Tahiri v Minister for Immigration and Citizenship

[2012] HCATrans 235

[2012] HCATrans 235

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

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 SEPTEMBER 2012, AT 2.57 PM

Copyright in the High Court of Australia

MS L.G. DE FERRARI:   If the Court pleases, I appear for the plaintiff.  (instructed by Victorian Legal Aid)

MR C.J. HORAN:   Your Honour, I appear for the defendant.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  Ms De Ferrari.

MS DE FERRARI:   Your Honour, can I just give a little bit of background to the application for an order to show cause.  The relevant aspects of it are I think set out in the application.  Your Honour will see that this is an application – there was an application for a refugee and humanitarian visa, the relevant subclass here being subclass 202, and the application for this visa was made by the mother of the plaintiff some nearly three years ago.

The mother was the primary applicant and the four children who are identified in paragraph 5 of the application are the secondary applicant to that application.  It is an application similar to the one that this Court considered in the decision of Shahi in the sense that the plaintiff is the proposer to that application and it is an offshore application.

The issue, though, relates to a different criterion for the grant of the visa than the one that was at issue in Shahi.  Perhaps it is easier if I do that by giving your Honour extracts of the relevant ‑ ‑ ‑

HIS HONOUR:   Please.  Yes?

MS DE FERRARI:   Your Honour, I have given the Court three extracts.  The first one contains relevant definitions for this case, the definition of  “custody”, “guardian” and “home country” and “home country”, in particular, is important.  The second extract contains the criteria for the subclass 202, “Global Special Humanitarian” visa in the split family stream.  The relevant one upon which the mother of the plaintiff failed is clause 202.228 and I will come to that.

The third extract contains public interest criterion 4015, or PIC 4015 which is picked up as the relevant matter by subclause 202.228.  Now, the way it works in this case, your Honour, is that subclause 202.228 is a time of decision criterion that applies in respect of the primary applicant, that is the mother, however, she fails it if any of the children fail it by reference of PIC 4015.

HIS HONOUR:   This notion of one out all out?

MS DE FERRARI:   Yes, your Honour.  In this case the Delegate, really concerning the four children as a group, was not satisfied that PIC 4015 was satisfied.  Because this is an offshore application there is no obligation under the Migration Act to give reasons.  However, the documents that were obtained under a freedom of information request indicate the reasons for the decision.  I do not think there is a dispute about that because the Minister in his submission actually extracts the same part of the document that the plaintiff relies upon in his application as showing the reasons.

Your Honour will see that the relevant part of the records are what appear at paragraph 20 of the application and I do not need to read that, your Honour.  So that reason for the decision on particular facts of this case gives rise, the plaintiff says, to three errors that vitiate the decision.  One is misconstruction of paragraph (a) of PIC 4015 and if your Honour goes back to the language of that public interest criterion it requires identification of the child’s home country and the issue is when one goes to that definition, these children have been in Quetta, Pakistan, for now seven years so the plaintiff will allege they were not ordinarily resident in Afghanistan.

The second ground is misconstruing paragraph (b) of the same public interest criterion.  Now, only one of those criterion needs to be satisfied for the applicant to succeed and, similarly, the Minister had to be satisfied that none of them were applicable.  In this case the error is that the Delegate considered that that paragraph dictated a selection of a foreign law and he chose Afghanistan and the plaintiff says that is wrong.  The third one is related against paragraph ‑ ‑ ‑

HIS HONOUR:   I am sorry, the second one is what?

MS DE FERRARI:   Misconstruing paragraph (b) of public interest criterion ‑ ‑ ‑

HIS HONOUR:   Each person who can lawfully determine and that has been done by reference to the law of Afghanistan and you say it should have been done by reference to the law of Pakistan, is that right?

MS DE FERRARI:   No, your Honour.  The plaintiff says it should have been done according to the law of Australia. There is no foreign law ‑ ‑ ‑

HIS HONOUR:   I see.  No, I understand.  I am sorry, I misunderstood the point.

MS DE FERRARI:   The first one might be a question about the law of Pakistan.  The second one, the plaintiff says, nothing there refers to applicant’s home country and brings into question the definition of

citizenship or residency or anything like that and therefore it means it is a straight application of Australian law.

The third area, your Honour, is misconstruing paragraph (b) in the particular circumstances of this case because the plaintiff’s father had disappeared at the time of the decision for more than seven years and so on any view it raises the question that the mother was sole custodian and guardian of the children and so there is no issue about looking at patriarchal system, of law that looks at who can lawfully determine where the children might live.  Those are the three areas, your Honour.

In this case discussions between the parties have actually resolved in agreement that the case is suitable to proceed by way of a special case.  If I can hand up to your Honour some proposed minutes that are agreed between the parties.

HIS HONOUR:   Yes.

MS DE FERRARI:   Can I also say that in the circumstances of this case, given the time it took to make the decision at issue, but also because my client’s family lives in rather dangerous circumstances in Quetta, I do submit that there is some reason to expedite the matter as much as possible.

HIS HONOUR:   Keep it moving, yes.

MS DE FERRARI:   Yes.  To that extent, we think that a special case can be prepared rather quickly and the proposed orders envisage that will be done by 22 October and then the summons could be adjourned to probably the same day that your Honour considered before.

HIS HONOUR:   The same day, yes.

MS DE FERRARI:   If the Court pleases.

