Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCATrans 209 (25 August 2015)

Last Updated: 29 September 2015

Replacement Transcript

[2015] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M64 of 2015

B e t w e e n -

PLAINTIFF M64/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Directions hearing

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 25 AUGUST 2015, AT 9.29AM

Copyright in the High Court of Australia

MR C.J. HORAN: If the Court pleases, I appear with MS K.E. GRINBERG. (instructed by Russell Kennedy Pty Ltd)

MR S.P. DONAGHUE, QC: If the Court pleases, I appear with MR N.M. WOOD for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Horan, thank you for sending up the draft special case. I wanted to ask you a couple of questions about it, if I may.

MR HORAN: Yes.

HIS HONOUR: As it stands, it poses questions at the end – in particular, question 1: did the delegate make a jurisdictional error on any of the grounds alleged in the application? When I look at the application I do find the grounds, but what I do not think I find is any of the facts alleged in the particulars under those grounds being set out in the draft special case. Am I right or wrong? For example, paragraph (b) of the particulars under ground one in paragraph 13, erroneously construed clause 202.222(2)(d) – is that an admitted fact and, if so, where is it stated, or is that a dispute and, if so, where is it identified?

MR HORAN: I think the answer is that it is a dispute as to whether the delegate erred in the way identified.

HIS HONOUR: The only thing I see is paragraph 33 of the draft special case which, with respect, is a little Delphic as it stands. I am not too sure what it means. Does it mean that you made the right decision or used the wrong name, or does it mean something else?

MR HORAN: Paragraph 33 was intended to deal with the glitch in the reasons for decision whereby the wrong version was reproduced and simply to record that the parties and, in particular, the plaintiff, did not rely on that mistake as an error. The error identified in the grounds is ultimately one that would be argued as a matter of inference and construction of the delegate’s reasons set out in both Attachment T, which is the decision letter, read in light of Attachment S, which is the contemporaneous case note entered in the Department’s immigration records information system.

So the approach that has been taken was to - at one stage, the plaintiff had attempted to draft more specific questions which picked up the legal issues raised by each of the grounds and posed them as questions to be answered on the facts in the special case, but because of perhaps the difficulty in agreeing exactly the form of legal question arising from each of those grounds, and of ensuring that they encompass the universe of issues raised by the grounds, the simplified approach has been adopted of simply picking up the grounds in the application and on the assumption the parties would argue those grounds by reference to the agreed facts in the special case.

HIS HONOUR: Just persisting with paragraph (a) of the particulars under paragraph 13, is it alleged and, if so, where, that the delegate was bound to have regard to the capacity of the Australian community to provide permanent settlement and is it said that, if so, it is evident that he failed to do and, if so, where is it said?

MR HORAN: It is alleged in the application but involves a construction and application of the clause in Schedule 2 of the regulations which requires the delegate to be satisfied there are compelling reasons, having regard to four identified factors.

HIS HONOUR: Is that disputed then? Is it said by the Commonwealth or the delegate that it is not required to have regard to those considerations or is that admitted and it is said, well, we did?

MR HORAN: Yes, I think it is not in dispute that the delegate was required to apply the criterion and the criterion requires the delegate in addressing whether there are compelling reasons to have regard to the four identified factors. But what is in dispute, in particular, in relation to the fourth factor in paragraph (d), is what that criterion required or how it should be construed and whether the delegate correctly understood that criterion and correctly applied it and that is primarily a matter of argument based on the facts in the special case and, in particular, the facts relating to the refusal decision.

The starting point for the case will be simply looking at, as is often the case with a judicial review of a decision of this nature, looking at the reasons for decision and squaring them with the applicable visa criteria and making arguments about whether, on the reasons given by the delegate, there was a form of reviewable error.

HIS HONOUR: I think I appreciate that. My concern is we do not have pleadings, nor yet any specific identification of the exact issues to be determined. Staying with paragraph 13(a), is what is alleged, in effect, that the delegate was bound to, but failed to, have regard to the capacity of the Australian community?

