Applicant a69/2002 v MIMA a60/2002

[2002] HCATrans 630

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A60 of 2002

B e t w e e n -

APPLICANT A60/2002

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 2002, AT 2.59 PM

Copyright in the High Court of Australia

MS D.S. MORTIMER:   If it please the Court, I appear with my learned friend, MR D.I. STAR, for the applicant.  (instructed by Allens Arthur Robinson)

MS M.A. PERRY:   If it pleases the Court, I appear for the Minister.  (instructed by Sparke Helmore)

McHUGH J:   Yes, Ms Mortimer.

MS MORTIMER:   If the Court pleases, this is an application for special leave to appeal from a decision of the Full Federal Court in relation to a decision of the Refugee Review Tribunal.  Nothing unusual in that little recitation of the facts, your Honours, but we say an important question of principle and that is whether within our domestic decision-making system on the granting or refusing of protection visas a decision-maker is required to make a positive finding as to a person’s nationality or country of habitual residence or whether that is something that a decision-maker can leave unanswered.

Now, we approach that question by identifying two kinds of errors that we say the Full Court did not recognise.  What is common to both of them, in our submission, is the well‑established principle that an assessment of whether someone has a well‑founded fear of persecution and is unable to obtain protection from his or her country of nationality is an assessment that has to be carried out in respect of what will happen to them in the future, that is, they are outside their country of nationality and they are saying, “Don’t send me back, I need protection, protection that I cannot get from my country of nationality.”  So we say, if the Court pleases, that the Australian decision-makers under our statutory scheme are always bound to assess or speculate on what is going to happen to a person in the future and that is the context ‑ ‑ ‑

HAYNE J:   In the future generally or in the future if returned to the place of nationality?

MS MORTIMER:   Once they are removed from Australia because that is always the factual context.  The factual context is that a person has come here and claimed asylum and is saying, “I should not be sent back.”  So that the assessment of what we identify as two limbs of the test requires a looking into the future. 

Now, we accept that one of the things that is not raised in the Federal Court decision with which your Honours are concerned but has been aired in this Court’s decision in Khawar is whether there are two limbs, that is, is there a fear of persecution limb and a protection limb to the test that needs to be considered?  Our submission is that there is, certainly since the domestic decision-making regime was changed from, “Is a person a refugee?” to “Is a person someone to whom Australia owes protection obligations?”  We say the injection of the notion of effective protection and the fact that you may fear persecution in country A but you may not be exposed to a risk of being returned there is something that ought to affect the way that decision-makers approach these issues.

Now, the error that we say is apparent in the Full Court’s decision, if I can take your Honours to that in the application book, and in particular to page 59 and paragraph 22 of their Honours’ decision, the way that their Honours posed the issue is this:

The decision with which the Tribunal is concerned in this case, is the refusal to grant a protection visa on the basis of an application made by a person who claims to have a well-founded fear of persecution for a Convention reason if he is returned to the country of his nationality, Afghanistan.  That is the matter which comes before the Tribunal –

With respect to the Full Court, that is not the matter that comes before the Tribunal.  That is, his claim, this applicant’s claim and any applicant’s claim, is not a claim about whether they are or are not an Afghan national.  His claim was that he was Hazara and that he followed the Shi’a religion and that, on the basis of those two attributes, he feared persecution.  In this case he identified the Taliban as his persecutors. 

Now, that was his claim and it is to that that the decision-maker first has to look.  The secondary question, and we say separate question, is if his fear is well founded, can he access protection or is Australia required to afford him surrogate protection.  That is where the identification of nationality or country of habitual residence, a right to residence in another country, that is where that particular factual finding exercise enters, in our submission.  We say that is why the Full Court is wrong to put to one side Australia’s obligations under Article 33 of the Convention not to refoule the person.

If I can ask your Honours to continue to look at that paragraph from the Full Court decision, the Full Court goes on to say this, that there was no question in this case about the refoulement because of a fear of:

persecution in country A is based on a fear of refoulement by country B to country A.