HIS HONOUR:   Yes, thank you, Ms De Ferrari.  Yes, Mr Horan.

MR HORAN:   Your Honour, as my learned friend indicated, we are substantially in agreement.  Consistently, with the orders in the other matter it may be that order 3 is unnecessary and the parties can ‑ ‑ ‑

HIS HONOUR:   Again, until the parties are agreed I always feel a degree of hesitation about requiring them to submit an agreed document but, yes ‑ ‑ ‑

MR HORAN:   But we can certainly proceed for the benefit of the plaintiff on the basis that the parties will seek to have the agreed special case settled by that date.

HIS HONOUR:   And it is a matter that should stay in this Court?  I understand there is a difficulty about the proposer being the plaintiff, not the mother, et cetera.

MR HORAN:   Yes.  On our understanding of the relevant provisions there is jurisdiction in the Federal Magistrates Court but there is a standing provision which precludes anyone other than the subject of the decision from ‑ ‑ ‑

HIS HONOUR:   Other than the – in this case it would be the mother.

MR HORAN:   Or one of the secondary applicants, but principally the mother.  A similar issue was raised in the Brisbane matter.

HIS HONOUR:   And the whole matter settled, as I understand it.

MR HORAN:   Yes.

HIS HONOUR:   I noticed that and I made my own inquiries, Mr Horan, yes.

MR HORAN:   Yes.  There were some suggestions made that it might have been proceeded by substituting the plaintiff in which case remittal may then have been possible but ultimately it is a matter for the plaintiff as to who the appropriate party is and we do not seek to insist that the matter be reconstituted, so that as it currently stands it would be futile to remit it because it would then be incapable of being ‑ ‑ ‑

HIS HONOUR:   But is it the sort of matter that ought in the first instance to be determined, for example, in the Federal Court not the Federal Magistrates Court, but be remitted to the Federal Court with a view to it hearing and determining the matter perhaps on an agreed case basis but in a Full Court there so that it comes to us if, and only if, you end up with a difficulty?

MR HORAN:   Yes.  I think the problem is that the Federal Court does not have jurisdiction unless it is referred up from the Federal Magistrates Court and the standing provision would continue to be a problem.

HIS HONOUR:   I understand that.

MR HORAN:   But it certainly, were it not for the operation of section 486C it may be a matter that would be capable of being determined by the Federal Magistrates Court or the Federal Court.

HIS HONOUR:   Because, on the face of it, the points that are raised are points of statutory construction of a kind which would be suited for determination in the Federal Court and I understand that ‑ ‑ ‑

MR HORAN:   The other possibility, your Honour, is to have it heard by a single judge of this Court which I have not canvassed in my submissions because it is ‑ ‑ ‑

HIS HONOUR:   That then becomes inefficient because somebody appeals and you have at least four or six justices occupied.

MR HORAN:   I think, in terms of the plaintiff’s desire for expedition, from experience, sometimes on remittal these matters can take far longer to come to hearing and determination given the way the matters proceed when they are sent down.

HIS HONOUR:   I understand that.

MR HORAN:   So that it may be that proceeding by way of a special case before a Full Court which could be a Bench of five or even perhaps three would be the quickest way to get the matter brought to determination.

HIS HONOUR:   That is the something that the Court will have to look at in light of what is agreed and what the questions are and so on, but, yes, let us take it to the point as soon as we may of seeing whether the special case can be your – the stated case can be determined.  I have already expressed my views on the myth of the desirability of special cases.  Stated cases seem to me to do the job perfectly well but it is a matter for the parties.

MR HORAN:   Yes.  I think in either case the facts in issue are of relatively limited compass and so we will try to keep the special case similarly focussed.

HIS HONOUR:   Is the case going to be one – that is the stated or special case – one where we are going to have to have addressed, at least contingently, questions of foreign law?  Say, for example, if the decision‑maker has acted on the assumption that the relevant law that determines some question is the law of Afghanistan will the parties in the course of preparation of their case give attention to whether there should be some agreed statement of what it is thought that the law of Afghanistan provides?

MR HORAN:   Yes.  We can address that in the course of formulating the special case although my guess is that questions of that nature, the questions of fact for the Delegate, so that it would ultimately be a question of what findings were made and what evidence by the Delegate rather than a primary question of fact for this Court.

HIS HONOUR:   That may be.

MR HORAN:   The principal issue, at least in relation to one of the grounds, is simply whether the correct law was selected rather than what the content of that law was.

HIS HONOUR:   Yes, I see.  Very well.Then, subject to what counsel may say if there were to be orders in the terms of paragraphs 1 and 2 of the draft supplied by counsel for the plaintiff, the summons to stand over to Tuesday, 30 October at 9.30 in Melbourne or such other time as may be advised.  The costs of today be costs in the proceeding and liberty to apply on 24 hours’ notice in writing.  If again I were to indicate that it would be of advantage if I could see any agreed document or at least the latest draft of any likely to be agreed document no later than noon on the Monday 29th, would counsel wish to be heard against those proposals?

MR HORAN:   No, your Honour.

HIS HONOUR:   Ms De Ferrari?

MS DE FERRARI:  No, your Honour, those orders are perfectly fine, thank you.

HIS HONOUR:   Very well.  There will be orders in those terms.  Adjourn the Court.

AT 3.12 PM THE MATTER WAS CONCLUDED