MR HORAN: That is one way of putting it. It is argued that in addressing the capacity of the Australian community, the delegate misconstrued the meaning of paragraph (d) of the relevant criterion and thereby failed to take into account what he was required to take into account.

HIS HONOUR: You will forgive me for saying that that is not immediately apparent from the face of the document.

MR HORAN: No. In a sense it is trying to run together several different ways of characterising the alleged jurisdictional error, bearing in mind that one should not take a pigeonhole approach to categories of jurisdictional error, and characterising it in ground 1 is either misconstruing the regulation or failing to take into account a mandatory relevant consideration. But in one sense they arise from the same flaw which is a misconstruction or misapplication of paragraph (d).

It is not said that the delegate did not attempt to have regard to the factor in paragraph (d). There is a paragraph in the reasons which addresses the question of capacity, but the plaintiff says that is done in a way that is impermissible.

HIS HONOUR: So, really, the complaint for 13(a) is that the delegate erred in the application of paragraph (d) by doing something rather than something else?

MR HORAN: Yes.

HIS HONOUR: I think it needs to be identified, and pretty precisely if this is going to go to be decided by a Full Court on the basis of what is fairly – and it is pejorative – but a fairly exiguous statement of facts. We have to have the questions precisely defined rather than leaving it to oral argument for the first time to specify what they are.

MR HORAN: Yes. In one sense, other cases that have proceeded by way of special case have had a pleadings process alongside them.

HIS HONOUR: Yes.

MR HORAN: This case has not proceeded down that path.

HIS HONOUR: There would not be a great deal of work to do that, would there? You can specify with exact precision even as you stand there what it is that you say was the error in the application at paragraph (d).

MR HORAN: Yes.

HIS HONOUR: All right.

MR HORAN: We could reformulate the grounds in a way that – without perhaps doing a full statement of claim, rearticulate it to be grounds and the issues arising from those grounds.

HIS HONOUR: Just staying with 13(a), as you understand it at the moment, the dispute between you and the Commonwealth on that point is that you say that the delegate erred in the misapplication of paragraph (d) because of a particular way he went about it and the Commonwealth say he was not in error in approaching it in that fashion?

MR HORAN: Yes, that is correct, your Honour.

HIS HONOUR: All right. What about (b), is it the same position – paragraph (b) under paragraph 13?

MR HORAN: Yes. This ground, broadly speaking, relates to the use of paragraph (d) to apply a form of quota on the places available - - -

HIS HONOUR: Policy.

MR HORAN: - - - and paragraph (b) identifies the alleged erroneous construction.

HIS HONOUR: So he erred by referring to the number of places available under the SHP? Is that it?

MR HORAN: Yes, and by looking at capacity in relation to capacity to resettle every applicant, or all applicants, as opposed to capacity to resettle - - -

HIS HONOUR: This one.

MR HORAN: - - - this one or persons such as this one. Now, we can, in light of the way the matter has proceeded perhaps tease out the issues arising from each of the grounds and prepare a re-pleaded set of alleged errors. That was partly what the plaintiff at one stage during the drafting process was attempting to do by formulating questions which did not refer directly to the grounds but which were derived from the grounds. I appreciate that that has its own potential pitfalls because it may not catch everything in the grounds. In one sense the approach that has been adopted is close to, but not the same as, a referral of the proceedings to be argued before a Full Court because it is on agreed facts.

HIS HONOUR: All right. It would be if the facts were agreed but at the moment it is not apparent that they are. Take, for example, paragraph 13(e):

failing to assess whether or not there were compelling reasons –

Do we know what the reasons are which are alleged to be compelling and which it is said that the delegate failed to take into account or have sufficient regard to?

MR HORAN: Yes, well, what is known and agreed are the reasons that were given by the delegate and the submissions that were before him which were directed to that criterion.