Now, that is the Thiyagarajah kind of situation, your Honours.  The problem with that analysis is that if the Tribunal had approached its task properly, that question may well have been a live one because there was no doubt at the time this Tribunal was making its decision persons who were of Hazara ethnicity and who were of Shi’a religion were being found – not all of them, of course – to fear persecution in Afghanistan.  So that if the question then was, is that fear well founded on the facts, the answer would be yes.  But the next question is, to whom can this applicant look for protection? 

Now, that depended on a finding of fact about his nationality or a finding of fact about a right to residence in another country.  This Tribunal did not make such a finding.  All it did was advert to some independent country information to the effect that there were people with that ethnicity and that religion living in Pakistan, some of whom were nationals, some of whom were not.  It could not answer, with respect, the question about whether this applicant could seek protection and relieve Australia of its obligations without asking itself, “Well, who is going to protect him?  If he is sent back to Pakistan, is he going to be refouled to Afghanistan?  Does he have a right of residence in Pakistan?  Is he actually a national of Pakistan?”  Those inquiries were not carried out by the Tribunal and we say that that means that there was an incomplete process undertaken in relation to an assessment of his claims or to satisfy that aspect of a protection visa.

The situation in terms of the authorities, if the Court pleases, is this:  there are many single justice decisions in the Federal Court which are against us.  Most of those are in situations where the applicant is unrepresented.  This case, the one that is currently subject to the application, has been treated by a subsequent Full Court as the leading authority on this issue, that it has been applied, but most of the decisions of the Full Court ‑ although we have to concede they are all against us – are not ones where we say the matter was fleshed out and certainly where the difficulties of the Convention definition that this Court has examined in Khawar have been looked at.  That just has not happened, whether you ought to separate the test out.

HAYNE J:   Can I take you back – I am a furlong behind you, I fear, Ms Mortimer, but can I take you back to the point:  if you go to page 59, the head of the page you have the relevant article set out.  Do I understand your argument to either include or possibly even amount to this proposition:  step 1, does this person hold a well-founded fear of persecution on account, in this case, of religion?  This man professed such a fear.  His fear was of persecution by the Taliban or stated to be so.  Is that right?

MS MORTIMER:   That is so, your Honour.

HAYNE J:   Step 2 in your argument seems to be that it is then enough, if the Tribunal is unpersuaded that he is either a national of or was habitually resident in Afghanistan, that he is unwilling to avail himself of the protection of whatever may be the country of his nationality on account of his fear of persecution by the Taliban.  Is that the way the argument runs?

MS MORTIMER:   It depends what your Honour means by “enough”.  The argument is not that that will get him to a point where he satisfies the test.  The argument is simply that that fact-finding exercise has to be undertaken.  What this Court has said in Khawar is that the concept of protection that this part of Article 1A is looking at is a more narrow concept than I think the one that currently finds favour in the House of Lords in the Adan series of decisions and that is that it is a notion of diplomatic protection or consular protection, that is, can you go to the representatives of your country when you are outside it and ask for protection. 

One of the things, in my submission, that comes through in your Honours Justice McHugh’s and Justice Gummow’s decision in Khawar is the question that, well, of course, sometimes that is not possible because that will in itself generate the possibility of you being returned to that country.

McHUGH J:   But the difficulty with your case is the way the applicant conducted it.  His case was that he had lived his entire life in Afghanistan and the Tribunal rejected that.  Now, how can the Tribunal make a positive finding that he lived somewhere else?

HAYNE J:   Plus the fact that the fear he expressed was fear specific to Afghanistan, was it not, fear of the Taliban?

MS MORTIMER:   Of course, but the two bases, the two attributes that he claimed to possess for that fear were his ethnicity or race and his religion.  Now, the Tribunal accepted that and there was no other option on the evidence but that the Tribunal thought he had been living in Pakistan.  Now, whether or not the Tribunal accepted his entire story about how long he had been living in Afghanistan or if he had lived there at all, that was a distraction because his claim was based on his ethnicity and race and there was an obvious chance of persecution for him in Afghanistan if he happened to end up back there.

