inference that it would start inquiries perhaps in the Angguri – the Angguri village where they last were – and someone in Angguri might tell them that they have gone to Pakistan, even without thinking of going to Quetta first, inquiries by a non-dead father starting at the logical place would lead to try and trace them in Quetta where they are.
Finally, it is said in terms of the “natural justice” point that there was no information that needed to be answered. As I have submitted, the information about the difference scenarios is not just a reflection of the reasons but is part of the reasons why the delegate was not prepared to find that the father was dead, and insofar as saying that is missing, well, yes, that is consistent with various possible scenarios, but what could she possibly have said? Well, one possible scenario is that the information which the delegate has is that the father is hiding to be able to achieve a favourable migration outcome for his family, to which she could have quite easily responded, “My husband is a loving father, and he would not stay away from the children for nine years”.
But the fundamental problem is for the Minister to show that there is no breach of natural justice because there is nothing that could have been said is it is impossible to say what the information about the possible scenarios is. If you cannot rule out every possibility about what that information is and the answers that she could have given, then if there is a breach, it is a breach that is significant. If the Court pleases.
FRENCH CJ: Yes, thank you, Ms De Ferrari. The Court will reserve its decision. The Court adjourns until 10.15 on Tuesday next, 11 December.
AT 1.02 PM THE MATTER WAS ADJOURNED
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