HIS HONOUR: So 13(e) could be re-expressed as “the delegate was required to have regard to the following compelling reasons and failed to do so”, is it?

MR HORAN: Yes.

HIS HONOUR: I do not want to be too picky about this, but it is going to go straight to a Full Court who will have to consider it in advance and unless they know with precision what the issues are that is going to be very difficult.

MR HORAN: Yes, agreed, your Honour. We can attempt to re-plead paragraphs 13 to - - -

HIS HONOUR: I do not think you have to, if I may say so. What needs to be done – what perhaps would be better done is when you state the questions of law at paragraph 34 of the draft special case, there set out each of these questions, as it were, reformulated from paragraph 13 - - -

MR HORAN: I see – did the delegate fail to do X, yes.

HIS HONOUR: Yes. How long?

MR HORAN: To do that exercise? Well, perhaps – I mean that could be done I would think – I am not sure how long it would take to get agreement but to come up with a form of questions, it could be done within a day.

HIS HONOUR: I should have thought so. Dr Donaghue is very reasonable – gets agreement fairly fast, I should hope. Perhaps I could ask him. Thank you, Mr Horan. Dr Donaghue, am I being unduly concerned about the lack of precision?

MR DONAGHUE: I do not think so, your Honour, no. We had been satisfied with the way that it was done on the basis that we think we have an understanding of the way that our friend is putting the case, so we were

content for it to be done in this way. But I am equally content for it to be done in the way that your Honour has discussed with my friend.

HIS HONOUR: Then, can I make it hard – do you think it is conceivable that we could get an agreed set of questions of that kind to replace paragraph 34 of the settled case, say, by close of play tomorrow?

MR DONAGHUE: I would think so, your Honour, yes.

HIS HONOUR: All right, thank you very much. Thank you, Mr Horan, for the draft proposed minutes. I see that it is premised on a supposition that you would be coming on for a December hearing.

MR HORAN: The dates were indicative and were intended to leave open that possibility, but without necessarily requiring it.

HIS HONOUR: It may be that we could get you on in November but not December because of the way things have gone. If that were to be so we would need to tighten up these directions a little bit to get to that point.

MR HORAN: Yes.

HIS HONOUR: Just going through from top to bottom, paragraph 2 would now go out to – you can still have 28 August for the draft special case – leave that for a moment. The hearing date would be in the November sittings, in paragraph 3. The 12 copies of the special case book could be brought back a little, could it not, or did you need that much time?

MR HORAN: I think it could be brought back. It is an administrative step, really.

HIS HONOUR: You would have all the papers together already, more or less, would you not?

MR HORAN: Yes, more or less.

HIS HONOUR: Why do we not bring that back to 1 September? That still gives us several days. Now, going to paragraph 6, your written submissions – you could do that, could you not, by the end of September?

MR HORAN: Yes, perhaps 29 September.

HIS HONOUR: Thank you.

MR HORAN: Then – I am thinking on my feet, but the defendant could be 13 October subject to my learned friend’s comments.

HIS HONOUR: Yes.

MR HORAN: Then a reply by the 20th.

HIS HONOUR: 20 October, all right. Dr Donaghue, could you live with those dates?

MR DONAGHUE: Your Honour, I am just conscious of the fact that 13 October is the Tuesday following the week in which the M68 matter has just been set down. So that is going to cause me some problems because I will be in Canberra for most of that week. If we could push it till the end of that week, maybe the 16th, the Friday, that would be of great assistance.

HIS HONOUR: Yes, and the plaintiff, you can bring yours – you can have five days. That will make you 21 October for the reply.

MR HORAN: Yes.

HIS HONOUR: You will have to work hard, obviously, but you know the case now so there should not be too much difficulty.

MR HORAN: No. Was your Honour proposing that the plaintiff’s date would remain on the Tuesday of that week or would also move to the Friday? I think we can meet the Tuesday, but at the moment it is 29 September. If we make it 2 October – that would be the Friday of that week.