McHUGH J:   But you have to deal with what Justice Gummow and Justice Hayne said in Abebe. that it is for the applicant to advance whatever evidence or argument he or she wishes to advance in support of a contention that the person has a well-founded fear of persecution for a Convention reason and then it is up to the Tribunal to decide it.  Your client’s case was based on the fact that he lived in Afghanistan and he was fearful of being persecuted by the Taliban.  Now, that was his case, that was rejected. 

MS MORTIMER:   Your Honour, the fact of where he lived was evidence in support of his claim, but not necessary to it.  Now, he could still have been entirely disbelieved on that, entirely, and the Tribunal could have made exactly the same fact findings that it did but if it had gone on and said, “And now I have to address to which country you will be returned”, and let us suppose they do that and they say, “All right, I find that you have been living in Pakistan since you were two years old” ‑ ‑ ‑

McHUGH J:   How could the Tribunal make that finding on this particular case?  If it made such a finding, you would be up here saying there was no evidence to support it.

MS MORTIMER:   It is an inquisitorial tribunal.  It is required to ask the questions it needs to ask to reach the conclusions it is required to reach.  Now, it could not possibly be that the applicant could advance two inconsistent stories because if he did that he would be as quickly branded a liar as he was by this Tribunal.  So if your Honour will bear with me on the hypothetical for a moment, suppose the Tribunal had gone on and discharged its function the way we said it should and the finding was, “I cannot find you are a national of Pakistan.  I find you do not have any right to return there, that is, I cannot see in Pakistan’s domestic law that you have a right of residence there.” 

Now, that scenario means that if the applicant is sent back to Pakistan, he will be refouled to Afghanistan and that raises precisely the issue in Thiyagarajah.  So it does not necessarily mean that we are saying that this applicant needs to be wholly believed.  He could remain wholly disbelieved of his account, but he was believed as to his two attributes and it was obvious at the time of this decision that those two attributes could expose him to a risk of persecution in Afghanistan.  That is why it is necessary for the Tribunal to take those additional steps in its decision‑making process.

Your Honours, the affidavit material that we have put in in this case is put in only to establish one of the enormous ironies that the failure to complete that function throws up and that is that people who are rejected because they are not nationals of Afghanistan are now being invited to return there and paid to do so.  Now, that is an outcome of our domestic decision‑making process that we say illustrates there must be a failure in the approach that has been taken because it cannot be right that for the first time when the Minister comes to remove someone from Australia he must turn his mind to the question of whether Article 33 is going to be breached.  That is supposed to be part of the process that the delegates and the RRT undertake.  The fact that that is not happening, in our submission, is an indication of the problem.

Now, your Honours, the second way that we have approached this is to say that there ought to be an extension which the Full Court has rejected of this Court’s statement of principle in Guo and that is, if I can use the shorthand, the “what if I am wrong” test.  So we say the other aspect is that plainly on the facts in this case the Tribunal was not sufficiently persuaded about what this person’s nationality was to make a positive finding.  Firstly, it did not think it had to do so but, in any event, it could not bring itself to say, “I think you are a Pakistani national”.  That raises enough doubt, we say, to mean that it ought to have gone on and speculated, that is, because what it is doing is asking itself about what is going to happen to this person in the future.  If it cannot find enough to persuade it to make a positive finding of nationality, it is required to speculate.  The Minister says, “No, no, the principle that this Court has articulated in Guo only applies to the well‑founded fear of persecution”.  And we say, “Why is that?”  Nationality is as much a question of fact as is a well‑founded fear of persecution.  There is no reason in principle why it should not be given that extension and it is likely to promote better decision‑making if it is.

In terms of the other reasons that we say that this is an appropriate vehicle, this is a decision that is on nothing other than the applicant’s nationality.  It is a matter that is capable of affecting a lot of other decisions, and we have given some evidence about that in the application book.  We say that the current state of the Migration Act and the presence of section 474 should not be a deterrent either way.  If 474 is to stand, then this may be one of the last cases that can come up unprotected to this Court by section 474 and it is even more important that Australian decision‑makers be given some guidance about the breadth of the test and the importance of the notion of protection.

