Applicant P62-2001 v MIMA

[2002] HCATrans 419

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P62 of 2001

B e t w e e n -

APPLICANT P62/2001

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 2.34 PM

Copyright in the High Court of Australia

MR M.R.B. HEMERY:   May it please the Court, I appear for the
applicant.  (instructed by the applicant)

MR M.T. RITTER:   May it please the Court, I appear for the respondent. (instructed by the Australian Government Solicitor)

McHUGH J:   Yes, Mr Hemery.

MR HEMERY:   Your Honours will have seen the applicant’s supplementary summary of argument, which leave is sought to rely upon today.

McHUGH J:   Yes, we have.

MR HEMERY:   Your Honours, in my presentation I would like to discuss with you briefly three heads of error that the applicant submits arise from the decision of the Tribunal.

McHUGH J:   Perhaps before you do, Mr Ritter, have you seen these new submissions?  I take it you have.

MR RITTER:   I have, yes, your Honour.

McHUGH J:   And you have no problems with them?

MR RITTER:   I have no problems with my learned friend relying on them, no.

HAYNE J:   A separate question.

MR HEMERY:   Some confidence expressed there.  There are three points which the applicant seeks to rely upon as a basis for a grant of special leave.  I would like to take your Honours first to the point relating to the definition of persecution, which is at paragraphs 29 through to 33.  The point here arises from a comment in the record of the Tribunal’s decision in its reasons, where the Tribunal stated that:

In weighing all the evidence before it the Tribunal is not satisfied that the applicant ever encountered difficulty in seeking to advance his education for any Convention reason.

The Tribunal then went on to state that:

Additionally, it finds, in any case, that the difficulties he faced in that regard amount only to discrimination and do not constitute persecution.

The point shortly stated is that it was incorrect for the Tribunal to draw a dichotomy between discrimination and persecution without attempting to clarify what kind of discrimination would constitute persecution.  The comment suggests that the Tribunal member’s view was that any form of discrimination could not constitute persecution and what the member should have done was to consider the authorities and turn his mind to the question of whether the discrimination was serious enough to constitute persecution.  He did not do that.  For that reason betrays a misconstruction of the relevant test.  That is the short point.

The second point I would like to draw your Honours’ attention to in the context of the Tribunal’s decision is discussed at paragraph 14 through to 17 of the written material and there it is said that the applicant’s case included a number of claims, which I will briefly refer to, and those were that he had since 1985 given practical support to two friends who were members of the Mujahadeen, a political organisation opposed to the Iranian Government, by advancing them financial support and accommodation from time to time.  One of the friends was arrested and detained in 1987 ‑ ‑ ‑

McHUGH J:   Well, the Tribunal was not satisfied that the friend was detained, was it?

MR HEMERY:   That is accepted, your Honour.

McHUGH J:   Yes.

MR HEMERY:   The point goes to the reliance by the Tribunal in support of its decision once it had formed those views about the lack of credibility of the claims – and this is in paragraph 15 of the supplementary submission – that in any case the applicant came to no harm himself.  The short point that we say that raises is that the fact that an applicant, whether or not they are credible or not, comes to no harm should not be a basis for bolstering a decision that there was no persecution, that the Tribunal should disregard whether or not the applicant came to harm in forming a decision about whether there is a real chance of persecution, put that out of their mind, because if the Tribunal was to generally approach these matters on the basis that the fact that someone came to no harm as a matter of general approach supported the view that there was no fear of persecution or reasonable fear of persecution ‑ ‑ ‑

McHUGH J:   Well, it has to be well founded though.  It has to be a well‑founded fear.  So one element is subjective and the other is objective, and the Tribunal’s finding really goes to the objective nature of “well founded”, does it not?

MR HEMERY:   Yes, your Honour.  The submission is though that in determining whether or not someone’s fear is well founded, it should not be relevant whether or not they have come to harm.  If they have not come to harm because, for whatever reason, they have managed to evade authorities or ‑ ‑ ‑

McHUGH J:   No, it is not a conclusive indicator of a well-founded fear of persecution, but in many cases it is an important factor, often decisive.

MR HEMERY:   The submission is that it should not be weighed either way.  It should be an assessment of all of the circumstances of the case without giving any additional weight to the fact that, for whatever reason, a particular person has not suffered harm.  That is the second point, your Honours.

McHUGH J:   You seek to raise a dichotomy between refugees and what you call economic refugees, but there is no dichotomy.  I mean, one may not be a refugee and one may not be an economic refugee.

MR HEMERY:   With respect, that is not the submission.  This is the third point going to credibility and in this case, like some others before the Court today, there has been findings about credibility, or the Tribunal has been inclined to a view about credibility and the question is, what thought process should the Tribunal come to take once it has those concerns about the lack of credibility of the story of a particular claimant, and there might be all sorts of reasons other than a well-founded fear of persecution for someone wanting to flee and claim refugee status – economic reasons.  If the claimant presents as someone who is well-off financially, economically in a good position in the society, then the submission is that those facts should, and must be, taken into account in determining whether or not ultimately the fear is well-founded.  It does not have to be economic factors.  It could be other factors such as that the person, for example, is involved in the community in some way in which he is regarded as a success, in sport, in the community and any other aspect of life, which should be taken into account.

Now, the analogy I would put forward to the Court is that if you have two applicants, both of whom tell an incredible story about fearing persecution, A and B, and the Tribunal is inclined to the view that that story is not to be believed, or the person is not to be believed, then it is an incorrect approach to jump straight to the conclusion that there is no

well‑founded fear of persecution, because the circumstance of the people might suggest that they have no good reason to leave and if you say that person A is a successful person within the community and has no good reason to leave, if those facts are not considered, there is a risk that the findings against that person on credibility are not well founded.  That is the general point and the concern about the general approach that appears to be taken in this case and some others where there seems to be no regard had to the situation that the person who leaves holds in the society once a story which appears incredible is presented to the Tribunal.

In this particular case there was some evidence that the particular claimant was a very successful person in a professional sense.  It should influence what, I suppose, colloquially, spin that the Tribunal puts onto the story that they present to the Tribunal, that there does not seem to be a good reason why this person would want to get on a boat and leave and put themselves into a situation where they are going somewhere where they will have a much harder life.  The point in this case is that the Tribunal did not engage in that thought process at all, did not try to test the reasons why this person would seek to leave, just jumped from the conclusion that it formed that they lack credibility to a conclusion that there was no well-founded fear of persecution.

McHUGH J:   These are factual matters, are they not?  It is a factual approach.

MR HEMERY:   In our submission, your Honour, it goes to the way in which the test has been applied and it goes not so much to the weighing of the evidence, but to a failure by the Tribunal to ask and to inquire into matters which should properly form part of the application of the test, and that constitutes an error of law rather than merely a weighing of facts one way or the other.  They are the three submissions that are put on behalf of the applicant to clarify the position that they wish to put to the Court.

McHUGH J:   Thank you, Mr Hemery.  Yes, the Court need not hear you, Mr Ritter. 

The Court is of the view that the decision below is not attended by sufficient doubt to warrant the grant of special leave to appeal.  Accordingly, the application is dismissed.

MR RITTER:   The respondent applies for costs, your Honour.

McHUGH J:   Yes.  Well, you cannot oppose that, Mr Hemery?

MR HEMERY:   No, your Honour.

McHUGH J:   No.  The application is dismissed with costs.

AT 2.45 PM THE MATTER WAS CONCLUDED