HIS HONOUR: I think I will leave it at the 29th. You are cutting the Commonwealth pretty short already. They need a bit of time one way and another.

MR HORAN: Yes, if your Honour pleases.

HIS HONOUR: All right. I will make directions in those terms. I will not do it just yet. What I would like to do is make sure that we have the draft special case in a form which I regard as satisfactory. If you can, gentlemen, submit it in draft to the Registrar by close of play tomorrow, and all is well, I can then make directions in this form without the need for you, obviously, to attend on, say, Thursday morning.

MR HORAN: Yes.

HIS HONOUR: I will do that provided that the draft case is up to what I think is probably required by my brothers and sisters when the matter stands to be prepared.

MR HORAN: Yes. The main issue we are giving attention is the questions in paragraph 34 - - -

HIS HONOUR: That is right. What I want you to do – there is to be no doubt about this – is to take paragraph 34 of the draft special case as it stands and to re-draft it with precision by reference to the particulars given under the grounds in paragraph 13 of the application so that, for example, it will be as precise as follows: first paragraph will pick up 13(a) and say something to the effect that “Did the delegate err in the application of paragraph (d) of rule 202.222 by doing X rather than Y” or whatever the case may be.

MR HORAN: Yes.

HIS HONOUR: So we know the exact ambit of the dispute. You say he should have done X and failed to do so. The Commonwealth said he did Y and that was adequate, or whatever it might be.

MR HORAN: Yes, your Honour, we can do that.

HIS HONOUR: Does that make it clear?

MR HORAN: Thank you.

HIS HONOUR: Thank you. One of these directions is that the plaintiff’s name should be removed.

MR HORAN: Yes, I was going to - - -

HIS HONOUR: Why is that?

MR HORAN: It is not required by section 91X of the Migration Act.

HIS HONOUR: No.

MR HORAN: But it is sought on instructions on the basis that the plaintiff’s – it concerns more the plaintiff’s immediate family members, who are the visa applicants who remain overseas. It is by analogy to the Convention that one does not name protection visa applicants in this Court or other courts. It is something which has not been done to date, but I have discussed it with my learned friends and there is no opposition to that course being taken.

There seems to have been a mixed practice in cases of this nature involving split family applications. There are cases in which there have not been pseudonyms used and one example is Tahiri. I think Shahi may have been another split family case. So there is no uniform practice. I am not sure whether orders were sought in those cases.

HIS HONOUR: Is there evidence that the family members are at risk or might be if the word were to get out?

MR HORAN: Well, only – not specific to the risk of naming them in these proceedings but, of course, their application is based upon a claim and an accepted finding by the delegate that they face substantial discrimination in their home country, Afghanistan. So there is material before the delegate which goes to the question of their vulnerable position in the place where they now are. The applicants are no longer in Afghanistan. They are in Iran. But even in Iran - - -

HIS HONOUR: Out of the fire, into the - - -

MR HORAN: Yes. They have some vulnerability. So it is not something that we have sought to date but my instructions are that the plaintiff would prefer not to be referred to by name. We have drafted the facts in the special case so as not to refer to the names of the visa applicants but if his name is identified in the proceedings then there is a chance that the applicants will be indirectly identifiable.

HIS HONOUR: Thank you. Dr Donaghue?

MR DONAGHUE: My instructions are that we do not either consent or oppose the application. There are cases where 91X of the Migration Act has not applied but, by analogy, this Court has taken the same approach. Indeed, I think M68 is an example of that, although the person concerned is a refugee claimant. She is not a person who is covered by the Migration Act because she has not applied for a protection visa but, by parity of the approach taken in protection visa cases, the name of the – or the proceeding number has been used.

HIS HONOUR: I will make that order as I say subject to seeing the draft special case. There is nothing further at this stage, is there?

MR HORAN: No, your Honour.

HIS HONOUR: Thank you. Adjourn.

AT 9.53 AM THE MATTER WAS ADJOURNED