Your Honours, we have made some written submissions about the question of costs if your Honours are against us on the application for special leave.  We say that your Honours should not make an order as to costs that is futile and it plainly is in this case.  If the Court pleases.

McHUGH J:   Thank you, Ms Mortimer.  Yes, Ms Perry.

MS PERRY:   Thank you, your Honour.  Your Honours, in essence, the Minister’s contention is that neither questions 1 nor 2 of the application for special leave have any reasonable prospects of success and that leave should be refused on this ground.  We say that, first, the Full Court was clearly right in holding that the Tribunal had fully discharged its function by rejecting the applicant’s claim to have a well-founded fear of persecution if returned to Afghanistan.  There was no obligation on the Tribunal then to embark upon any further inquiry, the applicant’s claims having then been fully considered and assessed.  With respect to the second question ‑ ‑ ‑

HAYNE J:   That is, do you say that it was unnecessary to go on to ask whether he was unwilling to avail himself of the protection of the country of his nationality?

MS PERRY:   We say that is correct, your Honour, that is our submission.  It was unnecessary, the Tribunal having found that he had no well-founded fear of persecution in his own country for the Tribunal to go any further.  In other words, it had found that he had not satisfied the criteria for a refugee.  Now, in effect, we understand the applicant to contend that the Tribunal was in error in failing positively to determine the applicant’s nationality because he was entitled to the benefit of Article 33 while the Tribunal was conducting its review and that that requires a decision-maker to consider the destination for any expulsion or return in order to determine whether Australia owes the person protection obligations.

Now, as has already been pointed out in the course of argument, we say that the first difficulty with this proposition is that the applicant’s claim was put solely on the basis that he was a national of Afghanistan who had lived there for all of his life and he had a well-founded fear of persecution on the ground of race and religion if returned to Afghanistan.

McHUGH J:   A further problem is that Article 33 only applies to refugees, so ‑ ‑ ‑

MS PERRY:   Precisely, your Honour.

HAYNE J:   Can I take you back.  This man feared persecution by the Taliban as a Hazara Shi’a, is that right?

MS PERRY:   Yes, your Honour.

HAYNE J:   Put in those terms, that fear was undoubtedly a well-founded fear, was it not?

MS PERRY:   Yes, your Honour, if in fact he was from Afghanistan, as he claimed.

HAYNE J:   No.  As a Hazara Shi’a he would have a well-founded fear of persecution by the Taliban if, for whatever reason, he was exposed to the Taliban.

MS PERRY:   Yes, your Honour.

HAYNE J:   No question of nationality intrudes at that first limb of the article, does it?  First, it does not in the text and, second, it does not in the content.

MS PERRY:   Your Honour, we would take issue with my learned friend on that point.  We say that it is a critical element of that first part of the definition of a refugee that the applicant be outside his country of nationality owing to the fear in question.  So what this establishes is that there is a necessary and immediate link between the existence of the fear and the question of nationality or, in the case of a stateless person, the question of habitual residence.  The fear, in other words, must be in relation to the country of nationality or, as I have said, in the case of a stateless person, in relation to the country of habitual residence, so ‑ ‑ ‑

HAYNE J:   Part of the proposition that I put to you that you riposte with is emphasis has to be given to owing to is outside.

MS PERRY:   Precisely, your Honour.  That ties that first limb together and it is that which requires the link between the fear and the country of nationality to exist.  So that when one approaches that first limb of the definition, one does not ask in some open-ended way whether the applicant has a well-founded fear of persecution in some place.  It is the question of whether his fear relates to the country of nationality.

McHUGH J:   We need not hear you any further.

MS PERRY:   Thank you, your Honour.

McHUGH J:   Yes, Ms Mortimer.

MS MORTIMER:   Your Honour, only briefly on that point, we say that that is a textual construction that could be placed but it is not the one that separates out the notion of protection.  But that is a matter your Honours could consider.

McHUGH J:   Yes, special leave will be refused in this matter.  In our opinion the decision below is not attended with sufficient doubt to warrant a grant of special leave.

AT 3.25 PM THE MATTER WAS CONCLUDED